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Mamantov v. McCarthy

United States District Court, D. Columbia

November 2, 2015

GINA McCARTHY, Administrator, United States Environmental Protection Agency, Defendant

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          For Andrew Mamantov, Plaintiff: Robert C. Farley, Jr., LEAD ATTORNEY, LAW OFFICE OF ROBERT C. FARLEY, Washington, DC USA.

         For Gina Mccarthy, Administrator, United States Environmental Protection Agency, Defendant: John Cuong Truong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC USA.

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         REGGIE B. WALTON, United States District Judge.

         The plaintiff claims that he was denied an upgraded position with the Environmental Protection Agency due to his age and sex in violation of the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § 623 (2006), and Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e-16 (2006). Amended Complaint (" Am. Compl." ), ECF No. 13 ¶ ¶ 57-59, 67-69. The plaintiff also claims that the defendant retaliated against him by refusing to select him for the upgraded position and by reassigning a work function from him to another employee after he lodged two discrimination complaints, in violation of Title VII, 42 U.S.C. § 2000e-3. Am. Compl. ¶ ¶ 60-66, 70-73. Currently pending before the Court is the defendant's Motion for Summary Judgment, ECF No. 36. Upon consideration of the parties' submissions, the Court concludes that the defendant's motion must be granted in its entirety.[1]

         I. BACKGROUND

         A. The Plaintiff's Non-Selection for the GS-14 Position

         The following facts are undisputed except where otherwise noted by the Court. The plaintiff, a male employee of the Environmental Protection Agency (" EPA" ), who was sixty-seven years old when he initiated this suit in 2012, was at all relevant times a GS-13 chemist in the EPA's Exposure Assessment Branch (" EAB" ). Def.'s Facts ¶ ¶ 1, 2; Pl.'s Facts ¶ ¶ 1, 2. The EAB is comprised of two subgroups of employees: (1) exposure assessors, and (2) fate and transport assessors, and employees of the EAB are either fate assessors or exposure assessors. Def.'s Facts ¶ ¶ 4, 5; Pl.'s Facts ¶ ¶ 4, 5. " Exposure assessment is [] concerned with sources of chemicals[,] chemical releases into the environment[,] and, with respect to human exposure, how and how often people come into contact with particular chemicals." Def.'s Facts ¶ 23; Pl.'s Facts ¶ 23. In contrast, " [a]nalysis of the degradation of chemicals in waterways, for example, is fate assessment, which feeds or is a component of the broader exposure assessment modeling." Def.'s Facts ¶ 24; Pl.'s ¶ Facts 24. The plaintiff is a fate assessor whose " primary duties and responsibilities are to assess

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chemicals, new and existing, for abiotic fate," not an exposure assessor. Def.'s Facts ¶ ¶ 15, 16, 18; Pl.'s Facts ¶ ¶ 15, 16, 18. And, the plaintiff's EAB colleagues " regard him as a fate assessor, not an exposure assessor." Def.'s Facts ¶ 17; Pl.'s Facts ¶ 17. The plaintiff also served as a " work assignment manager," which involved " coordinating, tracking, and assigning chemicals for contractors to review." Pl.'s Facts ¶ 30.

         The plaintiff's first-line supervisor since 1997 has been Mary C. Fehrenbacher. Def.'s Facts ¶ 3; Pl.'s Facts ¶ 3. Around September 2009, Fehrenbacher informed her staff at a branch meeting that she had authority to hire a GS-14 exposure assessor, Def.'s Facts ¶ 10; Pl.'s Facts ¶ 10, and on September 14, 2009, she emailed the EAB staff to inform them of the open GS-14 position, Def.'s Facts ¶ 12 & Def. Ex. 11; Pl.'s Facts ¶ 12. The email's subject line read " Heads' Up -- GS-14 Exposure Assessor announcement," and the body of the email stated that the " GS-14 Exposure Assessor announcement should be posted soon on USAJOBS." Def.'s Facts ¶ 12 & Def. Ex. 11; Pl.'s Facts ¶ 12. Then, in September 2009, the EPA issued a job announcement, identified as number RTP-MP-2009-0597, to fill a GS-14-level position titled " Interdisciplinary Environmental Engineer/Physical Scientist." Def.'s Facts ¶ 8 & Def. Ex. 8; Pl.'s Facts ¶ 8. Fehrenbacher was the selecting official for this GS-14 position. Def.'s Facts ¶ 14; Pl.'s Facts ¶ 14.

