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Davis v. Filip

January 22, 2009


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


Christopher W. Davis, the plaintiff in this civil lawsuit, seeks compensatory and punitive damages as well as injunctive relief against the Attorney General of the United States in his capacity as head of the United States Department of Justice (the "DOJ")*fn1 for alleged unlawful discrimination against him on the basis of race and national origin pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (2000). Specifically, the plaintiff alleges that he was not selected for a lateral transfer to one of the Assistant Legal Attache ("ALAT") positions in Rome, Italy, "because of his race and national origin," Complaint ("Compl.") ¶ 14. Instead, Angelus Lagomarsino, a white applicant of Italian descent, was awarded the position, allegedly "because of his race and national origin," id., even though the plaintiff "was far more qualified than Mr. Lagomarsino." Id. ¶ 13.

On December 13, 2007, the Court issued an order denying the defendant's motion for summary judgment under Federal Rule of Civil Procedure 56 along with an accompanying memorandum opinion.*fn2 That same date, the Court entered a separate order directing the plaintiff to show cause why the Court should not grant summary judgment to the defendant on the issue of damages and dismiss sua sponte the plaintiff's complaint for lack of standing. Currently before the Court is the plaintiff's response to that order to show cause (the "Pl.'s Resp.") as well as the defendant's motion for reconsideration of the Court's order denying his motion for summary judgment.*fn3 After carefully considering the plaintiff's response, the defendant's motion, and all memoranda of law and exhibits relating to that motion,*fn4 the Court concludes that it must discharge its order to show cause and deny the defendant's motion for reconsideration for the reasons that follow.

I. Background

Though familiar to the parties and the Court, the facts underlying this case have never been presented to the public, and therefore are recited in full below.*fn5 The plaintiff, "an adult African-American citizen of the United States," Compl. ¶ 1, is "an employee of the Federal Bureau of Investigation ([the] 'FBI' [or the 'Bureau'])," id., who "began his career as an FBI agent in February 1991," Def.'s Stmt. ¶ 3. The plaintiff's first assignment was in Los Angeles, California, where he "worked in the bank robbery squad for twelve to fifteen months" followed by reassignment to the "gang squad for three and a half years, focusing on African-American gangs." Id. The plaintiff then served on the Joint Terrorism Task Force before being "selected to be a supervisor at FBI headquarters in Washington, D.C. in the Weapons of Mass Destruction Unit." Id. ¶ 4. Following that assignment, the plaintiff returned to Los Angeles to work as the International Terrorism supervisor, "in which capacity he served only one week," id. ¶ 5, before becoming a "domestic terror and hate crimes coordinator," id.

In February of 2001, "the FBI posted a vacancy announcement inviting applications for the position of [an ALAT] located in its office in Rome, Italy." Compl. ¶ 9. The plaintiff timely submitted his application for the position. Id. ¶ 10. His application was considered by the Investigative Services Division's Legat Screening Panel (the "Screening Panel"), "a rating panel comprised of nine high-level FBI officials," along with the application of Angelus Lagomarsino, a "Caucasian applicant . . . who bore an Italian surname." Id. ¶ 11. The Screening Panel considered a total of eighteen applicants, which was "narrowed . . . down [by the Screening Panel] to four recommended applicants." Id. The plaintiff was rated highest among all of the applicants for the job, and Lagomarsino was ranked as tied for third place among the four recommended candidates. Id.

The Screening Panel transmitted its recommendations to the Special Agent Mid-Level Management Selection Board (the "SAMMS Board"), "a selection board staffed by high-level management officials of the FBI." Id. ¶ 12. The SAMMS Board met on May 15, 2001, during which its members "numerically ranked each candidate for the job on a zero to four point scale." Id. The plaintiff "earned the highest possible ranking from six of the seven SAMMS Board members," id., and "was the number one recommended candidate by the SAMMS Board." Id. Lagomarsino's scores placed him fourth among the four candidates for the position. Id.

The SAMMS Board forwarded its recommendation to Louis J. Freeh, at that time the Director of the FBI, "[i]n or around May 2001." Id. ¶ 13. Director Freeh, who "viewed the Legat program as a priority because of the increasing nature of organized criminal enterprises and international terrorism," Def.'s Stmt. ¶ 19, "bypassed the recommendation" of the SAMMS Board and selected Lagomarsino over the plaintiff, Compl. ¶ 13. The plaintiff learned of this decision on June 7, 2001, when he "received an electronic mail message listing Angelus Lagomarsino for the ALAT Rome position." Def.'s Stmt. ¶ 6. At that point, the plaintiff "inquired of the [Screening Panel] and the [SAMMS Board] about the details of the selection process." Id.

