United States District Court, District of Columbia
RANDOLPH D. MOSS United States District Judge
Patricia Kilby-Robb was passed over for a promotion at the
Department of Education in 2011. She then sued the
Department, alleging unlawful discrimination on the bases of
age, race, and color, as well as unlawful retaliation, all in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”) and the Age Discrimination in
Employment Act of 1967 (“ADEA”). The parties have
since completed discovery. Because Kilby-Robb has adduced no
competent evidence that her nonselection occurred for
discriminatory or retaliatory reasons, the Court will GRANT
the Department's motion for summary judgment.
Kilby-Robb's Employment at the Department Prior to
who is African-American, has worked as an Education Program
Specialist at the Department of Education since June 2000.
Dkt. 24 at 3 (Def's Statement of Undisputed Material
Facts (“SUMF”) ¶ 2). She was fifty-two years
old when she began. See Dkt. 27 at 3. Between 2000
and 2002, she worked in the Department's Office of
Elementary and Secondary Education, after which she was
transferred to the Office of Innovation and Improvement
(“OII”). Dkt. 24 at 3 (Def.'s SUMF ¶ 2).
The OII is charged with administering certain discretionary
educational grant programs, including the Parental
Information Resource Centers (“PIRC”) program and
the Charter Schools Program (“CSP”). Id.
(Def.'s SUMF ¶¶ 1, 2). Kilby-Robb worked in the
PIRC program between 2002 and 2009, and the CSP from 2009
through the relevant events in 2011. Id. (Def.'s
SUMF ¶ 2). She retained the same job title (Education
Program Specialist) and the same pay grade (GS-13, step 10)
throughout her time at the Department. Dkt. 27-2 at 3
(Kilby-Robb Decl. ¶ 2).
2002 and August 2010, Kilby-Robb filed five equal employment
opportunity (“EEO”) complaints against the
Department, generating substantial litigation. Dkt. 27-2 at
25; see Kilby-Robb v. DeVos, No. 14-cv-2200 (TSC)
(D.D.C. Mar. 30, 2017) (slip op.) (granting summary judgment
for the Department on all claims); Kilby-Robb v.
Duncan, --- F.Supp.3d ---, 2016 WL 5415616 (D.D.C. Sept.
28, 2016) (granting summary judgment for the Department on
all claims); Kilby-Robb v. Duncan, 77 F.Supp.3d 164
(D.D.C. 2015) (granting summary judgment for the Department
on race and age discrimination nonselection claims and
denying summary judgment on retaliation claims);
Kilby-Robb v. Spellings, 522 F.Supp.2d 148 (D.D.C.
2007) (granting summary judgment for the Department on all
claims), aff'd, 309 Fed.App'x 422 (D.C. Cir.
2009). The factual bases for those complaints, however, are
not present in the record.
in the record is Kilby-Robb's sworn testimony (in the
form of verified interrogatory responses and a declaration),
in which she says that she was “plainly targeted”
by the Associate Assistant Deputy Secretary for OII, Margo
Anderson. Dkt. 27-2 at 16 (Kilby-Robb Resp. to Interr. No.
5); see also Dkt. 27-2 at 2-6 (Kilby-Robb Decl.).
Anderson, who is a Caucasian woman above the age of forty,
served as Kilby-Robb's second-line supervisor
(i.e., the supervisor of Kilby-Robb's
supervisor), Dkt. 24 at 4 (Def.'s SUMF ¶ 4), and
“was the authorizing authority for which positions are
advertised to hire or promote an employee” in OII. Dkt.
27-2 at 3 (Kilby-Robb Decl. ¶ 6).
to Kilby-Robb, Anderson “consistently” passed
over her for promotions “in favor of younger, Caucasian
employees” whom Kilby-Robb views as less qualified than
herself. Dkt. 27-2 at 14 (Kilby-Robb Resp. to Interr. No. 5).
