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Jo v. District of Columbia

October 28, 2008


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


This is an employment discrimination case brought by Plaintiff Hwa Y. Jo against the District of Columbia, and three D.C. employees in their personal and official capacities -- Odie Washington, the Director of the D.C. Department of Corrections, James Anthony, the Deputy Director of the D.C. Department of Corrections, and Steve Smith, the Warden of the D.C. Department of Corrections (collectively, "Defendants").*fn1 Plaintiff alleges that he worked as a Lieutenant with the D.C. Department of Corrections and applied for, but was denied, a promotion to the rank of Captain on account of his South Korean descent, in essence a claim of racial discrimination based on his being Asian American. Plaintiff's one-count Complaint asserts a claim under the due process clause in the Fifth Amendment of the United States Constitution, made actionable against state officials by 42 U.S.C. § 1983. Following discovery in this case, Defendants filed a [15] Motion for Summary Judgment that Plaintiff has opposed. After a thorough review of the parties' submissions, including the attachments thereto, applicable case law, statutory authority, and the entire record of the case as a whole, the Court shall GRANT Defendants' [15] Motion for Summary Judgment, for the reasons that follow.


As a preliminary matter, Plaintiff's Opposition to Defendants' Motion for Summary Judgment fails to comply with Local Civil Rule 7(h) despite repeated admonitions from the Court. Local Civil Rule 7(h)(1) requires that an opposition to a motion for summary judgment be accompanied by

a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement . . . In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.

The Court issued an Order on April 21, 2004, explaining that the parties were expected to comply fully with Local Civil Rule 7(h), and stating that the Court would "assume[] facts identified by the moving party in its statement of material facts [were] admitted" unless controverted by the non-moving party. See [8] Order at 2 (April 21, 2004). The Court struck Plaintiff's initial Opposition on the grounds that it failed to comply with Local Civil Rule 7(h). See [18] Order at 2-3 (Dec. 2, 2004). Nevertheless, Plaintiff's second Opposition fails to correct the deficiencies of the initial version because it does not include any response to Defendants' Statement of Undisputed Material Facts as required by Local Civil Rule 7(h). Although Plaintiff filed his own Statement of Disputed Material Facts, it fails to "include references to the parts of the record relied on [for] support" because it contains general or irrelevant citations, or in some instances, no citations at all. See, e.g., Pl.'s Stmt. ¶ 2 ("The 3 member review panel created an appearance of compliance but did not comply with [D.C.] Department of Corrections and [D.C.] employment guidelines," without citation to any record evidence). Accordingly, the Court shall deem all facts proffered in Defendants' Statement of Undisputed Material Facts that are properly supported by record evidence to be admitted by Plaintiff, and shall disregard Plaintiff's improper Statement of Disputed Material Facts.*fn2

Plaintiff, who is of South Korean descent, was employed as a Lieutenant with the D.C. Department of Corrections ("DOC").*fn3 See Defs.' Mot., Ex. A ¶ 8 (Affidavit of O. Washington); Pl.'s Opp'n, Ex. D (9/28/92 EEO Request for Counseling).*fn4 In July 2003, the DOC considered nineteen correctional supervisors, all of which held the rank of Lieutenant, for promotion to the position of Correctional Officer, DS 007-11, more commonly known as the rank of Captain. Defs.' Stmt. ¶¶ 1, 5. As the second highest-ranking position in the DOC's uniformed workforce, Captains carry a high level of responsibility. Id. ¶ 2. In particular, Captains are responsible for "administering the day-to-day operations of the correctional security and custody programs to ensure a consistently safe and secure working and living environment for the department's staff, visitors, and over two thousand inmates." Id. Because of these responsibilities, successful candidates applying for the rank of Captain must possess

qualities that are difficult to quantify but impossible to overlook, including empathy, objectivity, perceptiveness, resourcefulness, adaptability and flexibility, stability, and maturity. In addition, a Captain must be able to lead, supervise, and instruct others. He or she must be able to reason soundly and think out practical solutions to problems, to make decisions and act quickly under pressure, and to adapt easily and quickly to changing requirements. A successful Captain must have both poise and self-confidence, and an ability to remain calm during emergency situations. It also is critical that a Captain have a comprehensive understanding of the operations and program aspects relevant to a correctional setting.

Defs.' Mot., Ex. A ¶ 4 (Affidavit of O. Washington).

Plaintiff was one of the nineteen Lieutenants who applied for six available Captain positions in July 2003. Id. ¶¶ 5, 8. Each candidate was interviewed by a panel consisting of Odie Washington, James Anthony, and Steve Smith. Id. ¶ 6. The panel asked each candidate the same nine questions, which were "intended to promote thoughtful and meaningful discourse regarding critical issues the candidate[s] would face if selected for the position of Captain." Id. ¶¶ 6, 7. For example, the panel asked the candidates to explain why they were prepared to be Captains and to describe the issues they believed the DOC was facing. Id. ¶ 6. Mr. Washington indicates that the panel was "seeking candidates who showed a high degree of consciousness about security issues, command presence, strong managerial and leadership qualities, integrity, and interpersonal skills." Id. ¶ 7.

Plaintiff was not one of the six candidates who were selected for promotion. Id. ¶ 8. Mr. Washington explains that Plaintiff failed to demonstrate that he possessed the qualities necessary to perform as a successful Captain during his interview:

[Plaintiff's] answers to the interview questions were quick, short, and nondescript. His responses appeared to be somewhat perfunctory and routine . . . [he] did not demonstrate the breadth of experience or depth of institutional understanding shown by the selected candidates. It did not appear that Lieutenant Jo had put much thought into the issues discussed, especially in comparison to those candidates [who] were selected for promotion.

Id. In contrast to Plaintiff's interview with the panel, Mr. Washington explains that the candidates who were selected for the promotions

provided the interviewers with thoughtful, thorough, and detailed responses. Their answers included information regarding their background and demonstrated the breadth of their experience with regard to several of the issues raised. The level of detail presented in the successful candidates' answers also demonstrated their command over the issues facing the department.

Id. ¶ 9. Three of the selected candidates who were promoted had also served as Lieutenants for at least three years longer than Plaintiff. Defs.' Stmt. ¶ 7. The other three selected candidates had served as Lieutenants for the same amount of time as Plaintiff. Id. ¶ 8.

Plaintiff's Complaint alleges that one or more of the "six individuals selected to be promoted to the rank of Captain by Defendants . . . were considerably less qualified for promotion than the instant Plaintiff." Compl. ΒΆ 9. During Plaintiff's deposition in this case, he explained that the basis for this allegation is that he was "working so hard," and that he had a job performance record that was "incredible." Defs.' Mot., Ex. B at 41:7 - 41:11 (Depo. Tr. of H. Jo). He conceded that ...

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