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Morris I. v. Alejandro Mayorkas

February 24, 2011


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos.: 22, 43, 51



The pro se plaintiff, an African-American attorney and naturalized U.S. citizen originally from Nigeria, alleges that the U.S. Citizenship and Immigration Services ("USCIS") subjected him to unlawful discrimination when it did not select him for a position for which he had applied. The plaintiff has asserted claims of disparate treatment and disparate impact on the basis of race and national origin, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000 et seq.

The matter is now before the court on the parties' cross-motions for summary judgment.*fn1

Because the plaintiff has offered insufficient evidence to rebut the defendant's legitimate, non-discriminatory justification for the plaintiff's non-selection, the court grants summary judgment to the defendant on the plaintiff's disparate treatment claims. Furthermore, the court concludes that the plaintiff has failed to offer sufficient evidence from which a reasonable jury could infer that a facially neutral policy employed by the defendant disproportionately affected members of the plaintiff's protected classes. The court therefore grants summary judgment to the defendant on the plaintiff's disparate impact claim as well.*fn2


The plaintiff, an African-American attorney and naturalized U.S. citizen from Nigeria, joined the Immigration and Naturalization Service ("INS") as an attorney in 2002. Am. Compl.

¶ 3. In 2003, the INS was abolished, and its responsibilities transferred to two agencies within the Department of Homeland Security: the U.S. Immigration and Customs Enforcement ("USICE") and the USCIS. Id. ¶¶ 3-4. The plaintiff was assigned to USICE in 2003. Id. ¶ 5.

On May 6, 2004, the USCIS announced a vacancy for an Associate Counsel position in its Dallas, Texas office. Id. ¶¶ 7-9. The plaintiff immediately applied for the vacancy, along with approximately 120 other applicants. Pl.'s Statement of Material Facts ("Pl.'s Statement) ¶6.

As described in the vacancy announcement, the position encompassed a variety of responsibilities, including adjudicating applications for immigration benefits and services, providing litigation support to the U.S. Attorney's Office for any actions involving the USCIS and providing training and legal advice to the USCIS components in the Dallas, El Paso and Kansas districts. Pl.'s Mot. for Summ. J. & Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Mot. & Opp'n"), Ex. 1H. The vacancy announcement specified that "[c]andidates should have experience with non-employment-related petitions and applications, adjustment of status, naturalization, alien documentation and registration and inadmissibility waivers." Id. Relevant experience also included "experience in asylum and refugee law, immigration court, handling [Equal Employment Opportunity] and [Merit Systems Protection Board] cases, and associated training." Id. Strong research and writing skills were deemed "essential." Id.

The recommending officials responsible for reviewing the applications were Judith Patterson and Catherine Muhletaler.*fn3 Id. ¶ 10; Def.'s Statement of Material Facts ("Def.'s Statement") ¶ 4. Patterson and Muhletaler ultimately selected six individuals, including the plaintiff, to interview for the vacancy. Def.'s Statement ¶¶ 9-11. With the exception of the plaintiff, all those selected for interviews were white. Pl.'s Statement ¶¶ 15, 23.

On May 21, 2004, Patterson and Muhletaler interviewed the six remaining candidates. Def.'s Statement ¶¶ 13-15. At the conclusion of each interview, Patterson and Muhletaler briefly discussed their impressions of the candidate and, in some instances, made notations on the candidate's application materials regarding the interview. Patterson Decl. ¶ 12; Muhletaler Decl.

¶ 7. After completing all the interviews, Patterson and Muhletaler discussed the applicants and concluded that the top candidates, in descending order of preference, were William Finely, Dean Emmons and Loriane Pickrell. Patterson Decl. ¶ 13; Muhletaler Decl. ¶ 8.

Patterson subsequently composed a memorandum to Dea Carpenter,*fn4 the selecting official, listing the three candidates recommended by Patterson and Muhletaler and explaining the reasons for their recommendations. Def.'s Statement ¶ 20; Pl.'s Mot. & Opp'n, Ex 25A 1-3.

The memorandum stated that Patterson and Muhletaler considered "Finely the strongest of the three candidates," noting that he was the only candidate "with expertise in immigration law, customs law, and labor law" and the only candidate "who has already worked with clients in El Paso and Dallas, as well as the [USCIS] Chief Area Counsel, Central." Pl.'s Mot. & Opp'n, Ex. 25A at 3. The memorandum further stated that of the three top candidates, Finley's "interest seemed the most focused on [USCIS] work rather than location or other factors." Id. at 3. Carpenter adopted the recommendation of Patterson and Muhletaler and selected Finley to fill the vacancy. Def.'s Statement ¶ 26.