Kilby-Robb lists four such employees as examples, see Id
. at 14-15, but does not elaborate on their relative
qualifications. Kilby-Robb does say, however, that four of
her first-line supervisors told her at various points between
2003 and 2011 that Anderson “said she would never
promote [Kilby-Robb]” and that, during a meeting to
discuss her 2007-2008 performance evaluation,
Kilby-Robb's first-line manager said that Anderson
“hates” her. Dkt. 27-2 at 4 (Kilby-Robb Decl.
argues in her brief that Anderson and her
“subordinates” made “several statements
demonstrating their discriminatory biases.” Dkt. 27 at
5. In Kilby-Robb's declaration and interrogatory
responses, she recounts the following incidents, which she
asserts provide relevant background for her current claims:
(1) In 2002, Anderson told the union steward, Shelton Allen,
that “certain African-Americans should not have been
promoted, particularly a certain African-American male who[m]
[Anderson] did not like.” Dkt. 27-2 at 15-16
(Kilby-Robb Resp. to Interr. No. 5). In response, Allen
“became agitated and called . . . Anderson
racist.” Id. Kilby-Robb does not explain how
she has personal knowledge of this incident. See id.
(2) On another unspecified occasion, several African-American
men whom Anderson had passed over for promotion confronted
Anderson, and Anderson “stated that there were
African-American males that did not deserve to be
promoted.” Dkt. 27-2 at 15 (Kilby- Robb Resp. to
Interr. No. 5). Kilby-Robb does not explain how she has
personal knowledge of this incident, either. See id.
(3) During a meeting in 2004, Kilby-Robb heard one of
Anderson's subordinates state that the subordinate
“would hire African-American males if [the subordinate]
could find any who were competent.” Dkt. 27-2 at 4
(Kilby-Robb Decl. ¶ 7). Anderson said nothing to refute
the statement. Id.
(4) In December 2004, Nina Rees, an Associate Deputy
Secretary, told Kilby-Robb that Kilby-Robb “should have
been ‘fired' for filing an EEO
complaint.” Dkt. 27-2 at 4 (Kilby-Robb Decl. ¶
(5) Also in December 2004, Kilby-Robb's then-first-line
supervisor, John Fiegel, told her that he “want[ed]
[her] out of [his] program.” Dkt. 27-2 at 4 (Kilby-Robb
Decl. ¶ 9). Kilby-Robb does not state why she believes
this statement had a discriminatory or retaliatory motive.
(6) On an unspecified date, Fiegel told Kilby-Robb that
“he had previously planned to submit a request for
payment on [her] behalf for [her] service as an ‘acting
team leader, '” but that “he was no longer
going to submit this request because [she] had filed an EEO
case.” Dkt. 27-2 at 4 (Kilby-Robb Decl. ¶ 9).
(7) On another unspecified date, an Assistant Associate
Deputy Secretary for OII, Michael Petrilli, called Kilby-Robb
to his office for a meeting and “stated, in reference
to [her] EEO complaint, ‘You have been a manager, and
you know what is happening to you, don't you?'”
Dkt. 27-2 at 4 (Kilby-Robb Decl. ¶ 9). Kilby-Robb adds
that Petrilli “told [her] that [she] had to do what
Macie Brown, Stacy Kreppel, and Courtney Phillips told [her]
to do, ” id., but Kilby-Robb does not specify
who those individuals are or what they “told her to
2009, Kilby-Robb was transferred to the CSP office, where her
first-line supervisor was initially Dean Kern. Dkt. 27-2 at
14 (Kilby-Robb Resp. to Interr. No. 5). Kern had previously
been one of Kilby-Robb's peers, but had been promoted
over her to the position of Director of the CSP. Id.
Kilby-Robb states that she “was the only person
assigned to be supervised by” Kern, that Kern
“immediately removed all of [her] higher level duties,
” and that Kern “worked closely with . . .
Anderson to attempt to get rid of [her].” Id.
Kilby-Robb declares “on information and belief that
Kern and his successor, Scott Pearson, “refused to
assign [Kilby-Robb] CSP grants to prevent [her] from
receiving a promotion in the CSP.” Dkt. 27-2 at 4-5
(Kilby-Robb Decl. ¶ 10).
The 2011 SMPA Vacancy Announcement
2011, Stefan Huh, an Asian/Caucasian man over forty, became a
Supervisory Management and Program Analyst
(“SMPA”) in the CSP office. Dkt. 24 at 4
(Def's SUMF ¶ 3). Shortly thereafter, Huh decided to
create a new SMPA position, whose occupant would share his
responsibilities. Dkt. 24 at 4 (Def's SUMF ¶ 8);
Dkt. 24-1 at 47-49 (Hsu Aff ¶¶ 18, 28, 30). Because
Huh was relatively new to the agency, the OII's Executive
Officer, Pat Knight, “discuss[ed] with him the
selection process and the possible forms he could use.”
