The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff William Hopkins filed this lawsuit against the Director of the Office of Personnel Management ("OPM") alleging that OPM discriminated against him based on his national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and based on his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., by not scoring Hopkins as high as he believed he should have been scored on the certificate of eligibles that accompanied Hopkins' application for a position of Russian interpreter with the United States Department of State. Hopkins also claims that defendant's selection process has a disparate impact upon people of advanced age and people who share his national origin. OPM moves for summary judgment on the claims of national origin and age discrimination in scoring because the State Department withdrew the vacancy announcement and did not hire anyone to fill the position Hopkins sought, and moves to dismiss the disparate impact claim arguing that Hopkins failed to exhaust his administrative remedies. Because Hopkins neither presents a prima facie case of discrimination nor rebuts as pretextual OPM's neutral rationale for not manually adjusting Hopkins' score, and because Hopkins did not satisfy administrative prerequisites with respect to his disparate impact claim, the defendant's motion to dismiss and for summary judgment will be granted.
Hopkins, a U.S. native, was a resident of the District of Columbia who was approximately 60 years of age when the events at issue occurred. (Compl. at ¶¶ 5, 6.) As of July 2002, Hopkins had interpreted Russian for nine years in consecutive and simultaneous nodes for Presidents and Secretaries of State. In addition, for 20 years before that, Hopkins interpreted Russian for various United States arms negotiators, and he was the personal interpreter of the United States ambassador in Moscow for two years. (Compl. at ¶ 6.)
In July 2002, the State Department asked OPM to refer eligible applications for four Interpreter positions in languages including French, German, Russian, and Spanish. (Def.'s Stmt. of Material Facts Not in Dispute ("Def.'s Stmt.") at ¶ 1.) Hopkins received an e-mail from an employee of the State Department's Office of Language Services stating that the Office of Language Services was recruiting a staff Russian interpreter, and inviting Hopkins to apply for the position. (Compl. at ¶ 9.) Hopkins replied to the e-mail, and shortly thereafter received an official announcement via fax. (Compl. at ¶ 10.) The announcement included a questionnaire containing 17 questions. Hopkins applied for the position at both the grade GS-13 and grade GS-14 levels, and OPM confirmed that it had received Hopkins' application. OPM's automated staffing system evaluated applicants' questionnaire responses and generated a numeric rating for the applicants. (Def.'s Stmt. at ¶ 3.) OPM staff examined the top scoring applicants' application materials and compared them to objective benchmarks to ensure the accuracy of the automated staffing systems' rankings, and to ensure that the applicants' self-assessments about their ability to interpret Russian were substantiated. (See Def.'s Mem. of P. & A. in Supp. of its Mot. to Dismiss and for Summ. J. at 10-11.) Later, OPM informed Hopkins that his application would be considered under open competition examining procedures, and that he had been found to be qualified for the position he sought based upon OPM's review of his application. (Compl. at ¶ 13.)
Hopkins was one of 29 applicants to apply for the Russian Interpreter position (Def.'s Stmt. at ¶ 5), and one of 11 candidates whose application materials OPM forwarded to the State Department. His score was 92 out of 100, which fell in the category of well-qualified. (Def.'s Stmt. at ¶ 7.) However, Hopkins was not interviewed for the position because the State Department decided to interview only the top four scoring candidates applying for the position at the GS-13 grade, and his name was not listed as one of the top four scoring candidates. (Pl.'s Resp. to Def.'s Mot. ("Pl.'s Resp.") Ex. 3, Sprague Aff. at 1-2, April 15, 2003.) In December 2002, OPM informed Hopkins that his application "was among those referred to the selecting official . . . . However, no selection was made from those referred." (Compl. at ¶ 16; Def.'s Stmt. at ¶ 12.) According to Brenda Saunders Sprague, the Director of the Office of Language Services, the vacancy announcement was withdrawn "due in large part to a changed workload and resulting lack of work for Russian interpreters." (Def.'s Mot. to Dismiss and for Summ. J. ("Def.'s Mot."), Ex. 9, Sprague Aff. ¶ 4, October 27, 2005.)
Hopkins alleges that he was the most qualified applicant based upon objective standards used among language professionals. However, Hopkins alleges that he was given a lower rating and ranking on the OPM certificate of eligibles than he should have been given because the OPM examiner favored applicants whose national origin suggested that their native language was Russian. (Compl. at ¶ 17.) Hopkins contends that the extent and quality of his qualifications were superior to that of the other identified candidates, yet were underrated by the automated computer ranking and scoring system. According to Hopkins, the OPM examiner who reviewed his application should have realized that the computer generated ratings for other applicants were over-inflated. He also claims that the OPM examiner made subjective determinations that had a disproportionate impact on people who were not native Russian speakers because the reviewing official subjectively over-inflated the scores for native Russian speakers. As a result, he says, two thirds of the top-ranking candidates were people who had been educated in the Soviet Union. (Compl. at ¶¶ 18-19, 22.) According to Hopkins, the OPM examiner should have changed or adjusted the rankings when he reviewed the top scoring applicants' application materials to account for Hopkins' superior qualifications, but did not do so. Hopkins also alleges that he was considerably older than the applicants that OPM rated as the top three scorers. (Compl. at ¶ 20.)
