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Cynthia Glass v. Ray Lahood

May 20, 2011

CYNTHIA GLASS, PLAINTIFF,
v.
RAY LAHOOD, SECRETARY, U.S. DEPARTMENT OF TRANSPORTATION, DEFENDANT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Cynthia Glass ("Glass"), an African American female, commenced this action against the Secretary of the U.S. Department of Transportation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq., claiming that she was discriminated and retaliated against in the course of her employment as a Safety Defects Engineer with the National Highway Traffic Safety Administration (the "NHTSA"), an operating administration within the U.S. Department of Transportation. Glass asserts two basic claims in this action: (a) first, she contends that the NHTSA discriminated against her on the basis of her race and sex when she was not selected for a competitive position in or about June or August 2007 (the "Non-Selection Claim"); and (b) second, she contends that the NHTSA discriminated against her on the basis of her race, and retaliated against her for participating in protected activity, when she was denied a promotion in October 2007 (the "Failure-to-Promote Claim"). Presently before the Court is the NHTSA's [25] Motion for Summary Judgment, which Glass has opposed. Based on a searching review of the parties' submissions, the relevant authorities, and the record as a whole, the Court shall grant the NHTSA's motion in full and dismiss this action in its entirety.*fn1

I. PRELIMINARY MATTERS

Preliminarily, the Court pauses to make a few overarching observations about the nature of Glass's opposition to the NHTSA's Motion for Summary Judgment. The United States District Court for the District of Columbia has supplemented Rule 56 of the Federal Rules of Civil Procedure with Local Civil Rule 7(h)(1), which requires that each party submitting a motion for summary judgment attach a statement of material facts for which that party contends there is no genuine dispute. The party opposing the motion must, in turn, submit a responsive statement enumerating all material facts that the party contends are genuinely disputed. See LCvR 7(h)(1). Both the moving party's initial statement and the opposing party's responsive statement must be based on "references to the parts of the record relied on to support the statement."*fn2 Id. This well-reasoned rule "places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996). As the parties in this case have been cautioned on multiple occasions, this Court strictly adheres to the dictates of Local Civil Rule 7(h)(1) when resolving motions for summary judgment. See Scheduling & Procedures Order (Apr. 30, 2009), ECF No. [15], at 4-5; Dispositive Mots. Scheduling Order (Oct. 29, 2009), ECF No. [24], at 1.

In connection with its Motion for Summary Judgment, the NHTSA has filed a statement of material facts in conformity with the strictures imposed by Local Civil Rule 7(h)(1). Glass has submitted a responsive statement responding to each of the factual statements set forth in the NHTSA's statement, and has identified a number of additional factual allegations which she contends support her claims, but her submissions fall short of what is required in several material respects. Although the Court shall address each of these defects at various points in this memorandum opinion, two warrant mentioning at the outset because they are recurring and have hindered the NHTSA's ability to render a meaningful response and complicated this Court's resolution of the instant motion.

A. The Court Shall Disregard Glass's Conclusory Allegations that Her Supervisors' Opinions Were "Tainted" By an Unlawful Animus

In her responsive statement, Glass repeatedly purports to dispute factual statements identified by the NHTSA on the grounds that they turn in part on her supervisors' involvement and that her supervisors' subjective opinions of her were allegedly "tainted" by discriminatory or retaliatory animus. In each instance, Glass fails to support her response with citations to competent evidence in the record, electing instead to rely upon entirely conclusory and unsupported allegations that her supervisors were somehow guided by an improper motive.

Simply by way of example, citing to evidence in the record, the NHTSA contends that Glass's immediate supervisor believed that Glass's job performance met-but did not exceed- the overall expectations for someone at Glass's level and grade. See Def.'s Stmt. ¶ 13. Glass answers this factual contention as follows:

Plaintiff disagrees with the facts stated. This is a material fact in dispute. Plaintiff argues that [her supervisor's] subjective opinions are tainted by racial bias and retaliation.

Pl.'s Stmt. ¶ 13. Glass cites to no evidence-none-in support of her response, and rather rests upon her own unsupported and non-specific allegation that her immediate supervisor harbored an unlawful or improper animus.

