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Jarmon v. Genachowski

July 2, 2010

WESLEY M. JARMON, JR., PLAINTIFF,
v.
JULIUS GENACHOWSKI*FN1, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiff Wesley M. Jarmon, Jr., brings this action against Julius G. Genachowski ("defendant") in his official capacity as Chairman of the Federal Communications Commission ("FCC"), under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq. Plaintiff claims that defendant violated Title VII by denying him a promotion and by awarding him fewer bonuses and less time-off pay than similarly-situated colleagues on the basis of his race. Plaintiff also claims that defendant retaliated against him for previously filing two Equal Employment Opportunity ("EEO") complaints. Currently pending before the Court is defendant's motion for summary judgment on all three claims. Upon consideration of the motion, the response and reply thereto, the applicable law, the entire record, and for the following reasons, the Court DENIES defendant's motion for summary judgment.

I. Background

Plaintiff, an African-American male, began working for the FCC in 1987 as an auditor at the GS-11 pay level in the Common Carrier Division. Jarmon Application, Pl.'s Ex. 3*fn2 ("Jarmon Appl.") at 4; Jarmon Declaration, Pl.'s Ex. 4 ("Jarmon Decl.") ¶ 2. By 2000, plaintiff was an auditor at the GS-14 level. Jarmon Appl. at 4. Plaintiff left the FCC temporarily from 2000 to 2001 to serve as a Chief Financial Officers Council Fellow at the Environmental Protection Agency, and from 2001 to 2002 to serve as an accountant in the FCC's Office of the Chief Financial Officer. Jarmon Appl. at 3-4. Plaintiff returned to auditing work at the FCC in early 2002 as a GS-14 auditor in the Investigations and Hearings Division ("IHD") of the FCC's Enforcement Bureau. Jarmon Appl. at 2-3.

On April 2, 2004, the FCC published Vacancy Announcement 04-153-TJ, advertising two auditor positions at the GS-15 level in the IHD. See Attach. B to Def.'s Ex. 1 ("Vacancy Ann.") at 1. This announcement sought two auditors to be "responsible for developing, organizing, and coordinating the most complex and novel [IHD] audit assignments, and in connection with this activity also lead[] and coordinate[] the technical work of a team of auditors." Vacancy Ann. at 2. Plaintiff timely applied for the advertised positions along with several other FCC employees. Green Declaration, Def.'s Ex. 1 ("Green Decl.") ¶ 5. The FCC convened a ratings panel to evaluate the applications and to determine which candidates should be referred to William H. Davenport, the then-Division Chief of the IHD, for further consideration. Green Decl. ¶¶ 5-6. On September 21, 2004, the ratings panel referred the five highest-scoring applicants to Davenport: (1) plaintiff; (2) Robert Bentley; (3) Constance Hellmer; (4) Patricia Green; and (5) Andy Skadin. Green Decl. ¶¶ 5-6. Bentley, Hellmer, Green, and Skadin are all white (not of Hispanic origin). Def.'s Statement of Material Facts for Which There is No Genuine Issue ("Def.'s SOF") ¶ 8.

Davenport was solely responsible for selecting which candidates would be selected for the advertised positions. Davenport Dep., Def.'s Ex. 4 ("Davenport Dep.") at 12:7-9. To assist him with making that decision, however, he solicited the input of a group of managers. Davenport Dep. at 13:4-7. Davenport indicated that he intended to follow the group's choice. Davenport Dep. at 14:15-18. Davenport and four other managers in the IHD - Hillary DeNigro, Eric Bash, Trent Harkrader, and Hugh Boyle (collectively, the "selection panel" or "panel") - interviewed the final candidates in two rounds; the first round with Bash and Harkrader and the second round with Davenport, DeNigro, and Boyle. Davenport Dep. at 21:11-15. None of the panel members were African-American. Def.'s SOF ¶ 10.

