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Jeffries v. Lynch

United States District Court, District of Columbia

November 15, 2016



          BERYL A. HOWELL Chief Judge

         The plaintiff, Timothy Jeffries, is an African-American male and an employee of the Bureau of Justice Assistance (“BJA”) within the Department of Justice (“DOJ”). Compl. ¶ 6, ECF No. 1. He asserts a multitude of claims against the defendant, United States Attorney General Loretta Lynch, in her official capacity, alleging discrimination on the basis of his race and sex, and retaliation, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-1-2000e-17. Compl. ¶¶ 44, 47. These claims arise out of the plaintiff's non-selection for seven BJA positions for which he applied between 2011 and 2014, as well as the alleged denial of cash and time-off awards in 2011 and 2012. See generally Compl.

         The plaintiff paints a picture of an agency marked by factionalism, with Caucasian, middle-age mothers, whom the plaintiff calls collectively the “mommies group, ” on one side and African-American men on the other.[1] From DOJ's perspective, the plaintiff is a “prolific complainer, ” Def.'s Reply Supp. Def.'s Mot. J. Pleadings or Summ. J. (“Def.'s Reply”) at 1, ECF No. 16, who “routinely applie[s] for positions for which he [is] not the most qualified” and then brings an EEO complaint, Mem. Supp. Def.'s Mot. J. on the Pleadings or Summ. J. (“Def.'s Mem.”) at 1, ECF No. 7-1.

         Before discovery commenced in this lawsuit, DOJ moved for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c), or, alternatively, for summary judgment pursuant to Federal Rule of Civil Procedure 56(a), see Def.'s Mot. J. on the Pleadings or Summ. J. (“Def.'s Mot.”), ECF No. 7, prompting the plaintiff to move for relief under Federal Rule of Civil Procedure 56(d), see Pl.'s Mot. Relief Under Rule 56(d) (“Pl.'s Mot.”), ECF No. 10.[2] For the reasons set forth below, DOJ's motion for summary judgment is granted, and the plaintiff's motion is denied.

         I. BACKGROUND

         The plaintiff has been an employee of the Office of Justice Programs (“OJP”) in DOJ since 2000. Compl. ¶ 6. He is currently employed as a Policy Advisor, a GS-13 position, in the Substance Abuse and Mental Health Division (“SAMH”) of the BJA, which is housed within OJP. Id. ¶ 4. A brief recitation of the allegations underlying each of the plaintiff's claims is set out below.

         A. The Plaintiff's Previous EEO Activity and Priority Consideration Letter

         In 2006, the plaintiff was passed over for a GS-14 Program Analyst position in the BJA. Compl. ¶ 15; Pl.'s Opp'n, Ex. 1 (“Jeffries Decl.”) ¶ 10, ECF No. 9-3. According to the plaintiff, “[his] application . . . had been given the highest score among all of the applicants, ” but “[he] was neither interviewed nor selected.” Compl. ¶ 15; Jeffries Decl. ¶ 10. DOJ offered the position to a Caucasian female applicant, who ultimately turned down the offer. Jeffries Decl. ¶ 10. The plaintiff submitted an application when the vacancy was re-advertised in 2007, but he was not given an interview.[3] Id. Ruby Qazilbash, an Asian female, [4] was selected for the position. Id. Acknowledging that the plaintiff had mistakenly not been interviewed for the position, on July 30, 2007, DOJ gave the plaintiff a priority consideration letter “for the next open position similar and in the same geographical area to the one which proper consideration was missed.” Pl.'s Opp'n, Ex. 9, ECF No. 9-5. The letter further indicated that the plaintiff would be considered for any such position before issuing public notice of the vacancy and that he would be notified in writing when he had received priority consideration for a position. Id.

         “For four years after [he] received the priority consideration letter, [the plaintiff] was never notified that [his priority consideration letter] had been used.”[5] Jeffries Decl. ¶ 11.

         Consequently, in late January 2011, the plaintiff inquired with the Deputy Director of OJP Human Resources (“HR”), Jennifer McCarthy, as to the status of the letter. Id. Initially, Ms. McCarthy was unable to locate the letter, but in late February 2011, after the plaintiff furnished a copy and stated that he would contact his attorney, Ms. McCarthy found HR's copy. Id.

         B. The Plaintiff's Non-Selections and Award Denials at Issue in This Case

         The plaintiff's instant claims arise out of seven non-selections occurring from 2011 to 2014, and alleged denials of cash and time-off awards in 2011 and 2012, which non-selections and awards denials are described below.