Within thirty days of learning of Lagomarsino's selection, the plaintiff contacted a DOJ Equal Employment Opportunity Counselor and initiated the counseling process. Compl. ¶ 5. The counseling concluded in August of 2001. Id. ¶ 6. The plaintiff filed a formal Complaint of Discrimination within fifteen days of his final counseling interview. Id.

The very next month, in September of 2001, the plaintiff applied for the ALAT position in Ottawa, Canada. Def.'s Stmt. ¶ 7. He was selected for this position "in December 2001 or January 2002[,] and reported for duty at the end of March 2002[] after a period of training in the Washington, D.C. area." Id. Eventually, the DOJ's Complaint Adjudication Office issued its Final Decision finding no discrimination in the selection of Lagomarsino over the plaintiff for the Rome ALAT position. Compl. ¶ 7. The plaintiff learned of this decision by way of a letter dated October 23, 2003. Id. ¶ 7.

The plaintiff filed his complaint in this Court on December 12, 2003. In his complaint, the plaintiff alleges that he "was rejected by the [d]efendant for the position [of a Rome ALAT] because of his race and national origin," and that "Angelus Lagomarsino was selected because of his race and national origin." Id. ¶ 14. The plaintiff further contends that he "suffered and continues to suffer lost earnings and benefits, pain, suffering, humiliation, and mental distress" as a result of this alleged discrimination. Id. ¶ 15. Consequently, the plaintiff seeks compensatory and "other" damages, id. at 4, costs, expenses, attorneys' fees, and pre- and post-judgment interest, and declaratory relief, id. at 5. The plaintiff also requests that the Court "[i]nstate [him] into the position of ALAT Rome or a comparable position, with all attendant benefits, and award front pay until [the d]efendant instates [the p]laintiff into the position in question or a comparable position." Id. at 4.

The defendant filed his answer on March 19, 2004. After a protracted discovery process spanning more than a year, the defendant filed a motion for summary judgment on August 24, 2006. In support of his motion, the defendant argued that he should be awarded summary judgment because (1) the plaintiff could not demonstrate that he was the victim of an adverse action, and therefore could not establish a prima facie case for discrimination, and (2) the plaintiff had not shown that the legitimate, non-discriminatory reasons given for Director Freeh's decision to choose Lagomarsino over the plaintiff were pretextual.*fn6

The Court rejected both of these arguments in its December 13, 2007 memorandum opinion. Noting that "the burden of establishing a prima facie case is not onerous," the Court found that "the evidence in the record . . . easily satisfie[d]" the requirement that the plaintiff suffer some adverse action as a result of the FBI's alleged discriminatory acts, Davis v. Mukasey, Civil Action No. 03-2531 (RBW), slip op. at 11 (D.D.C. Dec. 13, 2007) (internal citation and quotation marks omitted), because "the record [was] clear that the plaintiff would have faced a drastic change in job responsibilities had he transferred from his field supervisor position in Los Angeles to the ALAT position in Rome," id. at 12, and "[a] transfer to the Rome ALAT post would also have affected the plaintiff's likely career path," id. at 13. The Court also rejected the defendant's argument that the plaintiff had suffered no adverse action due to his subsequent appointment to the Ottawa ALAT position because that subsequent transfer, while perhaps "limit[ing] or even foreclos[ing] the recovery of damages by the plaintiff, . . . [did] not retroactively annul the fact that the plaintiff's overseas career prospects were harmed when his application for the Rome ALAT post was denied in the first place." Id. at 15.

Further, the Court "agree[d] [with the plaintiff] that a reasonable jury could infer that Director Freeh's explanation as to why he chose Lagomarsino over the plaintiff [was] a pretext for discrimination." Id. at 16. The Court reached this conclusion because "[e]vidence in the record undercut[] the credibility of" Director Freeh's explanation that he selected Lagomarsino due to the "language disparity between the plaintiff and Lagomarsino," id., and because the Court found "some evidence of inconsistency in the amount of deference given by Director Freeh to ...

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