The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendants' motion for summary judgment. Upon consideration of the motion, plaintiff's response in opposition, defendant's reply, plaintiff's sur-reply, defendant's response to the sur-reply, the parties' supplemental briefing in response to the Court's March 16, 2007 Order, and the entire record in the case, the Court denies defendants' motion for summary judgment.*fn1
Plaintiff Sheila Howard, an African American female, was employed as a supervisory industrial hygienist by the Facilities Management and Capital Improvement Division of the District of Columbia Public Schools ("DCPS") Environmental, Safety, and Health Unit, beginning in July, 2000. See Declaration of Sheila R. Howard ("Howard Dec.") ¶ 2. Plaintiff's duties included all aspects of health and safety involving DCPS facilities. See Deposition Transcript of Sheila Howard ("Howard Dep. Tr."), Pl. Ex. A, at 36:5-9. Her primary responsibility was to manage the asbestos program, but she was also responsible for remedying other potential health and safety problems affecting air, soil, and water quality at DCPS sites. Id. at 34-39.*fn2 At all times relevant to this motion, Ricardo Eley was plaintiff's immediate supervisor. See Deposition Transcript of Ricardo Eley ("Eley Dep. Tr."), Pl. Ex. 16 at 26-28. Plaintiff's second-level supervisor was Gregory Williams, the Deputy Director for Operations and Maintenance. See Declaration of Gregory Williams ("Williams Dec."), Def. Ex. B ¶ 1.
Plaintiff's job performance was evaluated a year after she was hired. See Howard Dec. ¶ 10. She received an "Excellent" rating, and her evaluation included the following comment: "Ms. Howard is a true professional" who "works diligently to the task at hand" and "has taken on enormous responsibility managing the Asbestos Program." Id.*fn3 The evaluation also stated, however, that "Ms. Howard needs to improve her organizational and computer skills." Id.
Approximately two months after she began working in her position as a supervisory industrial hygienist, plaintiff began "a running conversation" with Mr. Eley and Mr. Williams regarding her concerns about staffing and funding for her position. See Howard Dep. Tr. at 78:18 -79:17. Among her concerns were the experience level, education and background, caliber and work ethic of members of her staff. Id.
In May 2002, the Superintendent of DCPS announced a transformation of DCPS' central office, which included the Office of Facilities Management. See Deposition Transcript of Patricia Lattimore ("Lattimore Dep. Tr."), Def. Ex. C, at 28:14 - 32:3. As a result of the transformation, all positions within DCPS' central office, with few exceptions, were abolished. Id. at 16:6 -- 17:6. The employees in the abolished positions were terminated and were invited to re-apply, along with non-DCPS employees, for positions in the transformed central office. Id. Plaintiff's position was one of the positions scheduled for abolition, and she received notice that her employment would be terminated, effective July 31, 2002. See Howard Dep. Tr. at 94.*fn4
Prior to plaintiff's termination, the Human Resources Department at DCPS advertised a vacancy announcement for an industrial hygienist in the reorganized central office. Howard Dep. Tr. at 103-06. Plaintiff did not apply for the position. Id.*fn5 Defendants claim that plaintiff informed Mr. Williams that she did not apply for the position because she was no longer interested in being an industrial hygienist. Id. at 104-05.Plaintiff counters that she did not apply for the position because she felt it was under-funded and under-staffed. See Howard Dec. ¶ 33. In addition, she said she was interested in applying for other positions within DCPS. Id.
Three candidates interviewed for the position on July 20, 2002. See Def. Ex. B, Williams Dec. ¶ 3. The interview panel consisted of three individuals, Mr. Williams, Mr. Eley, and James Jackson. A DCPS Human Resources representative was also present at the interview. Id. The panel members numerically scored the candidates' responses to a list of set questions. Id.*fn6 After the interviews concluded, the panel members discussed the candidates and agreed that Kelley Clark, an African American female, should be selected for the position. Id. Ms. Clark was offered the position, but she declined to accept it for reasons unrelated to the job. See Def. Ex. D, Declaration of Kelley Janine Clark ("Clark Dec.") ¶ 2.
After Ms. Clark declined to accept the position, the Human Resources Department re-advertised the vacancy on August 12, 2002 and, again, during the following two months. See Def. Ex. E, Vacancy Announcements.*fn7 Plaintiff responded to the August vacancy announcement. See Howard Dep. Tr. at 105, 120. Plaintiff claims that she decided to apply for her old position after she had a conversation with Mr. Eley during which he informed her that he would try to obtain more funding and better staffing for the position. Id. Plaintiff also asserts that she applied for the position because she "genuinely loved [the] position." See Howard Dec. ¶ 33.
