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McIntyre v. Peters

November 6, 2006


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff Geoffrey McIntyre, a sixty-four year-old African-American male, alleges that his non-selection for a promotion within the Federal Aviation Administration ("FAA") was due to age and race discrimination, as well as retaliation, in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 ("ADEA"), and 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 establish a prima facie case of discrimination based on retaliation, and has failed to rebut defendant's nondiscriminatory reasons for not selecting him. As explained herein, the Court grants defendant's motion in part and denies it in part.


Plaintiff, who has a doctoral degree in transportation and public administration, began his career at the United States Department of Transportation ("DOT") in 1978 at the GS-13 level in the Maritime Administration. (Pl.'s Opp. at 1; Pl. Ex. E [Pl. Dep.] at 22.) In 1988, he joined the FAA, a division of DOT, in a GS-15 level special assistant position. (Pl.'s Opp. at 1; Pl. Ex. E [Pl. Dep.] at 25-26.) Plaintiff subsequently held several positions at the FAA, moving in 1996 to a Program Analyst position at the FAA's Office of Assistant Administrator System Safety ("ASY"), where he was employed during the events at issue here. (Pl.'s Opp. at 1.) When ASY was dissolved by Congress in 2005, plaintiff moved to a position in the Flight Standards Policy and International Division where he is presently employed. (Pl.'s Facts ¶¶ 14, 16.)*fn1

On August 15, 2000, plaintiff filed an Equal Employment Opportunity ("EEO") complaint alleging discrimination on the basis of race, age, and national origin after he was rejected for a deputy assistant position within ASY. (Def. Ex. Z [Pl. Interrog. Resp.] No. 4.) According to plaintiff, during mediation for the 2000 EEO complaint he requested that a "Chief Scientific and Technical Advisor for Risk Management" position be created for him within ASY, but was told by Christopher Hart, the Assistant Administrator for System Safety, that ASY could not support such a position. (Pl.'s Facts ¶¶ 48, 49.) Mediation concluded on April 23, 2001, and ultimately the EEOC ruled in October 2003 that the agency had not discriminated. (Pl.'s Facts ¶ 47; Def. Ex. Z [Pl. Interrog. Resp.] No. 5.) In October 2002, Hart created a "special assistant for risk analysis" position within ASY, and gave it to Dave Balderston, a white male. (Pl. Decl. ¶ 11.) This new position was, according to plaintiff, "very similar" to the position he had requested during his EEOC mediation, and consisted of the same duties. (Id. ¶ 14.) Shortly thereafter on November 4, 2002, plaintiff met with Hart and "asked him for an explanation as to the difference between the new Balderston position and the position [plaintiff] had proposed in the mediation on [his] 2000 EEOC charge." (Id. ¶ 12.) According to plaintiff, Hart did not respond to plaintiff's request for an explanation. (Id.)

Also on November 4, 2002, ASY division manager Wes Timmons announced the creation of two "Team Lead" positions within plaintiff's division, ASY-300. (Def.'s Facts ¶ 1; Def. Ex. B [Timmons Nov. 4, 2002 e-mail].) The positions' duties and responsibilities included "provid[ing] technical direction and oversight to team," "coordinat[ing] . . . team efforts," and "assign[ing] tasks and responsibilities to individual team members." (Def. Ex. E [Job Analysis Tool].) The vacancy announcement listed the following "knowledge, skills, and abilities" ("KSAs") required for successful applicants:

* Skill in managing human and financial resources to accomplish research and support objectives and ability to plan, organize, direct, and monitor the work of others.

* Skill in written and oral communications, including presentations to a high level, diverse audience.

* Knowledge of information management systems and safety management principles.

(Id.) In announcing the new positions, Timmons wrote that they were intended to "provide opportunities" for employees "interested in developing management skills so as to qualify for more senior positions . . . ." (Def. Ex. B [Timmons Nov. 4, 2002 e-mail].) Plaintiff applied for the Team Lead position along with other FAA employees. The FAA personnel department compiled a list of the four "best qualified" applicants -- plaintiff; Steve Smith (white male, age fifty-six at selection); Robert Anoll (white male, age forty-four at selection); and Michael Alloco. (Def.'s Facts ¶ 2; Def.'s Mot. at 3; Pl.'s Facts ¶ 58.)

