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Adeyemi v. District of Columbia

March 31, 2007


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff brings a claim of disparate treatment discrimination against the District of Columbia under the Americans with Disabilities Act ("ADA"), see 42 U.S.C. § 12101 et seq.*fn1 Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Opp'n") at 1. He alleges that the District of Columbia Public Schools ("DCPS") "discriminated against [him] by not hiring [him] for the position of info. Tech. Specialist (Applications Software) . . . because of [his] disability as deafness." Compl. Plaintiff does not claim that DCPS failed to accommodate his disability. DCPS moves for summary judgment on the ground that plaintiff produces no evidence of discrimination based on his disability. See Defendant District of Columbia's Memorandum of Points and Authorities in Support of its Motion for Summary Judgment ("Def.'s Mot.") at 14-15. Having reviewed DCPS' motion, plaintiff's opposition, and the entire record of this case, the Court will grant the motion.


A. Summary Judgment

A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Under the summary judgment standard, DCPS, as the moving party, bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citation omitted). Plaintiff, in response to DCPS' motion, must "go beyond the pleadings and by [his] own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (internal citations omitted).

Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987); Liberty Lobby, 477 U.S. at 251 (court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law"). "If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). "Mere allegations or denials of the adverse party's pleading are not enough to prevent the issuance of summary judgment." Williams v. Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The adverse party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to "come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (citing Fed. R. Civ. P. 56(e)) (emphasis in original).

Importantly, "[w]hile summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of [his] obligation to support [his] allegations by affidavits or other competent evidence showing that there is a genuine issue for trial." Morgan v. Fed. Home Loan Mortgage Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001) (quoting Calhoun v. Johnson, No. 95-2397, 1998 WL 164780, at *3 (D.D.C. Mar. 31, 1998) (internal citation omitted), aff'd, No. 99-5126, 1999 WL 825425, at *1 (D.C. Cir. Sept. 27, 1999)); see also Marshall v. James, 276 F. Supp. 2d 41, 47 (D.D.C. 2003) (abrogated on other grounds) (special caution "does not eliminate the use of summary judgment in discrimination cases") (citing cases). "Summary judgment is not a 'disfavored procedural shortcut,' but is an integral procedural tool which promotes the speedy and inexpensive resolution of every case." Marshall, 276 F. Supp. 2d at 47 (quoting Celotex Corp., 477 U.S. at 327). Accordingly, the Court reviews the defendant's motion for summary judgment under a "heightened standard" that reflects "special caution." Aka v. Washington Hosp. Ctr., 116 F.3d 876, 880 (D.C. Cir. 1997) (internal quotations omitted), overturned on other grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en banc). Nonetheless, while this special standard is more exacting, it is not inherently preclusive. Although more circumspect, the Court will continue to grant a motion for summary judgment in which the nonmoving party has failed to submit documents that create a genuine factual dispute and the moving party is entitled to a judgment as a matter of law.

B. The Parties' Evidentiary Burdens

"In an ADA case with no direct evidence of discrimination and where the defendant denies that its decisions were motivated by the plaintiff's disability, this court applies the familiar burden-shifting framework" set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Duncan v. Washington Metro. Area Transit Auth., 240 F.3d 1110, 1114 (D.C. Cir.), cert. denied, 534 U.S. 818 (2001); see Marshall v. Fed. Express Corp., 130 F.3d 1095, 1099 (D.C. Cir. 1997). It is the district court's responsibility to adhere closely to this analysis and go no further, as it does not sit as a "super-personnel department that reexamines an entity's business decisions." Fischbach v. District of Columbia Dep't of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (internal citation and quotation marks omitted).

Under the McDonnell Douglas paradigm, plaintiff has the initial burden of proving by a preponderance of the evidence a "prima facie" case of discrimination. McDonnell Douglas, 411 U.S. at 802. To make out a prima facie case of discrimination under the ADA, plaintiff must prove that "he has a disability within the meaning of the ADA, that he was 'qualified' for the position with or without a reasonable accommodation, and that he suffered an adverse employment action because of his disability." Duncan, 240 F.3d at 1114 (quoting Swanks v. Washington Metro. Area Transit Auth., 179 F.3d 929, 934 (D.C. Cir.), cert. denied, 528 U.S. 106 (1999)); see Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 684 (8th Cir. 2003); Deane v. Pocono Medical Ctr., 142 F.3d 138, 142 (3d Cir. 1998); Siederbaum v. City of New York, 309 F. Supp. 2d 618, 623 (S.D.N.Y. 2004), aff'd, 121 Fed. Appx. 435 (2d Cir. 2005); Wilson v. Int'l Bhd. of Teamsters, Chauffeurs and Warehousemen, 47 F. Supp. 2d 8, 10 (D.D.C. 1999).

