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Robinson v. Paulson

December 29, 2008



The plaintiff, Pamula Robinson, brings this action against the defendant, Henry Paulson in his official capacity as Secretary of the Treasury,*fn1 pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e-1 through e-17 (2000), alleging that she was unlawfully discriminated against based on her race (African American) when she was denied a promotion to the GS-512-14 Senior Program Analyst position advertised in Vacancy Announcement APB-03-138MM. Complaint ("Compl.") ¶¶ 1, 24. Currently before this Court is the defendant's Motion for Summary Judgment.*fn2

For the reasons outlined below, the defendant's motion for summary judgment will be granted.


The facts when viewed in the light most favorable to the plaintiff, are as follows. The plaintiff, an African-American, has been employed by the Internal Revenue Service ("IRS") for approximately thirty years, including serving as a GS-343-13 Program Analyst for approximately fifteen years in the Tax Policy and Procedures Division of the Office of Appeals ("Appeals Division") of the IRS.*fn3 Compl. ¶¶ 2, 9-10. The plaintiff has received many performance awards and letters of commendation, including a Deputy Commissioner's Award. Id. ¶14; Plaintiff's Opposition to Defendant's Motion for Summary Judgment and her Memorandum in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment ('Pl.'s Opp'n') at 8-9. In addition to her experience as a Program Analyst, the plaintiff also served as the Technical Analyst Program Coordinator between 1994 and 1998, while in a GS-343-13 position. Id. at 4, 9. Her job performance during this period was rated as either "outstanding" or "exceeds fully successful" in each area of responsibility critical to the performance of her duties. Id. at 9. The Technical Analyst Program Coordinator coordinates national training (Continuing Professional Education ("CPE")) programs for over 200 Technical Analysts, regularly answers questions from staff in the field, participates in several business and program reviews of the Technical Section, and updates the Technical Analysts Handbook and Technical Advise Request Forms. Id. at 5 & n.6, 9. The plaintiff also provided assistance to the Technical Section Chiefs in the field, identifying areas that could be improved and sharing procedures with them that were used in other offices. Id. at 9. In 1998, due to a staffing realignment, James Skunda became the Technical Analyst Program Coordinator as a GS-343-14 level employee. Id. at 4. "After Skunda took an extended leave, Sheila Jones assumed the Coordinator duties on October 31, 2002, during a one year temporary assignment as a GS-343-14 [level employee]."*fn4 Id. at 4-5.

On February 27, 2002, the Deputy Commissioner of the IRS, Bob Wenzel, imposed "a temporary freeze on [establishing] any new positions or back filling any vacant position in the GS-343 and/or occupational series at all grade levels." Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("Def.'s Mem."), Ex. 5 (Deposition of Pamula Robinson) ("Robinson Dep.") at 66-67 & Attachment ("Attach.") 10 (Memorandum from Bob Wenzel, Deputy Commissioner of Internal Revenue, to Division Commissioners Chiefs, dated February 27, 2002) ("Wenzel Memorandum") at 1; see also Def.'s Mem. at 2 (citing Ex. 4 (Plaintiff's Response to Defendant's First Set of Discovery Requests ("Pl.'s Disc. Resp.") Nos. 3-4). It is undisputed that "the Deputy Commissioner's decision to 'impose[] a freeze on [filling] all vacant analyst and related positions in the GS-343 and 301 occupational series' was made without regard to race . . . ." Def.'s Mem. at 2. After the hiring freeze was implemented, the Appeals Division was given an Approved Staffing Plan, which allowed for seventy-five GS-343 analysts to remain in the Division. Id.

David Geber, who is now retired and was the Director for Tax Policy and Procedure for Large and Mid-Sized Businesses at the IRS during the period in question, Defendant's Reply To Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Def.'s Reply") at 4, testified that he was instructed in 2002 in response to the freeze, to convert the employees under his supervision from the GS-343 to the GS-512 series,*fn5 Def.'s Mem. at 2. "On May 5, 2003, at Mr. Geber's request, Vacancy Announcement APB-03-138MM was issued for an Internal Revenue Agent (Senior Program Analyst) position at the GS-0512-14 level to permanently fill the vacancy" resulting from Mr. Skunda's extended absence. Compl., ¶¶ 20, 22; Def.'s Mem. at 3.

Mr. Geber contends that he "requested that the vacancy be announced in the 512 series due to the freeze on 343 positions and in order to maintain consistency, since all eligible 343 employees in his section had already been converted to 512 positions." Def.'s Mem. at 3. The plaintiff, however, disputes that the freeze was the reason Mr. Geber reclassified the GS-14 Senior Program Analyst position at issue from the 343 series to the 512 series.*fn6 See Pl.'s Opp'n at 11-14, 36-37. The plaintiff asserts that Mr. Geber testified that he knew it was possible to obtain an exception to the mandated freeze, and he did not testify that anything prevented him from requesting an exception so that the Senior Program Analyst position could remain in the 343 series. Id. at 12 & Ex. 1 (Deposition of David Gerber) at 70-71. Further, the plaintiff contends that Mr. Geber knew that all he needed to do to obtain an exemption was to submit a memorandum. Id. Notwithstanding the parties' dispute as to whether the reclassification was obligatory, "the requirements for the 512 vacancy were defined by the Qualification Standards Handbook, which is published by the Office of Personnel Management ("OPM")" and appropriate for that position. Def.'s Mem. at 3. The vacancy was open to IRS employees nation-wide and the announcement for the position noted that the duty station for the position could be in either Washington, D.C., St. Louis, Missouri, or Los Angeles, California. Def.'s Mem. at 3.

