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Washington v. Chao

September 9, 2008


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


This is a Title VII employment discrimination case. Plaintiff Edward D. Washington, proceeding pro se, has brought suit against Defendant Elaine L. Chao, in her official capacity as the Secretary of the United States Department of Labor ("DOL"), alleging that the DOL's Employment and Training Administration discriminated against him on the basis of race by not selecting him for a Contract Specialist position in 2004. Defendant argues that race was not a factor in Plaintiff's non-selection, relying on the undisputed facts in the record that the person selecting the candidate for the position (himself an African American) had no knowledge of Plaintiff's race (also African American) when he made the selection, and Plaintiff's own concessions in his deposition testimony that the person selected for the position was chosen because she was viewed as an office "favorite" who just "happened to be white," and that Plaintiff would not have been selected for the position regardless of his race. Based on these and other facts in the record, Defendant filed a [17, 18] Motion to Dismiss, or in the alternative, Motion for Summary Judgment, which Plaintiff has opposed. After a searching review of the parties' submissions, including the attachments thereto, applicable case law and statutory authority, the Court shall GRANT Defendant's [17, 18] Motion to Dismiss, on in the alternative, Motion for Summary Judgment, for the reasons that follow.


On March 15, 2004, the Department of Labor issued a vacancy announcement for a Contract Specialist position within the DOL's Employment Training Administration.*fn1 Def.'s Stmt. ¶ 1. The position involved federal procurement and required the employee to undertake various duties associated with DOL contracts, including analysis and solicitation of competitive proposals, review of requisitions, and drafting of final contracts, modifications, and purchase orders. Id. ¶¶ 3, 5; Def.'s Mot., Ex. 1 at 1 (3/15/04 Vacancy Announcement). The vacancy announcement included a list of five evaluation factors that were considered "essential to the successful performance of the duties" for the position:

(1) Basic knowledge of procurement procedures, law, regulations and techniques to effectively carry out a full range of procurement assignments;

(2) Knowledge of commonly applied procurement methods and types of contracts, such as fixed price or cost reimbursement contracts, formula funded or discretionary grants, and the required clauses and special provisions to plan and carry out the procurement to recommend award;

(3) Knowledge of source of supply and characteristics of assigned services sufficient to identify potential supplies, assure adequate price competition, and evaluate bid responsiveness and responsibilities of the bidders;

(4) Knowledge of price analysis sufficient to review contractor proposals, and to perform analysis using previous history or other data sources to assure reasonableness of prices; and

(5) skill in oral and written communications to negotiate contract prices and terms with contractors.

Def.'s Mot., Ex. 1 at 2 (3/15/04 Vacancy Announcement). The vacancy announcement also indicated that it was "highly recommended, but not required, that all candidates address and submit the evaluation factors on a separate sheet of paper," and that it was "the responsibility of the applicant to provide all of the information needed by the closing date of this announcement." Id.

A rating panel consisting of Ms. Chari Magruder and Ms. Marissa Dela Cerna reviewed and rated each of the applicants who applied for the position. Def.'s Stmt. ¶ 7. The panel placed the names of three applicants on a "certificate of eligibles" and provided it to the selecting official, Mr. Keith A. Bond. Id. ¶ 8. The panel ranked Jennifer Snook, a white female, as the highest rated candidate. Id. Plaintiff, an African American male, was ranked second, and another applicant was ranked third. Id.

There is no evidence in the record that Mr. Bond had any input or influence regarding these rankings.*fn2 Id. See also Def.'s Mot., Ex. 6 ¶ 6 (Decl. of K. Bond) ("The numerical ranking of the three candidates on the certificate was prepared by ETA's personnel office. I had no input or influence regarding the rankings. The rankings were done prior to my receiving the certificate and the candidates [sic] applications."). To select a candidate, Mr. Bond "reviewed each candidate's application thoroughly, including that of Plaintiff." Def.'s Stmt. ¶ 9. These applications "contained no information or documentation that indicated the race of the applicants." Id. Although Mr. Bond was aware of Ms. Snook's race because she had been a contract employee in his office at the time of the selection, Mr. Bond was not aware of Plaintiff's race at the time he made his selection.*fn3 Id. ¶¶ 10-12. Mr. Bond did not conduct interviews of the candidates who applied for the position. Id. ¶ 19.