If plaintiff succeeds in establishing a prima facie case, the burden shifts to defendant to articulate some legitimate, non-discriminatory reason for the adverse action against plaintiff, and to produce credible evidence supporting its claim. McDonnell Douglas, 411 U.S. at 802. Defendant's burden is only one of production, and it "need not persuade the court that it was actually motivated by the proffered reasons." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) ("[T]he determination that a defendant has met its burden of production (and has thus rebutted any legal presumption of intentional discrimination) can involve no credibility assessment."). As such, "[a]lthough 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.'" Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir.) (citations omitted), cert. denied, 540 U.S. 881 (2003); see also Burdine, 450 U.S. at 253.

If defendant is successful, 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 reason was not the true reason for the employment decision. Burdine, 450 U.S. at 256. Pretext may be established "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." Id. at 256; see also Reeves, 530 U.S. at 143. "Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it can be quite persuasive." Reeves, 530 U.S. at 147 (citing St. Mary's Honor Ctr., 509 U.S. at 517 ("[P]roving the employer's reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination."); see also Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998) (en banc) ("[A] plaintiff's discrediting of an employer's stated reason for its employment decision is entitled to considerable weight."). Notably, the Supreme Court has taken care to instruct trial courts that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves, 530 U.S. at 148. "[T]he trier of fact may still consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Id. at 143 (quoting Burdine, 450 U.S. at 255 n.10).

At this stage, "to survive summary judgment the plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory reason." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003); see also Aka, 156 F.3d at 1290. The D.C. Circuit recently defined "all of the evidence" as "any combination of (1) evidence establishing the plaintiff's prima facie case; (2) evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff, such as independent evidence of discriminatory statements or attitudes on the part of the employer." Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) (citing Aka, 156 F.3d at 1289).


A. Plaintiff's Application

In May 2002, DCPS was undergoing a "transformation," during which positions were abolished, position descriptions were rewritten, and vacancies were advertised within DCPS and to the general public. Def.'s Mot., Ex. A (Keyes Dep.) 44:7-15, 45:2-4. According to DCPS, it was not often that it could "bring in new people. [It] had almost a closed operation." Id. (Keyes Dep.) 41:6-7. This transformation gave DCPS an opportunity to "find people much more talented than the ones [it had]." Id. (Keyes Dep.) 45:5-7. Incumbents were required to reapply for their positions. Id. (Keyes Dep.) 44:17-18. If the positions were not filled in a timely manner, DCPS could have lost its opportunity to retain those positions, and "[n]o one . . . wanted to give up a position." Id. (Keyes Dep.) 243:11-12.

DCPS' Office of Information Technology announced multiple vacancies for the position of Information Technology Specialist (Applications Software), EG-2210-11, which were Level 11 positions. Pl.'s Opp'n, App. B, Ex. 4 (May 3, 2002 Announcement Number 02-COO-024). A qualified applicant for the Level 11 Information Technology Specialist ("IT Specialist") position would have:

A. Undergraduate or Graduation [sic] education major in one of the following fields of study: computer science, information science, information systems management, mathematics, statistics, operations research, or engineering, or course work that required the development or adaptation of computer programs and systems and provided knowledge equivalent to a major in the computer field.


B. Experience that demonstrated knowledge of computer project assignments that required a range of knowledge of computer requirements and techniques.

Id., App. B., Ex. 4 at 1-2. In addition, each applicant addressed in writing the following ranking factors:

1. Knowledge of applications software development concepts and techniques sufficient to provide technical guidance in designing, coding, testing, debugging, and maintaining programs.

2. Knowledge of methods for integrating and optimizing components in order to translate and interpret functional requirements.

3. Knowledge of database management features sufficient for testing, installing, implementing, documenting, and maintaining student and school application software.

4. Ability to communicate technical knowledge to non-technical employees.

Id., App. B., Ex. 4 at 2 (emphasis added). The vacancy announcement was drafted in general terms so as to attract a broad selection of applicants:

Q: [Counsel] So you'd say that the vacancy announcement is a fair description of what you were looking for in an IT specialist level 11 person? [objection omitted]

A: [Ulysses Keyes] This vacancy announcement identifies the basic responsibilities and duties for a person -- an EG 11 IT specialist.

Q: Are there additional duties and responsibilities beyond the base ones in that position?