Unfortunately, this very same defect carries throughout Glass's responsive statement. See Pl.'s Stmt. ¶¶ 13-16, 30, 32, 49-50. Simply put, Glass's chosen approach is patently inadequate to establish a genuine dispute as to the factual matters identified by the NHTSA in its statement of material facts. See Hussain v. Nicholson, 435 F.3d 359, 365 (D.C. Cir.) (concluding that the district court properly disregarded conclusory allegations of discriminatory animus), cert. denied, 549 U.S. 993 (2006); Robinson v. Duncan __ F. Supp. 2d __, 2011 WL 1319084, at *7 (D.D.C. Apr. 7, 2011) (faulting the plaintiff for "present[ing] nothing aside from conclusory allegations from which a reasonably jury could conclude that [the decision-maker] acted with discriminatory or retaliatory animus."). In the final analysis, Glass fails to supply any basis for concluding that the factual matters identified by the NHTSA are genuinely in dispute. Were the Court to accept such conclusory allegations as creating a genuine dispute of material fact, it "would defeat the central purpose of the summary judgment device," which is to identify those cases sufficiently meritorious to warrant a jury trial. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). The Court shall therefore disregard all such conclusory allegations proffered by Glass in opposition to the instant motion.

B. The Court Shall Disregard the Additional Factual Allegations Identified By Glass that Are Unaccompanied By Citations to the Record

Separately, Glass identifies a number of additional factual allegations at the conclusion of her responsive statement-a total of ten-which she contends support her claims. See Pl.'s Stmt. ¶¶ 62-71.*fn3 But in setting forth these ten allegations, Glass again fails to cite to competent evidence in the record, and instead cites almost exclusively to the legal memorandum that she has offered in opposition to the instant motion, apparently with the aim of incorporating the factual and legal argument made in the cited pages. See id. However, the Local Rules of this Court require Glass to support each individual factual statement identified in her responsive statement with supporting references to the record. See LCvR 7(h)(1). As Glass is no doubt aware, legal memoranda are not evidence and cannot themselves create a factual dispute sufficient to defeat a motion for summary judgment. See Conservation Force v. Salazar, 715 F. Supp. 2d 99, 106 n.9 (D.D.C. 2010). Glass's attempt to broadly incorporate a multitude of unspecified facts set forth in a separate filing directly contradicts both the spirit and the letter of Local Civil Rule 7(h)(1), impermissibly shifts counsel's burden to locate and identify the relevant facts, and leaves this Court to guess as to which of the many factual statements set forth in Glass's opposition memorandum are disputed and, if disputed, whether the dispute is genuine. See Sloan v. Urban Title Servs., Inc., 689 F. Supp. 2d 94, 99 (D.D.C. 2010) (disregarding parties' attempts to incorporate by reference the factual statements made in separate filings).

A single example of this deficiency will suffice for present purposes. In her responsive statement, Glass broadly avers that her immediate supervisor's "bonuses, evaluations and other treatment of other African Americans infers [sic] racial bias." Pl.'s Stmt. ¶ 66 (citing Pl.'s Opp'n at 25-27). But nowhere in her responsive statement does Glass attempt to articulate the specifics of the "bonuses, evaluations and other treatment" claimed to be at issue or to identify the "other African Americans" she has in mind. Instead, she purports to incorporate a total of three pages of her opposition memorandum, wherein she argues at length that the supervisor in question gave certain African American employees under his supervision disproportionately smaller annual bonuses and less favorable performance evaluations. See Pl.'s Opp'n at 25-27. From these three pages, the Court can glean at least sixteen discrete factual allegations that are altogether absent from Glass's responsive statement of material facts.

