The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Gary Hamilton, the plaintiff in this civil lawsuit, seeks compensatory damages and injunctive and declaratory relief against Henry M. Paulson, Jr., in his official capacity as the Secretary for the Department of Treasury,*fn1 for alleged unlawful discrimination against the plaintiff by the plaintiff's former employer, the Internal Revenue Service (the "IRS"), on the basis of race and sex pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (2000). Civil Complaint (the "Compl.") ¶¶ 1, (i)-(iii). Currently before the Court is the defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. After carefully considering the parties' pleadings, the defendant's motion, and all memoranda of law and exhibits with these filings,*fn2 the Court concludes that it must not only grant the defendant's motion in part and deny it in part, but also grant the plaintiff limited leave to file an amended complaint for the reasons that follow.*fn3
The following facts are either admitted or not in dispute.*fn4 The plaintiff, "an African-American male, graduated from the University of North Alabama with a [b]achelor[']s degree in Industrial Hygiene in , and shortly thereafter obtained a [m]aster[']s degree in Public Health from George Washington University." Pl.'s Facts ¶ 1. The "[p]laintiff worked with the Department of Defense . . . as an [i]industrial [h]ygienist until about 2001, when he joined the [IRS] in the same position." Id. ¶ 3. Since joining the IRS, he has "worked within the Real Estate and Facilities Management" department. Id.
"On May 5, 2003," Compl. ¶ 13, "the IRS announced a vacancy for the position of . . . Safety and Occupational Health Manager ('Safety Manager')," Pl.'s Facts ¶ 7. "Four candidates m[ade] the 'best qualified' list[:] two females, a white male and [the p]laintiff." Compl. ¶ 15. Three of those four candidates, including the plaintiff, received a "ranking score" of 25 based on their responses to questions posed on a worksheet used to determine the applicants' knowledge, skills, and abilities (the "KSAs"); "[t]he fourth person, a white male, received a ranking score of 19." Pl.'s Facts ¶ 11.
The top four candidates "were interviewed by a panel of three . . . members . . . Stuart Burns ([a] Caucasian male)[,] Mike Huston ([also a] Caucasian male)[,] and Tatika Mitchell (who [represents] that she is [of] . . . Hispanic, African-American[,] and French [descent])." Id.
¶ 14. In addition to serving on the interview panel, Burns was the "selecting official" for the position. Compl. ¶ 15. "The panel members all took notes [during] the interview[s]," but "they did not rate [the applicants] or give the applicants any scores." Pl.'s Facts ¶ 15. Ultimately, Burns "selected Annette Burrell . . . , a white female who has . . . no college degree, no formal . . . training . . . in [s]afety[,] and no formal training in [s]security," for the position of Safety Manager. Id. ¶ 20.
In October of 2003, the plaintiff filed a formal complaint with the Office of Equal Employment Opportunity ("EEO") regarding the selection of Burrell for the Safety Manager position. Id. ¶ 46. A few months later, in January of 2004, "Camille Carraway, a white female, informed [the p]laintiff that [Burns] had detailed her to a GS-14 Safety Manager position and had promised her that the position would become permanent." Id. ¶ 50. "Immediately thereafter," in February of 2004, the plaintiff "filed another EEO [complaint] claiming discrimination based on race and gender." Id. ¶ 51.
The plaintiff filed his complaint in this Court on August 1, 2005. In his complaint, the plaintiff alleges that "his gender and race were motivating factors in [Burns's] decision not to promote him to the Safety [Manager] position." Compl. ¶ 23. Further, he alleges that the IRS retaliated against him for filing an EEO complaint based on his non-selection for the Safety Manager position when Carraway was selected for a detail as a Safety Manager. Id. ¶¶ 26-29.
The defendant filed his motion for summary judgment on August 14, 2007. In support of his motion, the defendant argues that the IRS had a legitimate, non-discriminatory reason for selecting Burrell over the plaintiff for the Safety Manager position. Def.'s Mem. at 1, 7-11. He also asserts that the plaintiff's retaliation claim is untimely, id. at 12-15, that the plaintiff cannot establish a prima facie case of retaliation, id. at 15-17, and that even if the plaintiff "c[ould] establish a prima facie case of retaliation, [the d]efendant ha[d] legitimate, non-retaliatory reasons for giving . . . Car[r]away the 120-day detail," id. at 17.