Mr. Bond had personal knowledge of Ms. Snook's job performance while she worked in his office, and her "duties and responsibilities included the same duties and responsibilities as those of the position" to which she and Plaintiff applied. Id. ¶ 13-15 (emphasis added). During her tenure as a contract employee, Ms. Snook took "a series of courses relating to procurement and contracting in the federal government including an introductory course to federal contracting, Architect-Engineer Services contracting, and Construction Contracting." Id. ¶ 14. Ms. Snook's application for the position addressed each of the evaluation factors identified in the vacancy announcement, provided details of her work experience applicable to each factor, and included specific examples of activities she had performed that matched the duties she would be expected to perform in the advertised position. Id. ¶ 14-16; see also Def.'s Mot., Ex. 7 at 3, 9-13 (3/19/04 Snook Application).

In contrast, Mr. Bond was unfamiliar with Plaintiff's work experience because Plaintiff had previously worked as a Managing Director of a company that provided limousine and other services for the ten years preceding his application for the contracting position. See Pl.'s Opp'n, Ex. 1 at 1 (Resume of E. Washington). Rather than describing his experiences as to each of the evaluation factors identified in the vacancy announcement, Plaintiff provided a list of definitions associated with the evaluation factors. See Def.'s Mot., Ex. 12 at 3 (3/26/04 Application of E. Washington). For example, for the evaluation factor relating to "Knowledge of commonly applied procurement methods and types of contracts such as fixed price or cost reimbursement contracts, formula-funded or discretionary grants, and the required clauses and special provisions to plan and carry out the procurement to recommend award," Plaintiff provided the following description:

Acquisition planning ensures that the Government meets its needs in an economic and timely manner. The plan elements include cost, capability of performance, delivery requirements, and risk factors for the government and the contractor. A firm-fixed-price contract is generally used when the risk involved is minimal, or can be predicted with a high degree of certainty. Cost-type contracts are used when uncertainties in contract performance do not permit costs to be estimated with sufficient accuracy, and a fixed profit is set. Contract clauses and provisions ensure conformance, performance, and that delivery schedules are met.

Id. Plaintiff's description of his actual experiences are briefly described in his resume, which reflects his experience as a Contract Specialist for four years in the United States Army. Id. at 1. Plaintiff left that position in 1994. Id.

Mr. Bond selected Ms. Snook for the Contract Specialist position in April 2004. See Def.'s Mot., Ex. 5 at 1 (4/30/04 Certificate of Eligibles). Plaintiff alleges that he received two anonymous telephone calls from an unidentified person in April 2004 who told Plaintiff that he was not going to be selected for the Contract Specialist position even though he was the most qualified candidate. See Def.'s Mot., Ex. 4 at 20:1 - 34:24 (Depo. Tr. of E. Washington). The first call took the form of a phone message, where an unidentified woman stated that Plaintiff was "the best qualified applicant for the position, but they're going to give it to another young lady who is less qualified." Id. at 22:10 - 22:12; 25:5 - 25:8. Rather than saving this message, Plaintiff "left it there [in the message system] for almost a month, and . . . just let it drop off [become erased]." Id. at 26:3 - 26:4; 23:2 - 23:4. Plaintiff did not otherwise keep a copy of the message, did not write down the phone number associated with the message, did not attempt to obtain phone records to determine the source of the phone call, and made no attempts to retrieve the message from the phone company. Def.'s Stmt. ¶ 23; Pl.'s Resp. Stmt. ¶ 23. The second call allegedly resulted in a conversation between Plaintiff and the unidentified woman. See Def.'s Mot., Ex. 4 at 27:9 - 27:14 (Depo. Tr. of E. Washington). During this call, the unidentified woman identified Ms. Snook as the person who would be selected for the position, explained that Plaintiff was more qualified, and suggested that "this is not the first time that [this] ha[s] happened." Id. at 27:17 - 27: 21; 33:10 - 33:15. When pressed for further details during his deposition, Plaintiff also alleged that the caller identified Ms. Snook as a white person, and indicated that she knew Plaintiff was an African American. Id. at 42:1 - 42:13. Plaintiff could not, however, recall why race was discussed during this call or place the discussion in any greater context:

