The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiffs, seven current and former members of the police force at the Bureau of Engraving and Printing ("BEP"), bring individual actions under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 631 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2 et seq., against the Secretary of the Department of Treasury.*fn1 Plaintiffs' third amended complaints include claims of age discrimination in connection with promotions, unlawful retaliation for matters connected to this litigation, retaliatory hostile work environment, and disparate treatment based on their race and gender. Pending before the Court is defendant's motion for summary judgment, arguing that all claims should be dismissed because plaintiffs failed to exhaust their administrative remedies or because the claims fail on their merits. Also pending is plaintiffs' motion for sanctions based on defendant's alleged spoliation of evidence. Upon consideration of the motions, the responses and replies thereto, the applicable law, and the entire record, the Court determines that all of plaintiffs' claims are unexhausted, except for a subset of the age discrimination claims, and that plaintiffs have not shown that defendant acted recklessly or negligently in destroying or failing to preserve the missing evidence. Therefore, for the reasons stated herein, defendant's motion for summary judgment is GRANTED in part and DENIED in part, and plaintiff's motion for sanctions is DENIED.
I. Factual Background of BEP Promotions
Plaintiffs allege that the BEP committed illegal age discrimination with respect to promotions between 1997 and 2003. Prior to November 2002, police officers at BEP competed for promotion to the Lead Police Officer (Corporal) position.*fn2 After BEP advertised the availability of a position with an individual vacancy announcement, interested applicants submitted a resume or a Form OF-612, Optional Application for Federal Employment, along with copies of his or her most recent SF-50, Notification of Personnel Action, a copy of a current or most recent annual performance appraisal, and other administrative forms. Applicants were encouraged to submit a supplementary statement which demonstrated how their background and experience related to the evaluation criteria, also referred to as the Knowledge, Skills, and Abilities listed under the Method of Evaluation section in the vacancy announcement. These supplemental statements are thus known as "KSAs."
Once the period identified in the vacancy announcement for submitting applications closed, a personnel specialist would review the applications to determine minimum qualifications using Office of Personnel Management qualification standards. Upon completion of this review, a panel of three higher ranked officers at the same grade level or higher than the announced position would convene to further evaluate the candidates' applications against a crediting plan to determine who is "best qualified" for promotion. The "best qualified" list was determined by rating each qualified applicant and the documents submitted with her application against a crediting plan. Whether or not an applicant was placed on the "best qualified" list for a promotion was determined in part by the quality of the KSAs that the applicant submitted. Normally, three to five candidates would be identified as "best qualified" and referred in alphabetical order to the selecting official.
The selecting official, in this case the Commander or her designee, reviewed the "best qualified" list of candidates and maintained discretion to select from that list the candidate to be promoted. The selecting official would then notify the servicing human resources specialist of her selection(s) and an offer of promotion would be extended to the selectee(s). Candidates who were either not selected or not qualified were notified by letter of the final status of their application. David Lindsey, now the Chief of Security, was the Commander between July 2, 1995 and 1998. Vivian Ashton was the Commander between 2000 and 2002.
After November 2002, BEP ceased using a competitive process to promote officers to the Corporal position. Police officers who meet all qualification and training requirements and maintain satisfactory performance reviews are automatically recommended for promotion to the Corporal position when they have served enough time in grade. Currently, BEP recruits for Sergeant positions using the same competitive process which formerly filled Corporal vacancies.
Plaintiff Arthur Haynesworth was born in December 1950, and hired by the BEP in March 1995. Haynesworth applied for promotion at least seven times between 1997 and 2001, but was not selected. Haynesworth was promoted to Corporal in 2002 by means of the non-competitive process, and has since received two step increases, resulting in greater pay.
Plaintiff Robert L. More was born in July 1947, and hired by the BEP in June 1995. More applied for promotion at least seven times between 1997 and 2001, but was not selected. More retired from the BEP in June 2002.
Plaintiff Nathaniel S. Taylor was born in August 1948, and hired by the BEP in March 1993. Taylor was promoted in 1997 to the position of Corporal. Taylor applied for another promotion at least six times between 1998 and 2003, but was not selected.
Plaintiff Joseph Guion was born in February 1955, and hired by the BEP in January 1997. Guion applied for promotion on four occasions between 1999 and 2001, but was not selected. Commander Ashton promoted Guion to Corporal in 2002 by means of the competitive process.
Plaintiff William Watson was born in August 1957, and hired by the BEP in July 1995. Watson applied for promotion twice between 1999 and 2001, but was not selected. Watson was promoted to Corporal in 2002 by means of the non-competitive process. Watson was promoted again to Sergeant in 2004 by means of the competitive process.
Plaintiff Charles Hughes was born in October 1942, and hired by the BEP in June 1995. Hughes applied for promotion on five occasions between 1998 and 2001, but was not selected. Hughes was promoted to Corporal in 2003 by means of the non-competitive process. Hughes retired from the BEP in August 2004.
Plaintiff Edward Williams was born in September 1957, and hired by the BEP in May 1997. Williams applied for promotion on two occasions between 2000 and 2001, but was not selected. Commander Ashton promoted Williams to Corporal in October 2001 by means of the competitive process.