A: Well, I would have to go over it, but this is generic to some degree, but it's the way we wanted it, to keep it as open as possible so that we didn't exclude people who didn't feel as though they had that perfect match. We wanted them to also apply because maybe even though they didn't have that one, that specific area, they may have something that we could substitute for. So that's why this is -- it's kind of general. It's kind of -- it's general, but that's -- that's the we way we -- it was chosen to be done so that you could -- you could cast the widest net. You could get the most applicants rather than -- rather than exclude people, you want to include people who wanted to apply, and so that's why it was like this.

Def.'s Mot., Ex. A (Keyes Dep.) 208:6-209:12. DCPS also announced vacancies for IT Specialists at the next grade level, Level 12. Id. (Keyes Dep.) 49:20-50:10. There were seven vacancies at Level 11, and five vacancies at Level 12. Id. (Keyes Dep.) 50:6-10.

Plaintiff, who is deaf, applied for a Level 11 IT Specialist position, submitting his resume and a written statement addressing the ranking factors set forth in the vacancy announcement.*fn2 Pl.'s Opp'n, App. B, Ex. 1 (Pl.'s Decl.) ¶¶ 3, 5; Def.'s Mot., Ex. D (plaintiff's cover letter, resume, and ranking factors). Neither plaintiff's resume nor other papers submitted with his application expressly stated that he is deaf. Def.'s Mot., Ex. D (Pl.'s Dep.) 84:13-16.

B. Plaintiff's Interview

An applicant's performance at an interview was important, but was not the only factor DCPS considered. On this point, Mr. Keyes stated:

[If] [t]hey did well on the interview, and when you add that, as I said, that's one of the things that you always consider. You don't just ignore that.

That's not the only thing you always look at, but when you add that with what they had been able to do and what their background was, and if they had -- if they happened to be doing what it was we were doing, that's just the way life is sometimes.

Def.'s Mot., Ex. A (Keyes Dep.) 56:12-21. An interview provided "a chance to talk to the person beyond just his or her resume and to get a sense of like -- of their experience, get a sense of their abilities, just to get an overall reading of the person and to be able to do some type of comparative analysis." Id. (Keyes Dep.) 58:4-9.

Two DCPS employees, Mr. Manuel Farfan and Mr. Henry Thompson, were designated to interview plaintiff. See Pl.'s Opp'n, App. B, Ex. 5 (Panel Interview Rating Sheets). On July 26, 2002, shortly before the interview began, Mr. Farfan and Mr. Thompson learned that plaintiff is deaf. Def.'s Mot., Ex. B (Farfan Dep.) 35:9-11, 127:9-16 & Ex. E (Thompson Dep.) 73:13-74:5. Although Mr. Ulysses Keyes, too, became aware of plaintiff's disability on the day of the interview, he neither met plaintiff on that day nor participated in the interview itself. Def.'s Mot., Ex. A (Keyes Dep.) 154:6-156:5.

Mr. Keyes, Mr. Thompson and Mr. Farfan had a conversation among themselves during which they discussed sign language generally:

Q: [Counsel] You say you remember Henry [Thompson] talking about sign language. What did he say?

A: [Farfan] If we -- if anybody knew sign language, because we just knew that he was there and --

Q: Did -- did Henry Thompson say anything else?

A: No.

Q: So he asked if anyone knew sign language. Did anyone respond to that?

A: I told him that I always wanted to learn, and I think he told me that he knew or he wanted to learn, too, but --

Q: Did anyone else say anything at that time?

A: No.

Def.'s Reply (Farfan Dep.) 50:5-19. It is not entirely clear whether this conversation took place before or after plaintiff's interview. Plaintiff's disability did not stop the parties from proceeding with the interview:

Q: [Counsel] Okay. When you learned that there was a candidate who was deaf for the position, did you have any concerns about his deafness?

A: [Keyes] No. I had concerns with how I was going to interview him, how I was going to get him interviewed, and we just wanted to find out the best way to do that. I didn't have any concern about it. We just had to adapt or do whatever we had to do.

Def.'s Mot., Ex. A (Keyes Dep.) 156:6-15.