Dkt. 24-2 at 11 (Knight Aff. ¶ 10). Knight did not,
however, “discuss the selection [itself] or [any]
applicants.” Id. Huh attests that neither
Anderson nor Knight “influenced . . . or
contacted” him regarding the position; rather, they
merely “reinforced the need and expectation that there
would be an appropriate and fair interview process.”
Dkt. 24-1 at 47 (Huh Aff. ¶ 18); accord Dkt.
24-2 at 3 (Anderson Aff. ¶¶ 9-14) (“I was not
involved in any way with the selection for this
position.”); id. at 11 (Knight Aff.
¶¶ 9-13) (“I did not try to influence the
selection for this position in any way.”); see also
Id . at 20 (Araujo Aff. ¶¶ 14-15);
id. at 31 (Ceja Aff. ¶¶ 14-15). According
to Huh, “[p]osting and designing the position was all
at [his] discretion and under [his] control.” Dkt. 24-1
at 47 (Huh Aff. ¶ 18).
SMPA position was listed in a public vacancy announcement
from September 9, 2011, to September 16, 2011. Dkt. 24 at 5
(Def.'s SUMF ¶ 11); see Dkt. 24-3 at 2-4.
It carried a GS-14 pay grade. Dkt. 24-3 at 2. According to
the announcement, the position was established to help
“oversee key grant programs and contracts, ”
“supervise employees, ” and analyze both the
effectiveness and efficiency of general CSP programs and
management. Id. The announcement emphasized that the
hiree would oversee the grant programs for “state
education agencies” (“SEAs”),
non-SEAs, and Charter School Management Organizations
(“CMOs”). Id. The hiree would also
“oversee and implement” the “National
Charter Schools Resource contract.” Id. In
service of this last requirement, the hiree would have to be
certified as a “contracting officer representative,
” or “COR.” Id.
official job description listed specific “unique
1. Oversee the following Charter School grant programs . . .:
SEA, Non-SEA, CMO. This involves the following . .
a. Direct and oversee all activities for the program
grant competitions and awarding of grants including:
drafting federal register notices; creating application
packages; drafting technical review plans; overseeing
competition management and panel facilitation; completing
internal review; analyzing applicant budgets and determining
any budget modifications; drafting a slate memo for
Departmental clearance; processing awards; and communicating
with approved and disapproved applicants.
b. Direct and oversee the monitoring of grants,
including interacting with current prospective grantees and
responding to their concerns and questions; conducting
post-award calls; conducting quarterly monitoring updates;
updating G5 accounts and spreadsheets; consulting with OGC as
questions arise; and tracking grantee responsiveness to our
monitoring visits and reviews.
c. Direct and oversee the process to award the
noncompetitive grant continuation awards including
reviewing budgets and grant drawdowns and preparing
continuation recommendations; 2. Supervise and manage at
least three employees, taking responsibility for
assisting them achieve their professional objectives;
providing oversight, coaching, feedback, and assistance on a
regular basis; setting REACH critical elements and
performance standards; providing interim and year-end
evaluations, and addressing any conduct or performance
3. [O]versee implementation of the National Charter
Schools Resource Center contract including developing
the contract's annual modifications, providing weekly
guidance to the contractor on the execution of the contract;
overseeing implementation of the major elements of the
contract; reviewing budgets and expenditures to ensure
efficient use of federal funds. A certified COR is required.
4. Represent the program to stakeholders and outside
constituencies, including leading project director's
meetings, providing first- or second-level responses to
grantees, communicating with outside parties, and
representing the Department before stakeholder groups.
Dkt. 24-4 at 8-9 (emphases added). Kilby-Robb states in her
declaration that the vacancy announcement “did not use
the standard elements for ‘Grants Management' and
‘COR' duties and responsibilities, which are
typically used for [SMPA] positions.” Dkt. 27-2 at 5
(Kilby-Robb Decl. ¶ 11).
Human Resources department identified two employees whom it
“deemed to be qualified”: (1) Kilby-Robb, who was
then sixty-three years old, and (2) Erin Pfeltz, a
thirty-two-year-old Caucasian woman with no prior EEO
activity. Dkt. 24-1 at 45 (Huh Aff ¶ 10);
accord Dkt. 24 at 6 (Def's SUMF ¶¶ 17,
18). Both candidates were selected for interviews.