United States District Court, District of Columbia
HERMAN E. LANE, Plaintiff
GADDI VASQUEZ, DIRECTOR OF THE UNITED STATES PEACE CORPS, Defendant
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HERMAN EUGENE LANE, Plaintiff: Leizer Z. Goldsmith, LEAD ATTORNEY, THE GOLDSMITH LAW FIRM, LLC, Washington, DC.
For GADDI VASQUEZ, The Director of United States Peace Corps sued in his official capacity, JODY OLSEN, Acting Director of the United States Peace Corps, Defendants: Rhonda C. Fields, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE, Civil Division, Washington, DC.
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE.
Opinion and Order [Resolving Docs. 31, 37]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE :
In this sex discrimination case, Plaintiff Herman Lane says that he was denied employment with the Peace Corps on the basis of his sex, and, that when he complained, the Peace Corps retaliated against him. He sues the Director of the Peace Corps in the Director's official capacity. He does not sue the Director in his individual capacity.
The Director now moves for summary judgment. He says that Lane fails to show that he was substantially more qualified for the positions that he was denied or that the Corps sufficiently deviated from its hiring processes to raise an inference of discrimination. He also says that there is
insufficient evidence of retaliation. In response, Lane says that women fill a very large number of the positions for which he applied. He argues this raises an implication of discrimination. He also says that Peace Corps officials said that he would never be hired because of his EEO activity.
While Vasquez's summary judgment motion was pending, Lane filed a motion for default judgment. Alternatively, Lane asks for an adverse inference and attorneys' fees. In support of his request for an adverse inference, Lane says that the Peace Corps destroyed documents related to the hiring process for positions he was denied. The Peace Corps says that some of these documents did not exist, and that, even if they did exist, they could not save Lane's claims.
Because Lane has failed to show that he was either substantially more qualified for the positions that he was denied or that the Peace Corps sufficiently deviated from its hiring process, the Court GRANTS Defendant's motion for summary judgment on Count Two, Lane's sex discrimination claim. But, because Lane puts forward sufficient evidence of retaliation in the form of comments by Peace Corps officials, the Court GRANTS IN PART AND DENIES IN PART Defendant's motion for summary judgment on Count I, Lane's retaliation claim. Further, the Court DENIES Lane's motion for default judgment, adverse inference, and monetary sanctions against Defendant for spoliation of evidence.
I. Factual Background
In 2005, Lane and co-plaintiff Rachel Perry filed this action. Lane claimed nineteen separate violations of Title VII of the Civil Rights Act of 1964. Co-plaintiff Perry said that she was fired for complaining of Lane's mistreatment.  In 2007, the Court dismissed claims based on thirteen of the nineteen incidents because Lane failed to exhaust administrative remedies.  In 2008, Perry and the Corps settled their dispute.  Lane then filed an amended complaint setting out his remaining claims. 
With his remaining claims, Lane says in Count One that Defendant retaliated against him for complaining to the Equal Employment Opportunity Commission (EEOC) by not selecting him for eight positions.  In Count Two, Lane says that he was not selected for the eight positions because he is a man.  The Court summarizes the facts relevant to Lane's remaining claims.
In government agencies like the Peace Corps, employees are hired through a standardized process.  When a position opens up, the Peace Corps announces the vacancy through the Peace Corps' website. The vacancy announcement gives an identification number, and includes a job description, as well as mandatory and desired qualifications that applicants should possess, generally referred to as Knowledge, Skills, and Abilities (KSAs).  Based on an applicant's responses to the mandatory KSAs, the applicant may be rated minimally qualified for the position. 
Once the minimally qualified candidates are determined, a crediting plan is created.  The crediting plan rates the minimally qualified candidates' responses and is used to determine who are the most qualified applicants that will be interviewed.  The most qualified applicants are then interviewed and one is hired.
Lane volunteered for the Peace Corps. From 1986-1989, Lane worked for the agency as a Human Resources Specialist.  Following his time with the Peace Corps, Lane went on to work at the Department of Commerce, National Oceanographic and Atmospheric Administration, and Federal Aviation Administration.  Overall, he has over twenty years of experience as a personnel specialist or " personnelist."  Lane cited these qualifications in numerous applications to the Peace Corps.
On November 5, 2002 Lane applied for " Lead Human Resources Specialist" under posting PC3-020.  The Peace Corps ultimately selected Wynelle Myers.  The Defendant says that Myers was more qualified than Lane.  Lane disputes this and says that he was more qualified than Myers, and that the Peace Corps' Office of Human Resources Managment (" HRM" ) violated its hiring policy by not automatically disqualifying Myers from consideration because she did not respond to the KSAs in her application. 
On November 7, 2002, Lane applied for " Supervisory Human Resource Specialist" under posting PC3-006.  The Peace Corps selected Odessa White. The Defendant says that Ms. White had more recent and relevant experience than Lane.  Responding to the Defendant's argument, Lane says that the Defendant wrongfully relied on recency of experience in making the selection, and that the Peace Corps impermissibly eliminated Lane from PC3-006 based on his interview performance in PC3-020. 
