United States District Court, D. Columbia.
For PATRICIA KILBY-ROBB, Plaintiff: David A. Branch, LAW OFFICE OF DAVID BRANCH, Washington, DC.
For ARNE DUNCAN, Secretary, U.S. Department of Education, Defendant: Andrea McBarnette, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
CHRISTOPHER R. COOPER, United States District Judge.
Plaintiff Patricia Kilby-Robb, an African-American woman in her fifties, applied for a promotion to a vacant Management Analyst position at the United States Department of Education (" DOE" ). After interviewing Kilby-Robb and Stacy Kreppel, another DOE employee, the Department selected Kreppel. Kilby-Robb has now brought suit, alleging that DOE discriminated against her on the basis of her age and race and retaliated against her for having filed a prior Equal Employment Opportunity Commission (" EEOC" ) claim.
The Department moves for summary judgment, arguing that it hired Kreppel simply because she was the more qualified applicant. Because Kilby-Robb has not offered sufficient evidence to permit a reasonable juror to conclude that the Department selected Kreppel for a discriminatory reason, the Court will grant the Department's motion on her discrimination claim. But because Kilby-Robb has produced plausible evidence to support an inference that she was not selected because she had recently filed an EEOC complaint, the Court will deny summary judgment to the Department on her retaliation claim.
Kilby-Robb began working at DOE in 2000 as a National Representative before transferring in 2002 to the Office of Innovation and Improvement (" OII" ), which administers grant programs. Def. Statement of Material Facts (" DSOF" ) ¶ 1; Ex. 1(OII Homepage). In OII, Kilby-Robb was the Team Leader for the Parent Information and Resource Centers, Def. Mot. for Summ. J. (" Def. Mot." ) Ex. 7 (Kilby-Robb's Resume), which fosters parental involvement in education programs outside of ordinary public schools. DSOF ¶ 4; Def. Mot. Ex. 2 (Summary of Offices of Parental Information and Resource Centers). According to Kilby-Robb's resume, when she applied for the vacant position she had a master's degree in developmental psychology and education, was a PhD candidate in education and psycho-educational studies, and had completed a number of postgraduate programs. Id. Ex. 7. Before joining DOE, Kilby-Robb worked for over thirty years as a teacher, assistant principal, principal, and school reform consultant. Id.
In November 2003, Kilby-Robb filed an EEOC complaint alleging that DOE discriminated against her based on race and sex after she received a low performance rating. Kilby-Robb v. Spellings, 522 F.Supp.2d 148, 153 (D.D.C. 2007), aff'd, 309 F.App'x 422 (D.C. Cir. 2009). Just over a year later, in December 2004, Kilby-Robb met with three members of OII's senior management: Nina Rees, Assistant Deputy Secretary for OII; John Fiegel, Kilby-Robb's immediate supervisor; and Marcie Brown, Rees' Chief of Staff. Pl. Opp'n Ex A at 1005. According to Kilby-Robb, Rees and Fiegel severely criticized her for filing the complaint, calling her " an embarrassment" and asking whether she " wanted money [or] wanted to be happy." Id. at 1005-06. Kilby-Robb eventually brought suit in this Court based on the allegations in her EEOC complaint, which the district court dismissed on summary judgment.
Kilby-Robb, 522 F.Supp.2d at 148, aff'd, 309 F.App'x 422.
Stacy Kreppel began working at DOE in 1999 after obtaining a bachelor's degree in political science and a master's degree in public policy. Def. Mot. Ex. 9 (Kreppel's Resume). She started as a Presidential Management Intern and was promoted to Management and Program Analyst in 2001. Id. In 2003, she moved to OII to help implement the public school choice and Supplemental Educational Services (" SES" ) provisions of the No Child Left Behind Act of 2001, 115 Stat. 1425 (2002). Id. The public school choice provisions of the Act allow families to move their children from public schools that are in need of improvement to other schools. Id. The SES provision provides tutoring and other academic enrichment activities outside of the regular school day to eligible public school children. Id. At OII, Kreppel reported to Thomas Corwin, Def. Mot. Ex. 4b at 38-39 (Anderson's Test. at EEOC Hr'g), the Associate Deputy Undersecretary of OII from 2003 to 2004, Def. Mot. Ex. 4f at 170 (Rees' Test. at EEOC Hr'g). Corwin's duties included advising Rees on school choice and SES. Id.
