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Boone v. Clinton

December 29, 2009

ANITA BOONE, PLAINTIFF,
v.
HILLARY CLINTON, DEFENDANT.



The opinion of the court was delivered by: Richard W. Roberts United States District Judge

MEMORANDUM OPINION AND ORDER

The plaintiff, Anita Boone, has sued the Secretary of State*fn1 under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act ("ADEA") alleging that the State Department discriminated against her because of her age, race, and sex by refusing to promote her on two occasions. The Department moves for summary judgment, contending that Boone failed to exhaust her administrative remedies and that she has not rebutted the legitimate, nondiscriminatory reasons offered by the Department for its actions. Because Boone successfully exhausted her administrative remedies and has sufficiently rebutted the Department's legitimate, nondiscriminatory reasons for her race discrimination claim with respect to the first promotion opportunity only, the Department's motion for summary judgment will be granted in part and denied in part.*fn2

BACKGROUND

Boone, a black female over age forty, is employed as an Information Analyst at the State Department's Office of Information Resources Programs and Services ("IPS"). (Def.'s Stmt. of Material Facts ("Def.'s Stmt.") ¶ 1; Compl. ¶ 6.) Her position involves working with other offices in response to Freedom of Information Act ("FOI" or "FOIA") and Privacy Act requests; performing classification review and records management, including using the Freedom of Information Document Management System ("FREEDOMS"); conducting briefings for officers traveling overseas; and occasionally serving for short periods as acting branch chief. (Def.'s Stmt. ¶ 3; Pl.'s Stmt. of Material Facts ("Pl.'s Stmt.") ¶ 63; Pl.'s Mem. of P. & A. in Opp'n to Def.'s Mot. ("Pl.'s Mem."), Ex. 5 at 0330.) She has held this position since 1997 and has been promoted from GS-11 to GS-12. (Compl. ¶ 6; Pl.'s Mem. ¶ 63.) At the relevant times, Boone's supervisor was John Cruce, a Branch Chief (Def.'s Stmt. ¶ 2), and she received positive work reviews from 1997 through 2002. (Pl.'s Stmt. ¶ 64.)

In response to Vacancy Announcement A/EX-02-060 ("Vacancy 02-060") for multiple Program Analyst positions, Boone applied for a grade level 13 position. (Def.'s Stmt. ¶¶ 4, 12.) The announcement stated that applicants should have the following knowledge, skills, and abilities ("KSAs"):

(1) ability to communicate orally in performing program analysis work; (2) knowledge of regulations and policies governing FOIA, Privacy Act, and Executive Order 12958; (3) ability to communicate in writing in program analysis work; (4) knowledge of principles and practices of program evaluation and oversight; and (5) ability to perform in-depth legal research. (Id. ¶ 5.) A selection panel was formed to make hiring recommendations and included the following eight Branch Chiefs: Marria Braden, John Cruce, Frank Foldvary, Audree Holton, Patricia Magin, Alice Ritchie, Patrick Scholl, and Tasha Thian. (Id. ¶ 7.) The panel received a certificate from a human resources officer with thirty-two unranked candidates, including Boone. (Id. ¶ 11.) The panel created a process to rank the applicants based on the KSAs.*fn3 Following the panel's evaluation, Boone had an aggregate score of 157, which tied for the second highest score. (Id. ¶ 20; Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. ("Def.'s Mem."), Ex. 2 at 0238.) When assigning scores, the panel assumed that the applications were accurate and scored the candidates based solely on the information stated in their applications. (Def.'s Stmt. ¶ 18.) Although the panel did not interview the candidates, it did meet to discuss them. The panel looked for candidates who would be capable of becoming future Branch Chiefs (id. ¶ 26), and it considered management potential, expertise in the field, communication skills, and leadership skills as well. (Def.'s Mem., Ex. 2 at 0235.) Panel members Scholl, Ritchie, and Braden expressed concerns with Boone's FOI, FREEDOMS, geography, communication and leadership skills based on their experiences with and observations of her. (Def.'s Stmt. ¶¶ 33-38.) Cruce, on the other hand, highly recommended Boone for the promotion. (Id. ¶ 39.) The panel recommended for promotion any candidate who received a majority vote of the panel members. (Id. ¶ 42.) The panel recommended seven candidates (id. ¶ 43), including Margaret Scholl, the wife of panel member Patrick Scholl. (Id. ¶ 30.) Six were actually promoted,*fn4 as Margaret Scholl was later deemed ineligible for a promotion. (Id. ¶ 46; Pl.'s Stmt ¶ 43.) The panel did not recommend Boone, who received four votes, and she did not receive a promotion. (Def.'s Stmt. ¶¶ 47, 52.) Boone received official notice that she was not selected on August 2, 2002. (Id. ¶ 52.) On July 25, 2002, before receiving official notice, Boone sent an email to Arlene Brandon, an "EEO/ADR Specialist" in the Office of Civil Rights, stating her wish to file an equal employment opportunity ("EEO") complaint because her non-selection was discriminatory. (Pl.'s Mem., Ex. 12 at 0157.) Brandon initially assigned Gwen Strogen-Boozer as Boone's EEO counselor on August 1, 2002. (Id. at 0160.) After an initial meeting, Boone requested a different counselor on August 2, 2002. (Id. at 0161.*fn5 ) Boone had contact with Leroy Potts, another EEO counselor to whom she was not assigned, and Boone's attorney sent Potts a letter indicating her intent to file a complaint and the nature of the complaint. (Id. at 0163.) Brandon ultimately assigned as Boone's EEO counselor Diane Ferguson, with whom Boone had her initial contact on October 9, 2002. (Def.'s Mem., Ex. 4, Dep. of Anita Boone at 116.)