The plaintiff counters that the reason advanced by the defendant for the selection of Burrell over the plaintiff for the Safety Manager position is a pretext for race- and sex-based discrimination. Pl.'s Opp'n at 8, 11-24; Pl.'s Suppl. Opp'n at 1-2. He contests the defendant's description of his retaliation claim as untimely, id. at 31-33, asserts that he has established a prima facie case of retaliation, id. at 33-37, and disputes the legitimacy of the defendant's proffered reasons for selecting Carraway for the Safety Manager detail, id. at 38-42; Pl.'s Suppl. Mem. at 2. Finally, the plaintiff introduces an entirely new claim for race- and sex-based discrimination based on the selection of Burrell for a detail in the National Office Safety Program in August of 2002. Id. at 25-30.
In addition to reiterating his arguments from his initial memorandum of law, the defendant argues in reply that the Court should grant him summary judgment because the plaintiff failed to properly dispute his statement of material facts not in genuine dispute as required by this Court's local rules. The defendant also asserts that the Court should not consider the plaintiff's claims based on the selection of Burrell for a Safety Manager detail in 2002 because that claim was not asserted in the plaintiff's EEO complaints or in his complaint in this Court and is untimely in any event. Pl.'s Reply at 2-5.
The defendant seeks summary judgment pursuant to Federal Rule of Civil Procedure 56. Under that rule, summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56. When ruling on a Rule 56 motion, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must also draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on "mere allegations or denials," Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248) (internal quotation and citation omitted), for "conclusory allegations unsupported by factual data will not create a triable issue of fact." Pub. Citizen Health Research Group v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal quotation and citation omitted). If the Court concludes that "the non-moving party has failed to make a sufficient showing on an essential element of h[is] case with respect to which he has the burden of proof," then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Title VII provides that "[a]ll personnel actions affecting employees . . . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a). Where, as here, there is no direct evidence of discrimination on one of these impermissible categories, the Court assesses the plaintiff's claim under the framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under the McDonnell Douglas framework, "the plaintiff must establish a prima facie case of discrimination" in the first instance, Reeves, 530 U.S. at 142, after which "the burden shifts to the defendant, who must 'articulate some legitimate, non-discriminatory reason' for the adverse action.'" Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007) (quoting McDonnell Douglas, 411 U.S. at 802).
Assuming that the defendant can satisfy that burden, "the McDonnell Douglas framework--with its presumptions and burdens--disappear[s]," Reeves, 530 U.S. at 142-43 (internal quotation and citation omitted), and "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). In this context, the phrase "all of the evidence" refers to "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." Holcomb, 433 F.3d at 897 (internal quotation and citation omitted). If the plaintiff is ultimately "unable to adduce evidence that could allow a reasonable trier of fact to conclude that [the defendant's] proffered reason was a pretext for discrimination, summary judgment must be entered against [the plaintiff]." Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23, 27-28 (D.C. Cir. 1997).
The plaintiff raises three separate claims for relief under Title VII: a non-selection claim based on Burrell's selection for the Safety Manager position in 2003, a retaliation claim based on Carraway's appointment to a Safety Manager detail in 2004, and a new non-selection claim based on Burrell's appointment to a management detail in 2002. The defendant seeks summary judgment with respect to all three claims. The Court will therefore consider the merits of each claim in turn.*fn5
A. Non-Selection Claim for the Safety Manager Position With respect to the plaintiff's Title VII claim based on Burrell's advancement to the permanent position of Safety Manager, the "[d]efendant does not contest that [the p]laintiff can establish a prima facie case of race and gender discrimination." Def.'s Mem. at 7.*fn6 Instead, he argues that the IRS had a legitimate, non-discriminatory reason for promoting Burrell over the plaintiff; "[n]amely, [the p]laintiff . . . did not perform well in his interview . . . as compared to [Burrell's] performance." Id. He points to deposition testimony and declarations from all three members of the interview panel in support of that proposition. Id. at 8-10. He further notes that the interview panel was diverse in terms of both race and gender, id. at 7, and suggests that where "diverse panels interview and cho[o]se the most qualified candidates for the vacant positions," courts have "uniformly found no discrimination," id. at 11.
The plaintiff derides the defendant's explanation for Burrell's promotion as "unworthy of credence." Pl.'s Opp'n at 8. He asserts (1) that there is an "inexplicable gulf between the credentials of [the p]laintiff and Burrell . . . from which one could draw an inference of discrimination," id.; see also id. at 9-10, 13-17 (arguing that the plaintiff was "significantly better qualified than the selected applicant"), (2) that the selection process for the Safety Manager position was "replete with innumerable irregularities," id. at 13; see also id. at 17-19 (arguing that the selection process for the Safety Manager position did not conform to internal IRS procedures), (3) that the IRS may have engaged in the spoliation of evidence, see id. at 20-21 (arguing that the failure of the defendant to produce interview notes for the plaintiff "is another fact that creates a genuine issue"), (4) that there are "contradictions in the panelists['] deposition testimony and their declarations," as well as between the panelists' testimony and other evidence in the record, that "creat[e] a genuine issue in this case," id. at 21, and (5) that there is statistical evidence of disparate treatment within the IRS in favor of white women, see id. at 23-24 (asserting that "white females are promoted at a rate which exceeds their population by ten percent" (emphasis removed)). According to the plaintiff, these "numerous genuine issues of material fact" require "that the Court set this matter down for a jury trial." Id. ¶ 25.
