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Menoken v. Whipple

March 23, 2009

CASSANDRA M. MENOKEN, PLAINTIFF,
v.
KATHIE A. WHIPPLE, ACTING DIRECTOR, U.S. OFFICE OF PERSONNEL MANAGEMENT, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

Pro se plaintiff Cassandra M. Menoken, a Black female attorney who is employed with the Equal Employment Opportunity Commission ("EEOC") is seeking to become a federal Administrative Law Judge ("ALJ"). Asserting disparate impact and disparate treatment claims, she brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), against the U.S. Office of Personnel Management ("OPM"), which administers the ALJ application process. Menoken alleges that OPM failed to comply with an EEOC order requiring it to stop using a feature of the 1993 ALJ examination, which unlawfully discriminated against Black applicants. Menoken further alleges that OPM's administration of the ALJ application process unlawfully discriminates against Black and female applicants in other ways. Finally, Menoken alleges that the ALJ application process discriminated against her in particular.

Before the court is OPM's "Renewed Motion for Summary Judgment" [#197]. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that OPM's motion must be granted.

I. BACKGROUND

In 1993, Menoken commenced the OPM examination process. An applicant must complete the process successfully to be eligible for selection as an ALJ.*fn1 Dissatisfied with her final examination score, Menoken filed several appeals with the ALJ Ratings Appeal Panel. In 1994, Menoken filed a formal charge with the EEOC alleging that the 1993 ALJ selection process had an unlawful disparate impact on Black and female applicants through its design and administration. Menoken also alleged that OPM discriminated against her on the basis of her race and sex and retaliated against her because of her decision to engage in protected activity. After a hearing on the liability phase of her administrative charge, the EEOC Administrative Judge ("AJ") issued a decision finding all but one of her claims to be without merit.*fn2

The claim on which Menoken prevailed was a challenge to the use of a benchmark in the SQS component of the ALJ examination. Specifically, the benchmark awarded applicants who were partners at large law firms five out of a possible six points in the organizational skills category ("partner benchmark"). The AJ agreed with Menoken that using the partner benchmark as part of the SQS component impermissibly created a disparate impact on the basis of race. (Def.'s Renewed Mot. Summ. J., Ex. 8 at 61.) On November 9, 2000, the AJ ordered OPM "to cease use of that benchmark until its use has been properly validated... or until the disparate impact disappears." (Id.) The AJ also ordered OPM to post and provide notice to agencies of the discriminatory benchmark and the AJ's order. (Def.'s Renewed Mot. Summ. J., Ex. 9 at 27.) OPM issued a final order stating it would implement the decision fully. (Def.'s Reply to Pl.'s Opp. to Def.'s Renewed Mot. Summ. J., Ex. 3 at 13-14.) In August 2001, Menoken filed an appeal with the EEOC, alleging that OPM had failed to comply with the AJ's order and, in September 2001, she filed an appeal challenging the AJ's decisions on her other claims. In May 2003, the EEOC issued a combined decision rejecting Menoken's compliance challenge and affirming OPM's final agency decision. (Def.'s Renewed Mot. Summ. J., Ex. 12 at 8.) Menoken filed a request for reconsideration of the EEOC's decision, which was still pending when she filed this action in August 2003.

II. ANALYSIS

Menoken's amended complaint sets forth three causes of action. First, Menoken alleges that OPM failed to comply with the AJ's order requiring it to cease and correct unlawful discrimination against Black applicants caused by the partner benchmark. Second, Menoken alleges that the SQS and PRI components of the ALJ examination unlawfully discriminate against Black applicants in general and against her in particular. Third, Menoken alleges that the geographic preference form used to identify where persons on the ALJ register are willing to work unlawfully discriminates against female applicants in general and against her in particular.

OPM contends that it is entitled to summary judgment on all three claims. OPM argues that it is entitled to summary judgment with respect to the compliance claim because it complied with the AJ's order and produced documentary and testimonial evidence confirming its compliance. OPM argues that it is entitled to summary judgment on Menoken's second and third claims insofar as they allege disparate impact in the SQS, PRI, and geographic preference components because Menoken has failed to establish a prima facie case of disparate impact. OPM contends that it is entitled to summary judgment on Menoken's second and third claims insofar as they allege disparate treatment against her because OPM has articulated legitimate, non-discriminatory reasons for its actions; there is no evidence of pretext; and, in any event, there is insufficient evidence of discrimination to survive summary judgment.