Plaintiff filed an administrative complaint of discrimination, and OPM ultimately issued a final order denying the complaint. (Compl. at ¶ 22.) Hopkins then filed this action, and OPM moved for summary judgment on the claims of national origin and age discrimination in scoring in the complaint's first and second causes of action, and dismissal of the disparate impact claim in the complaint's third cause of action.
I. DISCRIMINATORY SCORING
"Summary judgment is appropriate when the pleadings and the evidence demonstrate that '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.'" Feirson v. Dist. of Columbia, 506 F.3d 1063, 1066 (D.C. Cir. 2007) (quoting Fed. R. Civ. P. 56(c)); see also Nails v. England, 311 F. Supp. 2d 116, 121 (D.D.C. 2004). "Not all alleged factual disputes represent genuine issues of material fact which may only be resolved by a jury. Material facts are those that might affect the outcome of the suit under governing law, and a genuine dispute about material facts exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Hines v. Bair, 594 F. Supp. 2d 17, 22 (D.D.C. 2009) (quoting Nails, 311 F. Supp. 2d at 121) (internal quotations omitted).
"In deciding whether there is a genuine issue of material fact, the court must assume the truth of all statements proffered by the non-movant except for conclusory allegations lacking any factual basis in the record." Hines, 594 F. Supp. 2d at 22 (quoting Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006) (internal quotations omitted). "Summary judgment may be granted even if the movant has proffered no evidence, so long as the non-movant 'fails 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.'" Dist. Intown Prop. L.P. v. Dist. of Columbia, 198 F.3d 874, 878 (D.C. Cir. 1999) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). "Although the burden on the nonmoving party is not great, it is still required to show specific facts, as opposed to general allegations, that present a genuine issue worthy of trial." Palestine Info. Office v. Shultz, 853 F.2d 932, 944 (D.C. Cir. 1988).
In general, a prima facie claim of discrimination requires a plaintiff to establish that he is a member of a protected class and that he was subjected to an adverse employment action which gives rise to an inference of discrimination. See Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006); Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002); see also Heasley v. D.C. General Hosp., 180 F. Supp. 2d 158, 168 (D.D.C. 2002) ("To establish [a] prima facie case of disability, age, or race discrimination, plaintiff must establish, inter alia, that [his] employer took an adverse employment action against [him] because of [his] protected status."). To establish a prima facie case of discrimination in a job referral case, plaintiff must show that 1) he belongs to a protected class; 2) he was qualified for and requested referral to jobs for which the employer accepted referrals; 3) he was not referred despite his qualifications; and 4) after refusing to refer plaintiff, the referring agency continued to refer individuals to available positions. See McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973); Mills v. Int'l Brotherhood of Teamsters, 634 F.2d 282, 285 (5th Cir. 1981); Andrews v. Bechtel Power Corp., 780 F.2d 124, 141 (1st Cir. 1985); NAACP Labor Comm. v. Laborers' Int'l Union of N. Am., 902 F. Supp. 688, 712 (W.D. Va. 1995); Sharpe v. Int'l Brotherhood of Electrical Workers, Civil Action No. 85-2564 (JHP), 1990 U.S. Dist. LEXIS 7244, at *28 (D.D.C. April 30, 1990). A plaintiff can establish the necessary inference of discrimination by showing that a similarly situated person outside of his protected class requested and received the benefit he desired, or by showing that an adverse employment action was "not attributable to 'the two most common legitimate reasons on which an employer might rely to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy in the job sought.'" George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005) (quoting Stella, 284 F.3d at 145 (internal quotations omitted)); see also Cones v. Shalala, 199 F.3d 512, 517 (D.C. Cir. 2000).
In deciding summary judgment motions on Title VII and ADEA claims, courts apply the burden-shifting framework announced in McDonnell Douglas, 411 U.S. at 802-05. See Barnette v. Chertoff, 453 F.3d 513, 515-16 (D.C. Cir. 2006); Hall v. Giant Food, Inc., 175 F.3d 1074, 1077 (D.C. Cir. 1999) (citing Paquin v. Federal National Mortgage Ass'n, 119 F.3d 23, 26 (D.C. Cir. 1997)). Under McDonnell Douglas, if the plaintiff establishes his prima facie case, then the employer must "produce admissible evidence that, if believed, would establish that [its] action was motivated by a legitimate, nondiscriminatory reason." Royall v. National Ass'n of Letter Carriers, 548 F.3d 137, 144-45 (D.C. Cir. 2008) (quoting Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151 (D.C. Cir. 2004)). The defendant's burden is one of production, meaning it does not have to "'persuade the court that it was actually motivated by the proffered reasons.'" Barnette, 453 F.3d at 516 (quoting Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If the ...