United States District Court, District of Columbia
JONATHAN W. CHUDSON, Plaintiff,
MELVIN L. WATT, Defendant.
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS, District Judge.
Plaintiff Jonathan Chudson, acting pro se, brings this employment discrimination suit against the Director of the Federal Housing Finance Agency ("the FHFA" or "the Agency") in his official capacity, alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. In 2011, Plaintiff unsuccessfully applied for four positions advertised by the FHFA. He alleges that the FHFA discriminated against him on the basis of age when it failed to hire him for these positions and that it "used a scheme to avoid hiring older qualified veterans." Dkt. 1 ¶ 6. He seeks monetary damages and other relief. Dkt. 1 at 8.
Pending before the Court is the FHFA's motion to dismiss, or in the alternative, for summary judgment (Dkt. 6) and Plaintiff's motions for leave to file surreplies (Dkts. 12, 13). As explained below, the FHFA has demonstrated that it is entitled to summary judgment with respect to three of the positions at issue, but not the fourth. Accordingly, the FHFA's motion to dismiss or, in the alternative, for summary judgment (Dkt. 6) is GRANTED in part and DENIED in part. Plaintiff's motions for leave to file surreplies (Dkts. 12, 13) are GRANTED.
Plaintiff is an honorably-discharged veteran who is over 40 years of age. See Dkt. 6-1 ¶¶ 15, 16. He has previously worked for several government agencies, including the Environmental Protection Agency ("EPA"), where his duties included criminal investigative activities. See id. at ¶¶ 17-23.
In 2011, Plaintiff submitted applications in response to four vacancy announcements for positions with the FHFA Office of Inspector General ("FHFA-OIG"). They included two "Investigative Evaluator" positions, advertised under vacancy announcements 11-FHFAIG-086DH and 11-FHFAIG-108DH, and two "Criminal Investigator-Special Agent" positions, advertised under vacancy announcements 11-FHFAIG-112DH and 11-FHFAIG-090. See Dkt. 6-1 ¶¶ 24-37. Three of the vacancies (11-FHFAIG-086DH, 11-FHFAIG-108DH, 11-FHFAIG-112DH) were advertised pursuant to temporary direct-hire authority granted to the FHFA-OIG by the Office of Personnel Management ("OPM"). Dkt. 6-1 ¶¶ 4-14, 24, 28, 32, 36. According to OPM guidance, direct-hire authority allows an agency to bypass certain procedures that hiring agencies would otherwise be required to follow. See Dkt. 6-1 ¶¶ 4-14; Dkt. 6-3 at 9. The vacancy announcements issued under this direct-hire authority stated that "[c]ompetitive examining rules regarding [the] rating and ranking, and veterans' preference do not apply." See Dkt. 6-4 at 2; Dkt. 6-5 at 4; Dkt. 6-5 at 9. The fourth vacancy (11-FHFAIG-90) was advertised without relying on direct-hire authority.
Plaintiff was not interviewed or selected for any of the four positions. See Dkt. 6-1 ¶¶ 26, 30, 33, 37. The two Special Agent positions were filled. See Dkt. 6-1 ¶¶ 35, 39. Two individuals were offered positions that would have filled the first Investigative Evaluator position, but "one selectee declined the Agency's offer, " and the offer to the other selectee was rescinded "after the parties could not agree on the selectee's starting pay grade and compensation level." See Dkt. 6-4, at 11 ¶ 17; see also Dkt. 6-2 at 15-16. No one was interviewed or hired for the second Investigative Evaluator position. See Dkt. 6-7 at 11.
With respect to the first of the two Special Agent positions, Special Agent-in-Charge Peter Emerzian and Special Agent-in-Charge Paul Conlon "reviewed the resumes for all applicants whose names appeared on the minimally qualified list." Dkt. 6-5 at 17. According to Emerzian, they agreed that one applicant, Stuart Carlisle, was in their view "the very best candidate" for the "position based on his decades of work as a criminal investigator, including years of sophisticated financial investigative experience acquired while working for the Federal Bureau of Investigation" ("FBI"). Id. According to Conlon, he was impressed by Carlisle's "very strong experience with white collar... crime" and his "long career with multiple assignments dealing with criminal matters." Dkt. 6-8 at 15. They interviewed Carlisle, and no other candidate, for this position. Dkt. 6-5 at 18. After seeking references for Carlisle, Emerzian and "other panel members, " see Dkt. 6-6 at 6, recommended Carlisle to the deciding official, Deputy Inspector General for the FHFA-OIG Christopher Sharpley. Dkt. 6-5 at 17-19. Sharpley then selected Carlisle for the position. Dkt. 6-6 at 6.
