The opinion of the court was delivered by: Royce C. Lamberth Chief Judge United States District Court
Plaintiff John C. Bennett, Jr., a former employee in the Office of Federal Contact Compliance Programs ("OFCCP") of the Department of Labor ("Department"), brings this action against defendant Hilda Solis in her official capacity as Secretary of Labor. Plaintiff alleges that the Department in willfully terminating his employment discriminated against him on account of his race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, and on account of his age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. This matter now comes before the Court on the Department's Motion  for Summary Judgment. Upon consideration of the motion, the opposition and reply thereto, the entire record herein, and the applicable law, the Court concludes that the Department's motion should be granted.
Plaintiff John C. Bennett, Jr., was, at all times relevant up to his termination, a GS-13 Senior Compliance Officer in the Branch of Quality Assurance ("BQA") in the Office of Federal Contact Compliance Programs ("OFCCP") of the Employment Standards Administration, a component of the U.S. Department of Labor ("Department"). (Bennett Decl. ¶ 3.) Plaintiff is a Caucasian male and was 71 years old when he was discharged. (Id. at ¶ 2.) He had been an employee of the OFCCP for 30 years. (Id. at ¶ 3.) Prior to his removal, plaintiff was assigned along with others in his division to work on a project named "Project to Assist Regions Improving Investigations," also referred to as the Systemic Discrimination Project, which plaintiff understood was a "major project" that was considered "important" within the division. (Id. at ¶4; Def.'s Mot. for Summ. J. ("Def.'s Motion") Ex. A [35-2] at 108.) This project was a two-phase audit in which the purpose of phase one was to ascertain the "predictors" of a federal contractor engaging in systemic discrimination in its employment practices. (Deutermann Dep. at 43:5-9, 58:16-21, Ex. 7, Sept. 22, 2009.) The purpose of phase two was aimed at identifying the particular investigative techniques used by compliance officers. (Id.)
Plaintiff was notified on May 27, 2005, of a decision to remove him from his position with the Department and from the Federal Service. (Deutermann Dep. Ex. 2.) The decision to remove plaintiff was made solely by Cynthia Deutermann, who had recently been appointed to the position of Acting Deputy Director of the Division of Program Operations in OFCCP. (Deutermann Decl. on Summ. J. Mot. ("Deutermann Decl.") ¶¶ 1, 17.) Ms. Deutermann was appointed to this position just prior to her assignment as the deciding official in this matter. (Deutermann ROI Aff. ¶¶ 3-4.) Before receiving this appointment, Ms. Deutermann was not in the chain of command of plaintiff, and has no recollection of how she was selected to be the deciding official in this matter. (Bennett Decl. ¶ 20; Deutermann Dep. 24:1-25:3.) Ms. Deutermann was 63 years old when she terminated plaintiff and, like plaintiff, is Caucasian. (Deutermann Decl. ¶ 19.) Ms. Deutermann based her decision to remove plaintiff on a "Proposal to Remove" dated March 11, 2005, that had been prepared by plaintiff's immediate supervisor, Ms. Carla Johnson, following plaintiff's placement on a Performance Improvement Plan ("PIP") for the period from May 7, 2004 through November 24, 2004. (Id. at ¶ 2.) Prior to acting as the deciding official in plaintiff's case, Ms. Deutermann had no previous experience with and knew little about PIP's or decisions on proposed removals of federal employees. (Deutermann Dep. 28:5-29:10.)