         1. First Non-Selection in Spring 2011

         In March 2011, DOJ announced two vacancies for GS-14 Supervisory Grants Program Manager positions within the BJA. Id. ¶ 12. After seeing the vacancy announcements, the plaintiff asked Ms. McCarthy why HR had not used his priority consideration letter for the open positions. Id. Ms. McCarthy agreed to allow the plaintiff to utilize the letter for the recent openings. Id.; Def.'s Statement of Material Facts (“Def.'s SMF”) ¶¶ 10-14, ECF No. 7-2. The plaintiff submitted a résumé as well as his “knowledge, skills, and abilities” (“KSAs”), as requested by HR. Jeffries Decl. ¶ 13. On May 11, 2011, the plaintiff was interviewed by a three-person panel consisting of Jonathan Faley (Caucasian male), Tammy Reid (African-American female), and Edison Aponte (Hispanic male), each of whom had been named as a “responsible management official” in his previous EEO complaints. Id.; Def.'s SMF ¶ 15. At the end of his interview, the plaintiff “asked the panelists if they felt [he] was qualified for the position and when a decision would be made, ” to which the panel responded that other candidates would have to be interviewed before a decision could be reached. Jeffries Decl. ¶ 15. The panel did not recommend the plaintiff for an interview with the selecting official, id. ¶ 14; Def's SMF ¶ 16, and DOJ subsequently notified the plaintiff by letter that he was not selected for the position because he had failed to: (1) “demonstrate what experience or skills set ha[d] prepared [him] for staff supervision and oversight of a grant management team;” (2) “explain or identify work methods, organizational structures and management processes or other procedures to resolve issues;” (3) “address complex issues that impacted grant programs or facets of large complex projects and programs;” and (4) “interpret any participation in management operation or planning meetings to discuss program or project milestones and activities, ” Def.'s Mot., Ex. 2, ECF No. 7-3. DOJ ultimately hired two candidates who were unanimously recommended by the interview panel to fill the two positions: Naydine Fulton-Jones (African-American female) and Esmerelda Womack (Caucasian female). Compl. ¶ 24; Def.'s SMF ¶ 25. Neither Ms. Fulton-Jones nor Ms. Womack had prior EEO activity. Compl. ¶ 24.

         2. Second Non-Selection in Late 2011/Early 2012

         In the fall of 2011, the plaintiff applied for a GS-13/14 level position as Special Assistant to the Deputy Director in the BJA Policy Office. Compl. ¶ 26; Def.'s SMF ¶ 30; Def.'s Mot., Ex. 57, ECF No. 7-4. The vacancy announcement describes the Special Assistant's responsibilities as, inter alia, preparing, writing, and reviewing a wide variety of written materials; collecting and assembling key documents and reports; facilitating administrative processes and handling special projects; tracking Policy Office performance; attending briefings; preparing correspondence; developing and maintaining relationships with internal and external stakeholders; and researching and analyzing problems and issues. Def.'s Mot., Ex. 57.

         The interview panel, consisting of Patrick McCreary (Caucasian male), Ellen Williams (African-American female), and Ruby Qazilbash (Asian female), rated the plaintiff sixth out of the eight interviewees. Def.'s SMF ¶ 32; Def.'s Mot., Ex. 17, ECF No. 7-3. In a letter dated December 8, 2011, the panel unanimously recommended the ultimate selectee, Cornelia Sorensen-Sigworth (Caucasian female) for the position, and BJA Director Denise O'Donnell concurred. Def.'s SMF ¶ 33; Def.'s Mot., Ex. 17.

         Mr. McCreary and Ms. Williams did not know about the plaintiff's prior EEO complaints. Def.'s SMF ¶ 37; Pl.'s Opp'n at 31. Ms. Qazilbash was first made aware of the plaintiff's protected activity in 2008 and received notice on July 1, 2011, of a pre-complaint or complaint filed by the plaintiff. Def.'s Mot., Ex. 18 at 3, ECF No. 7-3.

         3. Third Non-Selection in Early 2013

         Toward the end of 2012, the plaintiff applied for several vacancies within the BJA. First, the plaintiff unsuccessfully applied for the GS-14 position of Senior Policy Advisor for Evidence Integration opening. Def.'s SMF ¶ 40. The position's job duties were described as managing and directing quality improvement programs; analyzing the effectiveness of programs; designing and maintaining methods to implement the Government Performance and Results Act; planning and directing a variety of service functions such as communication, procurement of administrative supplies, printing, property and space management, records management, mail service, facilities maintenance, and transportation; and researching and analyzing problems. Def.'s Mot., Ex. 58, ECF No. 7-4.

