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Hairston v. Boardman

United States District Court, District Circuit

January 16, 2013



RICHARD W. ROBERTS, United States District Judge

Plaintiff Kevin Hairston has sued the Public Printer[1] of the United States Government Printing Office (“GPO”), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a), alleging that the GPO failed to promote him because of his race, and denied him training because of his race and as retaliation for prior EEO activity. The GPO has moved for summary judgment. Because Hairston has neither rebutted all of the non-discriminatory reasons the GPO proffered for not promoting him or sending him to training, nor shown that not sending him to training was an actionable adverse employment action, the defendant’s motion for summary judgment will be granted.


Hairston is a black employee of the GPO who applied in August 2006 for a promotion to a Second Offset Pressperson position advertised in vacancy announcement (“VA”) 06-476. The position was open to GPO employees only. (Am. Compl. ¶¶ 1, 4, 11-13; Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J (“Def.’s Mem.”), Def.’s Stmt. of Mat. Facts (“Def.’s Stmt.”) ¶¶ 1, 7, 9.) A Second Offset Pressperson is responsible for operating and maintaining five-color and six-color printing presses to produce “postal cards, passports, and other security and quality work[.]” (Def.’s Mem. at 11; Def.’s Stmt. ¶ 8 & Ex. 3.)

Hairston was the only one of the two applicants for the position deemed “qualified” by the selecting official, Earl Hayward, who believed that Hairston could learn the duties of the position with training. (Def.’s Stmt. ¶ 10.) The concurring official, George Domarsky, agreed with Hayward’s assessment, and Hayward told Hairston that he was selected for the position. (Pl.’s Mem. of P. & A. in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”), Ex. 5 (“Hairston Decl.”) ¶ 42.) However, Domarsky’s supervisor, Jeff Bernazzoli, determined that the Second Offset Pressperson position was not a training position. (Def.’s Notice of Errata, Ex. 2 (“Bernazzoli Dep. Excerpt 3”) at 36). Bernazzoli sought someone who could immediately operate the equipment, and Domarsky said Hairston could not do so. (Id. at 35, 38.) Bernazzoli consulted with Marvin Verter who had supervised Hairston. (Def.’s Mem., Ex. 4 (“Bernazzoli Dep. Excerpt 1") at 35; Pl.’s Opp’n, Ex. 26 (“Verter Dep. Excerpt 2") at 30.)[2] Verter said that Hairston did not have the experience or training to operate the equipment that the Second Offset Person Pressperson had to operate. (Bernazzoli Dep. Excerpt 1 at 35-36; Verter Dep. Excerpt 2 at 30.) Thereafter, Bernazzoli had the vacancy posting cancelled. (Def.’s Stmt. ¶ 14.)

At Domarsky’s request, the GPO’s human resources department re-advertised the Second Offset Pressperson position in VA 06-554. It sought applicants familiar with multicolor printing presses, and was open to applicants who were not GPO employees. (Def.’s Stmt. ¶¶ 14, 17.) The GPO interviewed candidates, asking each the same set of questions related to working on multicolor presses, and scoring the answers. Hairston failed to answer some of the questions asked during the interview. (Id. ¶¶ 18-19.) Of the seven applicants who were interviewed, Hairston’s score, 57 out of a possible 105 points, was the lowest. The interviewee with the highest score, a white candidate named Douglas Davis who had 10 years of experience working with multicolor presses, scored 101. (Id. ¶ 20.) Davis was eventually selected for the Second Offset Pressperson position, and was hired effective in 2007. (Id. ¶ 22.)

After Hairston discovered that the position advertised in VA 06-554 had been filled by a white candidate, he informally and formally complained to the GPO EEO office that the GPO had engaged in race discrimination by not promoting him and instead hiring a white candidate. (Am. Compl. ¶¶ 34, 39, 44; Def.’s Stmt. ¶ 23; Def.’s Mem., Ex. 20 at 2.) Hairston alleges that following his contact with the EEO office, he was subjected to retaliatory conduct by his supervisor, assistant foreman David Eigenbrode. (Am. Compl. ¶¶ 2, 42.) Hairston further asserts that even though he was not promoted to the Second Offset Pressperson position, the GPO asked him to temporarily fill that position for nearly two months in October and November 2007, and did not compensate him for the additional workload and responsibility. (Id. ¶¶ 37-38.) In January 2009, Hairston filed his second formal complaint with the GPO EEO office alleging both the original discriminatory non-promotion and retaliation. (Id. ¶ 57.)

