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TOLSON v. JAMES

April 28, 2004.

BARBARA E. TOLSON Plaintiff,
v.
BRUCE R. JAMES, Public Printer, Government Printing Office, Defendant



The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge

MEMORANDUM OPINION

Plaintiff, an African-American female, was denied a position as a Printing Specialist in the production department of the Government Printing Office ("GPO") in September 1999. She alleges that her non-promotion was motivated by unlawful considerations of race and gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. Defendant has moved for summary judgment arguing that plaintiff has failed to present sufficient evidence to establish that GPO's reasons for not selecting her were pretextual. For the reasons outlined below, the motion will be granted.

BACKGROUND

  In the summer of 1999, the GPO advertised a Printing Specialist position in its production department, a division of the Office of the Production Manager, as a result of the retirement of the previous Printing Specialist, Rosetta Hawkins. This Printing Specialist's primary function is to serve as a liaison between the production department and GPO's bindery, and thus, every incumbent in the position since 1971 has had prior supervisory-level experience in a book bindery. (See Defendant's Statement of Material Facts Not in Dispute [Def. St.] ¶¶ 2, 6.) Although this supervisory experience was not specifically identified as a prerequisite for the position, Donald Ladd, GPO's Production Manager and the senior official responsible for filling the vacancy, considered it a "primary factor" when assessing a candidate's qualifications.*fn1 (See Def. St. ¶ 20.) Michael Cantor, the official charged with recommending candidates for the position, also viewed bindery foreperson experience as an important applicant attribute. (See id. ¶¶ 14, 18.)

  Five people, including plaintiff, applied for the position. At that time, plaintiff was employed as a Printing Specialist for a GPO division — the Production Estimating and Planning System (PEPS) — where she was responsible for keeping the various GPO printing and binding projects on schedule. (See id. ¶ 8; Opp. at 7.) She had last worked in a bindery on a full time basis in 1971. (See Def. St. ¶ 10.) Mr. Canter reviewed her application and observed her in her PEPS position, noting that although her work was proficient, she did not have the level of bindery-specific expertise he believed necessary for him to recommend her for the position. (Id. ¶ 16.) Likewise, Mr. Ladd chose not to select her because she lacked supervisory bindery experience. (Id. ¶¶ 24.) Instead, Thomas Hawes, a white male with over forty-four years of experience in the binding trade, was selected for the position. (Id. ¶¶ 12, 23.) Mr. Cantor recommended Mr. Hawes for the position due to his extensive work experience in the binding craft, and Mr. Ladd selected him because his significant supervisory experience in the bindery gave him the knowledge and expertise needed to successfully perform the position's functions. (Id. ¶¶ 17, 21.)

  During the selection process, current GPO employees were assigned to the vacant Printing Specialist position on a temporary rotating basis until a permanent replacement was hired. (Id. ¶¶ 32.) The bindery's Assistant Superintendent (James Williams), responsible for selecting individuals for the rotation, chose three bindery supervisors, including Mr. Hawes, to fill the position. (Id. ¶¶ 34-35.) Plaintiff requested to be detailed into the rotation, but was not selected. (Id. ¶¶ 36-37.)

  Plaintiff contends that GPO's failure to select her for the Printing Specialist position and its refusal to give her the opportunity to detail into the position were improperly motivated by discriminatory animus based on her race and sex.

  ANALYSIS

 A. Summary judgment standard

  Defendant's motion for summary judgment should be granted if the pleadings and the record show that there is no genuine issue of material fact and that defendant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citing Fed.R.Civ.P. 56)). In considering a motion for summary judgment, the "evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Id. at 255; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). Plaintiff's opposition, however, must consist of more than mere unsupported allegations; it must be supported by affidavits or other competent evidence setting forth specific facts showing that a reasonable jury could find in her favor. See Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987.) Thus, although summary judgment should be approached with special caution in discrimination cases, a "plaintiff is not relieved of her obligation to support her allegations by affidavits or other competent evidence showing that there is a genuine issue for trial." Calhoun v. Johnson, No. 95-2397, 1998 WL 164780, at *3 (D.D.C. March 31, 1998), aff'd, No. 99-5126, 1999 WL 825425, at *1 (D.C. Cir. Sept. 27, 2000) (citation omitted). In addition, Local Civil Rule 7.1(h) requires that the opposition to a summary judgment motion "shall be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the part of the record relied on to support the statement."

  In contravention of these requirements, plaintiff's "Statement of Genuine Issues of Material Fact in Dispute" [Pl. St.] consists of nothing more than a page and a half of unsubstantiated and conclusory assertions and allegations.*fn2 Her statement provides no citation to the record, and she has produced no affidavit with facts to support her allegations. Thus, the self-serving assertions in plaintiff's statement do not constitute competent evidence setting forth specific facts showing that a reasonable jury could find in her favor. Plaintiff, moreover, has failed to contest the facts presented in defendant's statement. As such, the Court may treat as conceded defendant's statement of uncontested facts. See L.Cv.R. 7.1(h) ("the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion"); Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988) (the parties bear the burden to "identify the pertinent parts of the record, to isolate the facts that are deemed to be material, and to distinguish those facts which are disputed from those that are undisputed"); see also Jackson v. Finnegan, Henderson, Farabow, Garrett, & Dunner, 101 F.3d 145, 153 (D.C. Cir. 1996) (noting the burden is on counsel, not the court, to "winnow the wheat from the chaff'). These procedural defects would likely be fatal to plaintiffs claim. As demonstrated below, however, even considering the portions of the record that plaintiff cites in the body of her opposition and drawing all reasonable inferences in her favor, she has failed to demonstrate that summary judgment is not appropriate.

 B. The McDonnell Douglas framework

  Defendant seeks summary judgment, triggering the application of the McDonnell Douglas three-part "shifting burdens" test. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiff has the initial burden of proving a prima facie case of discrimination. Id. at 802. If she succeeds, the burden shifts to defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. The burden on the defendant is merely one of articulation, and thus, it "need not persuade the court that it was actually motivated by the proffered reasons." Tex. Dep `t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); Fischbach v. Dist. of Columbia Dep't of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996). Should defendant meet its burden, then "the McDonnell Douglas framework — with its presumptions and burdens — disappear[s], and the sole remaining issue [is] discrimination vel non" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000) (internal citations and quotation marks omitted). At that point, plaintiff has the burden of persuasion to show that defendant's proffered nondiscriminatory reason was not the true reason for the employment decision. Burdine, 450 U.S. at 256; see also Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir.), cert. denied, 124 S.Ct. 325 (2003) ("[a]though the McDonnell Douglas framework shifts intermediate evidentiary burdens between the parties, [t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff') (internal citations and quotation marks omitted).

  Thus, if plaintiff does not adduce evidence that "could allow a reasonable trier of fact to conclude that [defendant's] proffered reason was a pretext for discrimination, summary judgment must be entered against [plaintiff]." Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23, 27-28 (D.C. 0Cir. 1997). Plaintiff may establish pretext "directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256. "It is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible. He must show that the explanation given is a phony reason." Fischbach, 86 F.3d at 1183 (citation omitted). "Once the employer has articulated a non-discriminatory explanation for its action, . . the issue is not the correctness or desirability of [the] reasons offered . . . [but] whether the employer honestly believes in the reasons it offers." Id. (citation and internal quotation marks omitted). In other words, the final burden to prove intentional discrimination lies with the ...


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