United States District Court, District of Columbia
A. HOWELL Chief Judge
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.
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. 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.
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.
For the reasons set forth below, DOJ's motion for summary
judgment is granted, and the plaintiff's motion is
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
The Plaintiff's Previous EEO Activity and Priority
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. Id. Ruby Qazilbash, an
Asian female,  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.
four years after [he] received the priority consideration
letter, [the plaintiff] was never notified that [his priority
consideration letter] had been used.” Jeffries Decl.
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.
The Plaintiff's Non-Selections and Award Denials at Issue
in This Case
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.
First Non-Selection in Spring 2011
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.
Second Non-Selection in Late 2011/Early 2012
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.
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.
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.
Third Non-Selection in Early 2013
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.
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.
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. ¶
Fourth Non-Selection in Early 2013
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.
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.
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.
Fifth Non-Selection in Early 2013
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.
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) 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.
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.
Sixth Non-Selection in Early 2013
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. 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.
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).
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).
Seventh Non-Selection in Summer 2014
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.
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
Time-Off and Cash Awards Denied in 2011 and 2012
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.
Federal Rule of Civil Procedure 12(c)
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
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”).
Federal Rule of Civil Procedure 56(a)
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).
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 ...