This deficiency is not merely technical-by failing to identify discrete factual allegations in her responsive statement and to support those allegations with specific citations to the record, Glass has deprived the NHTSA of an opportunity to render a meaningful and targeted response. Indeed, in its reply statement of facts, the NHTSA has rejoined in each instance that Glass's proffered statement "contains argument, not facts," and that her "opposition brief is not evidence." Def.'s Resp. ¶¶ 62-71. While the NHTSA often sets forth in its reply memorandum an overarching explanation as to why Glass's various arguments nonetheless fail to create an inference of discrimination or retaliation, it has quite reasonably declined to attempt to individually respond to the scattershot and disjointed factual allegations that are set forth in Glass's opposition memorandum but are altogether absent from her responsive statement. The upshot is that the record fashioned by the parties does not fully crystallize for this Court the material facts that are in dispute and, if disputed, the extent of the dispute-an outcome that is entirely attributable to Glass's failure to comply with the Local Rules of this Court and her patently unacceptable attempt to shift her burden to crystallize the factual record supporting her arguments to the NHTSA and this Court.

In an exercise of its discretion, the Court shall disregard all the additional factual allegations set forth in Glass's responsive statement that are unsupported by specific citations to the record and that instead rest entirely upon the incorporation of an unidentified universe of additional factual allegations set forth somewhere in her opposition memorandum, again without adequate citation to evidence in the record. See Pl.'s Stmt. ¶¶ 62-71. Separately, taking its cue from the NHTSA, the Court will also explain why, even crediting the scattershot and disjointed factual allegations set forth in Glass's opposition memorandum, her arguments are unpersuasive on the merits. Nonetheless, the Court emphasizes here that Glass has failed to support these arguments with competent record support in the manner required by the Local Rules of this Court, which provides a separate and independent ground for rejecting them outright. The Court is mindful that this conclusion may foreclose a broad swath of arguments tendered by Glass in opposition to the instant motion, but the fault for this result must lie with Glass herself and not the NHTSA or this Court.

II. BACKGROUND

Glass, an African American female, was hired by the NHTSA on December 2, 2002 as a grade GS-13 Safety Defects Engineer in the Vehicle Integrity Division of the Office of Defects Investigation. Def.'s Stmt. ¶¶ 1, 6 & Ex. D; Pl.'s Stmt. ¶¶ 1, 6. As a Safety Defects Engineer, Glass is responsible for evaluating potential defects in vehicles and determining whether a defect presents a safety-related issue. Def.'s Stmt. ¶ 4; Pl.'s Stmt. ¶ 4.

For most of the time period relevant to the instant action, Glass's first-line supervisor was Thomas Cooper ("Cooper"), the Chief of the Vehicle Integrity Division, while her second-line supervisor was Kathleen DeMeter ("DeMeter"), the Director of the broader Office of Defects Investigation. Def.'s Stmt. ¶¶ 2-3; Pl.'s Stmt. ¶¶ 2-3. The only exception pertains to the first half of 2007, when Glass was assigned to a temporary detail in the Correspondence Research Division, a separate division within the Office of Defects Investigation. Def.'s Stmt. ¶¶ 2-3; Pl.'s Stmt. ¶¶ 2-3. During that particular time period, Glass reported directly to DeMeter. Def.'s Stmt. ¶¶ 2-3; Pl.'s Stmt. ¶¶ 2-3.

A. The NHTSA's Merit Promotion Plan and Promotions for Safety Defects Engineers

Like many federal employers, the NHTSA maintains a written Merit Promotion Plan, the stated objectives of which are to "assure staffing with the best-qualified candidates available, and to assure that employees have the opportunity to develop and advance to their full potential while also observing the best utilization of current resources." Def.'s Ex. E at 2. The Merit Promotion Plan sets forth the competitive procedures that generally apply to promotions to positions grade GS-15 and below. See id.; Decl. of Darlene Peoples ("Peoples Decl."), ECF No. [25-4], ¶ 8. However, it expressly exempts from its coverage "career promotions," a category that includes two types of promotions that are relevant to this action-namely, "career ladder" promotions and "desk audit" promotions. Def.'s Ex. E at 5.

Under the career ladder promotion process, promotions to a higher grade within a designated "career ladder" can occur without further competition provided that the intent was made a matter of record before the position was filled. Def.'s Ex. E at 5, Attach. C at 1. An employee can climb the ladder until he or she reaches the "full performance level" for the position in question, at which point "there is no further advancement opportunity in the position." Id. at Attach. C at 3. According to the terms of the Merit Promotion Plan, this ceiling is imposed because "[t]he full performance level represents a grade to which all employees in the job series can aspire because there is enough work in the series at the full performance level for all members of the group." Id. at Attach. C at 1.