At some point during the interview, Mr. Thompson passed a handwritten note to plaintiff asking, "How do you communicate in offices where no one can sign?" Pl.'s Opp'n, App. A (Thompson Dep.) 92:12-13. Plaintiff responded that "the way we can communicate -- like writings -- I have no problem with writing as my basic communication." Id., App. B, Ex. 5 (Thompson interview notes). Mr. Thompson asked this question expressly "because [plaintiff] was hearing-impaired." Pl.'s Opp'n, App. A (Thompson Dep.) 93:3. He did not ask this question of any other applicant "because all of the other persons could hear and could speak and had no difficulty with communications." Id. (Thompson Dep.) 99:7-9. Mr. Thompson explained,

[T]here is a very large dependence on communications. We have to communicate with each other. We were getting ready to implement new educational systems and new business systems. And there was a lot of training going on. And the person had to be able to get the training, understand the training in an environment where there probably would not have been a person who was signing. We communicate with users, with other persons within D.C. schools on a daily basis, all the way from assistant superintendents to data-entry clerks, and we have to able to communicate with them freely, because we assist people.

Id. (Thomson Dep.) 93:4-18. Commenting on plaintiff's response to his question, Mr. Thompson remarked,

I thought that technically . . . [plaintiff] had all the requirements we were looking for, but in our particular shop, I didn't know whether that would be sufficient, considering his handicap without some type of accommodation. And I didn't know whether or not D.C. schools could provide that type of accommodation to make it work for our shop.

Id. (Thomson Dep.) 95:5-13.

There was no sign language interpreter present at plaintiff's interview. Instead, Mr. Keyes typed the five pre-selected questions posed to all interviewees into a computer, plaintiff typed his responses to the questions, and Mr. Farfan printed the responses. Pl.'s Opp'n, App. A (Thompson Dep.) 72:6-13 & (Farfan Dep.) 49:14-15; Def.'s Mot., Ex. B (Farfan Dep.) 35:13-15 & Ex. D (Pl.'s Dep.), Dep. Ex. 8 (02-COO-024 EG 11 Software Applications Questions and plaintiff's responses); Def.'s Reply, Ex. A (Keyes Dep.) 157:12-20. The interviewers rated each of plaintiff's responses on a scale of 1 to 4 points; plaintiff achieved a combined score of 30 points. See Def.'s Mot., Ex. A (Keyes Dep.) 246:7 & Ex. D (Pl.'s Dep.), Dep. Ex. 8 (Panel Interview Rating Sheets prepared by Mr. Thompson and Mr. Farfan).

According to plaintiff, of the scores awarded to the applicants for the Level 11 IT Specialist position, his combined interview score ranked fourth highest.*fn3 See Def.'s Mot., Ex. D (Pl.'s Dep.), Dep. Ex. 1 (EEO Charge of Discrimination). Plaintiff evidently reached this conclusion after having communicated with Marl Green, an employee in DCPS' Human Resources office, whose handwritten notation beside Vacancy Announcement COO-024 read, "4/20." Pl.'s Opp'n, App. B, Ex. 8 (Marl Green's handwritten notes). DCPS countered that plaintiff was listed in sixth place, not fourth place, apparently because his name happens to appear sixth on a list of applicants and their respective interview scores. Def.'s Mot. at 20 & Ex. A (Keyes Dep.), Dep. Ex. 3 (Interview Results). Review of the record shows that the applicants' names were not listed in descending order according to their combined interview scores. See Pl.'s Opp'n, App. B, Ex. 7 (Interview Results).

The top interview scores were awarded to four incumbents as follows: Fernando Gallup (38 points); Ms. Gaskins-Harrison (37 points), Alvin Brandon (34 points), and Valeria Battle (32 points). See Pl.'s Opp'n, App. B, Ex. 7 (Interview Results). Both plaintiff and a fifth incumbent, Robert Conway, were awarded the same score (30 points). Id.

The interview score was one but not the only factor in determining whether to extend a job offer. Pl.'s Opp'n, App. A (Keyes Dep.) 36:14-22; Def.'s Mot., Ex. A (Keyes Dep.) 247:17-18. DCPS took into account "all the factors that you have, the interview, the resume, the score, the ranking factors, and how it all ties together." Pl.'s Opp'n, App. A (Keyes Dep.) 72:18-21. According to Mr. Farfan, the interview score was "probably 50 percent of -- of the whole value of the interview of -- of getting the job." Def.'s Mot., Ex. B (Farfan Dep.) 124:16-18. However, the interview scores are "not like [] a test saying, if you score 10, you get hired, and 9, you don't, or if you have a 10, 9, 8, you have to hire the 9 over the 8." Id., Ex. A (Keyes Dep.) 59:11-14. According to Mr. Keyes, small differences in interview scores were not significant:

Q: [Counsel] Okay. Now, what in your mind is the significance of a score of 30 and a score of 29, if any?

A: [Keyes] The significance to me is that out of the interview process, 30, 39, 31, that's a wash, that they -- you know.

Q: I don't know what that means.

A: I'm sorry. That they were basically from -- from the interviewers' point of view, ...

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