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Nesbitt v. Holder

United States District Court, District Circuit

September 5, 2013



ROYCE C. LAMBERTH, District Judge.

Joshua Nesbitt filed suit against his employer, the United States Department of Justice, alleging one count of race discrimination in violation of Title VII of the Civil Rights Act of 1964. Upon consideration of the government's Motion for Summary Judgment [20], Mr. Nesbitt's Opposition [21] & [24] thereto, and the government's Reply [25], the Court hereby DENIES the government's motion for summary judgment.


Plaintiff Joshua Nesbitt, an African-American man, has served as an attorney for various components of the Department of Justice ("the Department") for more than twenty years. Pl.'s Statement of Undisputed Material Facts ¶ 1, ECF No. 21 [hereinafter Pl.'s SMF]. In the spring of 2010, Mr. Nesbit was an attorney in the Litigation Section of the Office of Intelligence ("the Office"), a branch of the Department's National Security Division. Id. ¶ 2, 3. On April 22, 2010, Nancy Newcomb, Chief of the Litigation Section and a white woman, sent an office-wide e-mail inviting applications for a newly-created Deputy Chief position. Id. ¶ 2, 8. The vacancy was publicly advertised on April 26, 2010. Id. ¶ 9. The position description, qualifications, and application requirements stated in the vacancy announcement were developed by Ms. Newcomb, in consultation with the Office's Chief of Human Resources, Joyce Klitenic, also a white woman. See Pl.'s Opp'n to Def.'s Mot. Summ. J., Ex. E (EEO Interrog. of Joyce Klitenic, Feb. 10, 2011), at 2-3 [hereinafter Klitenic Interrog.].

According to the vacancy announcement, the Deputy Chief would be responsible for "assisting the Section Chief in coordinating and overseeing criminal and civil litigation related to [the Foreign Intelligence Surveillance Act ("FISA")]." Pl.'s Opp'n, Ex. G (Vacancy Announcement, Apr. 26, 2010), at 1 [hereinafter Vacancy Ann.]. Ms. Newcomb desired a candidate "who could assist... in managing the increasing work load in the Litigation Section and fulfill the Chief's duties" in her absence. Pl.'s Opp'n, Ex. B (EEO Interrog. Of Nancy Newcomb, Feb. 11, 2011), at 6 [hereinafter Newcomb Interrog.]. The Deputy Chief would serve as both a first-line supervisor of the six attorneys in the Litigation Section and as a representative of the Office at "high-level meetings relating to national security matters with... members of the Intelligence Community." Id. at 7. Relative to the sophisticated responsibilities of the position, the required qualifications were general and sparse-applicants needed only membership in any state bar and three years of post-law school legal experience. Vacancy Ann. 1. All applicants, whether internal or external, were directed to submit a cover letter, resume, writing sample, law school transcript, and current performance appraisal to Ms. Klitenic's office. Id. at 2.

Mr. Nesbitt immediately expressed his interest in the position. Within hours of the release of the public announcement on April 26, Mr. Nesbitt e-mailed Ms. Klitenic to inquire whether he needed to submit a law school transcript and writing sample given his status as an internal candidate.[1] Pl.'s Opp'n, Ex. H (E-mail between Joshua Nesbitt and Joyce Klitenic, Apr. 26, 2010) [hereinafter Klitenic E-mail]. Ms. Klitenic responded that Mr. Nesbitt should submit "everything that is requested in the vacancy announcement." Id. Mr. Nesbitt then contacted a human resources employee to request a copy of his transcript from his personnel file. Pl.'s Opp'n, Ex. I (E-mail from Joshua Nesbitt to Tammy Green, Human Resources Employee, National Security Division, Apr. 26, 2010). He received no response. Pl.'s SMF ¶ 13, 14. Separately, Mr. Nesbitt informed Ms. Newcomb that although he planned to apply, he could not complete his application until he received a copy of his transcript. Id. ¶ 18.

On April 27-while Mr. Nesbit was awaiting a copy of his transcript to complete his application-a white attorney in the Office, Paul Ridge, submitted only his resume via e-mail to Ms. Newcomb and Ms. Klitenic. Pl.'s Opp'n, Ex. J (E-mail from Paul Ridge to Nancy Newcomb & Joyce Klitenic, Apr. 27, 2010) [hereinafter Ridge E-mail]. Mr. Ridge's e-mail stated that his transcript "should be on file somewhere within the Department" and that he did not have a writing sample because he did not "get paid to write." Id. Despite the lack of a transcript, writing sample, or performance appraisal, Mr. Ridge's e-mail was treated as a complete application.

On May 14, after obtaining a copy of his transcript from his law school, Mr. Nesbitt delivered a hard copy of his application to Ms. Klitenic's office. Pl.'s SMF ¶ 18, 19. In accordance with the announcement requirements, Mr. Nesbitt's application included a cover letter, resume, law school transcript, writing sample, and performance appraisal. Pl.'s Opp'n, Ex. L (Application of Joshua Nesbitt, May 14, 2010) [hereinafter Nesbitt Application].

Ms. Klitenic received 34 applications for the Deputy Chief position, all of which were forwarded to Ms. Newcomb for review. Pl.'s Opp'n, Ex. O (Memorandum from Janice Kaye, National Security Division to Leisa Bush-Yillah, EEO Specialist, Sept. 2, 2010), at 3 [hereinafter EEO Resp. Mem.]. Ms. Newcomb selected three internal candidates for interviews: Mr. Nesbitt, Mr. Ridge, and a white female attorney.[2] Id. On May 28, 2010, after interviewing all three candidates, Ms. Newcomb selected Mr. Ridge as the new Deputy Chief. Pl.'s Opp'n, Ex. N (E-mail from Nancy Newcomb to Employees of the Office of Intelligence, May 28, 2010).

Mr. Nesbitt filed a timely complaint with the Department's Equal Employment Opportunity Office ("EEO"), and after exhausting his remedies with the EEO, Mr. Nesbit filed suit in this Court, alleging one count of race discrimination in violation of Title VII of the Civil Rights Act of 1964. Compl. ¶ 33. Specifically, Mr. Nesbitt alleges that the Department "intentionally discriminated against Plaintiff in violation of Title VII by not selecting him for the Deputy Chief position on the basis of his race and color." Id. Following discovery and a failed mediation attempt, the government moved for summary judgment.


A. Summary Judgment

"[T]he central purpose of the summary judgment device... is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial." Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A fact is material if it could affect the outcome of the case. Anderson, 477 U.S. at 248. A dispute is genuine if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

"Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, " on a motion for summary judgment. Id. The sole issue presented by a motion for ...

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