Under the desk audit promotion process, promotions to a higher grade can hypothetically occur along with an employee's "accretion of duties" over time. Def.'s Ex. E at 5; Peoples Decl. ¶ 17. According to Darlene Peoples, the Director of the Office of Human Resources, desk audit promotions are a rare occurrence at the NHTSA.*fn4 Peoples Decl. ¶ 17. Further, they must be supported by a formal narrative position classification evaluation report; the new position must be a clear successor to the former position; no other qualified, comparable employee in the same organizational unit may be denied an opportunity to compete for the position; and the promotion cannot create an additional position or vacancy. See id.

Glass and other Safety Defects Engineers are on a career ladder that runs from GS-5/7 to GS-13. Def.'s Ex. E, Attach. C at 1; Peoples Decl. ¶ 12. Grade GS-13 represents the top of the ladder and there is no further advancement opportunity under the career ladder promotion process once an employee reaches that grade. Def.'s Ex. E, Attach. C at 1, 3 & Ex. F at 86; Peoples Decl. ¶ 12. Because Glass was initially hired by the NHTSA as a grade GS-13 Safety Defects Engineer, she was already at the full performance level for her position at the outset of her employment. Def.'s Stmt. ¶ 6 & Ex. D; Pl.'s Stmt. ¶ 6.

Within the Office of Defects Investigation, grade GS-14 is considered the "expert" performance level. Def.'s Stmt. ¶ 15 & Ex. G ¶ 6; Pl.'s Stmt. ¶ 15. Cooper, the Chief of the Vehicle Integrity Division, explains that an employee must demonstrate that he or she is a "technical engineering expert, and has detailed knowledge, skills and experience investigating a field" in order to be eligible for a promotion to the position of a grade GS-14 Safety Defects Engineer. Def.'s Stmt. ¶ 11; Pl.'s Stmt. ¶ 11. Similarly, the employee must put into practice his or her knowledge and skills, demonstrate a mastery of the issues, have a full understanding of technical details, and develop investigation recommendations that are supported and reflect a sophisticated level of analysis. Def.'s Stmt. ¶ 12; Pl.'s Stmt. ¶ 12; Def.'s Resp. ¶ 12.

Because Glass was already at the top of her career ladder at the outset of her employment, there were two basic avenues by which she might hypothetically secure a promotion to a grade GS-14 Safety Defects Engineer. First, Glass could pursue a promotion through the desk audit promotion process, which has been consistently described as an unusual occurrence at the NHTSA. Second, and more likely, Glass could attempt to secure the promotion in accordance with the competitive procedures set forth in the Merit Promotion Plan, a process that is generally initiated when an employee's supervisor prepares a proposal to advertise a competitive position at the GS-14 level. Def.'s Stmt. ¶ 7 & Ex. F at 85-87; Pl.'s Stmt. ¶ 7(c).*fn5 That would require the employee's supervisor with sufficient authority-in this case, DeMeter-to determine that Glass had the potential to perform at the GS-14 level and that there was actually a need for someone to perform at that level.*fn6 Def.'s Stmt. ¶ 7 & Ex. F at 85-87; Pl.'s Stmt. ¶ 7(a)-(b). Were DeMeter to reach that conclusion, she would then forward the relevant approval paperwork to Ronald Medford ("Medford"), the Senior Associate Administrator for Vehicle Safety, who is in turn responsible for deciding whether it is appropriate to advertise a position at a given grade level. Def.'s Stmt. ¶¶ 8-9 & Ex. F at 85-87; Pl.'s Stmt. ¶¶ 8-9.