According to Hairston, in March 2009, he learned that the GPO was sending presspersons to Kennesaw, Georgia, for training on two-color and four-color presses. Hairston alleges that he was not timely informed of this opportunity, and was not invited to participate. (Am. Compl. ¶¶ 63-64; Pl.’s Opp’n at 8.) Presspersons interested in the opportunity were chosen on the basis of information taken from surveys which had been distributed in 2008 by a union representative named Carter Daniel, at the direction of Douglas Davis. (Am. Compl. ¶¶ 65-69; Def.’s Mem., Ex. 22.) Hairston alleges that he had never spoken to Daniel about training, and that Daniel falsified survey results to reflect a lack of interest by Hairston in the Georgia training opportunity. (Pl.’s Opp’n at 9.) Hairston does not dispute, though, that he signed a training survey form on which he made no request for this training, or that those above Daniel who decided which employees to send to the training understood that Hairston had not requested this training. (Def.’s Stmt. ¶ 27; Pl.’s Resp. to Def.’s Stmt., ¶ 27.)[3]

Hairston initially filed a two-count complaint in this case. The GPO moved to dismiss Hairston’s complaint for failure to exhaust administrative remedies. The motion was granted as to Hairston’s claim of retaliation by Eigenbrode, and denied as to Hairston’s claim of discriminatory non-promotion. See Hairston v. Tapella, 664 F.Supp.2d 106, 115 (D.D.C. 2009). Hairston later filed an amended Title VII complaint, alleging race discrimination in the first count for the GPO’s failure to promote him to the position of Second Offset Pressperson; race discrimination in the second count based on the GPO denying Hairston training opportunities; and retaliation in the third count also based on the GPO denying training opportunities to Hairston. (Am. Compl. ¶¶ 81-90.)

The GPO has moved for summary judgment on all three counts. On the first count, it argues that Hairston failed to rebut the GPO’s legitimate, non-discriminatory justification for not promoting him, and that Hairston failed to exhaust his administrative remedies. On the second and third counts, the GPO argues that Hairston failed to rebut the legitimate, non-discriminatory justification for not sending him to the training in Georgia, and that his alleged injury was not an adverse employment action. Hairston opposes.


“‘Summary judgment is appropriately granted when the moving party demonstrates that there is no genuine issue as to any material fact and that moving party is entitled to judgment as a matter of law.’” Fields v. Geithner, 840 F.Supp.2d 128, 133 (D.D.C. 2012) (quoting Winston v. Clough, 712 F.Supp.2d 1, 6 (D.D.C. 2010) (citing Fed.R.Civ.P. 56(c))). “‘In considering a motion for summary judgment, [a court is to draw] all justifiable inferences’ from the evidence . . . in favor of the nonmovant.’” Fields, 840 F.Supp.2d at 133 (quoting Winston, 712 F.Supp.2d at 6 (internal quotation omitted)). “The court must determine ‘whether there is a need for trial –- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’” Fields, 840 F.Supp.2d at 133 (quoting Winston, 712 F.Supp.2d at 6)). A genuine issue “is present in a case where the ‘evidence is such that a reasonable jury could return a verdict for the non-moving party, ’ a situation separate and distinct from a case where the evidence is ‘so one-sided that one party must prevail as a matter of law.’” Dozier-Nix v. Dist. of Columbia, 851 F.Supp.2d 163, 166 (D.D.C. 2012) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, 252 (1986)).


In his first count, Hairston alleges that the GPO denied him promotions to the Second Offset Pressperson position because of his race. (Am. Compl. ¶¶ 81-83.) The GPO argues that judgment should be entered against Hairston on this claim because the GPO had legitimate, non-discriminatory reasons for cancelling VA 06-476 and for selecting Douglas Davis instead of Hairston for the Second Offset Pressperson position advertised in VA 06-554, and because Hairston failed to exhaust his administrative remedies for his non-selection for the VA 06-554 position. The GPO’s principal reason proffered for not promoting Hairston to the VA 06-476 position is that because it faced tight passport production deadlines from the State Department, Bernazzoli sought candidates with more experience than Hairston had with multicolor presses. (Def.’s Mem. at 12-13.) The GPO’s proffered reason for hiring Davis is that he had superior relevant experience and was the most highly rated applicant after the applicants were interviewed. (Def.’s Mem. at 17-18.) Hairston responded that this action “focuses principally on the discriminatory denial of a promotion in 2006.” (Pl.’s Opp’n at 1.) Perhaps for that reason, his opposition does not respond to the GPO’s assertions that it hired Davis in 2007 due to Davis’ superior qualifications, [4] or that Hairston untimely pursued counseling regarding his non-promotion in 2007. A party opposing a summary judgment motion who does not address an argument advanced in ...

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