United States District Court, District of Columbia
B. WALTON United States District Judge.
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,
the Court concludes that it must deny the FCC's motion.
plaintiff, F 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.
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.)
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.
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.
STANDARD OF REVIEW
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).
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.
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.
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)).
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.
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