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Smith v. Napolitano

June 22, 2009


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No. 16




This matter is before the court on the defendant's motion for summary judgment. The plaintiff, a longtime employee of the defendant, alleges that he was discriminated against on the basis of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., when he was not selected for either of two supervisory positions to which he applied in April 2006. The plaintiff further alleges that he was not selected for the second of these supervisory positions in retaliation for engaging in protected activity in response to his non-selection for the first position. The defendant has moved for summary judgment.

The court concludes that the plaintiff has failed to raise a genuine issue of fact concerning whether the defendant's proffered non-discriminatory justification -- that he was not the most qualified candidate for either position -- is pretext masking a discriminatory or retaliatory motive. Accordingly, the court grants the defendant's motion for summary judgment.


In October 1983, the plaintiff, who was born in 1942, began work as an Emergency Management Specialist with the Fire Administration of the Federal Emergency Management Agency ("FEMA").*fn2 Pl.'s Opp'n at 1-3; Def.'s Mot. at 2 & Ex. 2 ("Pl.'s Resume") at 2-3. In November 1989, the plaintiff transferred to FEMA's Preparedness Directorate, whose mission appears to have been focused on assisting local governments develop systems for responding to natural disasters.*fn3 See Pl.'s Opp'n at 3-5; Pl.'s Resume at 2-3. While employed in the Preparedness Directorate, the plaintiff spearheaded the Comprehensive HAZMAT Emergency Response -- Capability Assessment Program ("CHER-CAP"), "a program developed to aid local government [in] preparing a comprehensive community response to a major event using a HAZMAT incident as a teaching tool." Pl.'s Resume at 2. The CHER-CAP program was implemented "in over 100 communities [and] cities including the District of Columbia." Id. at 3.

The focus of the government's preparedness efforts, and concomitantly the plaintiff's duties, changed dramatically in response to the terrorist attacks of September 11, 2001. Def.'s Mot. at 3 & Ex. 1 ("Pl.'s Dep.") at 49, 51-59. CHER-CAP ceased to exist and its funding was redirected to preparedness for acts of terrorism. Id. at 49, 51. These terrorism preparedness efforts were led by the newly-formed Department of Homeland Security ("DHS") rather than FEMA. Id. at 57. As the plaintiff testified, "[i]t became pretty obvious to me that there was a new order with DHS in town and what I was doing to prepare state and local governments for disasters was not in fashion. The thing that was in fashion was to get them ready for terrorist attacks." Id. With CHER-CAP at an end, the plaintiff's duties shifted to representing FEMA on an entity called the National Response Team. Id. at 58-59; see Pl.'s Opp'n at 4.

In September 2004, the plaintiff was appointed to a 120-day detail as Acting Chief of the Preparedness Branch within the Preparedness Directorate. Def.'s Mot. at 4; Pl.'s Opp'n at 3. The vacancy was created by the promotion of David Garratt, who was elevated to the position of Acting Director of the Preparedness Directorate and who recommended that the plaintiff take over his former position. Def.'s Mot. at 4; Pl.'s Opp'n at 3. As Acting Branch Chief, the plaintiff was responsible for all management and preparedness activities of the branch and had supervisory responsibility over five employees. Pl.'s Dep. at 83-84; Pl.'s Resume at 2; Pl.'s Opp'n at 3. The plaintiff was temporarily elevated from a GS 14 to a GS 15 grade level for the duration of the detail. See Def.'s Mot. at 4-5.

The plaintiff acknowledges that he received some critical performance reviews during his tenure as Acting Branch Chief. Pl.'s Opp'n at 3 n.1. For instance, Garratt determined that the plaintiff's performance as Acting Branch Chief was, at least at times, "less than expected." Def.'s Mot. at 5-6; see Pl.'s Opp'n at 3 n.1. Garratt specifically testified about the particularly poor showing of the Preparedness Branch on one assignment undertaken under the plaintiff's leadership. Def.'s Mot. at 5-6; see Pl.'s Opp'n at 3 n.1. The plaintiff notes, however, that at the time of his year end review, he had addressed these areas of concern and received a satisfactory rating. Pl.'s Opp'n at 3 n.1. In January 2005, the plaintiff's temporary detail as Acting Branch Chief came to an end. Pl.'s Resume at 2; Def.'s Mot. at 6. The plaintiff, however, chose to continue as Acting Branch Chief on a voluntary basis even after he was returned to a GS 14 grade level. Pl.'s Dep. at 99-101.

In January 2006, while the plaintiff was still serving as Acting Branch Chief on a voluntary basis, Albert Fluman joined FEMA as the Acting Director of the Preparedness Directorate. Def.'s Mot. at 6 & Ex. 5 ("Fluman Dep.") at 92. As Acting Director, Fluman was responsible for all preparedness activities of FEMA. Fluman Dep. at 95. His principal duty, however, was to direct the implementation of the National Incident Management System ("NIMS"). Def.'s Mot. at 6-7; Fluman Dep. at 95.

Given the centrality of NIMS to this case, it is striking that neither party bothers to explain precisely what NIMS is or does. See generally Def.'s Mot.; Pl.'s Opp'n; Def.'s Reply. The court, however, gathers from the parties' submissions that NIMS refers to a body of rules, standards and best practices to be developed by FEMA to guide local governments in their disaster response preparation efforts. See generally Def.'s Mot.; Pl.'s Opp'n; Def.'s Reply. NIMS implementation required both the development of national standards for local response preparedness as well as mechanisms for measuring the compliance of local governments to these standards. See Def.'s Mot. at 7-8.

