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David J. Butler v. Kathleen Sebelius

February 8, 2012


The opinion of the court was delivered by: James E. Boasberg United States District Judge


Plaintiff David J. Butler is a black male over the age of forty employed by the United States Department of Health and Human Services. After failing to obtain a promotion that went to a white woman, he filed this suit claiming HHS discriminated against him because of his race, age, and sex. Defendant has now filed a Motion for Summary Judgment. Because no reasonable jury could find that Defendant's stated reasons for its employment decision were pretextual, the Court will grant Defendant's Motion.


Plaintiff has been employed as a GS-13 Child Welfare Program Specialist in the Children's Bureau (CB) since May 23, 1999. See Mot., Exh. 5 (Pl.'s Aff.), ¶ 2. The Children's Bureau is one of two bureaus that make up the Administration for Children, Youth and Families (ACYF), which is an agency of HHS. Id.

On June 19, 2006, ACYF issued a vacancy announcement for the newly created position of Budget Officer of ACYF. Opp. at 3-4; see Mot., Exh. 6 (Budget Officer Position Description). The main responsibilities of the Budget Officer were to "formulate, prepare, execute and oversee ACYF's budget of $9 billion." Opp. at 3 (citing Opp., Exh. 1 (Depo. of Joan Ohl) at 27); see also Budget Officer Position Description (Major duties: "The incumbent serves as team leader and technical authority responsible for the planning, justification, formulation and execution of financial operations of ACYF's program and administrative budgets with responsibility for making allowances and sub-allowances to ACF central and regional offices for effective operation of ACYF programs."). To successfully complete the above responsibilities, the Budget Officer needed to be familiar with both program and grant budgets. Opp. at 3 (citing Depo. of Ohl at 27); see also Budget Officer Position Description.

On June 30, 2006, Plaintiff applied for the Budget Officer position. See Def.'s Stat. Undis. Mat. Facts (SUMF), ¶ 5. Catherine Wade, a white female over age forty, also applied for the position. Id., ¶¶ 4, 6; Mot., Exh. 9 (Selectee Application). From 2005 to the time of the selection, Wade was a GS-14 Senior Financial Management Analyst at HHS. Def.'s SUMF, ¶ 8; Selectee Application at 7-8.

Dr. Maiso Bryant, the Acting Deputy Commissioner of ACYF, reviewed all the applications for the Budget Officer position and recommended Plaintiff, Catherine Wade, and one other candidate. Mot., Exh. 13 (Decl. of Maiso Bryant), ¶ 4; Def.'s SUMF, ¶ 7. Bryant thought that all three candidates could have successfully performed the Budget Officer position. Decl. of Bryant, ¶¶ 3-5; Def.'s SUMF, ¶ 8. Commissioner Joan Ohl, a white female, ultimately selected Wade. Opp. at 5; Compl., ¶ 8. She explained: "The factors I considered in making my decision were that we were setting up a new office with new procedures, and that we needed a person who had leadership skills, good vision, and good communications skills and expertise in managing and administering funds." Statement of Ohl, ¶ 10.

After exhausting his claim through the administrative process, Plaintiff filed the instant Complaint on June 7, 2010. He claimed that he had been discriminated against on the basis of his race, age, and sex. Compl., ¶ 1. On July 5, 2011, Defendant filed the dispositive Motion that the Court now addresses.

II.Legal Standard

Summary judgment may be granted if "the movant shows 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at 248. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, Inc., 477 U.S. at 248; Holcomb, 433 F.3d at 895. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." FED. R. CIV. P. 56(c)(1)(A).

The party seeking summary judgment "bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). When a motion for summary judgment is under consideration, "the evidence of the non-movant[s] is to be believed, and all justifiable inferences are to be drawn in his favor." Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant is required to provide evidence that would permit a reasonable jury to find in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Liberty Lobby, Inc., 477 U.S. at 249-50.


Plaintiff contends that Defendant violated the anti-discrimination provision of Title VII with respect to his non-promotion. Opp. at 1. Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court established the familiar three-step "burden-shifting approach to employment discrimination claims in cases where the plaintiff lacks direct evidence of discrimination." Chappell-Johnson v. Powell, 440 F.3d 484, 487 (D.C. Cir. 2006). "[W]here an employee has suffered an adverse employment action and an employer has asserted a ...

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