On November 7, 2002, Lane applied for the Supervisory Human Resource Specialist position in Labor and Employee relations under posting PC3-007.  The Peace Corps selected Phnesha Barnes.  The Defendant says that Ms. Barnes had greater experience in managing a labor and employee relations office.  In response, Lane says that the Defendant never produced the real crediting plan for this position. He also says Defendant improperly rated him in regards to that crediting plan. 
On February 12, 2003, Lane applied for " Employee and Labor Relations Specialist" under posting PC3-077.  The position
was cancelled on March 24, 2003.  The Defendant says that the position was cancelled before any candidates were interviewed to afford the newly appointed supervisor the opportunity to select the individual who would be on her staff.  Lane says he was never provided with requested information to verify that no other candidates were interviewed. 
Lane protested his continuing non-hires. In 2002, Plaintiff Lane wrote to Defendant Vasquez saying that he had not been hired because he is " a Republican, white, male, of Southern Anglo-Saxon ancestry, and older than the typical Peace Corps employee."  In July, 2003, Lane filed a formal complaint with the EEOC.  He listed forty-six positions for which he had applied and not been hired.  Lane says that, far from rectifying the situation, the Peace Corps retaliated against him for his EEOC activity. Specifically, he says that Deputy Director of Human Resources Cathy Pearson actively engaged in concocting non-discriminatory reasons for not hiring him in an effort to make his non-selections " not look like reprisal."  As part of the discriminatory cover-up, Lane says that the Peace Corps changed hiring processes to make Lane appear unqualified.
Nonetheless, undeterred, on February 23, 2004, Lane applied for " Chief of Classification and Staffing" under posting PC4-081.  The Peace Corps ultimately selected Sheila Clark.  The Defendant says that Clark was the best qualified applicant for the position.  In response to this argument, Lane says that Clark received lower ratings on the paper applications, and should not have even been selected for an interview.  He says that the Peace Corps denied his application in retaliation for his EEOC activity. 
In March, 2005, Lane again applied for " Chief of Classification and Staffing" under posting PC5-147.  The Peace Corps selected Kathleen Harris.  The Defendant says that Ms. Harris was more qualified and had more recent experience in classification and staffing.  In response to this defense, Lane says that he was more qualified than Clark. He says that at the conclusion of the interview, one of the panelists said " go get [Deputy Human Resources Director] Catherine [Pearson] so we can talk."  Lane says that a jury could infer discrimination and retaliation from this comment. 
In March, 2007, Lane applied once again for " Chief of Classification and Staffing"
under posting DPC7-A0051.  On February 8, 2008 the position was cancelled, and was later re-advertised under posting DPC8-A0051.  The Defendant says that it cancelled DPC7-A0051 because the candidate roster contained a military veteran who was entitled to be hired unless he was unqualified.  The position was then cancelled when the Defendant determined that while regulations entitled the veteran to the position, his job performance indicated that he could not perform the work required.  Lane says that a new roster of candidates should have been generated, and the Peace Corps declined to do so because it knew Lane would be rated qualified.  Lane says that these actions show discriminatory and retaliatory animus. 
Finally, on September 10, 2007, Lane applied for " Deputy Director of Human Resource Management" under posting DPC7-A0187.  The Peace Corps selected Nancy Barnett for the position.  The Defendant says that Lane's application was unimpressive and the application did not directly answer the questions asked.  In response, Lane says that during the selection process, the Defendant asked the Peace Corps General Counsel if Lane should be interviewed, given his past EEOC complaints.  He says that a jury could infer retaliatory intent from this conversation.
Lane also argues that HRM is statistically disproportionate in the amount of women hired compared to men. He provides evidence that in 2002, 81.5% of the work force was female, and in 2003, that number increased to 87.5%.  The Court considers Lane's claims.
II. Legal Standards
A. Summary Judgment
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper " if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."  The moving party bears the " initial responsibility of informing the district court of the basis for [its] motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits which [it] believe[s] demonstrate the absence of a genuine issue of material fact."  In response, the non-moving party must " go beyond the pleadings and by [its] own affidavits, or depositions, answers to interrogatories, and admissions on file, 'designate' specific facts showing that there is a genuine issue for trial." 
Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere
existence of a factual dispute, by itself, is insufficient to bar summary judgment.  To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party.  " Mere allegations or denials in the adverse party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment."  Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to " come forward with 'specific facts showing that there is a genuine issue for trial. ' " 
B. Sex Discrimination
Title VII of the Civil Rights Act of 1964 provides that " [i]t shall be unlawful for an employer to hire or discharge any individual . . . because of such individual's race, color, religion, sex, or national origin."  The McDonnell Douglass burden-shifting framework applies when a plaintiff relies upon indirect or circumstantial evidence of employment discrimination.  Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination.  After a plaintiff makes this showing, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment decision at issue. 
Once a defendant offers a legitimate, non-discriminatory reason for its actions, the Plaintiff's prima facie case becomes irrelevant.  The inquiry becomes: " Has 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, color, religion, sex or national origin?" 
A plaintiff may show that a defendant's legitimate, non-discriminatory reason is pretextual in many ways. Relevant to this case, the plaintiff may show that he is substantially more qualified than the candidate ultimately hired or that the ...