B. Glass's Failure-to-Promote Claim and Assessments of Her Performance

Glass personally believes that she has deserved a promotion to grade GS-14 since 2003, the year following her arrival at the NHTSA. Def.'s Stmt. ¶ 20; Pl.'s Stmt. ¶ 20. She first raised the issue with Cooper, the Chief of the Vehicle Integrity Division and Glass's immediate supervisor for the vast majority of her employment, in 2004, and she has revisited the issue with him periodically over the succeeding years. Def.'s Stmt. ¶ 21; Pl.'s Stmt. ¶ 21. Through her Failure-to-Promote Claim, Glass alleges that she was unfairly denied a promotion to a grade GS-14 Safety Defects Engineer at a specific time-in October 2007-when she met with Cooper concerning her annual performance review. See Compl., ECF No. [1], ¶ 20. Glass maintained a journal containing her contemporaneous notes about actual events-which she named "It Ain't Right"-and described her encounter with Cooper in her journal in the following manner:

Per Tom: I am a strong GS-13; need to anticipate every possibility; I should get the step increase as scheduled. He will not advertise for the GS-14 because my past work does not demonstrate the GS-14.

Def.'s Stmt. ¶¶ 33-34; Pl.'s Stmt. ¶¶ 33-34.

In Cooper's assessment, Glass met the expectations for a grade GS-13 Safety Defects Engineer, but her job performance never exceeded those expectations. Def.'s Stmt. ¶ 13 & Ex. G ¶ 13; Pl.'s Stmt. ¶ 13. Consistent with this assessment, Glass received a performance rating of "achieved results"-a rating which falls between "minimally satisfactory" and "exceeded expectations" on the relevant performance rating scale-for performance years 2005 through 2007.*fn7 See Def.'s Ex. G ¶ 13 & Ex. P. In other words, she was consistently rated as an average employee of her grade and position, no more and no less.

In particular, Cooper expressed concerns about Glass's level of understanding of the issues presented by investigations and the logic of her approach for gathering and analyzing information. Def.'s Stmt. ¶ 14 & Ex. G ¶ 16; Pl.'s Stmt. ¶ 14. According to Cooper, Glass failed to demonstrate the potential to perform at the GS-14 level and had not shown that she had the ability to independently manage complex investigations. Def.'s Stmt. ¶ 15 & Ex. G ¶ 6; Pl.'s Stmt. ¶ 15. Citing these concerns, Cooper never recommended Glass for a promotion to grade GS-14.*fn8 Def.'s Stmt. ¶ 16, Ex. F at 90-91, & Ex. G ¶ 8; Pl.'s Stmt. ¶ 16. Cooper advised DeMeter of Glass's interest in a promotion, and Cooper and DeMeter discussed the level and quality of Glass's work and expertise and both agreed that Glass's performance remained at the GS-13 level. Def.'s Ex. F at 90-91 & Ex. G ¶ 8.

Unsurprisingly, Glass disagrees with these assessments of her performance. For example, Glass testified at her deposition that she personally believes that she has demonstrated sufficiently independent investigatory skills and that she is a technical expert in the field of fire investigations. Def.'s Stmt. ¶ 22 & Ex. B at 136; Pl.'s Stmt. ¶ 22. She also testified that the quality of her work on each of the investigations that she worked on since the year after she joined the NHTSA has shown that she performs at a GS-14 level. Def.'s Stmt. ¶ 22 & Ex. B at 136; Pl.'s Stmt. ¶ 22. However, when asked during the course of written discovery to identify each of the investigations that she contends demonstrate her ability to work at the GS-14 level, Glass specifically identified only three investigations. Def.'s Stmt. ¶ 24 & Ex. I at 33-34; Pl.'s Stmt. ¶ 24. Two of those investigations-referred to by the parties as the Pontiac Vibe and Mitsubishi Galant investigations-were not even opened until early 2008, the year after Glass claims she was unfairly denied a promotion to grade GS-14. Def.'s Stmt. ¶ 25; Pl.'s Stmt. ¶ 25. The third-referred to as the Ford Expedition investigation-opened on October 13, 2005 and closed on December 6, 2005. Def.'s Stmt. ¶ 26; Pl.'s Stmt. ¶ 26.

The Ford Expedition investigation involved allegations that water leaks around the vehicle's windshield caused a number of electrical component malfunctions, some of which were safety-related and others of which were not safety-related. Def.'s Stmt. ¶ 26; Pl.'s Stmt. ¶ 26. Glass's closing report for the investigation went through numerous re-writes, with as many as nine drafts. Def.'s Stmt. ¶ 27; Pl.'s Stmt. ¶ 27. Her first draft contained a chart that purported to show a high incidence of windshield wiper failures related to water leaks around the vehicle's windshield. Def.'s Stmt. ¶ 28; Pl.'s Stmt. ¶ 28. But while her draft claimed to show the warranty data of windshield wiper failures due to water intrusion, the data Glass used actually reflected the number of all windshield wiper failures regardless of cause, a much larger number. Def.'s Stmt.

