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Downing v. Tapella

July 27, 2010


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff Damien Downing, an African-American male employed by the Government Printing Office ("GPO"), claims that his employer discriminated against him on the basis of race when he was not promoted to the position of Data Center Director in November 2007, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Defendant has moved to dismiss for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment. For the reasons stated herein, the Court will grant defendant's motion for summary judgment.


At all times relevant to this case, plaintiff has been employed by GPO. (Def.'s Statement of Material Facts as to Which There Is no Genuine Dispute ["Def.'s SMF"] ¶ 6.) Plaintiff now works as a Supervisory Information Technology ("IT") Specialist in the End User Support Division of GPO's Information Technology and Systems ("IT&S") Department. (Compl. ¶ 11.)

When Bruce James became Public Printer of the United States, and thus, head of the GPO in 2003, he hired several new managers including Reynold Schweickhardt as Chief Information Officer and Bruce O'Dell as Director of Operations and Deputy Chief Information Officer. (Def.'s Ex. 3 (Downing Dep., Feb. 20, 2009) ["Downing Dep."] at 16:9-22, 17:1.) Shortly thereafter, Michael Wash was hired as Chief Technical Officer. (Def.'s Ex. 13 (Wash Dep., July 28, 2008) ["Wash Dep."] at 5:3-4.) Together, this new leadership of GPO's IT Department created a plan to reorganize the Department with the goal of "align[ing] the organization according to the characteristics of a world class IT organization." (Def.'s Ex. 12 (O'Dell Dep., Mar. 3, 2009) ["O'Dell Dep."] at 10:13-15.) The reorganization included plans to eliminate some positions (Downing Dep. at 18:9-18; Compl. ¶ 23), centralize several IT-related units into an IT&S Department (Compl. ¶ 24), and replace GPO's mainframe computer with an Oracle service because mainframe maintenance had become unsustainable. (O'Dell Dep. at 11:10-18; Downing Dep. at 17:3-15, 39:2-21.)

Plaintiff, evidently fearing the consolidation of his department and skeptical that the mainframe could be phased out as quickly as the reorganization plan indicated, objected to the plan. (Downing Dep. at 17:5-22.) He directly challenged its utility in a conversation with O'Dell, urging him to keep the mainframe and his team intact. (Id. at 17:18-22, 18:1-15.) Ultimately, however, reorganization occurred and disproportionately affected plaintiff's team, cutting its size by greater than fifty percent. (Downing Dep. at 18:9-20; Compl. ¶ 25.) The plan to eliminate the mainframe also created some uncertainty about plaintiff's position, since his work focused on supporting users interfacing with the mainframe. (Downing Dep. at 18:9-22.)

As part of the the evolution of IT&S, GPO officials created a Data Center in May 2007. (Wash Dep. at 21:1-14.) One purpose behind creating the Data Center was to streamline and support the printing of passports. (O'Dell Dep. at 49:6.) The GPO began accepting applications for the new position of Supervisory IT Specialist, PG-2210-15, Vacancy Announcement Number 07-339 ("Data Center Director"), on October 19, 2007 (Pl.'s Ex. 2 at 1), and four individuals applied, including plaintiff. (Def.'s Ex. 5 at 1.)

Bart Hill, Director of the Systems Integration Division, was the Subject Matter Expert in charge of reviewing the applications and assigning a score to each candidate according to the candidate's Knowledge, Skills, and Ability ("KSA") responses. (Def.'s SMF ¶ 8.) Hill compared all four applications and selected Ernest Steele (a Caucasian) as the most qualified. (Def.'s Ex. 8 (Hill Dep., Feb. 18, 2009) ["Hill Dep."] at 22:13-16, 24:3-7; Def.'s SMF ¶¶ 3, 6.) As the Selecting Official for the Data Center Director vacancy, Hill submitted Steele's name to the Approving Official, Wash, who signed off on the selection. (Def.'s Ex. 5 at 1; Def.'s SMF ¶¶ 8-10).

For approximately seven months prior to his permanent appointment, Steele had worked as Acting Director of the Data Center.*fn1 (Wash Dep. at 21:14-16; Pl.'s Ex. 4 at 2.) Before that, plaintiff and Steele shared similar titles, similar tenure level, and the same pay grade. (Def.'s Ex. 6 (Steele Application, Oct. 13, 2007) ["Steele Appl."] at 3; Def.'s Ex. 4 (Downing Application, Oct. 25, 2007) ["Downing Appl."] at 3, 11.) Earlier in the reorganization process, when plaintiff's team was reduced in size, Steele's team absorbed some of plaintiff's former staff. (Downing Dep. at 18:9-20; Compl. ¶ 29.)

Plaintiff sought EEO counseling on January 31, 2008, stating that he had been denied both the opportunity to serve as Acting Director and the promotion to Director because of his race. (Def.'s Ex. 2 ["EEO Compl."] at 1.) In addition to his disparate treatment complaint, plaintiff also claimed that the appointment of an Acting Director for the months prior to the official vacancy had given Steele an "unfair advantage" in the selection process. (Id.) On December 23, 2009, plaintiff filed this lawsuit alleging race discrimination in violation of Title VII, which is made applicable to the GPO by § 1408(c) of the Congressional Accountability Act, 2 U.S.C. § 1302(a)(2). Defendant has moved to dismiss or, in the alternative, for summary judgment.



A. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, a motion for summary judgment shall be granted "'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting Fed. R. Civ. P. 56(c)). "A dispute about a material fact is not 'genuine' unless 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Haynes v. Williams, 392 F.3d 478, 481 (D.C. Cir. 2004) (quoting Anderson, 477 U.S. at 248). A moving party is thus entitled to summary judgment "against 'a party who fails to make a showing sufficient to establish the existence of an element essential to ...

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