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Glenn v. Bair

August 10, 2009


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

Re Document No.: 11




This case is before the court on the defendant's motion for summary judgment. The plaintiff alleges that his employer, the Federal Deposit Insurance Corporation ("FDIC"), discriminated against him on the basis of his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., by not selecting him for one of three vacant positions at the FDIC. The plaintiff further alleges that his non-selection was in retaliation for prior EEO activity: specifically, his participation in a class action lawsuit against the FDIC and an e-mail alleging discriminatory practices. The defendant now moves for summary judgment, contending that it chose not to select the plaintiff because the successful applicants submitted superior written application materials and performed better in their interviews.

Because the plaintiff has failed to raise a genuine issue of material fact as to the defendant's legitimate non-discriminatory reason for his non-selection and because no reasonable factfinder could conclude that the plaintiff's non-selection was causally connected to his prior involvement in protected activity, the court grants the defendant's motion for summary judgment.


A. Factual Background

Since 1975, the plaintiff has worked for the FDIC in the Division of Supervision and Consumer Protection. Pl.'s Opp'n at 2. At the time of his non-selection, the plaintiff was forty-nine years old, id., and held the position of a Corporate Grade ("CG") -13 Bank Examiner at the Wayne, New Jersey Field Office of the FDIC,*fn1 Def.'s Mot. at 2; Pl.'s Statement of Facts ("Pl.'s Statement") ¶ 2.

On July 23, 2004, the plaintiff applied for a CG-13/14 Review Examiner rotational position, one of three available Review Examiner positions, in the Special Activities Section ("SAS") of the FDIC.*fn2 Pl.'s Opp'n at 4. The vacancy announcement for the position listed five Quality Ranking Factors ("QRFs"), or desirable knowledge, skills and abilities relevant to the position. Def.'s Mot., Ex. 1 ("Vacancy Announcement") at 3. The first QRF called for knowledge of rules, regulations and laws relating to the Bank Secrecy Act ("BSA"), the USA PATRIOT Act, the Bank Protection Act of 1968 and other relevant statutes. Id. The additional four QRFs listed as desirable characteristics the ability to communicate orally and in writing, to work with a broad range of people and to analyze information, identify problems and make recommendations. Id. Furthermore, in a section titled "Evaluation Methods," the Vacancy Announcement stated that applicants would be evaluated on the basis of the information in their "application package." Id.

In total, fifteen people applied for the positions. Def.'s Mot. at 5; Pl.'s Statement ¶ 9. Personnel Staffing Specialist Jerry Markham reviewed the candidates' written application materials, which included an application form, a list of accomplishments, a recent performance evaluation and a detailed narrative demonstrating what knowledge, skills and abilities each candidate possessed with respect to the QRFs. Def.'s Mot. at 5; Pl.'s Statement ¶ 9; Def.'s Mot., Ex. 2. Based on his review, Markham deemed all candidates qualified. Def.'s Mot. at 5; Pl.'s Statement ¶ 9.

Because the positions were designated as level CG-13/14, candidates previously working at the CG-12 level were permitted to apply as promotional candidates eligible for the CG-13 level. Pl.'s Opp'n at 3. Nine applicants fell into this category. Id. at 8. Pursuant to the applicable Collective Bargaining Agreement, a Merit Promotional Panel ("MPP") was convened, comprised of three individuals who reviewed the promotional candidates' written application materials. Id. The MPP referred seven of the nine promotional candidates for further consideration. Def.'s Statement of Facts ("Def.'s Statement") ¶ 13; Pl.'s Statement ¶ 13.

Six applicants, including the plaintiff, were at a CG-13 or CG-14 level at the time they applied, and were therefore eligible for reassignment or promotion without MPP review. Def.'s Mot., Ex. 3. Consequently, the MPP never reviewed the plaintiff's written application materials. Pl.'s Opp'n at 8.

On July 12, 2004, Markham forwarded the application materials of all thirteen qualified candidates -- the seven promotional candidates who were referred by the MPP and the other six candidates -- to Lisa Arquette, the Chief of SAS, who served as the Selecting Official for the positions. Def.'s Statement ¶ 14; Pl.'s Opp'n at 9. Arquette convened*fn3 a three-person interviewing panel ("the Panel") to conduct a preliminary round of structured interviews. Def.'s Statement ¶ 15. The defendant asserts that Arquette used an interview panel because she could not interview all the referred candidates personally due to her demanding schedule. Def.'s Mot. at 17 n.13. The plaintiff disputes Arquette's motive and authority for relying on the Panel, arguing that the procedure was inconsistent with FDIC hiring practices. Pl.'s Statement ¶ 15.

