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Latson v. Sessions

United States District Court, District of Columbia

March 9, 2017

ELVENIA LATSON, Plaintiff,
v.
JEFF SESSIONS, Attorney General of the United States, [1]Defendant. ELVENIA LATSON, Plaintiff,
v.
JEFF SESSIONS, Attorney General of the United States, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON United States District Judge

         The pro se plaintiff, Elvenia A. Latson, brings these two civil actions[2] against Jeff Sessions, in his official capacity as the Attorney General of the United States Department of Justice, alleging that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the “Bureau”) discriminated against her on the bases of her race, gender, and color, retaliated against her due to her pursuit of earlier statutorily protected activity, and has engaged in a practice of promoting employees that has a disparate impact on African Americans and women, all in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (2012) (“Title VII”). Complaint ¶¶ 1, 5-6, 11-13, 27-40, Latson v. Sessions, No. 14-371 (“Latson I Compl.”); Complaint ¶¶ 1, 5, 11-14, 35-48, Latson v. Sessions, No. 14-1892 (“Latson II Compl.”). Currently before the Court are the Defendant's Motions for Summary Judgment, see Defendant's Motion for Summary Judgment at 1, Latson v. Sessions, No. 14-371 (“Latson I Def.'s Mot.”); Defendant's Motion for Summary Judgment at 1, Latson v. Sessions, No. 14-1892 (“Latson II Def.'s Mot.”). Also currently before the Court is the plaintiff's Motion to Strike Defendant's Response to Plaintiff's Statistical Evidence (“Pl.'s Mot.”). Upon careful consideration of the parties' submissions, [3] the Court concludes that it must grant the defendant's motions, deny the plaintiff's motion, and enter summary judgment in favor of the defendant in both cases.

         I. BACKGROUND

         The plaintiff, an African-American female, has worked for the Bureau since 1990 and is currently a GS-13 Industry Operations Investigator in the Bureau's Tallahassee Satellite Office of its Tampa Field Division. Latson I Compl. ¶¶ 1, 10; Latson II Def.'s Facts ¶ 1. “[I]n 2000 or 2001, ” the plaintiff filed a complaint with Bureau's Equal Employment Opportunity (“EEO”) Office, which “was resolved through EEO counseling.” Latson II Def.'s Mot., Ex. F (Declaration of Elvenia A. Latson (“Latson II Latson Decl.”)) ¶ 5. In 2007, the plaintiff filed another EEO complaint, which resulted in a settlement agreement on September 22, 2008. See Latson I Def.'s Mot., Exhibit (“Ex.”) S (Declaration of Robynn F. Ferguson Russ (“Latson I Ferguson-Russ Decl.”)) ¶ 4.

         In 2009, the plaintiff applied for two vacant Supervisory Industry Operations Investigator positions: one located in Jacksonville, Florida; and the other located in Harrisburg, Pennsylvania. Latson I Compl. ¶¶ 11-13; Latson I Def.'s Facts ¶ 2. The Merit Promotion Board (“the Board”), the entity tasked with selecting all Bureau “competitive supervisory positions . . . for the GS-14 and GS-15 levels, ” see Latson I Compl. ¶ 14; Latson II Def.'s Facts ¶ 4, interviewed the plaintiff for the 2009 Jacksonville vacancy on August 12, 2009, see Latson I Def.'s Mot., Ex. E (Declaration of Elvenia A. Latson (“Latson I Latson Decl.”)) ¶ 7.A, and selected Paul Brown, a white male, see Latson I Compl. ¶ 26; Latson I Def.'s Facts ¶ 15, who was rated as the “top candidate” for the position on August 13, 2009, see id., Ex. H (2009 Jacksonville Merit Promotion Board Deliberations (“2009 Jacksonville Deliberations”)) at 1. The Board interviewed the plaintiff for the Harrisburg vacancy on December 17, 2009, see Latson I Def.'s Mot., Ex. E (Latson Decl.) ¶ 23.A, and selected Ernest Lintner, a white male, see Latson I Compl. ¶ 26; Latson I Def.'s Facts ¶ 23, who was rated as the “top candidate” for the position on December 17, 2009. See Latson I Def.'s Mot., Ex. Y (Harrisburg Merit Promotion Board Deliberations (“Harrisburg Deliberations”)).

