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Pendleton v. Holder

March 22, 2010


The opinion of the court was delivered by: John D. Bates United States District Judge


Mark Pendleton, a former Special Agent in the Department of Justice's Office of the Inspector General, was not promoted to Senior Special Agent in May 2005. He alleges that his non-promotion was the result of retaliation and discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. Before the Court is Attorney General Eric Holder's motion for summary judgment. Upon careful consideration of the parties' memoranda, the applicable law, and the entire record herein, and for the reasons set forth below, the Court will grant the Attorney General's motion.


Pendleton was an African-American Special Agent in the Washington Field Office of the Department of Justice's Office of the Inspector General ("OIG"). See Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") [Docket Entry 27], Decl. of Mark Pendleton ("Pendleton Decl."), ¶ 3. He served as a Special Agent at OIG from 1989 through 2008, see id., and during his tenure sought promotion to Senior Special Agent on several occasions, see Compl. ¶¶ 3-5. In 2003, after OIG did not select him for either of two Senior Special Agent openings, Pendleton filed an Equal Employment Opportunity Commission ("EEOC") charge of discrimination, and a subsequent lawsuit in the United States District Court for the District of Columbia. See Pendleton v. Gonzales, 518 F. Supp. 2d 45, 47 (2007). The court dismissed that suit, concluding that "[b]ased on the evidence in the record . . . the Court finds that the plaintiff has failed to demonstrate that the defendant's proffered explanation of plaintiff's non-selection was pretextual." Id. at 50.

In January 2005, OIG posted an announcement for two additional Senior Special Agent positions in OIG's Washington Field Office, for which Pendleton applied. See Def.'s Mem. in Supp. of Mot. for Summ. J. [Docket Entry 23], Def.'s Statement of Material Facts ("Def.'s SOF"), Exhibit 1 (vacancy announcement OIG-2005-05 for Senior Special Agents at OIG ("OIG-2005-05 Vacancy Announcement")).*fn1 A three-member panel of Investigation Division Managers, established by Assistant Inspector General for Investigations Thomas McLaughlin, reviewed the applications for the two Senior Special Agent positions. See Def.'s Reply in Supp. of Mot. to Dismiss or Transfer [Docket Entry 12], Exhibit 2 (interrogatories for Thomas McLaughlin ("McLaughlin Interrogatory")), 14. The panel comprised Charles Huggins, the Special Agent in Charge of OIG's Washington Field Office; William Johnson, an Assistant Special Agent in Charge at OIG headquarters; and John Oleskowicz, an Assistant Special Agent in Charge of OIG's Chicago Field Office. See Def.'s SOF, Exhibit 7 (Feb. 28, 2006 interrogatories for Charles Huggins ("Huggins Interrogatory")), 3.*fn2

The panel considered eight candidates for the two Senior Special Agent positions. Each panel member independently reviewed each candidate's application package. See id., Exhibit 5 (Dep. of John Oleskowicz ("Oleskowitz Dep.")), 16:15-17:10; id., Exhibit 6 (Dep. of William Johnson ("Johnson Dep.")), 14:19-15:2;*fn3 Huggins Interrogatory at 3. Where a panel member lacked specific knowledge of a candidate, McLaughlin encouraged them to obtain preliminary information from the applicant's first-line supervisor. See Def.'s SOF, Exhibit 8 (Dep. of Thomas McLaughlin), 27:11-20.

After the panel members completed their individual analyses, they interviewed the candidates. See Huggins Interrogatory at 3. During the interview, the panel asked each candidate the same thirteen questions from a prepared list. See id., Exhibit 2 (March 16, 2005 memorandum from Charles Huggins to Thomas McLaughlin ("Huggins Memo"), 2; id., Exhibit 3 (Candidate Questions -- Senior Special Agent). Following the interviews, the panelists independently ranked the candidates from one to eight, with one indicating the panelist's top choice. See Huggins Memo at 2. The panel members then reconvened to discuss their rankings.

See Johnson Dep. at 48:6-16.

The three panel members each ranked their first five choices in the same order: Michael Tompkins, Scott Myers, Michael Fletcher, Mark Pendleton, and Steven Carrera. See Huggins Memo at 2. These choices, along with the panel's ranking of the final three individuals, were forwarded to Thomas McLaughlin, who, although he retained ultimate authority to select the Senior Special Agents, deferred to the panel in hiring decisions. See Def.'s Mot. to Dismiss or Transfer [Docket Entry 7], Jan 17, 2008 Decl. of Thomas McLaughlin, ¶ 10. Tompkins accepted a different position, and therefore McLaughlin selected Myers and Fletcher, the panel's top remaining choices, to be Senior Special Agents. See McLaughlin Interrogatory at 4. As a result of his non-selection, Pendleton filed an Equal Employment Opportunity Commission charge of discrimination and retaliation, which has led to this action.


Summary judgment is appropriate when the pleadings and the evidence demonstrate 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). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 323.

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. Thus, the non-moving party cannot rely on mere speculation or compilation of inferences to defeat a motion for summary judgment. See Hutchinson v. Cent. Intelligence Agency, 393 F.3d 226, 229 (D.C. Cir. 2005). Nor can the non-moving party rely on hearsay statements or conclusory statements with no evidentiary basis to establish a genuine issue of material fact. See Assoc. of Flight Attendants v. Dep't of Transp., 564 F.3d 462, 465 (D.C. Cir. 2009). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Moreover, a moving party may succeed on summary judgment by pointing to the absence of evidence proffered by the non-moving party. See Celotex, 477 U.S. at 322; see also Anderson, 477 U.S. at 252 (summary judgment appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]").


I. McDonnell Douglas Framework

The Court considers Pendleton's claims for discrimination and retaliation under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this framework, a plaintiff must first establish a prima facie case of discrimination or retaliation by a preponderance of the evidence. Id. To show a prima facie case of discrimination, a plaintiff must show that "(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (citing Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). A prima facie case of retaliation, similarly, requires a plaintiff to establish "(1) that he engaged ...

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