         A panel consisting of Edison Aponte, Elizabeth Griffith, and either Becky Rose or Kristina Rose interviewed six candidates. Def.'s Mot., Ex. 19, ECF No. 7-3. Kristina Rose conducted the plaintiff's interview. Def.'s SMF ¶ 42. There was “strong consensus” among the panelists that “Ed Banks and Kristen Kracke were clearly the top candidates” and these individuals were recommended for a second interview. Def.'s Mot., Ex. 19. As between Mr. Banks and Ms. Kracke, the panel recommended Mr. Banks (African-American male) because he “ha[d] already been doing an outstanding job and working at a level that exceed[ed] his [] grade and role and its [sic] good to promote staff from within where possible.” Id. Mr. Banks was ultimately chosen for the job in 2013. Compl. ¶ 28; Def.'s SMF ¶ 45. The panelists each stated that the plaintiff was not as qualified as, nor did he interview as well as, either Mr. Banks or Ms. Kracke. Def.'s SMF ¶¶ 46-49. Indeed, on a five-point scale, the panelists rated Mr. Banks a 5.0, Ms. Kracke a 4.8, and the plaintiff a 1.6. Id. ¶ 50.

         Ms. Rose was not aware of the plaintiff's prior protected activity at the time of the interview. Def.'s SMF ¶ 51. The other two interviewers became aware of the plaintiff's protected activity in 2007. Id. ¶¶ 52-53. Ms. Griffith was also involved in the plaintiff's September 2011 complaint. Id. ¶ 53.

         4. Fourth Non-Selection in Early 2013

         The plaintiff applied for the GS-14 position of Administrative Services and Logistics Director in late 2012, Def.'s Mot., Ex. 25, ECF No. 7-3, and was notified of his non-selection in January 2013, Def.'s SMF ¶ 55. The vacancy announcement for the position states that the job responsibilities include performing tasks related to the administrative management of the organization, such as interpreting administrative policies, developing and implementing organizational policies, defining administrative requirements, and providing advice to management on related issues; providing administrative and technical supervision necessary for accomplishing the work of the unit; performing administrative and human resource management functions; and installing, troubleshooting, and maintaining hardware and software to ensure the functionality of systems. Id. ¶ 56.

         The plaintiff and one other candidate, Michelle Martin (Caucasian female), Def.'s SMF ¶ 59, were interviewed by a panel consisting of Shanetta Cutlar (African-American female), Hope Janke (Caucasian female), and Kristen Mahoney (Caucasian female), id. ¶ 57. The panel did not recommend the plaintiff for a second-round interview, and Ms. Martin-who received higher interview scores from each of the panelists-was ultimately selected for the position. Id. ¶¶ 57, 59-60. All three panelists explained that Ms. Martin was more qualified than the plaintiff, who lacked experience with procurement and contracts and was not as experienced in human resources or technological support. Id. ¶¶ 61-64. Ms. Martin had no prior EEO activity. Pl.'s SMF ¶ 7.

         Ms. Mahoney learned of the plaintiff's EEO activity “sometime after she started at BJA in July of 2012.” Def.'s SMF ¶ 92. The parties and the record are silent as to whether the other two interviewers were aware of the plaintiff's protected activity.

         5. Fifth Non-Selection in Early 2013

         The plaintiff applied for another GS-14 position, Supervisory Grants Management Specialist, in November of 2012. Def.'s SMF ¶ 65; Def.'s Mot., Ex. 60, ECF No. 7-4. The vacancy announcement describes the job duties for this position as including reviewing, analyzing, and tracking awardee compliance with the terms of the grant; overseeing risk assessments, financial reviews, and audits of grant awardees; providing training to staff, management, program officials, awardees, and others; overseeing a variety of pre- and post-award tasks including designing solicitations, reviewing applications, conducting financial reviews of applicants, and negotiating the terms of grant awards; evaluating the effectiveness of grants; and supervising employees performing work at the GS-7 through GS-13 level. Def.'s Mot., Ex. 60.

         A panel consisting of Edison Aponte, Jonathan Faley, and Kellie Dressler interviewed four candidates for the position between December 19, 2012, and January 4, 2013. Def.'s SMF ¶¶ 67-68. The plaintiff was the lowest-scoring candidate. Id. ¶ 71. The panel recommended Cory Randolph (African-American male)[6] and Brenda Worthington (Caucasian female) for second-round interviews with Denise O'Donnell and Kristen Mahoney, and both candidates were offered a position in early 2013. Id. ¶¶ 69-70. The interviewers noted that the plaintiff struggled to answer interview questions compared to the other candidates. Id. ¶¶ 72-74.

