United States District Court, District of Columbia
For RICHARD CHEATHAM, Plaintiff: Jason Christopher Crump, LEAD ATTORNEY, SMITH GRAHAM & CRUMP, LLC, Largo, MD.
For ERIC HIMPTON HOLDER, JR., Attorney General, Defendant: Kevin Jason Mikolashek, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Eastern District of Virginia-Civil Division, Alexandria, VA.
ROSEMARY M. COLLYER, United States District Judge.
Richard Cheatham, a paralegal employed in the United States Attorney's Office in Washington, D.C., alleges that his employer discriminated against him on the basis of his gender and then retaliated against him for complaining about the alleged discrimination. Mr. Cheatham applied for four different supervisory paralegal positions that the United States Attorney's Office filled with four women. Mr. Cheatham contacted an equal employment opportunity counselor and complained about two non-selections. After counseling and informal settlement efforts, Mr. Cheatham filed a formal administrative complaint, which was accepted as raising discrimination claims as to the same two non-selections. Prior to a hearing before an administrative judge, Mr. Cheatham sought to add the other two positions to his complaint, but the judge twice rejected Mr. Cheatham's motion. This lawsuit alleges gender discrimination in his non-selection for the two positions that were not investigated. Mr. Cheatham also claims that he has twice experienced retaliation as a result of his equal employment opportunity activity. The Attorney General moves for summary judgment, arguing that Mr. Cheatham's failure to exhaust his administrative remedies bars his discrimination claims and that he has shown a nondiscriminatory reason for the USAO's alleged retaliatory actions. For
the following reasons, the motion for summary judgment will be granted except as to Mr. Cheatham's retaliation claim based on his 2010 performance evaluation.
A. Gender Discrimination Claims and Procedural History
Mr. Cheatham has worked for the United States Attorney's Office in the District of Columbia (" USAO" ) as a Paralegal Specialist since October 2001.  In the spring of 2008, he applied and interviewed for four Supervisory Paralegal Specialist positions under vacancy announcement 08-DC-048-M. See Def. Mot. Summ. J. (" Def. MSJ" ) [Dkt. 11], Ex. 11 [Dkt. 11-1] (" Vacancy Announcement" ); accord Pl. Opp. Def. MSJ (" Pl. Opp." ) [Dkt. 14], Ex. 1 [Dkt. 14-2].  The announcement stated that it was for three vacancies: one each in the Felony Major Crimes Section, the General Crimes Section, and the Sex Offense Domestic Violence Section. Vacancy Announcement at 54. Mr. Cheatham states in his Opposition brief, and the Government does not dispute, that four vacancies were filled from vacancy announcement 08-DC-048-M. See Pl. Opp., Ex. 2 [Dkt. 14-2] (" July 21, 2008 Memo Announcing Hires" ) at 5-6. The positions were in four different sections of the USAO's Superior Court Criminal Division: (1) the Misdemeanor Unit of the General Crimes Section (" Misdemeanor" ); (2) the Felony Unit of the General Crimes Section (" Felony" ); (3) the Felony Major Crimes Section (" Grand Jury" ); and (4) the Sex Offense/Domestic Violence Section (" Domestic Violence" ). Id. at 5.
Although he was eligible and was interviewed for all four vacancies, Mr. Cheatham was not selected, and a woman was chosen in each instance. Id. Mr. Cheatham states, and the USAO does not dispute, that " he learned on May 21, 2008, that he had not been selected for either the Supervisory Paralegal, Felony-Major Crimes Unit [Grand Jury] or the Supervisory Paralegal, Domestic Violence-Sexual Assault Unit [Domestic Violence] positions for which he applied and interviewed." Pl. Opp. at 3. When he learned he was not selected for the Misdemeanor or Felony positions is not specified.
