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Kilby-Robb v. Devos

United States District Court, District of Columbia

March 30, 2017

PATRICIA KILBY-ROBB, Plaintiff,
v.
ELISABETH DEVOS, Secretary, U.S. Department of Education, Defendant.

          MEMORANDUM OPINION

          RANDOLPH D. MOSS United States District Judge

         Plaintiff 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.

         I. BACKGROUND

         A. Kilby-Robb's Employment at the Department Prior to 2011

         Kilby-Robb, 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).

         Between 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.

         What is 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).

         According 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. ¶ 8).

         Kilby-Robb 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.”[1] Dkt. 27-2 at 4 (Kilby-Robb Decl. ¶ 9).
(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. See id.
(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 do.”

         In 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).

         B. The 2011 SMPA Vacancy Announcement

         In June 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).

         The new 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”), [2] 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.

         The official job description listed specific “unique position requirements”:

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 issues.
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).

         C. Kilby-Robb's Nonselection

         The 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.

         1. Kilby-Robb' ...


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