United States District Court, District of Columbia
LEONARD E. DUNNING Plaintiff,
NANCY M. WARE, Director Court Services and Offender Supervision Agency, Defendant.
MEMORANDUM OPINION (MAY 21, 2017) [#36]
RICHARD J. LEON, UNITED STATES DISTRICT JUDGE
Leonard E. Dunning ("Dunning" or "plaintiff),
filed the instant action alleging that defendant, Nancy M.
Ware ("Ware" or "defendant"), in her
capacity as director of the Court Services and Offender
Supervision Agency ("CSOSA" or "the
Agency") for the District of Columbia, discriminated
against him in violation of the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. § 621 et
seq., and Title VII of the Civil Rights Act of 1964
("Title VII"), 42 U.S.C. § 2000e et seq.,
respectively. Specifically, plaintiff alleges that CSOSA
discriminated against him on the basis of his age when he was
not selected for the position of Supervisory Offender
Processing Specialist. This matter is now before the Court on
Defendant's Motion for Summary Judgment [Dkt. #36]. Upon
consideration of the parties' submissions and the entire
record herein, defendant's motion is GRANTED and
plaintiffs case will be DISMISSED with prejudice.
has been employed by the CSOSA since 1996, and at all times
relevant to the Complaint was over forty years of age.
See Pl's Dep. at 17:9-21; Compl. ¶ 11.
Generally, plaintiff alleges that he applied, but was not
selected, for a position as Supervisory Offender Processing
Specialist because of his age. See Compl. ¶
19-21. He brings this action under Title VII and the ADEA.
Id. ¶ 1.
2009, CSOSA posted a vacancy announcement for a GS-0101-12
Supervisory Offender Processing Specialist position.
Id. at ¶ 9; Pl's Resp. in Opp. to Mot. for
Summ. J. ("Pl's Resp."), Ex. 2 (Job
Announcement). Plaintiff submitted an application for the
position. See Compl. ¶ 10. Plaintiff and six
other candidates were selected for interviews for this
position. See Compl., Ex. 7, Affidavit of William
Thomas Ashe ("Ashe Affidavit") at 20. All seven
candidates were given a series of interview questions and
were rated by a three-person interview panel. See
Compl., Ex. 10, Affidavit of Aprille Cole ("Cole
Affidavit") at 31. The candidates' responses were
graded on a preselected scale, with a numerical score for
each question, and a maximum score of 60. See
Compl., Ex. 9, Affidavit of Elizabeth Powell ("Powell
Affidavit") at 26; Ashe Affidavit at 21.
candidate who attained the highest score on the interview
questions was Neville Campbell-Adams
("Campbell-Adams"), with a score of 40 out of 60.
See Ashe Case 1:13-cv-00959-RJL Document 48 Filed
05/22/17 Page 3 of 8 Affidavit at 21. The second highest
scoring candidate was Roselyn Brown ("Brown"), who
scored 39 out of 60. Id. Plaintiff scored 19 out of
60, which placed him as the sixth highest scoring candidate
out of seven applicants. Id. at 20. Defendant
ultimately selected Campbell-Adams, the highest scoring
candidate, for the vacant position. See Cole
Affidavit at 31; Pl's Resp., Ex. 1 (Job Offer
of 2013, Dunning filed a complaint against Ware, alleging age
discrimination and retaliation for protected employment
actions in violation of Title VII and the ADEA. Specifically,
plaintiff alleged that his non-promotion was motivated by
either age discrimination, or by a desire to retaliate
against him for filing two prior discrimination complaints
against his employer in 2001 and 2003. Compl. ¶¶
19-21. He also alleged that defendant engaged in preselection
of Campbell-Adams, before he ever applied for the vacant
position, in a direct attempt to discriminate against
plaintiff based on his age. See Id. Defendant moved
to dismiss plaintiffs retaliation claims on the ground that
plaintiff did not exhaust his administrative remedies.
See Def.'s Partial Mot. to Dismiss [Dkt. # 9];
Mem. of P. & A. in Supp. of Def.'s Partial Mot. to
Dismiss ("Def.'s Mem.") [Dkt. # 9-1]. On
February 7, 2014, this Court granted defendant's motion
and dismissed plaintiffs retaliation claims for failure to
exhaust. See Mem. Order [Dkt. #12]. Presently before
the Court is Defendant's Motion for Summary Judgment on
plaintiffs remaining claims [Dkt. # 36].
moves for summary judgment pursuant to Federal Rule of Civil
Procedure 56. Under Rule 56, summary judgment shall be
granted when the record demonstrates "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); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). In deciding whether there is a disputed
issue of material fact, the Court must draw all reasonable
inferences in favor of the non-moving party. See Anderson
v. Liberty Lobby, Inc., Ml U.S. 242, 255 (1986). Where
the court finds that facts material to the outcome of the
case are at issue, a case may not be disposed of by summary
judgment. Id. at 248. If, however, the facts in
dispute are "merely colorable, or . . . not
significantly probative, summary judgment may be
granted." Id. at 249-50 (internal citations
omitted). A party opposing a motion for summary judgment
"may not rest upon the mere allegations or denials of
his pleading, but. . . must set forth specific facts showing
that there is a genuine issue for trial." Id. a
248; see also Jackson v. Finnegan, Henderson, Farabow,
Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir.
summary judgment stage, where "an employee has suffered
an adverse employment action and an employer has asserted a
legitimate, non-discriminatory reason for the decision, the
district 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 resolve one central question:
"Has the employee produced sufficient evidence for a
reasonable jury to find that the employer's asserted
non-discriminatory reason was not the actual reason and that
the employer intentionally discriminated against the employee
on the basis of race, color, religion, sex, or national
origin?" Id. The same approach applies in the
context of age discrimination. See Barnett v. PA
Consulting Group, Inc., 715 F.3d 354, 358 (D.C. Cir.
2013) ("We consider [plaintiffs] age and sex
discrimination claims in the same way we analyze Title VII
burden on the issue of pretext is only one of production;
defendant "need not persuade the court that [she] was
actually motivated by the proffered reasons." Texas
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254
(1981). Plaintiff, however, "retains the burden of
persuasion. ... to demonstrate that the proffered reason was
not the true reason for the employment decision."
Id. at 256. Plaintiff may establish pretext either
"directly by persuading the court that a discriminatory
reason more likely motivated the employer[, ] or indirectly
by showing that the employer's proffered explanation is
unworthy of credence." Id.
here submits that the interview panel simply selected the
highest scoring candidate for the vacant position, and that
this justification satisfies her burden of asserting a
non-discriminatory reason for the Agency's hiring
decision. See Def.'s Mem. at 7. In particular,
she identifies Campbell-Adams' supervisory experience as
one of the reasons why he scored the highest in his
interview. See Id. at 8; Ashe Affidavit at 21
("The panel members agreed that Mr.
Campbell-Adams['] interview was more impressive to the
panel because he elaborated on more than just his job duties
and work experience and this enhanced his competitiveness for
a supervisory position."). Dunning, on the other hand,
had no supervisory experience in his position as an offender
processing specialist. See Dunning Dep. at
for plaintiff, he provides no evidence to refute
defendant's argument. To the contrary, in his deposition,
Dunning conceded that he was not present for the other
candidates' interviews and could not attest to the other
candidates' performance. See Dunning Dep. at
54:5-54:21. Additionally, he acknowledged that he had no
supervisory experience in his role as an offender processing
specialist. See Id. at 29:5-29:14. And he also
conceded that ...