¶ 29; Pl.'s Stmt. ¶ 29. From Cooper's perspective, this error was the result of Glass's failure to scrutinize the data before she included it in her draft report, with the end result being that there was an unacceptable disconnect between the data and her recommendation that the investigation be closed. Def.'s Stmt. ¶ 30; Pl.'s Stmt. ¶ 30; Decl. of Thomas Z. Cooper ("Cooper Decl."), ECF No. [25-3], ¶¶ 14-15. In his opinion, Glass's early drafts did not make recommendations that were supportable, requiring significant editing to prepare a final report. Def.'s Stmt. ¶ 32 & Ex. C at 87; Pl.'s Stmt. ¶ 32.

For her part, Glass does not actually dispute that there were legitimate questions about the quality of her work on the Ford Expedition investigation, but attempts to minimize those questions by suggesting that "she was doing her very first closing report" and intimating that Cooper should bear some of the blame because he was involved in the re-writing process. Pl.'s Stmt. ¶ 31; Def.'s Resp. ¶ 31 & Ex. C at 71-72. Contrary to Glass's assertions, Cooper does not appear to claim that he did not bear at least some of the responsibility for the final work product as Glass's immediate supervisor.*fn9 Even if he did, that does not change the fact that it is undisputed that there were real deficiencies in Glass's work product on the Ford Expedition investigation-which is the only work product that Glass has specifically identified as evidencing her purportedly GS-14 quality work that she actually performed before she was denied a promotion in October 2007.

C. Glass's Temporary Detail as the Acting Co-Director of the Correspondence Research Division

The Correspondence Research Division is the unit within the Office of Defects Investigation that is responsible for responding to correspondence from the general public and managing document storage and redaction. Def.'s Stmt. ¶ 35; Pl.'s Stmt. ¶ 35. In December 2006, the position of the Director of the Correspondence Research Division-a GS-14 level position-became vacant when the incumbent retired. Def.'s Stmt. ¶ 35; Pl.'s Stmt. ¶ 35. Prior to the position being filled on a permanent basis, DeMeter sought volunteers to serve a temporary detail as Acting Director. Def.'s Stmt. ¶ 36; Pl.'s Stmt. ¶ 36. When those initial efforts proved unsuccessful, DeMeter asked the various division chiefs within the Office of Defects Investigation-a group that included Cooper-to see if anyone within their respective divisions would be interested in the temporary detail. Pl.'s Stmt. ¶ 31; Def.'s Resp. ¶ 31 & Ex. F at 15. While not altogether clear from the record, the Court assumes that Cooper did not approach Glass at this time.*fn10 Pl.'s Stmt. ¶¶ 19, 36; Def.'s Resp. ¶¶ 19, 36.

Subsequently, DeMeter decided to split the Acting Director position into two separate functions-one for correspondence and a second for document handling. Def.'s Stmt. ¶ 36; Pl.'s Stmt. ¶ 36. Thereafter, DeMeter asked Cooper if he would check with Glass to gauge her interest in the detail because DeMeter was aware that Glass was interested in being promoted to grade GS-14 and thought the detail might offer her an opportunity to show what she could do in a different arena.*fn11 Def.'s Stmt. ¶ 37; Pl.'s Stmt. ¶ 37. Similarly, Cooper thought that the detail would provide Glass with an opportunity to demonstrate her abilities and compete for the permanent position. Def.'s Stmt. ¶ 19; Pl.'s Stmt. ¶ 19. Cooper asked Glass if she would consider accepting the temporary detail, and she accepted the position.*fn12 Def.'s Stmt. ¶ 19; Pl.'s Stmt. ¶ 19. At the time of her acceptance, Glass was not aware that the responsibilities would be split between two employees, but once apprised, she did not have any objection to the division of responsibilities. Def.'s Stmt. ¶ 41; Pl.'s Stmt. ¶ 41.

