The opinion of the court was delivered by: John Facciola, Magistrate Judge
This case was referred to me by Judge Sullivan for all purposes including trial pursuant to LCvR 73.1(a). I herein resolve Defendant's Motion for Partial Summary Judgment. For the reasons set forth below, defendant's motion for partial summary judgment will be granted in part and denied in part.
There is no genuine issue as to the following facts:
1. On April 7, 1997, the Library of Congress
("LOC") posted a vacancy announcement for the
GS-15 position of Deputy Associate Director for
2. Fifteen (15) of the applicants for the Deputy
Associate Director for Automation position were
referred to the selecting panel for interviews.
One of the applicants for the position was
Mandy McGowan ("McGowan"), plaintiff, a GS-14
computer specialist with the LOC.
3. Another applicant for the Deputy Associate
Director for Automation position was Henry
Rossman ("Rossman"), who was then the Director
of Data Systems Administration of the Office of
Tax and Revenue for the District of Columbia.
4. Both McGowan and Rossman were among the fifteen
(15) candidates for the Deputy Associate Director
for Automation position and were subsequently
interviewed by Kent Ronhovde ("Ronhovde"), who, at
that time, was the Associate Director for Research
5. On August 14, 1997, while serving as CRS
Management Specialist, James Richardson
("Richardson") accused plaintiff of abusing the
LOC sick leave policy.
6. On September 4, 1997, McGowan filed an informal
complaint with the LOC Dispute Resolution
Center claiming that Richardson and Ronhovde
had discriminated against her based on her
7. Richardson and Ronhovde were two of three
members of a panel that interviewed applicants
for the position of Deputy Associate Director
for Automation for which plaintiff had applied.
8. Ronhovde selected Rossman, a white male, to be
Deputy Associate Director for Automation.
9. On March 19, 1998, plaintiff filed a formal EEO
complaint alleging that Richardson and Ronhovde
retaliated against her for engaging in protected
activity when they did not select her for the
position of Deputy Associate Director for
10. On April 8, 1998, the LOC posted another vacancy
announcement for the GS-14 and GS-15 positions of
Project Management Coordinator, and plaintiff
applied for one of the positions.
11. Richardson, Roger White ("White"), and Bessie
Alkisswani ("Alkisswani") evaluated plaintiff.
Richardson rated plaintiff a fourteen (14) out of
a possible twenty (20); White rated plaintiff a
six (6); and Alkisswani rated plaintiff a twelve
12. Plaintiff's total score of thirty-two (32) was
below the cut-off point of 36, which was the
threshold for determining which applicants
merited an interview.
Legal Standard on Motion for Summary Judgment
Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). The burden of establishing that there is no genuine issue of material fact is on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Nat'l Cable Television Ass'n, Inc. v. Fed. Communications Comm'n, 479 F.2d 183, 186 (D.C. Cir. 1973). To prevail on its motion for summary judgment, defendant must establish that on the basis of the "pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits," no reasonable trier of fact could render a verdict in plaintiff's favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). The substantive law then determines which facts are material, and only those factual disputes that effect the outcome of the case will preclude summary judgment. Id.
In employment discrimination cases, summary judgment must be approached with special Page 4 caution because discriminatory intent and disparate treatment are difficult to prove. McCain v. CCA of Tennessee, Inc., 254 F. Supp.2d 115, 119 (D.D.C. 2003); Ross v. Runyon, 859 F. Supp. 15, 21-22 (D.D.C. 1994). Thus, the Court must view all of the evidence in a light most favorable to the non-moving party. If a party fails to make a sufficient showing of an essential element of its case, and on which that party bears the burden of proof at trial, then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. at 322. When the evidence is insufficient for a jury to reasonably find in favor of the non-moving party, there is no need for a trial. Anderson v. Liberty Lobby, 477 U.S. at 250.
Before determining whether defendant has met these standards, it is helpful to parse plaintiff's case and defendant's motion. There are two positions at issue. As to the first, plaintiff complains that she was not selected for the position of Deputy Associate Director of Automation because of her national origin and sex. On this claim, plaintiff's theory is that she was more qualified than the white male who got the job. Plaintiff also points to complaints of national origin discrimination she made against Richardson and Ronhovde before she was interviewed for this job and asserts that Richardson, who was on the interviewing panel, and Ronhovde, who ultimately chose the white male instead of her, did so to retaliate against her for those complaints.
