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Reshard v. Peters

September 29, 2008


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


The plaintiff, Connie Reshard, brings this action against the defendant, Mary Peters, as United States Transportation Secretary*fn1, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e-2, 3, 16, 16a, 16b (2000), alleging that she was unlawfully discriminated against based on her race (Black of African descent), gender (female), and retaliated against when she was not selected in 2004 as the Director of the Office of Economic and Strategic Analysis advertised in Job Announcement OST-04-001-NG ("Director position"). Complaint ("Compl.") ¶¶ 1,4. The plaintiff also alleges that the defendant discriminated against her based on her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a) (2000). Id. ¶1. The plaintiff alleges both disparate impact and intentional discrimination. Id. ¶1. Currently before this Court is the defendant's Motion for Summary Judgment,*fn2 which is opposed by the plaintiff. Upon consideration of the parties' submissions and the entire record, the Court concludes that the defendant's motion must be granted.


The following facts are undisputed except where otherwise noted by the Court. In January, 2004, the United States Department of Transportation ("Department") published a five page job announcement, Number OST-04-001, for the position of Director of the Office of Economic and Strategic Analysis located in the Office of the Secretary and Office of the Assistant Seretary for Transportation Policy. Def.'s Mem., Exhibit ("Ex.") F6a (Amendment Career Opportunity, United States Department of Transportation, Office of the Secretary) ("Job Announcement"). The Job Announcement described the position as a senior position within the Department with duties including "[s]erv[ing] as the Chief Economic Advisor to the Under Secretary for Transportation Policy[;] [c]onduct[ing] economic evaluations of significant regulations affecting transportation[;] [p]rovid[ing] policy recommendations based on economic analysis to the Secretary and Under Secretary[; and] provid[ing] guidance to the operating administration on economic assumptions, forecasting and economic analysis." Id. at 2. The Job Announcement also described the "[m]anagerial" and "[t]echnical" requirements of the position, id. at 2-3, and directed applicants to file, inter alia, a "Qualifications Brief" that addressed "how [the applicants'] experience, education, training, awards, and/or self-development activities [met] the qualifications listed [in the Job Announcement]." Id. at 4-5. The announcement was subsequently amended to extend the closing date for applications to March 31, 2004. Id. at 1.

The Department received the plaintiff's application for the position on March 31, 2004. Id., Ex. F7a (letter, resume and Qualification Statement of Connie Reshard) ("Plaintiff's Application"). The Department acknowledged receipt of the plaintiff's application on April 1, 2004. Id., Ex. F1, Attachment ("Attach.") 2. The plaintiff's application indicated that she has a Bacherlor of Arts in Economics from Florida A & M University, a Masters degree in Economics from City University of New York and a Juris Doctor degree from Georgetown University. Id., Ex. F7a (Plaintiff's Application). She had been employed as an economist in the Department's Office of the Secretary from 1977 to 1988 as a grade GM-14 employee. Id. In contrast, the selectee, Jack Wells, holds a Bachelor of Arts in Economics from Harvard University and a Ph.D. degree in Economics from Yale University. Id., Ex. F7b (Employment Application of Jack Wells) ("Wells' Application"). His application also demonstrated that he has held a number of senior level positions at the Department, including, inter alia, Chief Economist in the Bureau of Transportation Statistics and Deputy Administrator of the Federal Railroad Administration. Id. at 1-2. He also had served as a Senior Democratic Professional Staff Member for the United States House of Representatives' Subcommittee on Ground Transportation Committee on Transportation and Infrastructure and held other senior level positions while employed as a congressional employee. Id. at 3.

The Administrative Application Process

Nancy L. Gauthier, a Human Resource Specialist in the Department, processed the applications. Id., Ex. F2 (Affidavit of Nancy L. Gauthier) ("Gauthier Aff.") at ¶2. Ms. Gauthier reviewed the applications to assess "basic qualifications", which the plaintiff was determined to have, id. ¶4, and then the applications were sent to a panel for further review, id. ¶2. When Ms. Gauthier conducted her review she was unaware that the plaintiff had instituted prior employment discrimination proceedings against the defendant. Id. ¶1.