Later, Boone applied again for a promotion under Vacancy Announcement A/EX-02-085 ("Vacancy 02-085"). The panel received a certificate ranking twenty-one eligible applicants, including Boone. (Def.'s Stmt. ¶¶ 56-57.) Boone ranked fifth on the list, tied with two other applicants for the third highest score. Human resources instructed the panel to follow the "Rule-of-Three." (Id. ¶ 58.) Under the rule, the selection officials are to "[c]onsider only the first three applicants on the certificates. If an applicant declines, then [the selection officials] may consider the next candidate on the list." (Def.'s Mem., Ex. 2 at 0514.) The panel recommended the first two candidates on the ranked list for promotion; it did not select Boone. (Def.'s Stmt. ¶ 61.)

Counts 1, 2, and 4 of Boone's complaint allege, respectively, race discrimination, gender discrimination, and disparate treatment race and gender discrimination, all in violation of Title VII. Count 5 alleges age discrimination in violation of the ADEA. The Department moves for summary judgment on Boone's race, gender, and age discrimination claims in Counts 1, 2, 4, and 5, contending that Boone failed to exhaust her administrative remedies with regard to Vacancy 02-060 and that she has not rebutted the Department's legitimate, nondiscriminatory reasons offered for its actions. The Department also seeks dismissal of Counts 1, 2, and 5, each of which alleges "a policy and practice of discrimination," by arguing that pattern and practice claims cannot be brought by an individual plaintiff. Boone opposes summary judgment on those counts, arguing that there are disputed material facts bearing on whether the Department discriminated against her by refusing to promote her on two occasions. Boone also argues that she has not asserted any pattern or practice claim.

DISCUSSION

On a motion for summary judgment, "[t]he inquiry performed is the threshold inquiry of determining whether there is a need for a trial ---- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment may be granted only where "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)(2); see also Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). A material fact is one that is capable of affecting the outcome of the litigation. Liberty Lobby, Inc., 477 U.S. at 248. A genuine issue is one where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," id., as opposed to evidence that "is so one-sided that one party must prevail as a matter of law." Id. at 252. A court considering a motion for summary judgment must draw all "justifiable inferences" from the evidence in favor of the non-movant. Id. at 255. The nonmoving party, however, must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Rather, the non-movant must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (emphasis omitted) (citing Fed. R. Civ. P. 56(e)). In the end, "the plain language of Rule 56(c) mandates the entry of summary judgment... against a party who 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

I. EXHAUSTION OF ADMINISTRATIVE REMEDIES

Before filing a lawsuit, "[a]n aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1). The Department asserts that Boone did not contact an EEO counselor within forty-five days following her non-selection for Vacancy 02-060. (Def.'s Mem. at 14-15.) Boone officially learned of her nonselection for Vacancy 02-060 on or about August 2, 2002, but did not officially begin to receive counseling until October 9, 2002. Boone asserts that the EEO process began when she contacted the Office of Civil Rights on July 25, 2002, noted her intent to file an EEO complaint, and requested an appointment with a counselor. (Pl.'s Mem. at 28.)

The regulation does not facially require that a plaintiff meet with a counselor within forty-five days, but instead states that a complainant must initiate contact within that time. The EEOC has interpreted "initiate contact" to require that "an employee who believes that she has been the subject of discrimination must timely (1) contact an agency official 'logically connected' with the EEO process (not necessarily a Counselor) and (2) demonstrate an intent to begin the EEO process." Klugel v. Small, 519 F. Supp. 2d 66, 71 (D.D.C. 2007) (noting that the D.C. Circuit has not yet addressed the meaning of the phrase "initiate contact"). See also Lane v. Tschetter, Civil Action No. 05-1414 (EGS), 2007 WL 2007493, at *3 (D.D.C. Jan. 15, 2007) (applying the EEOC's definition of "initiate contact" to find that plaintiff's letter to the official responsible for EEO functions had not begun the EEO process because it did not express an intent to begin the EEO process or include sufficient facts of alleged discrimination). Within the forty-five day window, Boone contacted Brandon, the EEO/ADR Specialist, had an initial conversation with EEO counselor Strogen-Boozer, and sent through her attorney a letter to EEO counselor Potts discussing her intent to file a complaint and the nature of her complaint. (See Pl.'s Mem. at 28-29; Ex. 12 at 0157-0158, 0160, 0161, 0170-0171.) ...


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