On May 30, 2008, Mr. Cheatham submitted a complaint form on the website of the Executive Office for United States Attorneys (" EOUSA" ), Equal Employment Opportunity (" EEO" ) Office. See Def. MSJ, Ex. 1 [Dkt. 11-1] (" EEO Website Complaint" ) at 1. He complained that he was not selected for two positions because of his sex. See id. at 1-2 (" My most recent act of discrimination was on May 21, 2008. I was not selected for (2) recent Paralegal Supervisor positions." ). Mr. Cheatham identified the positions as having been filled by two women, of whom " [o]ne that has not been employed with the U.S. Attorney[']s Office no mor [sic] than a year and [a] half, anohter [sic] that was well known throughout the building as a problem employee." Id. Pursuant to the EEO process for federal employees, Mr. Cheatham engaged in counseling on his charge,
and he attempted mediation. The EEO counselor's summary report noted that Mr. Cheatham complained that he was discriminated against on May 21, 2008, " when he was not selected for either of two (2) vacant Paralegal Supervisor positions, because of his gender (Male)." Def. MSJ, Ex. 2 [Dkt. 11-1] (" EEO Counselor Report" ) at 5; see also id. at 6 (" [T]wo females were selected to fill the two vacant Supervisory Paralegal positions." ). On July 14, 2008, Mr. Cheatham received a " Notice of Final Interview" and notice of his right to file a formal complaint. Id. at 8.
On July 26, 2008, Mr. Cheatham filed a formal complaint of discrimination with the EOUSA EEO Office. Def. MSJ, Ex. 3 [Dkt. 11-1] (" 2008 Formal EEO Complaint" ); accord Pl. MSJ, Ex. 6 [Dkt. 14-2]. In it, he complained that the " most recent act of discrimination was on July 21, 2008," concerning a non-selection not challenged here, and that " [e]xactly 30 days earlier [he] applied for (4) paralegal Supervisor positions, and was not selected for not one [sic]. Four females were selected for each of these positions." Id. at 11. The EEO Office responded by letter dated September 2, 2008, and informed Mr. Cheatham that it had accepted his complaint of discrimination for investigation. Def. MSJ, Ex. 4 [Dkt. 11-1] (" Sept. 2, 2008 Acceptance Letter" ); accord Pl. MSJ, Ex. 7 [Dkt. 14-2]. The Statement of Issue Accepted was: " Whether management officials of the United States Attorney's Office for the District of Columbia discriminated against the Complainant, Richard L. Cheatham, based on his sex (male), when Complainant learned on May 21, 2008, that he was not selected for two supervisory paralegal positions, for which he had recently applied." Sept. 2, 2008 Acceptance Letter at 14 (emphasis added). The EEO Office advised Mr. Cheatham: " Based upon a review of your Complaint, the Equal Employment Opportunity (EEO) Staff has enclosed the accepted issue for investigation. If you believe that the accepted issue has not been correctly identified, please notify me, in writing, within five (5) calendar days . . . ." Id. at 12. Mr. Cheatham made no response. See Def. Statement of Undisputed Material Facts (" Def. SoF" ), Def. MSJ ¶ 7; Pl. Resp. Def. SoF (" Pl. SoF" ), Pl. Opp. ¶ 7.
Mr. Cheatham's formal complaint was investigated by an Assistant United States Attorney from the Western District of Pennsylvania in Pittsburgh. A Report of Investigation (" 2009 ROI" ) issued on October 19, 2009. Def. MSJ, Ex. 5 [Dkt. 11-1]. As part of the investigation, Mr. Cheatham answered written questions under oath. In that forum, he stated that he had applied for supervisory paralegal positions in " the Misdemeanor Unit" and " the Felony Unit." 2009 ROI at 19. The two selection processes investigated on Mr. Cheatham's behalf were for vacancies as " the paralegal supervisor for the Misdemeanor Unit of the General Crimes Section [Misdemeanor], and the paralegal supervisor for the Felony Unit of the General Crimes Section [Felony]." Id. at 20. Among others, interviews were conducted of all persons who had interviewed Mr. Cheatham for the Misdemeanor and Felony supervisory paralegal jobs. Id. at 20-22. According to the 2009 ROI, the interviewers stated that Mr. Cheatham was not selected for the Misdemeanor or Felony positions due to his lack of " strong leadership or administrative skills" --specifically, " his admitted difficulty in communicating his ideas and his inability to respond to the hypothetical problems presented to him during his interview." Id. at 20. AUSA Jeffrey Ragsdale, chief of the Grand Jury section during the relevant time period, see Ragsdale Decl., Def. MSJ, Ex. 12 [Dkt. 11-1] ¶ 1, was also interviewed, and he commented
on Mr. Cheatham's interview for supervisory paralegal in Grand Jury, not the Misdemeanor or Felony positions accepted for investigation.  The 2009 ROI does not reflect that any person involved in hiring for the Domestic Violence position was interviewed. Mr. Cheatham submitted a rebuttal statement under oath in which he addressed the managers' reasons for his non-selections for the Misdemeanor and Felony vacancies but did not challenge the focus of the investigation on Misdemeanor and Felony positions as arising from his counseling and formal charge. See id. at 22.