         On December 30, 2009, following her non-selections for the Harrisburg and 2009 Jacksonville positions, the plaintiff filed a complaint with the Bureau's EEO Office, alleging “unlawful discrimination based on her race, [gender], and unlawful retaliation for [having engaged in] protected activities.” Latson I Compl. ¶ 6; Latson I Def.'s Mem. at 6. Following an investigation, the matter was assigned to an Equal Employment Opportunity Commission (“EEOC”) Administrative Law Judge, who “issued a Decision in favor of the [Bureau] on October 22, 2013.” Latson I Compl. ¶ 7; Latson I Def.'s Mem. at 6. On December 4, 2013, the Department of Justice issued a Final Agency Decision affirming and adopting the EEOC's determination. Latson I Compl. ¶ 8; Latson I Def.'s Mem. at 6.

         In 2012, the plaintiff applied for three additional vacant Supervisory Industry Operations Investigator positions: one located in Jacksonville, Florida; one located in Tucson, Arizona; and one located in Greensboro, North Carolina. Latson II Compl. ¶¶ 11-14; Latson II Def.'s Facts ¶ 2. The Board interviewed the plaintiff for the 2012 Jacksonville vacancy on September 20, 2012, see Latson II Def.'s Mot., Ex. F (Latson II Latson Decl.) ¶ 7, and selected Margaret Carvill, a white female, see Latson II Compl. ¶ 16; Latson II Def.'s Mem. at 4, who was rated as the “top candidate” for the position on September 21, 2012, see Latson II Def.'s Mot., Ex. H (MPB Deliberations, September 21, 2012 (“2012 Jacksonville Deliberations at 2-3. The Board interviewed the plaintiff for the Tucson and Greensboro vacancies on December 27, 2012, see Latson II Def.'s Mot., Ex. F (Latson II Latson Decl.) ¶ 16, and selected Edward Courtney for the Greensboro position and Daniel McAdam for the Tucson position, see id., Ex. O (MPB Deliberations: Area Supervisor Greensboro, Area Supervisor Tucson (“Greensboro and Tucson Deliberations”)) at 2; id., Ex. P (Declaration of Mark Williams (“Williams Decl.”)) ¶ 13. Both Courtney and McAdams are white males. See id., Ex. V (Declaration of Robin D. McBeth (“McBeth Decl.”)) at 32.

         Following her non-selections for the 2012 Tucson, Greensboro, and Jacksonville positions, the plaintiff filed another EEO complaint with the Bureau's EEO Office, [4] alleging unlawful discrimination and retaliation. Latson II Compl. ¶ 6; Latson II Def.'s Mem. at 7. Following another investigation, the matter was assigned to the same EEOC Administrative Law Judge who presided over the plaintiff's 2009 EEO complaint, and who “issued a Decision in favor of the [Bureau] on July 14, 2014.” Latson II Compl. ¶ 7; Latson II Def.'s Mem. at 7. On August 25, 2014, the Department of Justice issued a Final Agency Decision affirming and adopting the EEOC's determination. Latson II Compl. ¶ 8; Latson II Def.'s Mem. at 7-8.

         The plaintiff filed her Complaint in Latson I on March 6, 2014, asserting claims of discrimination based on her race, gender, and color, as well as for retaliation.[5] Latson I Compl. ¶¶ 1, 28-40; Latson I Def.'s Facts ¶ 3. The plaintiff subsequently filed her Complaint in Latson II on November 7, 2014, asserting claims of discrimination based on her race, gender, and color, as well as for retaliation, and utilization of a practice of promoting employees that has a disparate impact on African Americans and women. Latson II Compl. ¶¶ 1, 35-48; Latson II Def.'s Facts ¶ 3.

         II. STANDARD OF REVIEW

         Courts will grant a motion for summary judgment under Federal Rule of Civil Procedure 56 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 judgment as a matter of law. See Fed.R.Civ.P. 56(a), (c). When ruling on a Rule 56 motion, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

         In responding to a motion for summary judgment, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the non-moving party must not rely on “mere allegations or denials . . . but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial.” Anderson, 477 U.S. at 248 (second omission in original) (citation and internal quotation marks omitted). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position [is] insufficient” to withstand a motion for summary judgment, as “there must be [some] evidence on which the jury could reasonably find for the [non-movant].” Id. at 252.

         III. ANALYSIS

         A. The Plaintiff's Disparate Treatment Claims

         Title VII protects federal employees from discrimination on the basis of race or gender, among other factors. See 42 U.S.C. § 2000e-16(a). In the absence of direct evidence of discrimination, as is the situation here, claims of employment discrimination under Title VII are analyzed under the three-part framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Jackson v. Gonzales, 496 F.3d 703, 706 (D.C. Cir. 2007). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination, by providing proof of “(1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) (internal citations omitted). If the plaintiff establishes a prima facie case, “[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the [adverse employment action].” McDonnell Douglas, 411 U.S. at 802. Once the employer offers a legitimate, nondiscriminatory justification for its action, “the McDonnell Douglas framework-with its presumptions and burdens- disappears, and the sole remaining issue is discrimination vel non.” Jackson, 496 F.3d at 707 (internal citation and quotation marks omitted). Thus, after the employer makes such a showing, “the plaintiff must prove that a reasonable jury could infer that the employer's given explanation was pretextual and that this pretext shielded discriminatory motives.” Id. (internal citations omitted).