1. Comparative Qualifications
The plaintiff argues that his "qualifications are so vastly superior" to Burrell's qualifications that the selection of Burrell over the plaintiff must be pretextual. Pl.'s Opp'n at 15. Evidence of a wide disparity in qualifications "may suffice, at least in some circumstances, to show pretext." Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006). "If a factfinder can conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job" than the individual selected in the plaintiff's stead, a factfinder "can legitimately infer that the employer consciously selected a less-qualified candidate--something that employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture." Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998) (en banc).
On the other hand, "[i]n a close case, a reasonable juror would usually assume that the employer is more capable of assessing the significance of small differences in the qualifications of the candidates, or that the employer simply made a judgment call." Holcomb, 433 F.3d at 897 (internal quotation and citation omitted). Thus, "in order to justify an inference of discrimination, the qualifications gap must be great enough to be inherently indicative of discrimination." Jackson v. Gonzalez, 496 F.3d 703, 707 (D.C. Cir. 2007) (internal quotation and citation omitted); see also Lathram, 336 F.3d at 1092 (finding that "a reasonable jury could find" discrimination where the plaintiff was "substantially more qualified" than co-worker selected for position over the plaintiff); Aka, 156 F.3d at 1299 (holding that reasonable factfinder could infer pretext in employer's selection of another candidate over the plaintiff where the plaintiff was "markedly more qualified" than the selected applicant). Otherwise, the Court "must assume that a reasonable juror who might disagree with the employer's decision, but would find the question close, would not usually infer discrimination on the basis of a comparison of qualifications alone." Aka, 156 F.3d at 1299 (internal quotation and citation omitted).
The job description for the Safety Manager position lists the major duties of the position as follows:
Develops policies, procedures and standards for the IRS Safety Program. Performs extremely complex and significant functions in the development of decisions and policies and provides technical guidance designed to protect Service personnel, facilities, property and other assets, both tangible and intangible, from the full spectrum of intentional and non-intentional human threats, as well as man-made and natural disasters.
Advises top management on the most complex safety matters in order to resolve questions pertaining to appropriate cost-effective safety measures commensurate with the requirements; safety budget/resources distribution; and strategies for integrating appropriate healthy, safety, and similar issues.
Interprets national safety directives for their applicability to the safety programs; formulates broad policy direction regarding the implementation of these directives; and prepares specific policy and program statements for issuance by the Commissioner, Deputy Commissioner, and other senior management officials.
Serves as representative of the Director in performance of top liaison assignments and in contacts with professional and trade associations, officials of the Treasury Department, representatives of other government departments and agencies, OMB, Congress, and the public. Serves as a technical authority in assignments requiring the application of new theories and developments to safety problems not susceptible to treatment by accepted safety methods and procedures. Performs other duties as assigned.
Pl.'s Opp'n, Ex. 22 (Internal Revenue Modernization Position Description for Safety and Occupational Health Manager) (the "Position Announcement") at 2.
Both the plaintiff and Burrell were well-qualified to carry out these duties. As the Court has previously noted, the plaintiff received the highest possible score on his KSAs for the position. Id., Ex. 18 (Individual Rating Sheet for Gary Hamilton) at 1-3. In addition to his extensive educational background, the plaintiff had over fifteen years of experience as an industrial hygienist at the time of his application for the position. Id., Ex. 39 (Electronic Application for National Office Promotion/Reassignment for Gary Hamilton) (the "Hamilton Application") at 12-15 (reproducing the resume submitted by the plaintiff as an attachment to his application for the Safety Manager position). During his tenure with the IRS, the plaintiff developed a "[s]afety [i]nspection [p]rogram capable of inputting, retrieving, and reporting specific safety inspection data" according to various categories and "developed the first standard operating procedures" for safety inspectors to use during their semi-annual inspections. Id., Hamilton Application at 22. Prior to joining the IRS, the plaintiff had "managed the Defense Department's Worker Safety Pilot Program," which required the plaintiff "to implement private sector model safety worker programs" for the Department ...