The four "best qualified" candidates were interviewed first by a panel of three FAA employees from outside the ASY-300 division -- Estrella Gonzales, Brian Poole, and Thomas Fulcher -- whose stated purpose was to assess the candidates' managerial or leadership potential. (Def.'s Facts ¶¶ 5, 6.) The panel devised a series of nine questions and asked the same questions of all the interviewees. (Id. ¶ 7.) Each panelist then scored the candidates based on their performance on each question using a numerical scoring system that they had developed. (Id. ¶ 8.) As recorded on Poole's scoring sheets for each question, Smith received a total of 31 points for all his interview answers, and Anoll, Alloco and plaintiff each received 23 total points.*fn2 (Def. Exs. M, N, O [Poole scoring sheets].) The notes of the other two panelists were not retained, but Timmons' notes about the panel's findings indicate that one of the other two panelists may have given Smith 29 total points, Anoll and Alloco 25, and plaintiff 23. (Def. Ex. Q [Timmons notes]; see also Def. Ex. C [Timmons Dep.] at 81.) All three panelists have criticized plaintiff's interview performance, stating, for example, that plaintiff did not give direct answers to their questions and had the demeanor of a "college professor," "lecturing" or "preach[ing]" rather than responding to interview questions. (See Def. Ex. I [Gonzales Decl.] ¶ 10; Def. Ex. G [Poole Decl.] at 4; Def. Ex. L [Fulcher Dep.] at 35:17-36:21.)

After scoring each candidate individually, the panel then compared their impressions of the four candidates and came to a "consensus" about the quality of each candidate's answers. (Pl.'s Facts ¶ 62.) According to Poole's ranking sheet, the four ASY-300 candidates were ranked with Smith as first, Anoll second, Alloco third, and plaintiff last. (Def. Ex. P [Poole ranking sheet].) As plaintiff points out, the other two panelists whose notes were not retained could have recorded a different ranking of the four panelists, though Poole and Fulcher stated that the panel developed a ranking together. (See Pl.'s Resp. to Def.'s Facts ¶ 12; Def. Ex. J [Poole Dep.] at 58; Def. Ex. H [Fulcher Decl.] at 2.) Poole testified that Anoll and plaintiff both had the same interview score, but the panel decided to rank Anoll above plaintiff because Anoll had a cold on the day of his interview, and the panel believed that he was more "capable" than his interview performance indicated. (Def. Ex. J [Poole Dep.] at 27-28, 54-56; Def. Ex. G [Poole Decl.] at 4; see also Pl. Ex. F [Timmons Dep.] at 134-35.)

At the end of their evaluation process, two of the panelists verbally reported their findings to Timmons, the selecting official for the positions, and Timmons recorded the panel's ranking of the candidates. (Pl.'s Facts ¶¶ 66, 68; see Def. Ex. Q. [Timmons notes].) Timmons understood from this debriefing that the panel felt that because Anoll had a cold on the day of his interview, he had "more potential" than his interview performance indicated, and that they "rated [him] higher" for that reason. (Id. ¶66;Pl. Ex. F [Timmons Dep.] at 134-35.) Timmons also conducted his own interviews of the four best-qualified candidates. (Def.'s Facts ¶ 13.) According to defendant, Timmons asked all the candidates the same two questions and also assessed their qualifications using the KSAs set forth in the vacancy announcement. (Id. ¶¶ 13-15.) Ultimately, he selected Smith and Anoll for the two positions, citing their past supervisory experience, job performance, and the ratings of the panel as the reasons for his selections. (Id. ¶ 16; Def. Ex. R [personnel approval form] at 2.) Timmons noted that Smith had five years of management experience and Anoll had over twelve years of "recent team lead/supervisory experience," but he "did not see any formal supervisory or management" experience on plaintiff's application. (Def. Ex. R [personnel approval form] at 2.) Timmons' selection of Smith and Anoll was then approved by Hart on April 21, 2003. (Pl.'s Facts ¶ 84; Def. Ex. R [personnel approval form] at 1.) Plaintiff was sixty-one at the time of his non-selection. (Pl.'s Decl. ¶ 15.)

The FAA's human resource policy manual requires that "[d]ocumentation of competitive placement actions . . . be retained for 2 years from the closing date of the vacancy announcement," or, if an EEO complaint is filed relating to the placement, until that matter is closed. (Pl.'s Facts ¶ 85.) Despite this requirement, defendant apparently failed to retain certain documentation relating to the selection process for the ASY-300 Team Lead positions. Neither Fulcher nor Gonzales retained any notes or scoring sheets from the panel's evaluation process. Gonzales does not remember leaving the final interview with any documents, while Fulcher shredded his interview questionnaires along with other documents in his office when he retired. (Id. ¶¶ 89, 90; Def. Ex. K [Gonzales Dep.] at 30:1-12; Pl. Ex. J [Fulcher Dep.] at 28:4-24.) In addition, Timmons only retained his notes from his interview with plaintiff; he did not retain notes regarding the selectees' interview responses. (Pl.'s Facts ¶ 88.) He testified that he does not know if he had a "really good ...

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