United States District Court, District of Columbia
Lisa V. MULRAIN, Plaintiff,
Shaun DONOVAN, Secretary of Housing and Urban Development, Defendant.
[Copyrighted Material Omitted]
Lauren Elizabeth Marsh, Molly E. Buie, Robert C. Seldon, Robert C. Seldon & Associates, P.C., Washington, DC, for Plaintiff.
Javier M. Guzman, U.S. Attorney's Office, Washington, DC, for Defendant.
ELLEN SEGAL HUVELLE, District Judge.
Plaintiff Lisa Mulrain has sued Shaun Donovan, the Secretary of Housing and Urban Development (" HUD" ), under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. She alleges that she was not selected for the position of Deputy Assistant General Counsel in the HUD Office of General Counsel's Finance Division because she is African-American. Before the Court is defendant's Motion for Summary Judgment (Mar. 30, 2012 [ECF No. 25] (" Def.'s Mot." )). For the reasons stated below, defendant's motion for summary judgment will be granted.
The Government National Mortgage Association (" GNMA" ) is a wholly-owned government corporation that guarantees mortgage-backed securities issued in the secondary mortgage market. (Defendant's Statement of Material Facts Not in Genuine Dispute, Mar. 30, 2012 [ECF No. 25] (" Def.'s Statement" ) ¶ 1; Plaintiff's Opposition to Defendant's Motion for Summary Judgment, July 11, 2012 [ECF No. 29-1] (" Pl.'s Opp'n" ) at 10.) GNMA receives legal advice and representation from the Finance Division within HUD's Office of General Counsel (" OGC" ). (Def.'s Statement ¶ 6; Pl.'s Opp'n at 12.) The Finance Division is headed by Assistant General Counsel Katherine Davies. (Def.'s Statement ¶ 7; Pl.'s Opp'n at 3.) Ms. Mulrain has served as an Attorney-Advisor in the Finance Division since August 2000. (Pl.'s Opp'n at 1; Mulrain Decl. ¶ 1.)
The Finance Division is overseen by the Office of Finance and Administrative Law. (Def.'s Statement ¶ 14; Plaintiff's Statement of Genuine Issues, June 29, 2012 [ECF No. 28-57] (" Pl.'s Statement" ) ¶ 14.) Beginning in 2005, the Office of Finance and Administrative Law was run by Associate General Counsel John Opitz. (Def.'s Statement ¶ 14; Pl.'s Opp'n at 3.) Mr. Opitz believed that there was a need for a Deputy Assistant General Counsel (" DAGC" ) position within the Finance Division. (Def.'s Statement ¶ 16.) In May 2006, a formal Position Description was created for the new DAGC position, and it was graded at the GS-15 level. (Def.'s Ex. 7; Pl.'s Statement ¶ 21.) Mr. Opitz received authorization to fill that position in November 2007. (Def.'s Ex. 6; Pl.'s Statement ¶ 20.) A Vacancy Announcement for the DAGC position was posted on December 13, 2007, and remained open until January 14, 2008. (Def.'s Ex. 8; Pl.'s Opp'n at 2; Pl.'s Statement ¶ 23.)
Ms. Mulrain applied for the DAGC position, along with nineteen other applicants. (Pl.'s Ex. 32, Gerber Report at 3.) The twenty applications were reviewed and seven " best qualified candidates" were identified. (Def.'s Ex. 10; Pl.'s Ex. 32 at 3.) Of those seven, two— including Ms. Mulrain— were African-American, one was Asian, and four were Caucasian. (Def.'s Ex. 11; Pl.'s Statement ¶ 28.) Mr. Opitz and Ms. Davies interviewed the seven " best qualified candidates" in February 2008, including Ms. Mulrain, who was interviewed on February 15, 2008. (Def.'s Statement ¶ 34; Pl.'s Statement ¶ 34.)
Roughly two weeks earlier, on January 31, 2008, Maura Malone, a HUD attorney serving as the DAGC in the Administrative Proceedings Division, informed senior OGC officials that she had accepted a job with the Department of the Army. (Def.'s Statement ¶ 39; Def.'s Ex. 18; Pl.'s Opp'n at 4.) Ms. Malone's supervisor, John Herold, emailed other top OGC management officials to inform them of Ms. Malone's impending departure, calling it a " big loss for HUD." (Def.'s Statement ¶ 40; Def.'s Ex. 18; Pl.'s Statement ¶ 40.) Linda Cruciani,
the career Deputy General Counsel at HUD, encouraged Ms. Malone to reconsider her departure and to explore other positions within HUD. (Def.'s Statement ¶ 41; Def.'s Ex. 19; Pl.'s Opp'n at 5.) As a result of that conversation, Ms. Malone agreed to consider other opportunities. (Def.'s Statement ¶ 41.)
At some point in February 2008, Ms. Malone spoke with Mr. Opitz about an available position in the Office of Procurement and learned about the Finance Division DAGC opening. (Def.'s Statement ¶¶ 46-49; Pl.'s Statement ¶¶ 46-49.) She later met with Ms. Davies to discuss the DAGC position. (Def.'s Statement ¶ 51.) After that meeting, Mr. Opitz informed Ms. Cruciani that if she " wanted to reassign" Ms. Malone to the Finance Division, he and Ms. Davies would " be happy with that." (Def.'s Statement ¶ 55; Pl.'s Opp'n at 8, quoting Pl.'s Ex. 52, Opitz EEOC Dep. 133:12-16.)
On March 6, 2008, the Vacancy Announcement for the Finance Division DAGC position was cancelled, and on March 17, 2008, OGC announced that Ms. Malone would be filling the position. (Def.'s Exs. 23, 24; Def.'s Statement ¶¶ 58-59; Pl.'s Statement, ¶¶ 58-59.)
Ms. Mulrain then filed a formal EEO complaint alleging race discrimination based on the cancellation of the Vacancy Announcement and the selection of Ms. Malone to fill the DAGC position. (First Amended Complaint, Sept. 12, 2011 [ECF No. 20] ¶ 31.) Thereafter, on September 21, 2010, Ms. Mulrain filed the instant action. (Complaint, Sept. 21, 2010 [ECF No. 1].)
I. STANDARD OF REVIEW
A. Summary Judgment
A motion for summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There is a genuine dispute as to a material fact if a " reasonable jury could return a verdict for the nonmoving party." Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1031 (D.C.Cir.2007) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). 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 that party's case, and on which that party will bear the burden of proof at trial." Waterhouse v. Dist. of Columbia, 298 F.3d 989, 992 (D.C.Cir.2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
When considering a motion for summary judgment, " [t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, the non-moving party " may not rely merely on allegations or denials in its own pleading," see Fed.R.Civ.P. 56(c), but instead must offer specific facts showing that genuine issues exist for trial. M ...