Q: But you know that somewhere in there [during the conversation] she said she [Ms. Snook] was white?

A: Yes, sir.

Q: You don't know why, you don't know the context, you don't know how?

A: No, sir.

Q: Did she tell you how she knew that you were black?

A: No, sir, she did not.

Q: Did she say anything at all about -- did the conversation in any way indicate -- did she say in any way why she said you were black? How did that come up? I keep asking that because I don't understand how in the conversation that comes up.

A: Yeah, and I don't -- I just don't remember . . .

Id. at 42:1 - 42:25.*fn4

On April 26, 2004, Plaintiff sent a letter to the DOL Office of the Inspector General concerning the Contract Specialist position. He indicated that "[t]oday, [he] received an anonymous telephone call from someone who works at DOL. This person stated that I was rated as best qualified, however the position will not be offered to me because another person who has previously worked as a contractor for DOL with one year of experience, will fill the position on or by 30 Apr 04." Def.'s Mot., Ex. 10 at 1 (4/26/04 Letter from E. Washington to DOL Inspector General). The letter also indicated that "[t]his message is stored on my voice mail, and I will retain it until this issue is resolved." Id. The letter does not mention race or race discrimination. Id.

Plaintiff filed a formal complaint of discrimination on June 10, 2004. Id., Ex. 11 at 1-2 (6/10/04 Complaint of Discrimination). As part of the investigation associated with this complaint, Mr. Bond completed a witness questionnaire. Id., Ex. 3 at 1-7 (11/29/04 K. Bond Questionnaire). In it, he explained that he was the selecting official for the Contract Specialist position and that he "reviewed each candidate's application, compared their knowledge, skills and abilities with the evaluation factors to each other and selected the best qualified applicant based on the method of evaluation stated in the [vacancy announcement]." Id. at 2. Mr. Bond explained that Plaintiff was not selected because he was not the most qualified applicant. Id. at 3. In particular, he believed that Plaintiff lacked current experience as a contract specialist: In his [Plaintiff's] application he cites the last time that he did contract specialist work was April 1994, ten year [sic] ago. The Federal Acquisition Regulation in which knowledge of [sic] is critical for this job has changed significantly since 1994 . . . [Plaintiff] has served as Managing Director of a multi-faceted company that provides limousine services, contract consulting services and food safety training. There is no description of work [Plaintiff] performed as a contract specialist from 1994 to the present.

Id. at 3. In addition, Mr. Bond believed that there was no indication in Plaintiff's application that Plaintiff had knowledge and/or experience with particular aspects of the duties he would be expected to perform:

There was no indication in [Plaintiff's] application of his knowledge [of] best value, past performance, competitive range or recommendation for award, which are familiar terms used in the procurement profession . . . The only indication in [Plaintiff's] application that he worked on procurements over $100,000 is the statement '[p]rocures supplies and services for small and large purchases.'

Id. Finally, Mr. Bond noted that "[u]nder the evaluation factors, the majority of [Plaintiff's] responses are more definitions of procurement terms rather than [an] explanation of how he performed the specific tasks of the job." Id.

In contrast to his assessment of Plaintiff's application, Mr. Bond explained that Ms. Snook's application provided a description of experiences that would be ...

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