On May 14, 2003, Sheila Jones applied for the position. Id. Carson Sprott, a human resources specialist, "assessed Ms. Jones' application and based on her more than ten years of experience in a GS-512-13 position, he found her to be qualified" for the position. Def.'s Mem. at 5. On May 15, 2003, the plaintiff also applied for the position. Compl. ¶ 17; Def.'s Mem. at 4. Mr. Sprott also assessed the plaintiff's application and found her unqualified for the position. Def.'s Mem. at 4. In making this assessment, "[i]t was Mr. Sprott's understanding that the 512 series vacancy required specialized experience at the next lower grade, which the plaintiff did not possess." Id. Thus, upon comparing the plaintiff's application with the criteria for the position set forth in the Qualification Standards Handbook, Mr. Sprott determined that the plaintiff did not satisfy the minimal qualifications for the position.*fn7 Id. Mr. Geber therefore recommended Ms. Jones for the position and Beverly Ortega Babers then selected Ms. Jones to fill the vacancy. Id. at 5. The plaintiff acknowledges that she has no facts upon which to base her conclusion that Ms. Ortega Babers discriminated against her in making the selection decision. Id.

On June 20, 2005, the plaintiff filed this lawsuit alleging that the defendant unlawfully discriminated against her on the basis of her race (African American) when she was not promoted to the GS-512-14 Senior Program Analyst position advertised in Vacancy Announcement APB-03-138MM. Compl. ¶¶ 1, 24. The defendant filed its motion for summary judgment on November 15, 2006, arguing that "the [p]laintiff's non-selection was based not on race but on a legitimate, non-discriminatory reason -- specifically that the [p]laintiff was not deemed minimally qualified for the position she sought and was therefore removed from consideration by the Personnel Specialist at a time when he did not even know her race." Def.'s Mem. at 1. The defendant further asserts that the plaintiff cannot "present any evidence that this reason is a pretext for discrimination." Id. In opposition, the plaintiff responds that "[d]espite her many years of service and extensive background, the IRS discriminated against [her] when IRS manager Geber (white) manipulated the selection process for the GS-14 Senior Program Analyst position responsible for the Technical Analyst Program advertised in Vacancy Announcement APB-03-138MM . . . to prevent [the plaintiff] from being selected for the job." Pl.'s Opp'n at 1. Specifically, the plaintiff contends that "[Mr.] Geber manufactured a pretextual reason for not selecting [her] by intentionally re-classifying the [Senior Program Analyst] position, which was previously and subsequently occupied by 343 series employees, as a 512 series position to prevent [her] from being considered for the position and to assure that [Ms.] Jones, a white candidate, would be selected instead." Id. at 1-2.


Courts will grant a motion for summary judgment under Federal Rule of Civil Procedure 56 if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a Rule 56(c) 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 therefore 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, Inc., 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 marks omitted), and "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation omitted). Simply put, "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 marks and citations omitted). Rather, to withstand a properly supported motion for summary judgment, the non-moving party must "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e). "[T]here is no [genuine] issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson, 477 U .S. at 249 (citation omitted), and if the Court concludes that the evidence adduced by the non-moving party "is merely colorable ... or is not significantly probative," id., (citations omitted), or if the non-moving party has otherwise "failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof," Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), then the moving party is entitled to summary judgment. Finally, all "supporting and opposing affidavit[s] [submitted in connection with a Rule 56(c) motion] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify to the matters stated." Fed. R. Civ. P. 56(e).


Title VII provides, in relevant part, that all "personnel actions affecting employees or applicants for employment . . . in executive agencies . . . shall be made free from any discrimination based on race." 42 U.S.C. § 2000e-16(a). In evaluating claims of racial discrimination in employment under Title VII, it is useful to remember the District of Columbia Circuit's repeated admonition that the statute does not, and was not intended to, transform the Court into "a super-personnel department that reexamines an entity's business decisions." Holcomb, 433 F.3d at 897 (internal quotation marks and citations omitted). Indeed, even in situations where qualified candidates were under consideration for a position, the District of Columbia Circuit has cautioned that "Title VII liability cannot rest solely upon a judge's determination that an employer [has] misjudged the relative qualifications of admittedly qualified candidates." Fischbach v. District of Columbia Dep't of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996) (citation omitted). Thus, "[s]hort of finding that the employer's stated reason [for its selection decision] was [merely] a pretext [for unlawful discrimination,] . . . the [C]court must respect the employer's unfettered discretion to choose among qualified candidates." Id., (citations omitted). In assessing this question, "the ultimate burden of persuading the trier of fact that the [employer] intentionally discriminated against the plaintiff remains at all times with the plaintiff." Reeves, 530 U.S. at 142 (internal quotation marks and citation omitted).

Where, as here, the plaintiff has not proffered any direct evidence of intentional discrimination, her race discrimination claims under Title VII are evaluated under the burden-shifting framework first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973).*fn8 Weber v. Battista, 494 F.3d 179, 182 (D. C. Cir. 2007). Under this framework, the plaintiff bears the initial burden of "establish[ing] a prima facie case of discrimination by a preponderance of the evidence." Id. (internal quotation marks and citation omitted). To do so in the context of an adverse selection decision case, the plaintiff must demonstrate that "(1)[s]he is a member of a protected class; (2) [s]he applied for and was qualified for an available position; (3) despite [her] qualifications[,] [s]he was rejected; and (4) either someone filled the position[,] or the position remained vacant and the employer continued to seek applicants." Jackson v. Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007) (internal quotation marks, citation, and ellipsis omitted); see alsoHolcomb, 433 F.3d at 895 (same). If the plaintiff succeeds in establishing a prima facie case in this manner, "the burden shifts to the defendant employer to produce evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Jackson, 496 F.3d at 707 (quoting Reeves, 530 U.S. at 142) (internal quotation marks omitted). If the employer presents such an explanation, "to survive summary judgment the plaintiff must show that a reasonable jury could conclude from all ...

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