On September 15, 2009, Mr. Cheatham requested a hearing before an Administrative Judge (AJ) of the Equal Employment Opportunity Commission (EEOC) pursuant to 29 C.F.R. § 1614.109. See Pl. Opp., Ex. 8 [Dkt. 14-3] (" Request for Hearing" ) at 1. On June 22, 2010, after dispositive motions were briefed and submitted to the AJ--almost two years after the 2008 Formal EEO Complaint--Mr. Cheatham, acting pro se, filed a " Motion to Amend the Charge(s)" to include his non-selections for the supervisory paralegal vacancies in Grand Jury and Domestic Violence among his claims of discrimination. See Def. MSJ, Ex. 6 [Dkt. 11-1] (" Mot. Amend Charges" ); accord Pl. Opp., Ex. 9 [Dkt. 14-3]. Mr. Cheatham argued that his claims for sex discrimination based upon his non-selection for the paralegal supervisory positions in Grand Jury and Domestic Violence should be added to his claims before the AJ because they " arose from the same job announcement (#08-DC-048-M) that the initial two positions cited in the [ROI] were retrieved from." Mot. Amend Charges ¶ 3. He also indicated that his interview for the Domestic Violence position was conducted by Kelly Higashi, Kimberly Knowles, and Elana Tyrangiel and that his interview for the Grand Jury position was conducted by Jeffrey Ragsdale. Id. ¶ ¶ 2-3. Mr. Cheatham's motion was denied by the AJ on July 23, 2010, without opinion. See Def. MSJ, Ex. 7 [Dkt. 11-1] (" July 23, 2010 AJ Order" ); accord Pl. Opp., Ex. 10 [Dkt. 14-3].
On December 20, 2011, after retaining counsel, Mr. Cheatham filed a motion with the AJ, asking the AJ to compel the USAO to supplement the 2009 ROI by producing " comparator information" regarding the two women who were hired for the Grand Jury and Domestic Violence positions. See Pl. Opp., Ex. 11 [Dkt. 14-3] (" Mot. Compel" ). Although the Motion to Compel stated that " [t]he Complainant is not and has never sought to amend his charge of gender discrimination from what was accepted by the Agency," Mr. Cheatham argued that the USAO's " failure to provide a complete [ROI] with respect to all comparators [who] were selected for the two supervisor paralegal specialist positions" had " substantially prejudiced" him in the proceedings before the AJ. Id. at 11-13. On December 29, 2011, " on the eve of hearing" set to begin on January 25, 2012, the AJ denied the motion, ruling that it was:
[A] thinly-veiled attempt to re-visit Complainant's Motion to Amend that was previously denied. As the Agency correctly points out in its Opposition, Complainant has had several opportunities to alter or amend the accepted issues in this complaint but failed to do so.
Complainant did not contest the framing of the issues at the Agency informal
processing stage; or at the formal processing stage; or after receipt of the [EEOC] Acknowledgement Order; or during discovery. Complainant never informed the tribunal that he contested any of the Agency's discovery answers or responses and never brought a motion to compel about any discovery dispute. . . .
The Hearing Record demonstrates that the Complainant did not move to amend the complaint until after dispositive motions had been briefed and submitted to the tribunal and after ADR/mediation failed to bring about an amicable resolution of this complaint. . . .
Def. MSJ, Ex. 8 [Dkt. 11-1] (" Order Denying Mot. Compel" ) at 42; accord Pl. Opp., Ex. 10 [Dkt. 14-3]. Mr. Cheatham then withdrew his request for a hearing before an EEOC AJ and filed the present action on January 20, 2012.
On December 13, 2012, the Court directed the parties to provide additional information to assist in resolving the administrative exhaustion issue. See Dec. 13, 2012 Order [Dkt. 17]. Both parties filed supplemental briefs, see Pl. Supp. Opp. [Dkt. 18], Def. Report ...