In furtherance of his duty to implement NIMS, Fluman created two positions: (1) Chief of the Compliance and Technical Assistance Branch ("the VA 221 position") and (2) Chief of the Standards and Technology Branch ("the VA 228 position"). Def.'s Mot. at 7; Pl.'s Opp'n at 4-5. The VA 221 position focused primarily on the compliance aspect of NIMS implementation. See Def.'s Mot. at 7; Pl.'s Opp'n at 4. The individual selected for that position would supervise the development of "national program guidelines, policies, plans and procedures to ensure compliance with . . . NIMS." Def.'s Mot. at 7; see Pl.'s Opp'n at 4. The VA 221 position also entailed responsibility for "[e]stablish[ing] mechanisms to coordinate with DHS, other Federal agencies . . . and other stakeholders to effectively and efficiently define, develop . . . and promulgate NIMS related compliance requirements." Def.'s Mot., Ex. 9 ("the VA 221 Announcement") at 1.

The VA 228 position, on the other hand, focused primarily on the standards-setting aspect of NIMS implementation. Def.'s Mot. at 7; Pl.'s Opp'n at 5. The individual selected for that position would "be responsible for integrating the incident management science and technology needs to promote capability among national level standards." Def.'s Mot., Ex. 14 ("the VA 228 Announcement") at 1. The selectee would also serve as FEMA's "technical authority in the formulation of national program guidelines, policies, plans and programs to provide effective implementation of programs and to ensure compliance with . . . NIMS." Id. at 1-2.

Fluman forwarded descriptions of the two positions to FEMA's Human Resources Department, who, together with managers at FEMA, developed knowledge, skills and abilities ("KSA") questions to evaluate candidates for each position. Def.'s Mot. at 8. The vacancies were posted on April 18, 2008. Id. at 35-36. Candidates were instructed to submit their KSA responses and other application materials to the Human Resources Department, who would review these materials and develop a list of most qualified candidates. Id. at 9. The list of best qualified candidates would then be forwarded to the selecting official (in this case Fluman) on a document called a Merit Promotion Certificate. See id.

The plaintiff applied for both positions. Pl.'s Opp'n at 4-5. The hiring for the VA 221 position proceeded first. See id. at 37-38. FEMA's Human Resources Department determined that based on his application materials, the plaintiff was among the ten most qualified candidates for the VA 221 position. Def.'s Mot. at 9; Pl.'s Opp'n at 4. Yet after receiving the list of most qualified candidates, Fluman determined that interviews were unnecessary and hired another individual, James Mullikin, for the position. Def.'s Mot. at 10; Pl.'s Opp'n at 14-18. Mullikin was a DHS employee detailed to FEMA specifically to assist in the compliance aspect of NIMS implementation. Def.'s Mot. at 10; see also Pl.'s Opp'n at 5-10. The defendant contends that Mullikin was "by far" the most qualified candidate for the position. Def.'s Mot. at 10. At the time of his selection, Mullikin was 48 years old, while the plaintiff was 64. Pl.'s Opp'n. at 1, 5.

Soon after being passed over for the VA 221 position, the plaintiff contacted a FEMA EEO counselor to complain of what he perceived as age discrimination in the selection of Mullikin. Id. at 2. The plaintiff also allegedly confronted Fluman directly regarding his non-selection. Def.'s Mot. at 11-12. On June 7, 2009, an EEO counselor contacted Fluman, who was advised that an anonymous individual had complained about the hiring of the VA 221 position. Pl.'s Opp'n. at 2.

At approximately the same time, FEMA's Human Resources Department was reviewing the application materials for candidates for the VA 228 position. See id. The plaintiff again was placed on the list of the ten best qualified candidates. Def.'s Mot. at 12-13. Fluman, however, chose not to interview the plaintiff. Id. Instead, Fluman chose to interview two individuals, Tracy Haynes and James Carnegis. Def.'s Mot at 12-13. Each man was under 50 years old at the time. Id. at 13. Fluman formed an interview panel comprised of himself, his deputy Carol Cameron and John Rhodes, a FEMA consultant and expert in the area of standards. Id. On June 9, 2006, Haynes was selected for the VA 228 position. Id. at 13-14; Pl.'s Opp'n at 12-13.

On June 8, 2007, the plaintiff commenced this action in the district court. Following extensive discovery, the defendant filed this motion for summary judgment.


A. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he "support[s] his allegations . . . with facts in the record," Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993)), or provides "direct testimonial evidence," Arrington v. United States, 473 F.3d 329, 338 (D.C. Cir. 2006). Indeed, for the court to accept anything less "would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a . . . trial." Greene, 164 F.3d at 675.

B. Legal Standard for Discrimination under the ADEA

In the recent decision Goss v. FBL Financial Servs., Inc., the Supreme Court held that "a plaintiff bringing a disparate treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but for' cause of the challenged adverse employment action." 557 U.S. ___, ___ (2009) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141, 143 (2000) (holding that "the plaintiff's age must have 'actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome'")). In assessing whether the plaintiff has met this burden, courts are guided by a three-part burden-shifting analysis known asthe McDonnell Douglas framework. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003); Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 2003) (applying the McDonnell Douglas framework to a Title VII retaliation claim). The Supreme Court explained the framework as follows:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection" . . . . Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination . . . .

The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff ...

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