GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Howard P. Stewart ("the plaintiff" or "Mr. Stewart") brings this
employment discrimination case against the United States Department of
Justice ("the defendant" or "DOJ"). Mr. Stewart alleges that the DOJ
violated Title VII of the Civil Rights Act of 1964 ("Title VII"), as
amended, 42 U.S.C. § 2000e et seq., by discriminating against him on
the basis of his race. Specifically, the plaintiff claims that the
defendant discriminated against him when it passed him over on two
occasions for the position of Chief of the Environmental Crimes Section
("ECS") of the DOJ's Environmental and Natural Resources Division
("ENRD") giving the promotion to two white male employees. The defendant
now moves for summary judgment. For the reasons that follow, the court
grants the defendant's motion on both counts.
An African-American man, Mr. Stewart worked for more than 15 years at
the DOJ as an attorney in various departments, including the Criminal
Division's Fraud Section, the U.S. Attorney's Office of Pennsylvania, and
the ECS. Compl. at 3-4. After performing well as a prosecutor during his
service at the DOJ, he was promoted to the Senior Executive Service
("SES"). Id. Ronald A. Sarachan, then ECS Chief, recommended him for the
position to Lois J. Schiffer, then Assistant Attorney General in charge of
the ENRD. Id.; Pl's Opp'n to Mot. for Summ.J. ("Pl.'s Opp'n") Ex. 4 at
1. In 1995, Mr. Stewart became the only SES-level employee in the ECS
other than the person holding the position as Section Chief. Compl. at
4. At the same time, the DOJ appointed Mr. Stewart to his current
position, Senior Litigation Counsel. Id.
The principal factual allegations are as follows. In 1997, the position
of ECS Chief became vacant and Mr. Stewart applied. Id. After evaluating
10 candidates, Ms. Schiffer selected Steven Solow, a white male, for the
position because "he had the temperament and expertise to provide the
leadership to the Section. . . ." Mot. for Summ.J. at 1, 8. In August
1998, Mr. Stewart filed a complaint with the Equal Employment Opportunity
Commission ("EEOC") alleging racial discrimination because he believed he
was the most qualified candidate for the position of Chief. Pl's Opp'n at
2, 12, 17. In 2000, the position of ECS Chief became vacant again, and
Mr. Stewart again applied.
Compl. at 5. Ms. Schiffer chose David Uhlmann after apparently receiving
strong recommendations in support of his candidacy. Mot. for Summ.J. at
25, 26 (citing Cruden Dep. at 10-11; Sobeck Dep. at 84-85). Ms. Schiffer
ultimately concluded that, "[c]ertainly Mr. Stewart had great strengths,
but I thought that Mr. Uhlmann had greater strengths." Id. at 25.
On both counts, Mr. Stewart contests that he suffered adverse
employment actions since the ECS Chief position would have entailed
"significantly elevated supervisory duties and responsibilities" as
compared to his current job. Pl's Opp'n at 18. Mr. Stewart contends that
the DOJ unlawfully discriminated against him because of his race by
favoring less qualified, lower-graded white candidates. Id. at 2. On
February 5, 2001, the plaintiff filed suit seeking $600,000 in
compensatory damages, a retroactive promotion, including back pay and
adjustment of benefits, and permanent injunctions against the defendant
to prevent any further acts of discrimination or retaliation. Compl. at
7-8. The defendant now moves for summary judgment on both of the
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." FED.R.CIV.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v.
Atwood, 43 F.3d 1538, 1540 (D.C.Cir. 1995). To determine which facts are
"material" a court must look to the substantive law on which each claim
rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). A "genuine issue" is one whose resolution
could establish an element of a claim or defense and, therefore, affect
the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548;
Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
In ruling on a motion for summary judgment, the court must draw all
justifiable inferences in the nonmoving party's favor and accept the
nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct.
2505. A nonmoving party, however, must establish more than "the mere
existence of a scintilla of evidence" in support of its position. Id. at
252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the
moving party must show that the nonmoving party "fail[ed] to make a
showing sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden of proof
at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the
absence of evidence proffered by the nonmoving party, a moving party may
succeed on summary judgment. Id.
In addition, the nonmoving party may not rely solely on allegations or
conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.
1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir. 1993). Rather, the
nonmoving party must present specific facts that would enable a
reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the
evidence "is merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505
(internal citations omitted).