         Ms. Dressler was not aware of the plaintiff's prior protected activity when she interviewed him. Id. ¶ 76. Mr. Aponte's most recent participation in the plaintiff's EEO activity prior to this non-selection occurred on August 23, 2012, when an EEO investigator interviewed Mr. Aponte. Id. ¶ 77. As noted, Mr. Aponte also was aware that he had been named in one of the plaintiff's EEO complaints. Id. Mr. Faley had most recently been involved in the plaintiff's EEO conduct when he signed a statement for an EEO investigator on August 24, 2012, though he had first learned of the plaintiff's protected activity over a year before that. Id. ¶ 78. Ms. O'Donnell became aware of the plaintiff's EEO activity shortly after June 2011, id. ¶ 91, and, as previously noted, Ms. Mahoney became aware of his EEO activity at some point after she started at the BJA in July of 2012, id. ¶ 92.

         6. Sixth Non-Selection in Early 2013

         Also in late 2012, the plaintiff applied for a GS-14 position as Senior Policy Advisor for Byrne Criminal Justice Innovation/Building Neighborhood Capacity Programs. Def.'s SMF ¶ 79. The job duties for that position entail analyzing data, with the goal of enhancing the use of research and data by staff and its stakeholders and partners; overseeing program planning, coordination of solicitations, project deliverables, and implementation of complex research projects related to research evidence; providing technical expertise to BJA staff and leadership; and coordinating projects with research agencies.[7] Id. ¶ 80. Of fifteen applicants, thirteen were initially interviewed by one of two panels: a panel comprised of Rebecca Rose (Caucasian female), Clarence Banks (African-American male), and David Adams (Caucasian male), which interviewed both the plaintiff and the selectee; and another panel comprised of Cornelia Sorensen-Sigworth (Caucasian female), Jane Hodgdon (female of unknown race), and Shanetta Cutlar (African-American female). Id. ¶¶ 81-82.

         The plaintiff was ranked fourth of the thirteen candidates. Id. ¶ 85. The first-round panels recommended that only the top two candidates from each panel move on to a second-round interview. Id. ¶ 86. Instead, the panel of second round interviewers-Denise O'Donnell, Elizabeth Griffin, and Kristen Mahoney (all Caucasian females)-chose to interview the top six candidates, which included the plaintiff. Id. Ultimately, in 2013, id. ¶ 93, the second-round panel selected Alissa Huntoon (Caucasian female) for the position, noting that she had “lengthy experience with law enforcement, overseeing projects that can be critical to the core projects of BCJI and BNCP” as well as strong communication skills, project-management skills, and experience representing OJP in high-level meetings. Id. ¶¶ 87, 89 (internal quotation marks omitted).

         Of the three second-round interviewers, Ms. Griffith first became aware of the plaintiff's protected activity around 2007; Ms. O'Donnell first became aware of the plaintiff's protected activity shortly after June 2011; and Ms. Mahoney became aware of his protected activity at some time after she started at the BJA in July 2012. Id. ¶¶ 90-92. Both Ms. Griffith and Ms. O'Donnell had been named as responsible management officials in several of the plaintiff's EEO cases. Pl.'s SMF ¶ 9(a).

         7. Seventh Non-Selection in Summer 2014

         The plaintiff applied for a GS-14 position as a Senior Policy Advisor for Health and Criminal Justice in April 2014 and was not selected for the position. Def.'s SMF ¶ 94; Def.'s Mot., Ex. 44, ECF No. 7-4. The Senior Policy Advisor's job duties include overseeing efforts to improve state, local, and tribal justice system responses to people with behavioral problems, increasing access to health care for justice-involved individuals, developing policy initiatives aimed at improving recidivism and health outcomes for justice-involved individuals, and coordinating with other agencies. Def.'s Mot., Ex. 62, ECF No. 7-4. The first-round interview panel consisted of Cornelia Sorensen-Sigworth (Caucasian female), Anna Johnson (female of unknown race), and Michael Dever (Caucasian male). Def.'s SMF ¶ 96. Based on the panel's recommendations, Ms. Qazilbash wrote a memorandum detailing the top five candidates for a second-round interview with Ms. O'Donnell, Ms. Mahoney, and Ms. Qazilbash. Id. ¶ 97. The plaintiff was among the top five candidates. Id. Danica Binkley (Caucasian female) was selected for the position after the second-round interviews. Id.