Andrea Winkler, Stephen Gaddie and Kenyon Kilber comprised the Panel. Pl.'s Opp'n at 9. Pursuant to the FDIC Structured Interview Guidelines, Def.'s Statement ¶ 19; Pl.'s Opp'n, Ex. 34 ("FDIC Guidelines"),*fn4 Arquette prepared four job-related interview questions, as well as benchmarks to evaluate the interviewees' responses, id.; Pl.'s Statement ¶ 19. The Panel posed the same four questions to each candidate, and each Panel member individually rated the candidates' responses. Pl.'s Statement ¶ 21; Pl.'s Opp'n at 11.

The Panel interviews took place on July 27 and 28, 2004.*fn5 Def.'s Statement ¶ 20; Pl.'s Statement ¶ 20. The Panel members used numerical scores to evaluate the candidates' interview responses and rated the candidates' responses as "outstanding," "good" or "inadequate" on the Structured Interview Documentation. Pl.'s Opp'n at 11. Winkler and Kilber assigned corresponding numbers ("3," "2" and "1" respectively) to each rating to calculate a numerical score. See Pl.'s Opp'n, Exs. 26, 27. Gaddie also gave a numerical score based on what appears to have been a "1" through "10" scale. Pl.'s Opp'n, Ex. 30 (Structured Interview Documentation ("SID")). Gaddie testified that he used numerical scores to jog his memory and to assess the candidates against the benchmark for a particular question. Def.'s Mot., Ex. 28 ("Gaddie Dep.") at 42. The Panel members then discussed their individual ratings and impressions of all thirteen candidates and developed a consensus ranking. Def.'s Statement¶¶ 23, 24; Pl.'s Statement ¶¶ 23, 24.

The plaintiff asserts that in ranking the candidates, the Panel focused on each candidate's interview performance to assess his or her qualifications rather than taking the written applications into account as well. Pl.'s Opp'n at 11. The plaintiff bases this assertion on the statements of Gaddie and Kilber that they did not give serious consideration to the written application materials,*fn6 the fact that the Panel did not receive the application materials until the first day of the interviews and the absence of any notes regarding a review of the written application materials. Id.

On July 29, 2004, following the interviews, Gaddie forwarded the Panel's ranking of the thirteen candidates to Arquette. Id. at 12. The Panel ranked the plaintiff tenth out of the thirteen candidates. Def.'s Statement ¶ 33; Pl.'s Statement ¶ 33. During a telephone conversation, Gaddie communicated to Arquette that there was a "clear distinction" between the top seven candidates ranked on the list and the remaining candidates. Pl.'s Opp'n at 12. Accordingly, Arquette decided to interview only the top seven candidates during the second round of interviews. Id. Arquette informed her supervisors Mindy West, Sandra Thompson and John Lane that she would be interviewing the top seven candidates only. Pl.'s Opp'n, Ex. 29. Initially, West responded by instructing Arquette to interview all thirteen candidates. Id. After her supervisors conferred, however, Lane subsequently emailed Arquette instructing her to interview only the group referred by the Panel. Id.

The plaintiff maintains that based on the numerical scores given by the Panel, there was no "clear distinction" between candidates one through seven and candidates eight through thirteen. Pl.'s Statement ¶ 32 (observing that Winkler's notes reflect that four candidates received a cumulative score of "10," four candidates received an "8" and five candidates received a "7"). Furthermore, the plaintiff argues that Gaddie's "clear distinction" remark regarding the Panel's rankings did not reflect the consensus of the entire Panel. Pl.'s Opp'n at 12. The plaintiff asserts that the only distinction between the top seven candidates and the bottom six was age; the top seven candidates were also the youngest candidates. Id.

After interviewing the top seven candidates and reviewing their application materials, Arquette selected Tonya Spratley and Heather Basnett for the rotational positions and Eric Walker for the permanent position. Pl.'s Opp'n at 14. At the time of the selections, Spratley and Basnett were 33 years old, and Walker was 37. Pl.'s Opp'n, Ex. 25. Because the Panel ranked the plaintiff tenth out of thirteen candidates, Arquette did not interview the plaintiff nor did she give his application any further consideration for the Review Examiner position. Def.'s Statement ¶ 35; Pl.'s Statement ¶ 35.

B. Procedural Background

Upon learning of his non-selection, the plaintiff timely filed a formal complaint of discrimination with the EEOC on September 30, 2004. Def.'s Mot at 3. After an EEOC Administrative Judge issued a decision in the FDIC's favor on May 15, 2006, which the EEOC's Office of Federal Operations affirmed on January 9, 2007, the plaintiff filed the instant complaint in the United States District Court for the District of New Jersey on April 11, 2007. Id. The case was transferred to this court on December 5, 2007. On October 10, 2008, following discovery, the defendant moved for summary judgment.


A. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when "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 movant is entitled to 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 jury trial." Greene, 164 F.3d at 675.

Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution. See Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997), overturned on other grounds, 156 F.3d 1284 (D.C. Cir. 1998) ...

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