After completing the interviews, Davenport and the selection panel met to discuss the candidates and agreed on who they would hire. Davenport Interv., Def.'s Ex. 3 ("Davenport Interv."), at 26:3-5. On December 17, 2004, Davenport and the selection panel chose Bentley, Hellmer, and Skadin to fill the available positions.*fn3 Green Decl. ¶ 9.

On January 14, 2005, plaintiff contacted the FCC's Office of Workplace Diversity and alleged that his non-selection constituted race discrimination and retaliation for engaging in prior EEO activity.*fn4 Miller Declaration, Def.'s Ex. 2 ("Miller Decl.") ¶ 3; see also Formal Discrimination Compl., Def.'s Ex. 17. Two months later, on March 23, 2005, plaintiff filed an administrative EEO complaint alleging that Davenport and the FCC discriminated against him by failing to promote him to one of the GS-15 positions. Miller Decl. ¶ 3. Administrative Law Judge Gladys Collazo entered judgment in favor of the FCC on all counts. Am. Compl. ¶ 16. Following the dismissal of his administrative claims, plaintiff filed suit in this Court alleging: (1) that defendant's failure to select him for a promotion was discriminatory; (2) that he received bonus pay and time-off awards in a lesser amount than other auditors;*fn5 and (3) retaliation. Plaintiff seeks a promotion to the GS-15 position, back pay, compensatory damages of not less than $350,000, attorney's fees and costs, and any further declaratory and equitable relief the Court deems proper. Am. Compl. at 4-6. Defendant filed a motion for summary judgment on February 12, 2009. This motion is now ripe for decision by the Court.

II. Standard of Review

Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991-92 (D.C. Cir. 2002). The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. Moreover, if the evidence favoring the non-moving party is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50.

Although summary judgment "'must be approached with special caution in discrimination cases, a plaintiff is not relieved of her obligation to support her allegations by affidavits or other competent evidence showing that there is a genuine issue for trial.'" Bolden v. Winter, 602 F. Supp. 2d 130, 136 (D.D.C. 2009) (quoting Morgan v. Fed. Home Loan Mortgage Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001)). Summary judgment will be granted, therefore, if the plaintiff fails to submit evidence that creates a genuine factual dispute or entitlement to judgment as a matter of law. See Wada v. Tomlinson, 517 F. Supp. 2d 148, 180-81 (D.D.C. 2007) (finding that even though the "special standard" applied to motions for summary judgment in employment discrimination cases is "more exacting, it is not inherently preclusive" of a grant of summary judgment in favor of defendants).

III. Analysis

Plaintiff makes three claims in his complaint: (1) defendant denied plaintiff's promotion on the basis of plaintiff's race; (2) defendant gave out bonus pay at a lower rate and fewer time-off awards to plaintiff than to other similarly-situated auditors; and (3) defendant denied plaintiff's promotion in retaliation for plaintiff's prior EEO activity. Am. Compl. ¶¶ 20-33. Defendant seeks summary judgment on all three claims. Def.'s Mem. P. & A. Supp. Mot. Summ. J. ("Def.'s Mem.") at 1-2. The Court will explore each argument in turn.

A. Claim I: Denial of Promotion

Plaintiff's first claim is that he was unlawfully denied a promotion because of his race. Title VII makes it unlawful for a federal government employer to discriminate "based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a). In the absence of direct evidence of discrimination, the Court analyzes a Title VII claim under the traditional McDonnell Douglas burden-shifting framework. Under this framework, the plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973); Stella v. Mineta, 284 F.3d 135, 144 (D.C. Cir. 2002). Once the plaintiff establishes a prima facie case, the burden shifts to the employer "to articulate some legitimate, non-discriminatory reason" for the employment action. McDonnell Douglas, 411 U.S. at 802. The employer only has the burden of production and "need not persuade the court that it was actually motivated by the proffered reason[]." Tex. Dep't of Cmty. Affairs v. Burdine, 45 ...


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