The DCPS Human Resources Department selected plaintiff and five other applicants to interview for the position. See Def. Ex. B, Williams Dec. ¶ 4. This time, the individuals on the interview panel were Mr. Williams, Mr. Eley and Craig Georg, a representative from the United States Army Corps of Engineers. See Eley Dep. Tr. at 29-30.*fn8 Following the interviews, DCPS Human Resources tallied the interview scores and provided the Director of Facilities Management, Sarah Woodhead, with a list of the six candidates in order of their interview scores. See Def. Ex. C, Lattimore Dep. Tr. at 87-90. Candidate Jeffery Edwards scored the highest, with an average score of eighteen (18). Id.*fn9 Plaintiff and another candidate, Dr. Saheed Rahimi, a male of Iranian national origin, tied for the second highest score with seventeen (17) each. Id.*fn10 Dr. Rahimi's interview was conducted by telephone.
Defendants contend that Ms. Woodhead, as the selecting official, had full discretion in determining who to select for the position. Def. Mot. at 5.*fn11 She could have selected anyone on the list, regardless of the interview scores. Def. Ex. C, Lattimore Dep. Tr. at 95-97. She also could have re-interviewed the candidates, re-advertised the position, or chosen not to fill the position.
Defendants assert that in this instance, Ms. Woodhead sought the recommendation of Mr. Williams because, as the Deputy Director for Operations and Maintenance, Mr. Williams oversaw the position of industrial hygienist. See Def. Ex. F, Declaration of Sarah Woodhead ("Woodhead Dec.") ¶ 2. Mr. Williams recommended that Ms. Woodhead select Dr. Rahimi for the position. Id.; see Def. Ex. B, Williams Dec. ¶ 5. Mr. Williams based his recommendation on Dr. Rahimi's background, including the fact that he had a Ph.D., as well as his enthusiasm for the position. Id. ¶ 6. In addition, Mr. Williams did not believe that plaintiff was really interested in the position because she had not applied for the position during the first vacancy announcement and because she continued to express her discontent at the lack of funding and staff for the position. Id.*fn12 Accordingly, Mr. Williams sent Ms. Woodhead a memorandum, dated October 23, 2002, on which he wrote "Sarah [Woodhead]: [Dr. Rahimi] is the choice of Ric [Eley] & I." In his deposition, however, Mr. Eley testified that he did not recommend that Dr. Rahimi be selected for the position (Eley Dep. Tr. at 75) and testified that he was surprised when he learned that Ms. Woodhead had decided to select Dr. Rahimi. Id. at 47. Plaintiff asserts that the October 23, 2002 Williams memorandum was fabricated after the fact in order to help justify Ms. Woodhead's decision to hire Dr. Rahimi. See Pl. Resp. at 17-18.
Ms. Woodhead claims that she decided that Dr. Rahimi was the better candidate based primarily on his education and work experience. See Def. Ex F, Woodhead Dec. ¶ 3. Dr. Rahimi has a doctorate in chemistry, while Ms. Howard has a bachelor of arts degree in biology/pre-med. Id. ¶ 4.*fn13 Both applicants had received training in industrial hygiene, but, Ms. Woodhead asserts, Dr. Rahimi's training was more extensive and more relevant to the position. Id. Ms. Woodhead also asserts that Dr. Rahimi's work experience in the field of industrial hygiene was broader and entailed greater responsibility than did plaintiff's work experience. Id. ¶ 5.*fn14 Plaintiff's work experience focused primarily on basic regulatory compliance related to asbestos and lead. Id. Ms. Woodhead concedes that asbestos and lead were important to DCPS, but contends that there were other industrial hygiene issues in the school system at the time. Id. Dr. Rahimi's work experience also included the development and management of specific programs in a broad variety of environmental health areas, including asbestos and lead, indoor air quality, and chemical management issues. See Def. Ex. F1, Rahimi Application. Finally, Ms. Woodhead asserts that Dr. Rahimi's written application was more "comprehensive, detailed and complete" than plaintiff's application. Woodhead Dec. ¶ 6.
Plaintiff counters that she has greater in-depth knowledge of and experience with the federal EPA/OSHA/DC health and safety regulations, especially those concerning asbestos and lead based paint. Howard Dec. ¶ 22. In addition, plaintiff points out that she has participated in several health and safety forums and has been involved in local policy development, technical reports, asbestos remediation, emergency spill responses, hazardous waste management/storage and removal, air quality assurance programs, and the review of industrial hygiene equipment and materials in use at DCPS facilities. Id. ¶ 24.
Plaintiff filed charges of discrimination over her non-selection by DCPS with the District of Columbia Office of Human Rights and the U.S. Equal Employment Opportunity Commission ("EEOC"). See Pl. Resp. at 11. She alleged discrimination on the basis of race, sex and color.*fn15 The EEOC investigated plaintiff's complaint and, on May 5, 2004, issued a determination finding that there is reason to believe that violations of Title VII occurred in the selection process. Id.; see Amended Complaint ("Amend. Comp.") ¶ 2.*fn16 On September 21, 2004, the EEOC closed plaintiff's EEOC file and ...