The Proposal to Remove contained a narrative by Ms. Johnson describing plaintiff's various performance deficiencies including a lack of responsiveness, failure to complete projects and meet deadlines, incorrect and incomplete execution of forms, a lack of understanding of the compliance process, and other deficiencies. (Deutermann Dep. Ex. 12 and Atts.) In addition to the narrative, the Proposal to Remove contained numerous attachments including examples of at least twelve case files in which plaintiff's performance was deficient, e-mail exchanges, and periodic evaluations during the PIP period. (Deutermann Decl. ¶ 5, Ex. 2 at 3-4.) Specifically, Ms. Deutermann concluded that plaintiff had failed to meet a quantitative performance standard for case reviews during his PIP which left him below the acceptable performance level both in terms of quality and quantity of work. (Deutermann Dep. 55:8-56:2; Deutermann Decl. Ex. 2 at 2.) This quantitative performance standard required plaintiff to complete 60% of all casework assigned to him at an "acceptable" level "upon first submission." (Deutermann Dep. Ex. 12 at Bennett 000013, 000017.) Regarding the qualitative performance standard, Ms. Deutermann found that plaintiff failed to manage his time sufficiently to meet the 60% threshold. (Deutermann Dep. Ex. 12 at 2.) Ms. Deutermann also determined that the information in the Proposal to Remove established that plaintiff had continuously failed to raise his performance to the required level, that this failure jeopardized the completion of an important project (the Systemic Discrimination Project) which placed an unjustifiable burden on other employees, and that plaintiff had been put on notice of his deficiencies and had been given ample opportunity to improve his performance. (Deutermann Decl. ¶¶ 6-7.)
Based on Ms. Deutermann's review of the information contained in the Proposal to Remove, as well as plaintiff's response in which he did not attempt to rebut or provide any documentation to contradict the assertions in the Proposal regarding plaintiff's performance, she determined that plaintiff failed to raise his performance to the level required by the PIP and thus should be removed from his position and the Federal Service. (Id. at ¶¶ 5-7.) Plaintiff was notified of this removal decision on May 27, 2005, and the decision became effective on May 28, 2005. (Deutermann Dep. Ex. 2.)
In the same time period, Ms. Deutermann was presented with a Proposal to Remove for a different employee working in the same office as plaintiff. (Deutermann Dep. Ex. 10.) This employee, Ms. Ansonia Harris, is an African American female who was 68 years old and a GS-12 Compliance Officer when her supervisor Mr. Joseph Jackson, Jr. recommended that she be removed from federal service because she failed to raise her performance to the required level under a PIP that was identical to plaintiff's. (Deutermann Dep. Ex. 10; Pl.'s Opp'n to Def.'s Mot. For Summ. J. ("Pl.'s Opp'n")  at 4.) Unlike in plaintiff's case, however, Ms. Deutermann decided on August 18, 2005 to not remove Ms. Harris as a result of "insufficient documentation" for her "to make a determination" to terminate Ms. Harris. (Deutermann Dep. Ex. 9 at 1-2.) Plaintiff argues that Ms. Deutermann's decision to not terminate Ms. Harris despite her deficient performance is evidence of defendant's discriminatory treatment of him by way of his allegedly unlawful termination. (Pl.'s Opp'n  at 3-6, 13-17.)
II. SUMMARY JUDGMENT STANDARD
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). The burden is on the moving party to demonstrate that there is an "absence of a genuine issue of material fact" in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party's evidence is to be believed, and all reasonable inferences from the record are to be drawn in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S 242, 255 (1986). It is not enough, however, for the non-moving party to show that there is "some factual dispute," because "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 247-48. In addition, summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252. In deciding whether summary judgment is warranted for the defendant, the Court will consider all relevant evidence presented by the plaintiff and defendant. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008). Finally, in an employment case, it is the function of the jury and not the judge to weigh evidence and make credibility determinations. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000); see George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005) ("at the summary judgment stage, a judge may not make credibility determinations, weigh the evidence, or draw inferences from the facts").
III. TITLE VII AND ADEA CLAIMS
Plaintiff was terminated from employment by the Department and has alleged racial and gender discrimination claims against defendant in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. Plaintiff also claims that the Department discriminated against him on account of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1). The Department contends that it terminated plaintiff not due to discrimination but rather for a legitimate reason, namely that plaintiff was put on a PIP due to inadequate work product, failed to raise his performance to the minimum acceptable level under the PIP and thus was justifiably terminated. (Deutermann Dep. Ex. 2 at 1-2, 6, Ex. 12 at 1-2.) As set forth below, the Court agrees with the Department and will grant the Department's motion for summary judgment on both claims.
The Supreme Court has established a burden-shifting approach that applies to employment discrimination cases when the plaintiff lacks direct evidence of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973). This approach, the McDonnell Douglas framework, applies to both Title VII and ADEA claims. Chappell-Johnson v. Powell, 440 F.3d 484, 487 (D.C. Cir. 2006) (citing Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004)). To proceed under the McDonnell Douglas standard, a plaintiff "must carry the initial burden under the statute of establishing a prima facie case of [race, sex, age] discrimination." McDonnell Douglas Corp., 411 U.S. at 802.
