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Pintro v. Pai

United States District Court, District of Columbia

August 14, 2017

LINDA PINTRO, Plaintiff,
v.
AJIT PAI, Chairman of the Federal Communications Commission, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON United States District Judge.

         The plaintiff, an African-American female of Haitian descent, filed this action against Ajit Pai in his official capacity as the Chairman of the Federal Communications Commission (“FCC”) for allegedly discriminating against her based on her race and national origin, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2 to -17 (2012) (“Title VII”). See Complaint (“Compl.”) ¶¶ 4, 26-31. Currently before the Court is the Defendant's Motion for Summary Judgment (“Def.'s Mot.”). Upon careful consideration of the parties' submissions, F[1] the Court concludes that it must deny the FCC's motion.

         I. BACKGROUND

         The plaintiff, F[2] an attorney, has been an FCC employee since 1996, Pl.'s Opp'n, Exhibit (“Ex.”) 1 (Declaration of Linda Pintro (“Pintro Decl.”)) ¶ 16, and a Senior Legal Advisor in the Strategic Analysis and Negotiations Division (the “Division”) of the FCC's International Bureau from 1999 until she filed her Complaint in 2013, id., Ex. 1 (Pintro Decl.) ¶ 20; Compl. ¶ 6. Kathryn O'Brien, the Chief of the Division, was the plaintiff's supervisor from 2003 through 2009. See Def.'s Facts ¶ 3.

         In early 2008, one of O'Brien's two Deputy Division Chief positions became vacant. See Pl.'s Opp'n, Ex. 8 (transcript of EEOC proceedings on May 11, 2012 (“May 11, 2012 Hearing Tr.”)) at 182. O'Brien sought permission from the Associate Bureau Chief for Administration to post a vacancy announcement for the Deputy Division Chief position, but was told that she “was not likely to get hiring authority to fill that position.” Id., Ex. 8 (May 11, 2012 Hearing Tr.) at 183. However, O'Brien and the Associate Bureau Chief for Administration agreed that she could fill the position “on an interim basis.” Id., Ex. 8 (May 11, 2012 Hearing Tr.) at 186. O'Brien then asked Robert Tanner, a white male who was an attorney-advisor for the Division, to serve as an Acting Deputy Division Chief on an interim basis. See Def.'s Facts ¶ 5; Compl. ¶ 17; Pl.'s Opp'n, Ex. 8 (May 11, 2012 Hearing Tr.) at 189. O'Brien “had [Tanner] in mind” when she received approval for the interim position, Pl.'s Opp'n, Ex. 8 (May 11, 2012 Hearing Tr.) at 186, and she did not consider the plaintiff for the position, see id., Ex. 8 (May 11, 2012 Hearing Tr.) at 193.

         Thereafter, the plaintiff filed a complaint of discrimination challenging her non-selection for the vacant Acting Deputy Division Chief position. See Def.'s Mot., Ex. B (Decision, EEOC No. 570-2009-00190X (Sept. 27, 2012) (“EEOC Decision”)) at 1. The complaint was assigned to an Equal Employment Opportunity Commission (“EEOC”) administrative law judge who, after conducting a hearing in which the plaintiff and five other witnesses testified, issued a decision in favor of the FCC. Id., Ex. B (EEOC Decision) at 1, 10.

         The plaintiff subsequently commenced this litigation, alleging discrimination based on Tanner's promotion and seven other internal promotion decisions. See Pintro v. Wheeler, 35 F.Supp.3d 47, 49 (D.D.C. 2014) (Walton, J.). Ruling on an earlier motion to dismiss filed by the FCC that the Court converted into a motion for summary judgment, the Court entered summary judgment in favor of the FCC regarding all of the promotional challenges raised by the plaintiff, with the exception of the Acting Deputy Division Chief position. See id. at 56.

         II. STANDARD OF REVIEW

         Courts will grant a motion for summary judgment under Federal Rule of Civil Procedure 56(c) “if the movant shows 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). 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

         Title VII protects federal employees from discrimination on the basis of race or national origin, among other protected 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). 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.

         However, where the defendant “has asserted a legitimate, nondiscriminatory reason” for the adverse employment action in the context of a summary judgment motion, this Circuit has held that “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 [or national origin].” Evans v. Sebelius, 716 F.3d 617, 620 (D.C. Cir. 2013) (quoting Brady, 520 F.3d at 494). “Because in appropriate cases a ‘factfinder's disbelief of the reasons put forward by the defendant' may support an inference of intentional discrimination, [the Circuit] do[es] not routinely require plaintiffs ‘to submit evidence over and above rebutting the employer's stated explanation in order to avoid summary judgment.'” Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012) (first quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993), then quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998)).

         Here, the FCC cites O'Brien's EEOC interview and hearing testimony as support for her decision not to appoint the plaintiff as an Acting Deputy Division Chief. See Def.'s Mem. at 5-7 (quoting Def.'s Mot., Ex. A (Interview of Kathryn O'Brien (“O'Brien Interview”)); Pl.'s Opp'n, Ex. 8 (May 11, 2012 Hearing Tr.)). During the EEOC hearing, O'Brien testified that the Division “ha[s] to be willing to sort of go with the flow, rearrange priorities, rearrange responses [sic] really on a day-to-day basis.” Pl.'s Opp'n, Ex. 8 (May 11, 2012 Hearing Tr.) at 178-79. O'Brien also stated in her interview that a Deputy Division Chief must be able to

manage up the chain to [the] bureau chief and up to . . . our commissioners and our chairman, [and] also help [O'Brien] manage the branch chiefs below and their staff, where necessary, and help push things through and be sensitive to [ ] the management needs at the different levels of review.

Def.'s Mot., Ex. A (O'Brien Interview) at 47.

         O'Brien testified that she did not consider the plaintiff for the Acting Deputy Division Chief position because

one of the main skill sets that [O'Brien] needed, and it's a real skill set, and not everybody has it[, ] is the ability to handle multiple issues at once and to have deadlines change and expectations change and input change, and you just have to sort of swallow that and do it, and [O'Brien] had observed through the time working with [the plaintiff] that that was not her strong suit, but [O'Brien] had observed in working with [ ] Tanner that he was very good at that.”

Pl.'s Opp'n, Ex. 8 (EEOC Hearing Tr.) at 193-94. O'Brien explained in her interview with the EEOC ...


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