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Bell v. Donley

United States District Court, District of Columbia

March 8, 2013

Patricia L. BELL and Jacqueline D. Burton, Plaintiffs,
Michael B. DONLEY, Defendant.

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[Copyrighted Material Omitted]

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Joseph D. Gebhardt, Valencia R. Rainey, Gebhardt & Associates, LLP, Washington, DC, for Plaintiffs.

Mitchell P. Zeff, Laurie J. Weinstein, U.S. Attorney's Office, Washington, DC, for Defendant.


ROBERT L. WILKINS, District Judge.

Plaintiffs Patricia Bell (" Bell" ) and Jacqueline Burton (" Burton" ) (collectively,

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" Plaintiffs" ) bring this action against Michael Donley, in his official capacity as Secretary of the Air Force. Plaintiffs are both presently employed in the Air Force's Central Adjudicatory Facility (" AFCAF" ), the office responsible for reviewing and processing security clearance applications for employees within the U.S. Department of the Air Force. Through this action, they assert claims under Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq., arguing that a number of allegedly adverse actions taken against them— mostly in the form of non-selection for promotions within AFCAF— were retaliatory and/or discriminatory on account of their African-American race. This matter is presently before the Court on the Secretary's Motion to Dismiss in Part and for Summary Judgment (Dkt. No. 59). Upon careful consideration of the parties' briefing and the entire record in this case, the Court concludes, for the reasons set forth herein, that the Secretary's Motion to Dismiss in Part will be DENIED, and that his Motion for Summary Judgment will be GRANTED IN PART and DENIED IN PART. For purposes of this ruling, the Court will assume the reader is familiar with the factual assertions and arguments made by the parties and will not recite those again here.


A. Standard of Review

Summary judgment is appropriate when the moving party demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). To establish a genuine issue of material fact, the nonmoving party must demonstrate— through affidavits or other competent evidence, FED.R.CIV.P. 56(c)(1)— that the quantum of evidence " is such that a reasonable jury could return a verdict for the nonmoving party." Steele v. Schafer, 535 F.3d 689, 692 (D.C.Cir.2008) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). While the Court views all facts in the light most favorable to the nonmoving party in reaching that determination, Keyes v. District of Columbia, 372 F.3d 434, 436 (D.C.Cir.2004), the nonmoving party must nevertheless provide more than " a scintilla of evidence" in support of its position, Anderson, 477 U.S. at 252, 106 S.Ct. 2505. But " [i]f material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available." Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994).

B. Legal Standards Governing Title VII Claims

Title VII forbids an employer from discriminating against any individual because of race. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting 42 U.S.C. § 2000e-2(a)(1)). The statute also prohibits an employer from discriminating and/or retaliating against an employee " ‘ because [s]he has opposed any practice’ made unlawful by Title VII or ‘ has made a charge, testified, assisted, or participated in’ a Title VII proceeding." Steele, 535 F.3d at 695 (quoting 42 U.S.C. § 2000e-3(a)). Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), both sets of claims are assessed under a familiar, three-step framework. First, the plaintiff must establish a prima facie case. To make out a prima facie case of discrimination, a plaintiff must demonstrate, by a preponderance of the evidence, that: " (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference

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of discrimination." Wiley v. Glassman, 511 F.3d 151, 155 (D.C.Cir.2007) (quoting Brown v. Brody, 199 F.3d 446, 452(D.C.Cir.1999)). For a retaliation claim, a plaintiff's prima facie case consists of demonstrating: " (1) that [s]he engaged in statutorily protected activity; (2) that [s]he suffered a materially adverse action by [her] employer; and (3) that a causal link connects the two." Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009). Next, the burden shifts to the employer to articulate a " legitimate, nondiscriminatory reason" for the challenged employment action(s). McDonnell Douglas, 411 U.S. at 802-04, 93 S.Ct. 1817; Wiley, 511 F.3d at 155. Finally, the plaintiff " must be afforded the opportunity to prove" that the employer's proffered motive " was not its true reason, but was a pretext for discrimination." Barnette v. Chertoff, 453 F.3d 513, 516 (D.C.Cir.2006) (internal quotations omitted).

However, our Circuit has instructed that, once an employer provides a legitimate, nondiscriminatory basis for its decision at the summary judgment stage, " the district court need not— and should not — decide whether the plaintiff actually made out a prima facie case." Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008) (emphasis in original). Instead, the central question for the Court to resolve is whether " the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race ... [or retaliation]." Id.; see also Hampton v. Vilsack, 685 F.3d 1096, 1100 (D.C.Cir.2012); Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C.Cir.2010). In so doing, the Court must consider: " (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanations for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer) or any contrary evidence that may be available to the employer (such as evidence of a strong track record in equal opportunity employment)." Czekalski v. Peters, 475 F.3d 360, 363-64 (D.C.Cir.2007) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir.1998) (en banc)). " This boils down to two inquiries: could a reasonable jury infer that the employer's given explanation was pretextual, and, if so, could the jury infer that this pretext shielded discriminatory [or retaliatory] motives?" Murray v. Gilmore, 406 F.3d 708, 713 (D.C.Cir.2005).