Unlike the first Special Agent position, the second one was not advertised using the office's temporary direct hire authority. See Dkt. 6-6 at 13. Emerzian again served as the recommending official, this time with the assistance of Special Agent Guy Petrillo. Dkt. 6-6 at 9. Emerzian worked off of the "best qualified list" ("BQL"), and does not recall whether Plaintiff was on that list. Dkt. 6-5 at 20. The record, however, suggests that Plaintiff "did not make" that list. See Dkt. 6-6 at 8. Although the FHFA is not as clear about this as it might have been, it seems safe to assume that if Plaintiff "did not make" the BQL, it was because others were deemed more qualified. And, as Emerzian asserts, if Plaintiff was on the list, the only reason he would not have been interviewed "would have been because after reviewing all of the BQL candidates' applications, there was someone I thought was a much better fit for the position." Id. That person, in Emerzian's view, was Karen Briscoe, who he describes as "a seasoned Criminal Investigator from the Internal Revenue Service ("IRS") with years of experience investigating complex financial crimes." Id. According to Emerzian, Briscoe's application also stood out because she is an attorney, and she had already spent several months on detail from the IRS to [the] FHFA-OIG to help get the Inspector General's "newly-created Office of Investigations on its feet." Id. As a result, Emerzian had first-hand knowledge of Ms. Briscoe's abilities, and he concluded that she is "highly intelligent, very hard-working, and deeply experienced in the types of investigations [the] FHFA-OIG was undertaking." Id. at 20-21. Emerzian, accordingly, recommended to Sharpley, who was again the deciding official, that the Agency hire Briscoe. Id. at 21. Based on this recommendation, Briscoe was selected for the position. Dkt. 6-6 at 9-10.
The hiring process for the two Investigative Evaluator positions differed from the process used for the Special Agent positions. Plaintiff applied for both Investigative Evaluator positions, and, as to both positions, his name was placed on the "minimally qualified list[s], " which identified "every applicant who met certain very basic requirements." Dkt. 6-7 at 5, 10. As to the first position, the Acting Deputy Inspector General for Evaluations, Richard Parker, was the selecting official. Dkt. 6-7 at 7. There was no formal recommending official for the position, although others at the FHFA informally "recommended three individuals" to Parker. Dkt. 6-7 at 6-7; Dkt. 6-4 at 11 ¶ 15. Parker interviewed "the three applicants whom colleagues had referred or recommended" and did not interview any other applicants. Dkt. 6-7 at 6. After interviewing Joanne Legomsky, he decided to offer her the first of the two Investigative Evaluator positions. Id. at 7. He explained that he offered the position to Legomsky "because she had substantial experience with complex financial investigations, as well as considerable expertise with the financial markets in which [the regulated entities] play a central role." Id. at 7-8. Although Legomsky initially accepted the offer, she and the Agency were unable to reach an agreement on compensation, and the FHFA "ultimately rescinded its offer." Id.
Parker then offered the position to William Shen. Id. at 7-8. Although it appears that Shen lacked the substantial investigative experience possessed by Legomsky, he had "substantial high-level experience in housing, residential real estate finance, mortgage-backed securities and capital markets." Id. at 8. Shen, however, declined the offer of employment. Id. at 7.
After that, Parker turned his attention to other matters and did not make any further offers to fill the first Investigative Evaluator position. Rather, as he explains at length in his declaration, Parker devoted his time to completing the Inspector General's first Semiannual Report ("SAR") to Congress. See Dkt. 6-4 at 8-17, ¶¶ 7-11, 18-20, 25-26. Parker asserts that "production of a SAR is extremely labor-intensive" and "that several hundred hours of work are typically involved in producing a SAR." Dkt. 6-4 at 10 ¶ 8. "As one of the Agency's few supervisors in the Spring of 2011, " Parker states that his work on "the SAR consumed an increasingly significant portion of [his] workload as the Agency approached its late May 2011 publishing deadline." Id. at 10 ¶ 10. He asserts that he never made a decision not to fill the first position, but that he "had to focus on other more critical work priorities to stay afloat'" and that filling the position "was simply overcome by events." Id. at 12 ¶ 19.