In 2004, Corwin left OII to return to the Department's budget office. Def. Mot. Ex. 4f. (Rees Test. at EEOC Hr'g). As a result, according to the Department, Rees needed a senior-level staff person to advise her on school choice and SES. Id. She and her deputy, Mike Petrilli, decided to promote Kreppel into this position. Id. An email from Petrilli explained that Kreppel had successfully assumed Corwin's policy responsibilities related to school choice and SES, stating that she had " more than demonstrated her capacity to work at high levels. . . . She's basically doing Tom's old job on the policy front, and doing it well." Def. Mot. Ex. 10. (Email from Petrilli to Margo Anderson, Executive Officer for OII, Nov. 16, 2004). In February 2005, Rees and Margo Anderson completed the description of duties for this new position, which included briefing Rees on a regular basis, organizing and leading meetings, making presentations, and overseeing revisions to guidance with respect to public school choice and SES. Def. Mot. Ex. 11 (Position Authorization and Description). The position also required a solid understanding of other policy issues affecting OII, including charter schools, magnet schools, teacher quality, and parental information and outreach. Id. The two " selective factors" for the position, meaning the primary requirements, were experience applying the public school choice and the SES provisions of No Child Left Behind. Id.; Def. Mot. Ex. 12 (Vacancy Announcement).
Kilby-Robb and Kreppel both applied for the position, and Vicki Cosey, the human resources employee who managed the recruitment process, found them to be the only qualified candidates. Pl. Opp'n Ex. B at 307-308 (Cosey's Test. at EEOC Hr'g). Rees invited Kilby-Robb to a meeting on August 2, 2005, and when Kilby-Robb inquired about an agenda for the meeting, Rees replied that it would be an interview for the position. Pl. Opp'n Ex. A at 1074 (Email exchange between Kilby-Robb and Rees about purpose of the meeting). Rees, with Anderson present, interviewed each candidate separately. Def. Mot. Ex. 4h at 199-207 (Rees Test. at EEOC Hr'g). Rees did not prepare standard interview questions or take notes during either of the interviews. Id. According to Kilby-Robb, the interview did not go well. She says Rees told her to sit at Rees' desk instead of the conference table, and that Rees asked questions rapidly, while interrupting and contradicting her responses. Pl. Opp'n Ex. A at 1002-03 (Kilby-Robb Interrog.). For her part, Rees recalled being surprised at certain entries on Kilby-Robb's application that appeared inaccurate, such as one claiming that she had drafted regulations. Def. Reply Ex. 2 at 213-14 (Rees Test. at EEOC Hr'g). Ultimately, Rees selected Kreppel for the position. Def. Mot. Ex. 17 at 2 (Rees' Interrog.).
After exhausting all necessary administrative proceedings, Kilbye-Robb brought suit in this Court against DOE through its Secretary, Arne Duncan. She alleges that DOE discriminated against her on the basis of race and age and retaliated against her in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § § 621-34, by awarding the position to Kreppel. DOE has moved for summary judgment as to all of Kilby-Robb's claims.
II. Standard of Review
Summary judgment is proper " if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a).
The party seeking summary judgment bears the burden to demonstrate the " absence of a genuine issue of material fact." Celotex Corp. v. Catrett,477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To overcome a motion for summary judgment, the non-moving party must " designate specific facts showing that there is a genuine issue for trial." Id. at 324 (quotation omitted). A dispute is genuine only if a reasonable fact-finder could find for the non-moving party; a fact is only material if it is capable of affecting the outcome of the litigation. Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Laningham v. U.S. Dep't of the Navy,813 F.2d 1236, 1241, 259 U.S.App.D.C. 115 (D.C. Cir. 1987). In assessing a party's motion, the court must " view the facts and draw reasonable inferences in the ...