C. Plaintiff Bell's Claims

Through this case, Bell pursues three separate claims of discrimination and/or retaliation. First, Bell alleges that her non-selection for a GG-14 Personnel Security Specialist position (Vacancy Announcement 07MAY606279) constituted unlawful racial discrimination. Second, she asserts that her failure to be selected for a GG-14 Supervisory Personnel Security Specialist position (Vacancy Announcement 08DEC684728) was racially discriminatory and retaliatory in retribution for her prior discrimination complaints. And third, Bell contends that her failure to receive a discretionary performance award in 2008 was the result of unlawful retaliation. ( See Dkt. No. 18 (" First Am. Compl." ) at ¶¶ 57, 59). The Court considers these claims in turn.

1. Race Discrimination Based on Bell's Non-Selection for Vacancy Announcement 07MAY606279

Bell first challenges as discriminatory her non-selection for a GG-14 Personnel Security Specialist position, posted

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through Vacancy Announcement 07MAY606279. In seeking summary judgment, the Secretary advances a legitimate, nondiscriminatory explanation as to why Bell was not chosen— that AFCAF simply selected a better-qualified candidate for the position. In view of this, the Court heeds our Circuit's guidance and proceeds directly to the central question underlying Bell's discrimination claim, asking whether a reasonable jury could conclude that the Secretary's proffered reason for the selection decision is pretextual and that the true motivation was discrimination based on Bell's African-American race.

Hoping that the Court will resolve that question in the affirmative, Bell essentially mounts two lines of attack against the legitimacy of the Secretary's explanation. She principally argues that a reasonable jury could find this rationale pretextual because, in her view, she was " substantially more qualified" for the position than Ms. Aument, the Caucasian applicant who was ultimately selected. Bell also suggests that certain " irregularities" in the interview and selection process give rise to an inference of pretext and/or discrimination. (Dkt. No. 66-1 (" Pls.' Opp'n" ) at 29-32). Neither of these arguments is meritorious.

Bell is correct that, in a non-selection case, a jury can infer discrimination based on the candidate's relative qualifications, but only where the plaintiff can establish that she was " significantly better qualified for the job" than the selectee. Aka, 156 F.3d at 1294; Hamilton v. Geithner, 666 F.3d 1344, 1352 (D.C.Cir.2012) (" [A] disparity in qualifications, standing alone, can support an inference of discrimination only when the qualifications gap is ‘ great enough to be inherently indicative of discrimination’ — that is, when the plaintiff is ‘ markedly more qualified,’ ‘ substantially more qualified,’ or ‘ significantly better qualified’ than the successful candidate." ) (internal citation omitted). On the other side of the coin, the D.C. Circuit has cautioned that, where " a reasonable juror ... might disagree with the employer's decision, but would find the question close," this usually does not permit an inference of discrimination " on the basis of a comparison of qualifications alone." Aka, 156 F.3d at 1294. Put another way, " the qualifications gap must be ‘ great enough to be inherently indicative of discrimination.’ " Adeyemi v. District of Columbia, 525 F.3d 1222, 1227 (D.C.Cir.2008) (quoting Jackson v. Gonzales, 496 F.3d 703, 707 (D.C.Cir.2007)). This is because the Court does not sit " as a super-personnel department that reexamines an entity's business decisions," Holcomb v. Powell, 433 F.3d 889, 897 (D.C.Cir.2006) (internal quotations omitted), and absent " a decisive showing" of stark superiority in qualifications, the Court " rightfully defer[s] to the business judgment of an employer and ha[s] no cause to infer discrimination," Hendricks v. Geithner, 568 F.3d 1008, 1012 (D.C.Cir.2009). Applying these well-established standards, Bell fails to raise a genuine issue of fact from which a reasonable jury could conclude that she was better qualified for the position than Ms. Aument, let alone significantly better qualified. If anything, the record suggests just the opposite.

In total, four candidates, including Bell, were interviewed for this position. (Dkt. No. 74 (" Joint Facts" ) at ¶ 27).[1] A three-member interview panel asked each candidate the same six questions and rated the candidates' responses to each of those questions on a scale from one to ten. ( Id. ¶¶ 30-31). Ultimately, all three interviewers

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ranked the same candidate, Beverly Aument, the highest of all applicants, with an overall score of 164 (out of 180). ( Id. ¶ 32). Bell, on the other hand, was ranked as the lowest candidate by all three panelists, with an overall score of 93. ( Id. ).[2] Based on those assessments, and after conducting a further review of all of the candidates' career briefs, the selecting official for the position, Craig Arigo (the Chief of the AFCAF's Personnel Security Support Division), selected Ms. Aument for the position. ( Id. ¶ 33). According to Mr. Arigo, he also believed Ms. Aument's prior experience serving as the Chief of the Training Branch was particularly important in determining that she would be the best fit for the position. ( Id. ). In view of all this— most notably, the independent evaluation of three interviewers selected for their " knowledge of personnel security, leadership skills, and training" within the organization, ( id. ¶ 29)— the record lends little support to Bell's contention that she was " significantly better qualified" than Ms. Aument.