         The plaintiff applied for the GS-14 position, and based on his application, including his answers to the application questionnaire, he was " certified" (i.e., referred) to Fehrenbacher for consideration. Def.'s Facts ¶ ¶ 25, 26; Pl.'s Facts ¶ ¶ 25, 26. The only other employee whose application was referred to Fehrenbacher for consideration was Christina Cinalli. Def.'s Facts ¶ ¶ 27, 28; Pl.'s Facts ¶ ¶ 28, 29. Cinalli, who is younger than the plaintiff, began her career with the EPA in 1987 as an exposure assessor. Def.'s Facts ¶ 21; Pl.'s Facts ¶ 21. At the time of her application, Cinalli was an EAB exposure assessor, and she is regarded as an exposure assessor by her EAB colleagues. Def.'s Facts ¶ ¶ 19, 20; Pl.'s Facts ¶ ¶ 19, 20. Using a weights and screenouts report, the plaintiff's application was assigned a score of 92.02, while Cinalli's application received a score of 94.5.[2] Pl. Ex. 16 (Anthony Dep.) at 36:4-20. Fehrenbacher selected Cinalli for the GS-14 position in November 2009. Def.'s Facts ¶ 29; Pl.'s Facts ¶ 29.

         The plaintiff " dispute[s] any insinuation that the duties and responsibilities of [the two EAB employee subgroups, i.e., exposure assessors and fate assessors] do not overlap, or that a fate assessor will not also conduct exposure assessments." Pl.'s Facts ¶ 5 (further stating that " [b]oth subgroups are required to make a complete Exposure Assessment, hence the name Exposure Assessment Branch" ) (internal quotation marks and citations omitted); see also Pl.'s Facts ¶ 22 (" Both fate and exposure assessment involve chemistry, and so while maybe different, they are not 'very different.'" ). The plaintiff contends that the job announcement for the GS-14 position " was for someone with experience both in exposure assessment and fate and transport assessment." Pl.'s Facts ¶ ¶ 4-6. The plaintiff therefore disputes that the GS-14 position " was solely for an [e]xposure [a]ssessor." Pl.'s Facts ¶ 9; see Pl.'s Facts ¶ 11 (stating that the job analysis was written to indicate that the position was for persons experienced with fate assessment"

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and that " a version of the Weights and Screenouts also indicated that fate assessment was a major duty of the position" ) (citing Pl. Exs. 5 & 6)). The plaintiff does not dispute that he is identified as a fate assessor in the EAB. Def.'s Facts ¶ ¶ 15, 16, 18; Pl.'s Facts ¶ ¶ 15, 16, 18. Nonetheless, he represents that he also has " some exposure assessment" experience as a result of having conducted " thousands of exposure assessments," Pl.'s Facts ¶ ¶ 4, 5, and by virtue of serving as a " FOCUS group representative and back-up FOCUS group representative," " an interdisciplinary group of scientists" that " review the hazards, chemistry, exposures assessment[,] and engineering[,] and [who] make some preliminary decisions about new chemicals" at meetings to which " the EAB sends exposure assessors," Pl.'s Facts ¶ 15 (internal quotation marks and citation omitted).