         Ms. O'Donnell had been named in the plaintiff's previous EEO complaints. Def.'s Mot., Ex. 41 at 2, ECF No. 7-4. Ms. Mahoney had been made aware of the plaintiff's previous EEO activity by Ms. Qazilbash, Def.'s Mot., Ex. 42 at 2, ECF No. 7-4, who had been named as a responsible management official in numerous of the plaintiff's previous EEO complaints, Def.'s Mot., Ex. 43 at 1, ECF No. 7-4.

         8. Time-Off and Cash Awards Denied in 2011 and 2012

         The plaintiff alleges that he was “denied certain awards that his coworkers received, ” including “a time-off award in 2011, a performance cash award in 2011, and [a] . . . time-off award[] for 2012.” Compl. ¶ 42. The plaintiff avers that he “discovered through a response to a[] FOIA request that [he] was the only member of the Justice Systems Team supervised by [Ms.] Qazilbash . . . who [did not] receive a special act time-off award for FY 2011.” Jeffries Decl. ¶ 27. He further states that, “[t]o the best of [his] knowledge, [he] did not receive a performance cash award for FY 2011, although [he] was supposed to.” Id. ¶ 28. Finally, “[a]ccording to documents [he] received from a [FOIA] request, ” the plaintiff avers that he “did not receive a time-off award for the first quarter of FY 2012, ” even though some of his coworkers did receive such an award, and his award covering the first two quarters of FY 2012 “was only for six hours instead of the 10 hours that [his] female GS-13 coworkers received.” Id. ¶ 29.


         A. Federal Rule of Civil Procedure 12(c)

         Federal Rule of Civil Procedure 12(c) authorizes a party to move for judgment on the pleadings at any time “after the pleadings are closed-but early enough not to delay trial.” Fed.R.Civ.P. 12(c). “In considering a motion for judgment on the pleadings, the Court should ‘accept as true the allegations in the opponent's pleadings' and ‘accord the benefit of all reasonable inferences to the non-moving party.'” Stewart v. Evans, 275 F.3d 1126, 1132 (D.C. Cir. 2002) (quoting Haynesworth v. Miller, 820 F.2d 1245, 1249 n.11 (D.C. Cir. 1987)); Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986) (explaining that, in reviewing a grant of a Rule 12(c) motion to dismiss, “allegations of the complaint should be construed favorably to the pleader”) (internal quotation marks omitted), rev'd on other grounds, 482 U.S. 64 (1987). The movant is entitled to judgment under Rule 12(c) by demonstrating that “no material fact is in dispute and that it is ‘entitled to judgment as a matter of law.'” Peters v. Nat'l R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992) (citation omitted).

         When, however, resolution of a motion for judgment on the pleadings relies upon material outside the pleadings, “the motion must be treated as one for summary judgment under Rule 56, ” so long as the parties have been afforded “reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d); see also Weisberg v. U.S. Dep't of Justice, 543 F.2d 308, 310 n.5 (D.C. Cir. 1976) (finding that consideration of “affidavits outside the pleadings” required treating a dismissal under Rule 12(c) as a grant of summary judgment in favor of the defendant, raising the question, under Rule 56(a), “whether a genuine issue as to any material fact remains to be resolved”).

         B. Federal Rule of Civil Procedure 56(a)

         Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if 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). The moving party bears the burden to demonstrate the “absence of a genuine issue of material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present specific facts supported by materials in the record that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477 U.S. 242, 256-57 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on summary judgment, the appropriate inquiry is “whether, on the evidence so viewed, a reasonable jury could return a verdict for the nonmoving party”) (internal quotation marks omitted)); see also Fed. R. Civ. P. 56(c), (e)(2)-(3).

         “Evaluating whether evidence offered at summary judgment is sufficient to send a case to the jury is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C. Cir. 2011). This evaluation is guided by the related principles that “courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment, ” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curiam), and “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor, ” id. at 1863 (quoting Liberty Lobby, 477 U.S. at 255 (alteration in original)). Courts must avoid making “credibility determinations or weigh[ing] the evidence, ” since “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000) (internal quotation marks omitted); see also Burley v. Nat'l Passenger Rail Corp., 801 F.3d 290, 295-96 (D.C. Cir. 2015). In addition, for a factual dispute to be “genuine, ” the nonmoving party must establish more than “[t]he mere existence of a scintilla of evidence in support of [its] position, ” Liberty Lobby, 477 U.S. at 252, and cannot rely on “mere allegations” or conclusory statements, see Equal Rights Ctr. v. Post Props., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011); Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006); Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993); accord Fed. R. Civ. P. 56(e). If “opposing parties tell two different stories, one of which is blatantly contradicted ...

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