The panel members who reviewed the applications were Department employees Jane Bachner, Sherri Alston, and Bruce Carlton.*fn3 Id. ¶4. "The panel members compared the applications with the crediting plan and rated and ranked the applicants." Id. ¶3. The applicants were rated as either highly qualified, well qualified, or minimally qualified based on the qualification factors designated for the position. Id. ¶5. This "process resulted in the creation of a best qualified list which was sent to the selecting official[,] who interviewed all applicants prior to making a selection." Id. ¶3. However, the plaintiff "did not make the best qualified list based on the review by the panel" and she was not interviewed by the selecting official for the position. Id. ¶4.

The Panel Members' Affidavits*fn4

Panel member Bachner stated in her affidavit that she "rated each application against the technical rating criteria and not against the other applicants." Id., Ex. F3 (Affidavit of Jane Bachner) ("Bachner Aff.") ¶3. Ms. Bachner further stated that she had "never met" the plaintiff and "only rated [the plaintiff] based on the information provided in her application. Id. Ms. Bachner further stated in her affidavit that the plaintiff provided only minimal information regarding her technical qualifications. Id. Specifically, although the plaintiff indicated she had "some... experience in economic analysis in passing, she did not describe it [with any detail]." Id. In contrast, Ms. Bachner found that the applicants who made the best qualified list had "a great deal of economics analysis experience and had work extensively with senior officials." Id. ¶4. Further, the best qualified applicants also had both broad experience in various modes of transportation and had a great depth of work experience in those areas. Id. Ms. Bachner also stated that she was unaware that the plaintiff had previously filed a discrimination complaint against the defendant, id. ¶1, and "there was never any discussion or consideration of the race, sex, age, or EEO activity of [the plaintiff] or any of the other applicants," id. ¶5.

Panel member Alston also noted that she compared each application "with the selecting criteria . . . and did not compare them to one another." Id., Ex. F4 (Affidavit of Sherri Y. Alston) ("Alston Aff.") ¶2. Ms. Alston "rated [the plaintiff] minimally qualified" because "she had limited experience in the technical requirement areas, and... did not adequately address the qualifications requirements" for the position in her application. Id. ¶4. Instead, the plaintiff's application "focused more on attending meetings[, rather] than on the technical work areas." Id. In fact, Ms. Alston stated that "[t]he applicants that eventually were placed on the best qualified list did a better job of addressing the criteria against which they were being judged." Id. Ms. Alston further indicated that she was unaware of any "prior EEO activity of [the plaintiff]", id. ¶1, and that "[t]here was never any discussion of the race, sex, age, or EEO activity of [the plaintiff] or any of the other applicants," id. ¶5.

Panel member Carlton stated that he "rated each of the applicants based solely on the documentation given to [him and]... compared their answers and information to the mandatory technical skills of the position as well as the managerial requirements." Id., Ex. F5 (Affidavit of Bruce J. Carlton) ("Carlton Aff.") ¶2. Mr. Carlton indicated that he "did not compare one applicant against another applicant", id. ¶2, instead, he judged each application against the "three technical requirements" for the position. Id. He recalled that he "rated [the plaintiff] as minimally qualified" because "[h]er highest grade in government service was a GS-14" and "[h]er area of expertise appeared to be as an attorney and not as an economist."*fn5 Id. ¶4. Mr. Carlton stated that after reviewing the packages, the three panel members "had a candid discussion concerning their individual assessments of each applicant...." Id. ¶3. "In some cases, such as that of [the plaintiff], [the panel members'] individual ratings were the same in all three areas." Id. Mr. Carlton further noted that he was unaware of any "prior EEO complaint activity" by the plaintiff, id. ¶1, and that "[t]here was never any discussion of the race, sex, age, or EEO activity of [the plaintiff] or any of the other applicant," id. ¶5.

The Final Selection

The best qualified list consisted of six candidates. Id., Ex. F6c (Selection Certificate). The selecting officials, Emil Frankel*fn6 and Jeffery Shane*fn7, selected two of the best qualified candidates for the position at issue, with Mr. Wells named as the first selection and Richard Klein identified as the second choice. Id.; see also id., Ex. F6e (Senior Executive Service (SES) Appointment Proposal). On November 5, 2004, approval of the selecting officials' decision to select Mr. Wells for the ...

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