Under the Merit Promotion Plan, a "detail" is defined as the temporary assignment of an employee to a different position or set of duties, with no change in grade or pay, for a specified period of time, with the employee returning to his or her position at the end of the assignment. Def.'s Stmt. ¶ 42; Pl.'s Stmt. ¶ 42. Glass concedes that she was aware at the time she accepted the position that it would not come with extra pay. Def.'s Stmt. ¶ 43; Pl.'s Stmt. ¶ 43. Indeed, she stated precisely that in her journal around the time of her acceptance, writing, "I accepted the detail. The detail did not include an increase in pay." Def.'s Ex. Q at 2.

Ultimately, the Acting Director of the Correspondence Research Division position was split between Glass, who was responsible for the correspondence function, and Cheryl Rose ("Rose"), a grade GS-14 Safety Defects Engineer, who was responsible for the document-handling function. Def.'s Stmt. ¶ 38; Pl.'s Stmt. ¶ 38. Glass performed the duties of her detail on a full-time basis, while Rose retained her other investigatory duties. Def.'s Stmt. ¶ 39; Pl.'s Stmt. ¶ 39. Glass's detail spanned the first half of 2007, during which time DeMeter served as Glass's direct supervisor. During this period, DeMeter discovered several errors in the correspondence that Glass was sending to the general public as part of her responsibilities, errors which caused DeMeter some concern about the quality of Glass's work product. Def.'s Stmt. ¶¶ 44-45; Pl.'s Stmt. ¶¶ 44-45.

D. The Selection of the Permanent Director of the Correspondence Research Division and Glass's Non-Selection Claim

In March 2007, the NHTSA formally announced the vacancy in the Director of the Correspondence Research Division position. Def.'s Stmt. ¶ 46; Pl.'s Stmt. ¶ 46. The permanent position-which would combine the two functions that were split for purposes of the temporary detail-would involve monitoring the development of systems for maintaining safety defect data and coordinating responses to all correspondence received by the Correspondence Research Division. Def.'s Stmt. ¶ 55; Pl.'s Stmt. ¶ 55. DeMeter was the recommending official for the position. Def.'s Stmt. ¶ 47; Pl.'s Stmt. ¶ 47. Medford, the Senior Associate Administrator for Vehicle Safety, was the selecting official. Def.'s Stmt. ¶ 54; Pl.'s Stmt. ¶ 54.

Glass applied for the position but was informed sometime in June or August 2007 that she was not selected. The selection process began in earnest when the NHTSA's Office of Human Resources provided DeMeter with a broad list of candidates satisfying the basic criteria for the position. Def.'s Ex. R ¶ 5. DeMeter assigned two subordinates to cull the list of candidates and to return it to the Office of Human Resources for further processing. Id. Subsequently, the Federal Highways Administration-a separate administration within the U.S. Department of Transportation that administers the "QuickHire Process" that was used for filling the vacancy-scored the applicants' responses to a detailed questionnaire, and the final certificate identifying the five remaining candidates and their respective scores was forwarded to DeMeter for her further consideration.*fn13 Def.'s Stmt. ¶ 49 & Ex. Y; Pl.'s Stmt. ¶ 49; Peoples Decl. ¶¶ 20-21.

DeMeter's first choice for the position was Russel Rosen ("Rosen"), a white male, whom she initially thought had the highest score of the various candidates. Def.'s Stmt. ¶ 51; Pl.'s Stmt. ¶ 51. But DeMeter ultimately did not recommend Rosen for the position. After she notified a representative from the Office of Human Resources that she intended to recommend Rosen for selection, she was informed that a second candidate-Ronald Fields ("Fields")-an African American male, had a ten-point veterans' preference that placed his score above Rosen's score. Def.'s Stmt. ¶¶ 48, 52; Pl.'s Stmt. ¶¶ 48, 52. Absent the veterans' preference, Rosen would have obtained the highest score among the five final candidates. The breakdown of the final scores for the five identified candidates was as follows:

Candidate Score

Ronald Fields 98.07

Russel Rosen 96.40 Carmen Bell 93.57 Cynthia Glass 90.35 Catherine Downs ...


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