UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
October 30, 2006
SYED K. RAFI, PLAINTIFF,
TOMMY G. THOMPSON, SECRETARY, U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: James Robertson United States District Judge
The narrow question the parties have briefed on defendant's renewed motion for summary judgment is whether the volunteer positions that plaintiff Dr. Syed Rafi sought at the National Human Genome Research Institute ("NHGRI") and National Institutes of Health ("NIH") from 1997 to 1998 qualify as federal "employment" covered by Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act ("ADEA") of 1967. As framed by my Memorandum Order of September 30, 2005, this question turns on the "nature and extent of the compensation that volunteer researchers receive." Mem. Order at 18. Having found that one benefit of a volunteer position alleged by plaintiff - a clear pathway to employment - might constitute sufficient compensation to bring NIH volunteers under Title VII, I permitted plaintiff to take discovery on the connection between volunteering at NIH and subsequent paid employment at NIH and elsewhere.
Although defendant now asserts that no such connection exists, plaintiff in his opposition points to numerous examples of NIH volunteers who subsequently moved on to full-time positions.*fn1 Moreover, plaintiff now raises a second tangible benefit of a volunteer position: an increased opportunity to participate in NIH's Interinstitute Medical Genetics program, which would have offered Dr. Rafi the medical genetics training necessary to fulfill the requirements of the American Board of Medical Genetics ("ABMG") in his fields of expertise, medical genetics and clinical cytogenetics. Because NIH was one of the few institutions that offered an accredited training program recognized by the ABMG, that opportunity might have provided the most practical approach to satisfying those requirements.*fn2 See Haavistola v. Cmty Fire Co. of Rising Sun, 6 F.3d 211, 221 (4th Cir. 1993). For these two reasons, plaintiff has made a plausible showing that the volunteer positions for which he applied would qualify as "employment" under Title VII and the ADEA.*fn3
In the course of responding to that question, however, the briefs have illuminated another one. Under the familiar framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), a plaintiff asserting employment discrimination must first establish a prima facie case by a preponderance of the evidence. If the plaintiff establishes a prima facie case, the employer must then articulate a legitimate, nondiscriminatory reason for its actions. The plaintiff must then demonstrate that the employer's stated reason was pretextual and that the true reason was discriminatory. In order to establish his prima facie case of disparate treatment in hiring, Dr. Rafi must show, among other things, that he was qualified for the job. See, e.g., Morgan v. Federal Home Loan Mortgage, 328 F.3d 647, 659 (D.C. Cir. 2003). It appears from the briefs, however, that special volunteer positions at NIH may exist primarily as an administrative means for providing access to NIH facilities for graduate students or individuals, otherwise employed by other institutions, who bring their own funding. Because Dr. Rafi was neither a student nor someone with an independent source of funding, it is unclear whether he was eligible for a special volunteer position.*fn4 This question applies either to the qualification part of the prima facie case requirement, or to the legitimate nondiscriminatory piece of the McDonnell Douglas burden shifting analysis, or both. If Dr. Rafi was never eligible for a special volunteer position, he cannot establish his prima facie case. Moreover, even if special volunteers were not required to be students or to have their own funding, that Dr. Rafi was neither of those things would appear to be a legitimate, nondiscriminatory reason for not offering him a position. Either way, this question is dispositive. Rather than call on defendants to file yet another motion for summary judgment, it seems appropriate to call on the plaintiff to respond on this point. Such a response should be filed on or before December 15, 2006.