With respect to the second Investigative Evaluator position, even less progress was made. Although the position was advertised and Plaintiff, among others, was included on the minimally qualified applicant list, Dkt. 6-7 at 10, none of Parker's "agency colleagues made recommendations to" him, Dkt. 6-4 at 13 ¶ 24, no interviews were conducted, Dkt. 6-7 at 11, and no selections or offers were made for the position, id. Again, Parker points to the other demands on his time in the Spring of 2011 to explain why the position was left unfilled, Dkt. 6-4 at 13 ¶¶ 25-26, and, again, he asserts that his hiring efforts were "simply overcome by events, " id. at 13.
In the end, Plaintiff was never interviewed for any of the four positions and was not offered any of the jobs. On September 28, 2011, he filed an administrative complaint alleging that the FHFA had discriminated against him based on age and disability. See Dkt. 1 ¶ 8; see also Dkt. 6-8 at 19. The Administrative Judge granted summary judgment in favor of the Agency without a hearing and dismissed Plaintiff's claims. See Dkt. 1-2. In November 2013, Plaintiff received a right to sue letter from the FHFA, see Dkt. 1-2, and, on February 18, 2014, he brought this suit "pursuant to the [ADEA] for employment discrimination on the basis of age." Dkt. 1 ¶ 3 (citation omitted). Defendant has now moved to dismiss or, in the alternative, for summary judgment. See Dkt. 6. Plaintiff filed a response to the Agency's motion (Dkt. 8) and moved for leave to file two surreplies (Dkts. 12, 13).
II. LEGAL STANDARD
The FHFA has moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment under Rule 56. See Dkt. 6 at 1. As both parties rely on documents not attached to or incorporated by reference into the complaint, the Court rules on Defendant's motion for summary judgment. See Fed.R.Civ.P. 12(b); Armstead v. Jewell, 958 F.Supp.2d 242, 245 (D.D.C. 2013).
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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A fact is material if it might affect the outcome of the suit under the governing law, ' and a dispute about a material fact is genuine if the 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 Liberty Lobby, 477 U.S. at 248). When considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Liberty Lobby, 477 U.S. at 248; see also Shekoyan v. Sibley Int'l, 409 F.3d 414, 422-23 (D.C. Cir. 2005) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)).
Because Plaintiff has asserted an ADEA claim based on indirect evidence of discrimination, the Court applies the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Chappell-Johnson v. Parnell, 440 F.3d 484, 487 (D.C. Cir. 2006); Hall v. Giant Food, Inc., 175 F.3d 1074, 1077 (D.C. Cir. 1999). Under this framework, a plaintiff is first required to establish a prima facie case of discrimination. See id.; Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). The burden then shifts to the defendant employer to show that "the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Reeves, 530 U.S. at 142 (quotation marks omitted). At that point, "the question on summary judgment becomes whether, based on the totality of the parties' evidence, a reasonable jury could determine that the defendant's proffered explanation was pretext for discrimination." Kilby-Robb v. Duncan, 77 F.Supp. 3d 164, 169 (D.D.C. 2015) (citing Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494-95, (D.C. Cir. 2008)). "[T]o survive summary judgment the plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory reason." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003).
The FHFA argues that it did not interview or hire Plaintiff for a legitimate, non-discriminatory reason-that is, "he simply does not have the qualifications to serve as an Investigative Evaluator or a Special Agent." Dkt. 6-2 at 1. It further contends that the applicants who were selected for the positions possessed qualifications that Plaintiff does not have. And, with respect to the two Investigatory Evaluator positions, the FHFA further explains that the selecting official was too busy to finish filling those positions and did not have a discriminatory motive for leaving them unfilled.
Plaintiff argues that he is qualified for all four of the FHFA-OIG positions. Pointing to alleged inconsistencies in the accounts given by Parker and the other hiring officials, as well as to alleged deficiencies in the hiring process, he argues that the FHFA's explanation for failing to hire him is pretextual. As explained below, the Court concludes that for three of the positions- the two Special Agent positions and the second of the two Investigative Evaluator positions-no reasonable jury could infer from all the evidence that the FHFA discriminated against Plaintiff on the basis of age. See Lathram, 336 F.3d at 1088. As to the first of the two Investigative Evaluator positions, however, the Court concludes that the record, in its current state, does not support entry of summary judgment. Finally, to the extent Plaintiff also argues that the Agency engaged in systemic practices that discriminated against older veterans or failed to give him preference as a veteran, the Court concludes that Plaintiff has failed to state a claim.
The Court first addresses the two Special Agent positions, then turns to the two Investigative Evaluator positions, and finally addresses any remaining issues raised by Plaintiff's contention that the FHFA used its temporary, direct ...