In Brady v. Office of Sergeant at Arms, the D.C. Circuit further clarified the District Court's analysis in Title VII disparate-treatment suits. 520 F.3d 490, 494 (D.C. Cir. 2008). Stating that the prima facie determination had become a "largely unnecessary sideshow," the court held that in Title VII disparate-treatment suits where an employee has suffered an adverse employment action,*fn2 the District Court on summary judgment need not determine if the plaintiff presents a prima facie case of discrimination if the defendant has asserted a legitimate, non-discriminatory reason for the challenged actions. Id. As a result, this Court is left with "one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?" Id.
Thus, the Court must first determine whether defendant has articulated a legitimate non-discriminatory reason for the plaintiff's termination. See McDonnell Douglas Corp., 411 U.S. at 802. If so, the Court must then examine the evidence to determine whether a reasonable jury could deem this asserted reason mere pretext, designed to conceal intentional race, sex, and/or age discrimination. Brady, 520 F.3d at 494; see also Chappell-Johnson v. Blair, 574 F. Supp. 2d 87, 96 n. 9 (D.D.C. 2008), aff'd, 358 Fed. App'x 200 (D.C. Cir. 2009) (applying Brady's methodology to claims under the ADEA).
Subsequent to Brady, the Supreme Court further focused the ADEA standard. It held, "[a] plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action." Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2352 (2009). Put differently, it is not enough that age was one motivating factor in an adverse employment action; rather, it must be the case that the adverse action would not have occurred in the absence of age as a consideration. See id. at 2350. Per Brady and Gross, the Court will decide whether sufficient evidence exists for a reasonable jury to find that defendant's proffered reasons for terminating plaintiff mask discriminatory intent that rendered age the but-for cause of plaintiff's termination.
1. Defendant Has Articulated A Legitimate Non-Discriminatory Reason For Plaintiff's Termination
Defendant claims that it terminated plaintiff pursuant to the Proposal to Remove which was based on plaintiff's work product or lack of work product during the PIP period. (Deutermann Dep. Ex. 2 at 1-2, Ex. 12 at 1-2 (detailing plaintiff's numerous performance deficiencies).) This is analogous to the reason proferred by the defendant Department of Agriculture in Chowhudry v. Schafer, in which this Court found that the Department's reason was legitimate and non-discriminatory. 587 F. Supp. 2d 257 (D.D.C. 2008). Like in Chowhudry, plaintiff was placed on a PIP and was given an opportunity to raise his performance to an acceptable level but failed to do so. (Id. at 264; Deutermann Dep. Ex. 2 at 1-2.) In addition, plaintiff has not rebutted or refuted the substance of this legitimate non-discriminatory reason offered by defendant for his dismissal. (Reply Mem. in Supp. of Def.'s Mot. for Summ. J. "Def.'s Reply"  at 1-2; Deutermann Decl. ¶ 6.) Thus, defendant has met his burden of articulating a legitimate non-discriminatory reason for terminating plaintiff and now the Court must determine whether a reasonable jury could deem this asserted reason mere pretext. Chowhudry, F. Supp. 2d at 587.
2. Plaintiff's Evidence Is Insufficient To Establish Pretext For Discrimination
Plaintiff has argued that defendant's alleged performance-based reasons for terminating him were a mere pretext and concealed the real reason for his termination, namely discrimination on account of race, sex, and age. (Pl.'s Compl.  at 1-2; Pl.'s Opp'n  at 3-7.) As set forth below, this Court does not believe that a reasonable jury could find that defendant's articulated reason was pretextual.
Evidence of pretext may include variant treatment of similarly situated employees, discriminatory statements by decision makers, and irregularities in the stated reasons for the adverse employment decision. Brady, 520 F.3d at 495 n. 3. In addition, "a jury can infer discrimination from the combination of. any evidence the plaintiff presents to attack the employer's proferred explanation for its actions" and from "any further evidence of discrimination that may be available to the plaintiff (such as independent ...