         Where the defendant “has asserted a legitimate, nondiscriminatory reason” for the adverse employment action in the context of a summary judgment motion, see infra at 7, “the [ ] court need not-and should not-decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Rather, the Court must evaluate only whether “the employee [has] produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason [for the adverse employment action] and that the employer intentionally discriminated against the employee on the basis of race.” Evans v. Sebelius, 716 F.3d 617, 620 (D.C. Cir. 2013) (citation omitted). Typically, plaintiffs rely on one of two types of evidence to establish pretext: (1) “the employee may attempt to demonstrate that the employer is making up or lying about the underlying facts that formed the predicate for the employment decision, ” or (2) “the employee attempts to produce evidence suggesting that the employer treated other employees of a different race, color, religion, [gender], or national origin more favorably in the same factual circumstances.” Brady, 520 F.3d at 495 (internal citations omitted); see also Royall v. Nat'l Ass'n of Letter Carriers, AFL-CIO, 548 F.3d 137, 144 (D.C. Cir. 2008) (“A plaintiff, who retains the burden of persuasion throughout, may show pretext in a number of ways, including by offering evidence of more favorable treatment of similarly situated persons who are not members of the protected class or that the employer is lying about the proffered justification.” (citations omitted)). If the plaintiff fails to present such evidence, summary judgment must be granted for the employer. Paquin v. Fed. Nat'l Mortg. Ass'n, 119 F.3d 23, 27-28 (D.C. Cir. 1997).

         Here, the plaintiff alleges that her “evidence demonstrate[s her] [s]uperior qualifications and [Bureau] experience, ” as compared to the qualifications and experience of the candidates ultimately selected, Pl.'s Opp'n at 9, and that the Bureau “select[ed] the same implicitly biased majority white [Board] members for their hiring process, ” which the plaintiff contends “affected [the Board's] decision making, ” id. at 11. In response, the government contends that it had a legitimate, non-discriminatory reason for not selecting the plaintiff for any of the five vacancies; namely, that she was not the most qualified candidate, Latson I Def.'s Mem. at 1, 10-11; Latson II Def.'s Mem. at 1, 11-15, and that the plaintiff has failed to offer any evidence “other than her subjective beliefs” to demonstrate that she was more qualified for the positions, but not hired due to her race or gender, Latson I Def.'s Mem. at 14; Latson II Def.'s Mem. at 11. The Court agrees with the government.

         1.The 2009 Jacksonville Vacancy

         The members of the Board were unanimous in selecting Paul Brown as their “top candidate” for the 2009 Jacksonville vacancy on August 13, 2009, see Latson I Def.'s Mot., Ex. H (2009 Jacksonville Deliberations) at 1. The Board's deliberation notes show that its members thought that Brown “demonstrated strong leadership skills, ” a “strong grasp of tech[nical] matters, ” and was “well prepared” for the interview. Id., Ex. H (2009 Jacksonville Deliberations) at 1.

         The Board members represented that they did not select the plaintiff for the position “because she performed poorly during her oral interview. Her answers did not demonstrate leadership skills or technical knowledge. She was not able to answer one of the questions because she did not understand it. Her responses to several questions did not answer the question asked.” Id., Ex. O (Declaration of Megan A. Bennett (“Bennett Decl.”)) ¶ 12; see also id., Ex. P (Declaration of Chad Yoder (“Yoder Decl.”)) ¶ 12 (“I did not select [the plaintiff] as my top choice because she did not demonstrate strong organizational awareness or strong technical competency.”); id., Ex. Q (Declaration of Julia Dolan (“Dolan Decl.”)) ¶ 12 (“I did not select [the plaintiff] as my top choice because she seemed to have less leadership ability than the selected candidate. Information from her application packet and from her supervisor indicated that she could grow into the position with sufficient mentoring.”). In addition,

[t]he Questionnaire for the Present Supervisor form for . . . Brown indicate[d] that [ ] Brown's supervisor at the time rated him as “high” in eight of the nine leadership competencies. [The plaintiff's] supervisor rated her as “high” in six of the nine Leadership Competencies. While [ ] Brown rated “high” on the three leadership competencies that [the Special Agent in ...

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