         B. The Plaintiff's Retaliation Allegations

         In July 2006, three years before the vacancy at issue here was announced, the plaintiff " formally requested that the Human Resources Office conduct a desk audit, because of his belief that his position warranted upgrading." Pl. Ex. 13 at Mamantov--000279. Classification specialists who conducted the desk audit " determined that [the plaintiff's] position supports the classification of Chemist, GS-1320-14" and that the plaintiff's supervisor had been notified of this determination. Id. at Mamantov--000268. At some time around November 2006, Fehrenbacher, who did not provide input for the July 2006 desk audit, asked for a meeting to address her concern " that in the absence of her input as [the plaintiff's] immediate supervisor regarding his work assignments, the desk audit findings could not be accurate, because the findings are based only on information obtained from the incumbent." Pl. Ex. 14 at Mamantov--000113. Fehrenbacher then " submitted a detailed package regarding her views and assessments of [the plaintiff's] work assignments and products." Id. at Mamantov--000114. Thereafter, upon further review, the EPA's human resources office found " no supporting information for changing [its] initial evaluation that [the plaintiff's] position supports classification at the GS-14 grade level." Id. In March 2007, the acting director of the " Headquarter Operations Division" reviewed the desk audit's results and stated in a memorandum to Fehrenbacher that she was " in concurrence with the preliminary and final findings submitted by the classifiers that determine that [the plaintiff was] performing work supportable at the GS--14 level. Specifically, the work he conduct[ed] developing fate assessments [was] characteristic of the GS--14 level." Pl. Ex. 15 at EPA0000469. However, the plaintiff's position was never upgraded. See Pl.'s Opp'n at 5. In July 2009, more two years after the desk audit was completed, the plaintiff " filed an administrative complaint of discrimination with the [EPA's Equal Employment Opportunity] office regarding the failure to implement the classification specialists' recommendations" (the " July 2009 EEO complaint" ). Pl.'s Opp'n at 5.

         As support for his retaliation claim, the plaintiff provides " a version of [a weights and screenouts questionnaire]" for the GS-14 position, which asked applicants to " [c]hoose the response which best describes your training and experience in applying models of the environmental fate and transport of pesticides or other environmental contaminants." Pl. Ex. 6 at 5. The plaintiff provides another version of a weights and screenouts questionnaire, " signed and dated . . . [August 31, 2009, in which] the question regarding experience with environmental fate and transport is no longer included, and the numerical value assigned to questions regarding exposure

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assessment were doubled." Pl.'s Opp'n at 6 & Pl. Ex. 8. According to the plaintiff, " [t]his occurred just one month after" he filed his July 2009 EEO complaint. Pl.'s Opp'n at 6-7. The defendant disputes the plaintiff's characterization of the two versions of the weights and screenouts questionnaire, noting that plaintiff's Exhibit 6 is an " undated and unsigned draft" of the weights and screenouts questionnaire, and representing that any changes between the two versions of the questionnaire reflected Fehrenbacher's intention to hire an exposure assessor. See Def.'s Reply at 12 (citing Def. Ex. 1 (Fehrenbacher Dep.) at 94:11-97:8) (testimony regarding the job announcement for the GS-14 position)). The plaintiff subsequently applied for and was denied the GS-14 position. See supra Part I.A.

         The plaintiff filed a second administrative complaint in February 2010 after he was not selected for the GS-14 position (the " February 2010 EEO complaint" ). Pl.'s Opp'n at 18. The defendant states that in March 2010, Fehrenbacher assigned an " administrative tracking task" that had been performed by the plaintiff to another employee. Def.'s Facts ¶ 30. According to the defendant, this was an " administerial [sic] task that did not require any technical knowledge or expertise," and that the reassignment of this task did not affect the plaintiff's core duties and responsibilities. Id. ¶ ¶ 31-32, 34. The plaintiff, on the other hand, describes the task as " assigning [] contactor's reports [of chemicals]" to " other assessors within the [EAB] to review the contractors' work," which required " technical knowledge of the chemicals that were reviewed as well as knowledge of the assessors' experience with the various chemicals." Pl.'s Facts ¶ ¶ 30-32. Thus, " if a chemical came across [the plaintiff's] desk for review and a certain assessor had previous experience with the chemical, [the plaintiff] would use his knowledge and judgment to adjust the assignment process and assign the chemical to the experienced assessor." Id. The plaintiff adds that he was relieved of this task and it was reassigned to the EAB's associate chief, who was a female GS-14-level employee, and later to a younger, male, GS-15-level employee. Id. ¶ 34. The parties agree that the task required only fifteen to thirty minutes quarterly, and that the reassignment did not affect the plaintiff's grade, salary, or benefits as a GS-13 employee. Def.'s Facts ¶ ¶ 33, 35; Pl.'s Facts ¶ ¶ 33, 35.[3]


         On a motion for summary judgment, Federal Rule of Civil Procedure 56 requires the Court to find 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). Summary judgment must be granted against a party " who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett,477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A material fact is one that " might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby,477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And, " a dispute is 'genuine' if 'the evidence is such that a reasonable jury could ...

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