The opinion of the court was delivered by: Reggie Walton United States District Court Judge
This matter comes before the Court upon the defendant's motion for
summary judgment. The plaintiff, Charles T. Buggs, was hired by the
Federal Deposit Insurance Corporation ("FDIC") in 1980 and was
employed as a Management Analyst in the FDIC's Corporate Support
Branch. Complaint("Compl.") ¶ 4. The plaintiff asserts that he was
subjected to racial discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
.m., as a result of the FDIC's decisions not to promote him to
positions that he applied for and by rating him as merely "Fully
Successful" rather than as "Outstanding" on four of his performance
evaluations. Compl. ¶¶ 8-13. Upon consideration of the parties'
papers and for the reasons set forth below, the Court will grant in
part and deny in part the defendant's summary judgment motion.
In 1980, the plaintiff was hired by the FDIC at Grade 12
he remained as an employee of the FDIC until his retirement on
September 30, 2002, at Grade 13 level. Defendant's Local Rule 7.1(h)
Statement of Material Facts as to Which There is No Genuine2 Issue ("Def
's Facts") ¶ 1. In 1995, the plaintiff applied for but was not selected
for the Grade 14 level position as Chief of the Corporate Support
Branch. Id. ¶ 2. He subsequently filed a complaint of race
discrimination, and in January 1998, the parties settled the dispute.
Id. In September 1997, the FDIC posted a vacancy announcement for "two
Grade 14 Senior Management Analyst positions in the Management Review
Staff ("MRS") of FDIC's Division of Administration ("DOA")." Id. ¶ 3.
The plaintiff applied for this vacancy and while the FDIC determined
that he was one of eleven individuals qualified for the positions, it
did not select him. Id. ¶¶ 3-8. The selecting official, Paul Sherman,
who is white, selected a white male and an Asian-American male for the
positions. Compl. ¶ 9. In May 1998, the plaintiff filed a second
complaint alleging race discrimination because of his non-selection.
Def.'s Facts If 9. Then, in April 1998, the FDIC posted another position
vacancy announcement for the Grade 13/14 position of Chief, Facilities
Planning Group in the DOA. Id. ¶ 11. The plaintiff, along with
fifty-four other individuals, applied for this position. Id. ¶ 12.
Although the plaintiff was one of thirty-eight candidates deemed
qualified for this position and was one of the individuals interviewed
by the selecting official, he was not selected for this position. Id.'
14-15. The selecting official, Robert Brandon, who is white, selected a
white female, Marianne Jentilucci. Compl. ¶ 10. Michael Rubino, a white
male, approved this selection. Id. Upon learning about his non-selection
for this position, the plaintiff filed another complaint in October
1998, alleging racial discrimination. Def's Facts ¶ 15. In April 1999,
the FDIC posted another position vacancy announcement for the Grade 15
position of Chief, Buildings Operation Unit in the DOA. Id. ¶ 18. Three
individuals applied for this position, including the plaintiff, and all
three applicants were determined to be qualified for the position. Id. ¶
19. After considering the applicants' paper applications, the selecting
official, Mr. Rubino, chose another candidate, Mr. Brandon, who as
previously mentioned is white. Id. ¶ 20; Compl. If 12. In September
1999, the plaintiff filed yet another complaint wherein he again alleged
that he had not been selected for the position because of his race.
Def.'s Facts ¶ 21. In October 1999, the FDIC posted a position vacancy
announcement for the Grade 13/14 position of Chief, Space Planning and
Design Unit in the DOA. Id. ¶ 22. The plaintiff, along with five other
individuals, applied for this position. Id. ¶ 23. After determining that
all of the applicants were qualified and then interviewing them, the
selecting official, Ms. Jentilucci, did not choose the plaintiff for
this promotion, but instead selected another white female, Gwenn
D'Anton. Id. ¶ 24; Compl. ¶ 13. Upon learning of his non-selection, the
plaintiff filed an amendment to his previously filed complaint for
racial discrimination regarding his non-selection for the Buildings
Operations position. Def.'s Facts ¶ 25.
In addition to the plaintiff's complaints regarding his non- selection for the several positions that he applied for, he has also asserted a claim of discrimination based upon not receiving higher performance evaluations. In each of his four yearly evaluations from October 1997 to August 2001, the plaintiff received various numerical ratings, which resulted in a "Fully Successful" ranking. Id. ¶¶ 30-38. Two higher ratings exist which the plaintiff could have received as an FDIC employee: Outstanding and Superior. Id. ¶ 30.
II. Standard of Review: 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 . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In assessing a summary judgment motion, the Supreme Court has explained that a trial court must look to the substantive law of the claims at issue to determine whether a fact is "material," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a "genuine issue" of fact is "one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action." Sanders v. Veneman, 211 F. Supp. 2d 10, 14 (D.D.C. 2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson, 477 U.S. at 248).
While it is understood that when considering a motion for summary judgment a court must "draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true," Greene v. Amritsar Auto Servs. Co.., 206 F. Supp. 2d 4, 7 (D.D.C. 2002) (citing Anderson, 477 U.S. at 255), the non- moving party must establish more than "[t]he mere existence of a scintilla of evidence in support of the plaintiffs position." Anderson, 477 U.S. at 252. To prevail on a summary judgment motion, the moving party must demonstrate that the non-moving 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. The District of Columbia Circuit has stated that the non-moving party may not rely solely on mere conclusory allegations. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Thus, 'Tiff the evidence is merely colorable ... or is not significantly probative . . . summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).