A. Menoken Has Not Produced Sufficient Evidence To Survive Summary Judgment On Her Compliance Claim

OPM contends that there is no evidence supporting Menoken's claim that OPM failed to comply with the AJ's order requiring it to cease and correct discrimination against Black ALJ applicants caused by the partner benchmark in the SQS component of the ALJ examination. Indeed, OPM avers, without contradiction, that it provided Menoken with a memorandum, dated August 24, 2001, explaining the numerous steps it had taken to comply with the AJ's order, including: (1) ceasing use of or reliance upon the partner benchmark when scoring completed but unscored ALJ applications; (2) reviewing the scores of applicants on the 1993 ALJ Register; and (3) confirming that no applicants received five points on the basis of the SQS partner benchmark. (See Def.'s Renewed Mot. Summ. J., Ex. 18 at 1-2.) ("Whitford Memo.") To confirm its efforts, OPM attached a list of the affected applicants to the Whitford Memo. (See id. at 4.) OPM also points to the testimony of one of the two persons who were responsible for rating the SQS component, F. Alan Nelson, who testified as follows: that he crossed out the partner benchmark while rating applications; that the other rater was provided with the modified ratings; and that OPM did not resume use of the partner benchmark. (Def.'s Reply to Pl.'s Opp. to Def.'s Renewed Mot. Summ. J., Ex. 4 at 26-30, 56-58.) ("Nelson Dep.") Further, OPM states that it posted a notice to employees and applicants informing them that the partner benchmark no longer would be used. (See Whitford Memo at 1-2.) Finally, OPM contends that the EEOC found that OPM had complied with the AJ's order in rejecting Menoken's various appeals.

Menoken counters that this court cannot consider the Whitford Memo because it would be inadmissible at trial. Specifically, Menoken contends that the Whitford Memo contains hearsay, lacks competency, lacks foundation, and has not been authenticated. Further, Menoken contends that Nelson's testimony is insufficient to support summary judgment because a jury could question his credibility. With respect to OPM's contention that the EEOC confirmed OPM's compliance by dismissing Menoken's appeals, Menoken simply states that the EEOC erroneously believed that OPM had complied with the AJ's order.

OPM rejoins that both documentary and testimonial evidence confirm its full compliance with the AJ's order, including not only the Whitford Memo but also Nelson's declaration, which explains that OPM stopped using the partner benchmark, that he personally crossed it out from the new rating schedule, that he provided the new rating schedule as amended to the other raters, and that OPM did not resume use of the partner benchmark. (See Def.'s Renewed Mot. Summ. J., Ex. 3 at ¶¶ 10-12.) ("Nelson Decl.") Further, OPM points out that it provided Menoken with a copy of the stricken language, (see Def.'s Renewed Mot. Summ. J., Ex. 19), which Nelson properly authenticated, (see Nelson Decl. at ¶ 11.). With respect to the Whitford Memo, OPM contends that it is cumulative of other testimony and evidence, and, in any event, that Nelson properly authenticated it during his deposition. (See Nelson Dep. at 88-89.) With respect to Nelson, OPM contends Menoken cannot rely on the argument that a jury must judge his credibility to defeat summary judgment because she has produced no evidence challenging Nelson's testimony or credibility. Finally, OPM reiterates that previous EEOC decisions rejecting Menoken's appeals confirm OPM's above-described compliance efforts and thus support summary judgment for OPM.

OPM has provided abundant admissible evidence substantiating its full compliance with the AJ's order to cease and correct the discrimination caused by the partner benchmark. Menoken has not countered with sufficient evidence to create a genuine issue of material fact as to OPM's efforts toward compliance. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (holding that a motion for summary judgment that is supported by affidavits and other evidence "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'") (quoting Fed. R. Civ. P. 56(e)). Menoken also has failed to provide a compelling legal basis in support of her claim; her arguments essentially boil down to the ...


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