As to the second job position at issue, plaintiff complains that Richardson served on a second panel after plaintiff filed a complaint about her non-selection for the position of Deputy Associate Director for Automation. In that complaint, plaintiff had asserted that she did not get the job because Richardson and Ronhovde retaliated against her for filing complaints against them before her interview for the first job. Despite this history, Richardson was one of three Page 5 people who reviewed applications for a second position for which plaintiff applied, Project Management Coordinator. That panel scored plaintiff's application at below the cutoff point that separated persons to be rejected and persons to be interviewed. Thus, plaintiff's second complaint is that the panel's score was motivated by retaliation against her for complaining about Richardson's being part of the panel that led to Ronhovde's not selecting her for the first job.
For reasons I will explain below, I believe that plaintiff has made out a prima facie case of discrimination and retaliation as to the first job. I also find that, while defendant has come forward with justifiable reasons for its selection of someone else, plaintiff has advanced sufficient evidence that a jury may find those reasons to be a pretext.
As to the second job, I reach the contrary conclusion. I cannot find any evidence that the scores given to plaintiff were in any way the product of national origin discrimination.*fn1 Furthermore, while Richardson served on the second panel, he scored plaintiff's application higher than the other two members of the panel. While the scores of one of the members of that panel were appreciably lower than the scores of Richardson and the other panel member, plaintiff points to no evidence whatsoever that the panel member who rated plaintiff so low was motivated by an improper animus or that Richardson induced him to rate plaintiff so poorly.
Non-Selection for Deputy Associate Director for Automation
Defendant erroneously argues that in order for plaintiff to survive summary judgment she Page 6 must establish her prima facie case of discrimination by showing that (1) she is a member of a protected class, (2) she was similarly situated to an employee who was not a member of the protected class, and (3) she and the similarly situated person received disparate treatment. Memorandum in Support of Defendant's Motion for Summary Judgment ("D. Mot.") at 5, 7. That is, quite simply, a misstatement of the law in a Title VII non-selection case. A non-selection case is governed by "the precise terms of the precedent set forth in McDonnell Douglas: Was the plaintiff rejected for the position and a person outside of his protected class selected?" Cones v. Shalala, 199 F.3d 512, 516-17 (D.C. Cir. 2000). Defendant attempts to meld the McDonnell Douglas test with that of Bundy v. Jackson, which is designed expressly for denials of pay or grade increases. See Bundy v. Jackson, 641 F.2d 934, 951(D.C. Cir. 1981). However, as the Court of Appeals made crystalline clear in Cones, requiring a plaintiff in a promotion case to meet the Bundy standard of showing that she was disadvantaged compared to a similarly situated person is error. Cones, 199 F.3d at 517. Instead, the only legitimate inquiry is whether plaintiff was rejected for the position and a person outside the protected class was selected. Id. Hence, plaintiff establishes a prima facie case of discrimination by demonstrating that (1) she is a member of a protected class; (2) she applied and was qualified for a job for which defendant was seeking applicants; (3) she was rejected despite her qualifications; and (4) defendant either hired an applicant outside the plaintiff's protected class or kept the position open while seeking other applicants. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Cones, 193 F.3d at 517. If plaintiff meets that burden, defendant must show a legitimate business reason for the actions claimed to be discriminatory. Id. If, in turn, defendant meets that burden, plaintiff must show that the proffered reasons are a mere pretext for discrimination. Id. At that point, if Page 7 the jury believes the reasons are pretextual, they may infer that the real reason for the employment decision was the discrimination that the defendant denies. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000); Aka v. Washington Hospital Center, 156 F.3d 1284, 1291-93 (D.C. Cir. 1998) (en banc).
Plaintiff easily meets the first prong of the McDonnell Douglas test. As a Korean and as a female, plaintiff is a member of two protected groups. Second, McGowan applied for the Deputy Associate Director for Automation position and was found ...