(A) The Plaintiff's Race Discrimination Claims
Claims under Title VII which are pursued in the absence of direct evidence of discrimination are analyzed under the familiar burden-shifting test articulated in the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 650 (D.C. Cir. 2003) (citations omitted). To establish a prima facie case without direct evidence of discrimination, a plaintiff must demonstrate "that: '(1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination."' Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). If the plaintiff is able to establish his prima facie case by a preponderance of the evidence, the burden of production switches to the employer to "articulate a legitimate, nondiscriminatory reason for its actions." Id. at 144 (citing McDonnell Douglas, 411 U.S. at 802). If the employer is able to satisfy this burden of production, "it [effectively] rebuts the plaintiffs prima facie case, and the presumption of discrimination created by the prima facie case 'drops out of the picture.' Teneyck v. Omni Shoreham Hotel, 254 F. Supp. 2d 17, 20-21 n.3 (D.D.C. 2003) (Walton, J.) (quoting Dunaway v. Int'l Bhd. of Teamsters, 310 F.3d 758, 762 (D.C. Cir. 2002) (citation omitted)). "The plaintiff must then demonstrate that the employer's stated reason was pretextual and that the true reason was discriminatory." Stella, 284 F.3d at 144 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993); McDonnell Douglas, 411 U.S. at 804). In Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998) (en bane), the District of Columbia Circuit examined the Supreme Court's decision in St. Mary's Honor Center "in some detail, as [it represented at that time] the [Supreme] Court's most recent explication of the workings of the McDonnell-Douglas framework." Aka, 156 F.3d at 1289. The Aka Court noted that once the plaintiff establishes his prima facie case and
the employer has met its burden of producing a nondiscriminatory reasons for its actions, the focus of proceedings at trial (and at summary judgment) will be on whether the jury could infer discrimination from the combination of (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer) or any contrary evidence that may be available to the employer (such as evidence of a strong track record in equal opportunity employment). That is not to say that every plaintiff must always present evidence in each of these categories in order to avoid summary judgment.
Id. In assessing whether the plaintiff has met his "burden of showing that a reasonable jury could conclude that [he] had suffered discrimination and accordingly summary judgment is inappropriate[,]" a court "must consider all the evidence in its full context[.]" Id. at 1290. The Aka Court concluded that "[a]lthough we find that rebuttal evidence alone will not always suffice to permit an inference of discrimination, we do not endorse a reading of Hicks under which employment discrimination plaintiffs are presumptively required to submit evidence over and above such a rebuttal in order to avoid summary judgment." Id. at 1292. In reaching this conclusion, the Circuit Court rejected a position taken by the First Circuit in Hidalgo v. Overseas Condado Insurance Agencies, Inc., 120 F.3d 328 (1st Cir. 1997), stating:
the Hidalgo court believed that employment-discrimination plaintiffs must as a routine matter do more than discredit the employer's explanation in order to avoid summary judgment. That assumption we think would be inconsistent with Hicks, which makes clear that no additional proof of discrimination is required' as a matter of course once a plaintiff has shown that a jury could reject the employer's proffered explanation.
156 F.3d at 1292 (quoting Hicks, 509 U.S. at 511) (citations omitted).
In this case, the plaintiff has filed claims of racial discrimination based upon his non-selection for a number of positions. The defendant has conceded that "for the purposes of this motion, plaintiff can establish a prima facie case of discrimination with respect to race." Defendant's Memorandum in Support of Motion for Summary Judgment ("Def.'s Mem.") at 17. However, the defendant asserts that there was a nondiscriminatory reason for each of the decisions not to promote the plaintiff. The Court will address each non-selection decision separately.
(1) The Plaintiff's Application for the Senior Management Analyst Positions
While it appears from the plaintiff's complaint that he claims that his non-selection for the two Senior Management Analyst positions in September 1997 was the result of racial discrimination, see Compl. ¶ 9, the Court concurs with the defendant's assessment that the plaintiff has failed to respond to the defendant's motion for summary judgment on this claim. See Defendant's Reply to Plaintiff's Oppositions to Defendant's Motion for Summary Judgment ("Reply") at 11. The defendant asserts that the plaintiff was not selected for the two Senior Management Analyst positions because he was not as qualified as the individuals who were selected. Def.'s Mem. at 21- 25.
This Court's Local Rule 7(b) states:
Within 11 days of the date of service or at such other time as the court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion. If such a memorandum is not filed within the prescribed time, the court may treat the motion as conceded.
Rules of the United States District Court for the District of Columbia, LCvR 7(b) (emphasis added). It is understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded. FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997); Stephenson v. Cox, Civil Action No. 00-1921, 2002 WL 31106569, at *2 (D.D.C. Sept. 23, 2002). The District of Columbia Circuit has stated that "the discretion to enforce . . . [R]ule [7(b)] lies wholly with the district court[,]" Bender, 127 F.3d at 67-68 (citing Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997)), and noted that it "ha[s] yet to find that a district court's enforcement of this rule constituted an abuse of discretion." Id. (citations omitted). Accordingly, because the plaintiff had the opportunity to respond to all of the challenges to the ...