The opinion of the court was delivered by: JAMES ROBERTSON, District Judge
This memorandum sets forth the reasons why the government's
motion for summary judgment in this gender and age discrimination
suit must be granted.
The plaintiff, Mary J. Liggins, began working at the National
Archives and Records Administration (NARA) in 1986 as a utility
system repair operator. She was later promoted to elevator
mechanical inspector. On November 8, 2000, NARA posted a vacancy
announcement for the position of facility manager. Ms. Liggins
was then 56 years old. She had never held the position of
facility manager, but she had acted for the facility manager at
her workplace on many occasions. She applied for the open
position, but her name was not referred to the selecting
NARA's promotion system has several stages. Candidates who meet
basic eligibility criteria are first evaluated based on a
"crediting plan." Crediting plan criteria vary depending on the position. In this case, five "knowledge, skills, and
abilities" (KSA) elements were used in the crediting plan,
although only three of them were listed on the vacancy
announcement. The defendant has been unable to explain this
discrepancy, and the plaintiff suggests that she may have been
disadvantaged by NARA's use of two unannounced KSA's in the
evaluation process. She makes no showing, however, of how her
application might have been different had she known, and NARA has
established by undisputed evidence that all applicants (except
the man selected for the position) were evaluated using the same
five KSA's. Ten applicants scored 80 or better in the crediting
plan and were referred to the selecting official for further
consideration. The plaintiff's score was 75, the lowest of all
the applicants. Def. Ex. 3. She and another applicant, John
Standish, failed to make the cut. Another female who did score
above 80, Patricia Darby, was among the ten who were referred to
the selecting official. Id.
The person selected for the facility manager position was Larry
Watson, male, age 48. He did not participate in the crediting
plan selection process, because, pursuant to a published
regulation, see 5 C.F.R. § 335.103(c)(3)(v), his previous
experience working as a facility manager made him eligible for
"non-competitive referral" to the selecting official. Disparate treatment
In order to establish a prima facie case of discriminatory
failure to promote, Ms. Liggins had to show
that she belongs to a protected group, that she was
qualified for and applied for a promotion, that she
was considered for and denied the promotion, and that
other employees of similar qualifications who were
not members of the protected group were indeed
promoted at the time the plaintiff's request for
promotion was denied.
Valentino v. United States Postal Service, 674 F.2d 56, 63
(D.C. Cir. 1982) (citing Bundy v. Jackson, 641 F.2d 934, 951
(D.C. Cir. 1981)).
It is undisputed that Ms. Liggins is a member of two protected
classes, that she submitted a timely application, that she was
not selected as facility manager, and that the position went to a
male eight years her junior. The two weak points in her prima
facie case concern the "similar qualifications" element of proof
at most, she had some experience "acting for" a facility
manager,*fn1 Def. Ex. 2, but Mr. Watson had a full year of
experience as a facility manager for the United States Naval
Observatory and the fact that the man selected as facility
manager, at age 48, was also within the ADEA's protected class.
See Murray v. Gilmore, 406 F.3d 708, 715 (D.C. Cir. 2005) ("replacement within the same protected class cuts strongly
against any inference of discrimination"); Dunaway v. Int'l Bhd.
of Teamsters, 310 F.3d 758, 767 (D.C. Cir. 2002) (reasonable
jury could not find age discrimination based solely on evidence
that employee was replaced by someone seven years her junior).
Even if the record is deemed sufficient to make out a prima
facie case of gender discrimination, or age discrimination, or
both, however, Ms. Liggins has failed to rebut NARA's assertion
of a legitimate, nondiscriminatory reason for selecting Mr.
Watson as facility manager, namely, that he had a year's
experience working as a facility manager, while her application
reflected no such experience. See Stewart v. Ashcroft,
352 F.3d 422, 428-30 (D.C. Cir 2003) (no inference of discrimination
raised when plaintiff's qualifications are not superior to those
of the selectee). NARA had stated its preference for such
experience in the vacancy announcement, which indicated that "1
year of specialized experience at the GS-11 level is required. . . .
Examples of creditable specialized experience would be:
managing a maintenance program for an office or apartment
building complexes, hospitals, recreation facilities, military,
conduct surveillance activities over construction and maintenance
operations, or performing maintenance or construction work." Def.
Ex. 1; see Valentino, 674 F.2d at 64 (employer carried its
burden where announcement stated that applicants should have experience in operations and management and selectee had longer
and more varied work history than plaintiff).
Because Ms. Liggins has made no showing that NARA's prior
experience criterion was pretextual, her disparate treatment
claim fails as a matter of law.
Disparate impact on the basis of gender
Plaintiff's disparate impact claim is that NARA's practice of
making non-competitive referrals of reassignment-eligible
candidates who have prior experience in the advertised position
i.e., candidates like Mr. Watson who already work in the same
grade as that of the advertised position has a disparate impact
upon females, because NARA has never employed a female as a
facility manager. She provides no statistical evidence to support
her claim, see Watson v. Fort Worth Bank & Trust,
487 U.S. 977, 994 (1988) (to prove disparate impact case "plaintiff must
offer statistical evidence of a kind and degree sufficient to
show that the practice in question has caused the exclusion of
applicants for jobs or promotions because of their membership in
a protected group"). NARA's undisputed showing is 1) that the
position in question was open to employees who were facility
managers at other government agencies (Mr. Watson's experience as
a facility manager, indeed, was at the U.S. Naval Observatory),
and 2) in any event, that Mr. Watson was not selected solely for
his prior experience, which ensured only that his application would be referred to the selecting official, and
(3) that the hiring decision was also based on his application,
other relevant experience, and interview. Def. Reply to Pl.'s
Factual Statement at 9; Def. Exs. 6-7.
NARA was not required to offer a legitimate, nondiscriminatory
reason for Mr. Watson's selection, because the absence of
statistical evidence is fatal to her prima facie case. NARA's
showing illuminates the failure of Ms. Liggins' proof, however.
What Ms. Liggins had to show was that NARA's neutral practice of
automatic referral of reassignment-eligible applicants with
requisite experience disproportionately impacted female
applicants. See Palmer v. Shultz, 815 F.2d 84, 90 (D.C. Cir.
1987). The two undisputed facts upon which she relies that NARA
has never had a female facility manager, and ...