Finally, the D.C. Circuit has directed that because it is difficult for
a plaintiff to establish proof of discrimination, the court should view
summary-judgment motions in
such cases with special caution. Aka v. Washington Hosp. Ctr.,
116 F.3d 876, 879-80 (D.C.Cir. 1997), rev'd on other grounds, 156 F.3d 1284
(D.C.Cir. 1998) (en banc); see also Johnson v. Digital Equip. Corp.,
836 F. Supp. 14, 18 (D.D.C. 1993).
B. The McDonnell Douglas Framework
To prevail on a claim of race discrimination under Title VII, a
plaintiff must follow a three-part burden-shifting analysis. McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The Supreme Court explained this
scheme as follows:
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima-facie case of
discrimination. Second, if the plaintiff succeeds in
proving the prima-facie case, the burden shifts to the
defendant `to articulate some legitimate,
nondiscriminatory reason for the employee's
rejection.' Third, should the defendant carry this
burden, the plaintiff must then have an opportunity to
prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for
discrimination. . . . The ultimate burden of
persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff
remains at all times with the plaintiff.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101
S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas, 411 U.S. at
802, 93 S.Ct. 1817 (citations omitted)).
Thus, the plaintiff must first establish a prima-facie case of
prohibited discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct.
1817; Aka, 156 F.3d at 1288; Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 140-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The
plaintiff need not, however, establish a prima-facie case in the
complaint. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152
L.Ed.2d 1 (2002). As a general matter, a prima-facie case of disparate
treatment discrimination based on race consists of the following
elements: (1) the plaintiff is a member of a protected class; (2) the
plaintiff suffered an adverse employment action; and (3) the unfavorable
action supports an inference of discrimination. McDonnell Douglas, 411
U.S. at 802, 93 S.Ct. 1817; Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.
The plaintiff has the burden of proving the prima-facie case by a
preponderance of the evidence. Burdine, 450 U.S. at 252-53, 101 S.Ct.
1089. "The burden of establishing a prima-facie case of disparate
treatment is not onerous." Id. at 253, 101 S.Ct. 1089. By proving a
prima-facie case, the plaintiff has established "a legally mandatory,
rebuttable presumption." Id. at 254 n. 7, 101 S.Ct. 1089. Accordingly, if
at trial, the court concludes that the trier of fact must believe the
plaintiffs evidence, and if the employer is silent in the face of the
presumption, the court must enter judgment for the plaintiff because no
issue of fact remains in the case. Id. at 254, 101 S.Ct. 1089. In
addition, once a plaintiff can demonstrate that she has met objective
employment qualifications, the plaintiff has established her prima-facie
case. Accord Medina v. Ramsey Steel Co., 238 F.3d 674, 681 (5th Cir.
2001) (stating that while courts should consider objective qualifications
at the first step of the McDonnell Douglas framework, courts should
consider subjective criteria only at the second and third steps of the
analysis to avoid collapsing the entire analysis into a single initial
step); Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132, 135 (7th Cir.
1985) (same); Burrus v. United Tel. Co., 683 F.2d 339, 342 (10th Cir.
1982) (same); Lynn v. Regents of the Univ. of California, 656 F.2d 1337,
1344 (9th Cir.
1981) (same); Walker v. Mortham, 158 F.3d 1177, 1192-93 (11th Cir. 1998)
(holding that while a plaintiff may need to address relative
qualifications between job applicants if the defendant presents them to
rebut the plaintiffs presumption of discrimination, the plaintiff need
not introduce evidence regarding relative qualifications to prove her
If the plaintiff succeeds in making a prima-facie case, the burden
shifts to the employer to articulate a non-discriminatory reason for its
action. The employer's burden, however, is merely one of production.
Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089. The employer "need not
persuade the court that it was actually motivated by the proffered
reasons. It is sufficient if the defendant's evidence raises a genuine
issue of fact as to whether it discriminated against the plaintiff." Id.
If the employer is successful, the burden shifts back to the plaintiff to
show that the defendant's proffered reasons are pretextual and that
unlawful discrimination was the real reason for the action. McDonnell
Douglas, 411 U.S. at 802-05, 93 S.Ct. 1817; St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 508, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
The defendant's explanation of its legitimate reasons must be "clear
and reasonably specific" so that the plaintiff is "afforded a full and
fair opportunity to demonstrate pretext." Burdine, 450 U.S. at 258, 101
S.Ct. 1089 (citation omitted). The defendant must articulate a clear and
reasonably specific factual basis for its subjective reason to be legally
sufficient, legitimate, and nondiscriminatory. Id. As the Eleventh
Circuit has explained:
[I]t might not be sufficient for a defendant employer
to say it did not hire the plaintiff applicant simply
because "I did not like his appearance" with no
further explanation. However, if the defendant
employer said, "I did not like his appearance because
his hair was uncombed and he had dandruff all over his
shoulders," or . . . "because he came to the interview
wearing short pants and a T-shirt," the defendant
would have articulated a "clear and reasonably
specific" basis for its subjective opinion — the
applicant's bad (in the employer's view) appearance.
That subjective reason would therefore be a legally
sufficient, legitimate, nondiscriminatory reason for
not hiring the plaintiff applicant.
Chapman v. AI Transport,