For the following vacancy announcements, one or more plaintiffs applied for the position, none were selected, and all officers promoted were under the age of 40 at the time: 1998-130-YDC (3 promotions selected November 24, 1998), 1999-086-YDC (2 promotions selected June 17, 1999), 1999-190-YDC (4 promotions selected February 2, 2000), 2000-030-GCM (1 promotion selected March 8, 2000), 2000-125-GCM (1 promotion selected October 6, 2000), 2001-002-GCM (3 promotions selected March 7, 2001). Decl. of Joan Cameron, Def.'s Ex. 1, at 3-5. For vacancy announcement 2001-137-GCM, Gerald Fields, age 38, and plaintiff Williams, age 44, were selected for promotion by Commander Ashton on September 26, 2001. Plaintiffs More, Haynesworth, Guion, and Hughes also applied, but were not selected. Id. at 5. For vacancy announcement 2002-007-AJC, Reginald Parker, age 40, and plaintiff Guion, age 47, were selected for promotion by Commander Ashton on March 20, 2002. Plaintiff Haynesworth also applied, but was not selected. Id.
According to former Commander (now Chief) Lindsay, he personally made selections for promotion by reviewing the applications of candidates on the best qualified list for a particular vacancy announcement. DSF ¶ 47. Lindsey considered the candidates annual appraisals, work history, time in grade at the particular level, and disciplinary record. Id. Lindsey then selected for each position whom he considered to be the most highly qualified candidate. Id. In making his selections, Lindsey claims that he never considered the age, sex, race, or ethnicity of any candidate. DSF ¶ 48.
According to former Commander Ashton, when she made selections for promotion, she received a certificate of the highly qualified individuals from Human Resources based on the KSA rankings. DSF ¶ 49. Ashton reviewed the KSAs submitted, the discipline files, work records, as well as her own personal knowledge and observations of the candidates. Id. She also spoke with managers to obtain further input. Id. Ashton considered specifically what candidates did at BEP, what kind of job they did, and whether they performed any additional duties. Although she considered previous experience, she placed slightly more emphasis on what people had done at BEP. Ashton was aware of a "zero tolerance" policy against all types of unlawful discrimination.
Plaintiffs have proffered several pieces of evidence in support of their argument that, contrary to the statements of Commanders Lindsay and Ashton, the BEP utilized illegitimate criteria in making its promotion decisions. First, plaintiffs simply assert that they were "markedly more qualified" than the officers who were promoted. Pls.' Opp. to. Def.'s Mot. for Summ. J. at 19 (citing Pls.' Ex. 5). Plaintiffs also assert that they had more experience than the officers who were promoted. Id. (citing Guion Resp. to Interrog., Def.'s Ex. 7).
Second, plaintiffs allege that for promotions under vacancy announcement 1998-130-YDC, younger officers had disciplinary records but were nonetheless promoted. Plaintiffs' Statement of Material Facts ("PSF") ¶¶ 47, 94. Specifically, plaintiff Haynesworth alleges that Norman Simms, born in August 1964, had a letter of reprimand and a charge of AWOL in his file at the time of his promotion. Id. (citing Haynesworth Resp. to Interrog. No. 5 at 6). He also alleges that Roderick Elam, born in July 1963, had physically abused his child in front of a Montgomery county police officer and that the BEP was aware of the charges, presumably at the time of his promotion. Id. Plaintiffs do not point to any documentary evidence for these assertions. Commander Lindsay, however, proffered an explanation for these promotions, stating that he promoted Simms, Elam, and Irvin Hamilton in November 1998 because these three individuals held the longest work experience at BEP, along with substantial time in grade. DSF ¶ 95.
Plaintiffs question this explanation by pointing to the hiring for vacancy announcement 2001-002-GCM. The three officers promoted, all under the age of 40, did not have as much experience at the BEP or time in grade as plaintiffs Hughes and Williams, who were not selected. See Pls.' Opp. at 20; DSF ¶¶ 96-99. Commander Ashton, however, stated that she selected the officers promoted because they all volunteered for overtime on a regular basis and volunteered for assignments including in the administrative office.
Third, plaintiffs point to purported statistical evidence of age discrimination. See PSF ¶¶ 48, 49, 91, 95, 100. A report written by the Center for Forensic Economic Studies analyzed 16 promotions for corporal that occurred between 1997 and 2001. Pls.' Ex. 30 at 1-2. Of the 16 promotions, 15 went to applicants under the age of 40. Id. at 2. Of the applicants who met the minimal qualifications, there were cumulatively 73 applicants under age 40 and 38 applicants age 40 or older who applied for the 16 positions. Id. at 1-2. The report did not consider as part of its data plaintiff Taylor's promotion to corporal in 1997 when he was 49 years old, plaintiff Guion's promotion to corporal in 2002, and plaintiff Watson's promotion to sergeant in 2004, all of which occurred through the competitive process.
Assuming that all the applicants were exactly equally qualified, see id. at 1, the report concluded that it was statistically less likely for officers over 40 to be promoted to corporal. Id. at 5. The report contains no evidence to support its assumption that all applicants were exactly equally qualified. See id. at 1-5. The report also notes that at the second stage of the selection process, the highest ranked applicant on the "best qualified" list was not always selected; in some instances an applicant would be selected over another applicant who had a score one or two points higher. Id. at 4-5.
At defendant's request, ADR Litigation Support issued a report analyzing plaintiffs' statistical analysis. See Pls.' Ex. 31 at 1. The report noted two significant shortcomings in plaintiffs' report. One was that plaintiffs' report relied on data for only a subset of the vacancies that were filled during the period of time for which data is available (1998-2004). Id. at 7-8. The other was that the report's finding of a correlation between age and likelihood of promotion is of ...