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Dunning v. Ware

United States District Court, District of Columbia

May 22, 2017

NANCY M. WARE, Director Court Services and Offender Supervision Agency, Defendant.

          MEMORANDUM OPINION (MAY 21, 2017) [#36]


         Plaintiff, 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.


         Dunning 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.

         In May 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.

         The 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 Confirmation Letter).

         In June 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].


         Defendant 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."[1] Id. a 248; see also Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996).


         At the 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 claims.").

         Defendant's 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.

         Defendant 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 29:5-29:14.

         Unfortunately 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 ...

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