In June 2004, Patterson sent an e-mail to the plaintiff informing him that he had not been selected for the vacancy. Pl.'s Mot. & Opp'n, Ex. 8A. In the e-mail, Patterson advised the plaintiff that in winnowing down the applicant pool, the recommending and selecting officials had "emphasized immigration expertise, writing ability, career history, and strong educational credentials." Id. They had also "considered whether the applicant had ties or familiarities with the Dallas area, and various other factors." Id. The e-mail did not, however, specifically state why the plaintiff had not been selected. See id.

In October 2004, the plaintiff filed an Equal Employment Opportunity ("EEO") complaint with the USCIS, alleging that it had discriminated against him on the basis of race, disability*fn5 and national origin by not selecting him for the Associate Counsel position. See generally Def.'s Opp'n to Pl.'s 2d Mot. to Amend Compl., Ex. 4. After the USCIS denied the plaintiff's claim in May 2006, the plaintiff appealed. Am. Compl. ¶ 40. In December 2007, the Equal Employment Opportunity Commission ("EEOC") denied the appeal and notified the plaintiff of his right to sue. Id.

The plaintiff filed a complaint in this court on February 29, 2008, see generally Compl., and filed an amended complaint on March 7, 2008, see generally Am. Compl. The amended complaint lists two counts: one count of disparate treatment on the basis of national origin and a second count of disparate treatment on the basis of race, both based on the defendant's failure to select him for the Associate Counsel position. Am. Compl. ¶¶ 41-50.

On March 15, 2009, the plaintiff filed a motion for leave to file a second amended complaint to assert claim of disparate impact. See generally Pl.'s 2d Mot. to Amend. Specifically, the plaintiff sought leave to supplement his complaint with claims that the defendant's reliance on the U.S. News & World Report law school rankings, and the resulting bias in favor of graduates of "first tier" law schools, had the effect of excluding African-American graduates of historically Black law schools, like the plaintiff, from employment opportunities. Id., Proposed 2d Am. Compl. ¶ 44. The plaintiff also alleged that consideration of an applicant's ties or familiarity with the Dallas area had the effect of excluding foreign-born applicants from consideration. Id. ¶ 85. The defendant opposed the motion, arguing that the deadline for amending the pleadings had long since passed and that the amendment would be futile because the plaintiff had not exhausted his administrative remedies. See generally Def.'s Opp'n to Pl.'s 2d Mot. to Amend Compl.

In the meantime, on March 23, 2009, the defendant moved for summary judgment on the plaintiff's disparate treatment claims. See generally Def.'s Mot. for Summ. J. The court ultimately stayed briefing of the defendant's dispositive motion based on the plaintiff's representation that he was seeking counsel to represent him in this matter. Minute Order (May 5, 2009). In July 2009, the plaintiff advised the court that he was in discussions with a law firm in North Carolina to represent him in this matter, but that the plaintiff was required to be out of the country through August 2009. Pl.'s Notice (July 8, 2009) ¶ 2.

In January 2010, after several months without any communication from the plaintiff, the court directed the plaintiff to advise the court and the defendant whether he intended to retain counsel or proceed pro se. Minute Order (Jan. 19, 2010). The plaintiff responded that he wished to proceed without representation. Pl.'s Status Report (Feb. 4, 2010).

Accordingly, in March 2010, the court proceeded to adjudicate the plaintiff's motion for leave to file a second amended complaint. See generally Mem. Op. (Mar. 17, 2010). Specifically, the court denied the plaintiff's motion but observed that the operative complaint already contained the allegations underlying the disparate impact claims he sought to add through the proposed second amended complaint. Id. at 5-9. Thus, the court ruled that even though the operative complaint did not contain a separate count of disparate impact, the allegations in the complaint sufficiently put the defendant on notice of the plaintiff's disparate impact claims. Id. at 9. The court observed, however, that the defendant had not addressed the plaintiff's disparate impact claims in its motion for summary judgment because these claims were subsumed in a single, sprawling count of "National Origin Discrimination." Id. The court therefore granted the defendant leave to supplement its pending dispositive motion to address this disparate impact claim. Id. at 9-10.

Pursuant to that ruling, the defendant filed a supplemental memorandum in support of its motion for summary judgment specifically addressing the plaintiff's allegations of disparate impact. See generally Def.'s Supplemental Mem. Shortly thereafter, the plaintiff filed an opposition to the defendant's motion and cross-motion for summary judgment on both his disparate treatment and disparate impact claims.*fn6 See generally Pl.'s Mot. & Opp'n. The parties' dispositive motions are now ripe for adjudication.*fn7


A. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when the pleadings and evidence show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine dispute" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true.

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] 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, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he "support[s] his allegations . . . with facts in the record," Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993)), or provides "direct testimonial evidence," Arrington v. United States, 473 F.3d 329, 338 (D.C. Cir. 2006). Indeed, for the court to accept anything less "would defeat the central purpose of the summary judgment ...

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