Nevertheless, Bell stridently argues otherwise. In so doing, she points to several " comparative factors" between herself and Ms. Aument, which, in Bell's mind, establish that she was " substantially more qualified" for the position. Specifically, Bell contends that: (a) she had 26 years of " personnel security experience," as compared to Ms. Aument's 10 years; (b) she had 13 years of " supervisory experience," while Ms. Aument had none; (c) she had 9 years of " personnel security training," while Ms. Aument had none; and (d) she received 24 awards, as compared to Ms. Aument's 17 awards. (Pls.' Opp'n at 10-11). Bell also suggests that she was more qualified because she previously trained Ms. Aument herself. ( Id. at 29). But Bell's arguments miss the mark. For one, " [i]t is not for the Court ... to assess which qualities should ‘ weigh[ ] more heavily’ for an employer" in determining which candidate to select for promotion. Pendleton v. Holder, 697 F.Supp.2d 12, 18 (D.D.C.2010) (quoting Barnette, 453 F.3d at 517). Yet this is precisely what Bell asks the Court to do— to discount Mr. Arigo's view in favor of her own beliefs. The Court declines this invitation. Moreover, our Circuit has held that " pointing to differences in qualifications that merely indicate a ‘ close call’ " — as Bell essentially strives to do here— does not get her beyond summary judgment. Stewart v. Ashcroft, 352 F.3d 422, 430 (D.C.Cir.2003). At bottom, Bell attempts to highlight certain aspects of her experience to the exclusion of others ( i.e., her interview performance), asking the Court to look to the factors she believes should have been important in the selection process. But this argument is grounded in Bell's own " subjective assessments of [her] own credentials," which are " largely irrelevant" for purposes of establishing discriminatory motive. Washington v. Chao, 577 F.Supp.2d 27, 44 (D.D.C.2008); Young v. Perry, 457 F.Supp.2d 13, 19 (D.D.C.2006). Instead, " [i]t is the perception of the decisionmaker which is relevant," Waterhouse v. District of Columbia, 124 F.Supp.2d 1, 7 (D.D.C.2000) (internal quotations omitted), and the key issue is whether Mr. Arigo " honestly and reasonably" believed that Ms. Aument was more qualified and a better fit for the position than Bell, Brady, 520 F.3d at 496. Bell offers no evidence to undermine the legitimacy of Mr. Arigo's belief in this regard.

Otherwise, Bell claims that a few purported " procedural irregularities" in the interview and selection process enable her

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to overcome summary judgment. She first claims that the Court should infer pretext because Mr. Arigo did not " vet" his interview questions with AFCAF's Human Resources Department. (Pls.' Opp'n at 32). But Bell fails to cite to any authority— legal or factual— that required Mr. Arigo to vet his interview questions with anyone else, and the use of un-vetted or " subjective questions during an interview ... does not alone establish a pretext." Brown v. Small, 2007 WL 158719, at *7 n. 3, 2007 U.S. Dist. LEXIS 3920, at *22 n. 3 (D.D.C. Jan. 19, 2007). Moreover, Bell's argument lacks merit in any event because the undisputed evidence establishes that Mr. Arigo actually did attempt to clear his questions with Human Resources, but was told it was not necessary to do so. (Joint Facts at ¶ 30).[3] Bell further complains that Mr. Arigo selected Ms. Aument " without the recommendation of the panel." (Pls.' Opp'n at 32). As the Court understands her argument, Bell takes issue with the fact that the panel did not make a " formal" or " official" recommendation for a candidate following their interviews. While this may technically be true, Bell ignores the practical impact of the interviewers' ratings assessments— through which they unanimously ranked Ms. Aument first among the candidates, while ranking Bell last. (Joint Facts at ¶ 32). Given that Mr. Arigo relied on those assessments in making his final selection, Bell's argument is really one of semantics and, in the Court's view, does nothing to raise an inference of pretext or discrimination.[4]

Bell also complains that Mr. Arigo improperly justified his selection of Ms. Aument by relying on her " training" experience, given that " training" was not a skill or responsibility explicitly listed in the vacancy announcement. (Pls.' Opp'n at 11). However, given the overall supervisory nature of this position, the fact that a candidate's training experience might be afforded some weight during the selection process is a concept that " was fairly encompassed within the announcement." Adeyemi, 525 F.3d at 1228. Moreover, this Court has previously rejected such a restrictive reading of job announcements because " reasonable employers ‘ do not ordinarily limit their evaluation of applicants to a mechanistic checkoff of qualifications required by the written job descriptions.’ " Gold v. Gensler, 840 F.Supp.2d 58, 68 (D.D.C.2012) (quoting Jackson v. Gonzales, 496 F.3d ...

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