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Montgomery v. Gotbaum

United States District Court, District of Columbia

February 1, 2013

Delarse MONTGOMERY, Plaintiff,
Joshua GOTBAUM, Director, Pension Benefit Guaranty Corporation, Defendant.

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Ellen K. Renaud, Richard L. Swick, Swick & Shapiro, P.C., Washington, DC, for Plaintiff.

John Gregory Lennon, Laurie J. Weinstein, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.


ROBERT L. WILKINS, District Judge.

Plaintiff DeLarse Montgomery (" Montgomery" ) brings this lawsuit against his former employer the Pension Benefit Guaranty Corporation (" PBGC" ), proceeding against Joshua Gotbaum, Director of the PBGC, in his official capacity.[1] Montgomery's claims all stem from his non-selection for a GS-510-12/13 Accountant position in the Collection and Compliance Division of PBGC's Financial Operations Department. As set forth in his Complaint, Montgomery asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination of Employment Act (" ADEA" ), 29 U.S.C. §§ 633a et seq., arguing that PBGC's failure to select him for the position was discriminatory on the basis of age (58 at the time), gender (male), and race (African American). He also alleges that PBGC unlawfully retaliated against him for engaging in protected activity— lodging prior complaints of discrimination against PBGC with the Equal Employment Opportunity Commission (" EEOC" ). This matter is presently before the Court on PBGC's Motion for Summary

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Judgment. (Dkt. No. 34). Having carefully considered the parties' briefing and the entire record in this case, the Court concludes that the PBGC's Motion will be GRANTED for the reasons set forth herein.


The Pension Benefit Guaranty Corporation is a wholly-owned United States Government corporation established by the Employee Retirement Income Security Act of 1975 (ERISA), 29 U.S.C. § 1302, to administer the pension plan termination insurance program under Title IV of ERISA, 29 U.S.C. §§ 1301-1461. PBGC is funded preliminary through the collection of premiums paid by certain types of pension plans. Id. at §§ 1306-07. (Dkt. No. 43-1, Joint Statement of Material Facts (" Joint Facts" ) at ¶ 1).[2]

On September 14, 2005, PBGC issued vacancy announcement " FODCCD-2005-006," for a GS-510-12/13 Accountant position within the Collections and Compliance Division of PBGC's Financial Operations Department. ( Id. at ¶ 11). The vacancy announcement was posted on the PBGC Online Automated Referral System (" POLARS" ), as well as the Office of Personnel Management's USA JOBS website. ( Id. ). The announcement advised that " it [was] strongly recommended that applicants submit a complete online application and electronic resume via [POLARS]." ( Id. ).

Plaintiff DeLarse Montgomery began his employment with PBGC in 1986 as a GS-5 secretary in the Financial Operations Division. ( Id. at ¶ 2). He subsequently progressed within PBGC, ultimately becoming a GS-12 Financial Specialist in the Investment Accounting Branch. ( Id. at ¶ 3). On October 5, 2005, Montgomery applied for the GS-510-12/13 Accountant position, submitting a paper copy of his application to PBGC's Human Resources Division. ( Id. at ¶ 14). At the time the vacancy announcement was published, PBGC's Human Resources Department used a program called " QuickHire" to determine whether an applicant met the minimum qualifications for the position. ( Id. at ¶ 15). Based on applicants' responses in the POLARS electronic system, QuickHire automatically " screened out" applicants when the software determined that the minimum qualifications for the position were not met, and it generated a list of the remaining candidates that did meet the position's qualifications. ( Id. ). The lists were then reviewed by Human Resources Specialists, who generated a roster of minimally-qualified applications for the Subject Matter Expert (" SME" ) to review. ( Id. ).

In this case, after QuickHire conducted an initial screening of the candidates, the list of eligible applicants was forwarded to Kenneth Kofsky, the SME for the vacancy, in early November 2005. ( Id. at ¶ 16). Mr. Kofsky rated the applicants and they were then placed on " Certificates of Eligibles," which were forwarded to the sole decisionmaker for the position, Robert Callahan, the Financial Program Manager for the Collections and Compliance Division. ( Id. at ¶¶ 16, 18). Because Montgomery did not submit his application electronically, it appears that the QuickHire system failed to include his application on the original list of eligible applicants, which meant that his application was not initially provided to Mr. Kofsky for rating, or to Mr. Callahan for consideration. ( Id. at ¶¶ 16-17). Based on the listing he did

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receive, Mr. Callahan proceeded to interview the candidates and initially selected Kathryn Gillis for the position, but Ms. Gillis ...

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