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Casselle v. Chao

United States District Court, District of Columbia

September 15, 2017

PERRY CASSELLE, Plaintiff,
v.
ELAINE L. CHAO, Secretary, U.S. Department of Transportation, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG, UNITED STATES DISTRICT JUDGE.

         Plaintiff Perry Casselle began working at the Federal Aviation Agency in 1988, and for almost two decades ascended steadily through the bureaucratic ranks. His upward trajectory was cut short, however, in 2014, when he was passed over for the job of National Operations Manager. Casselle, who is black, alleges in this suit that his non-selection for this position was both in retaliation for a complaint he made in 2010 and the result of racial discrimination. Defendant counters by asserting a nondiscriminatory rationale for its hiring decision - namely, a need to select candidates with experience in the FAA Command Center.

         In a prior Opinion, the Court dismissed Plaintiff's First Amendment claim against the relevant hiring official, Anthony Tisdall. See Casselle v. Foxx, 195 F.Supp.3d 270 (D.D.C. 2016). Defendant now moves for summary judgment on the remaining Title VII retaliation and discrimination counts. As to the former, the Court agrees that Casselle has failed to establish a genuine issue of material fact; although Plaintiff engaged in protected activity and suffered an adverse employment action, he has not presented evidence of any relationship between the two. As to the latter, conversely, the Court concludes that Casselle has submitted sufficient evidence to keep aloft his claim of racial discrimination. This count is cleared to proceed to trial.

         I. Background

         As required at summary judgment, the facts here are set forth in the light most favorable to Plaintiff. Perry Casselle has now worked at the Federal Aviation Agency for almost three decades. See ECF No. 34 (Amended Complaint), ¶¶ 2, 32; ECF No. 38 (MSJ), Attach. 2 (Def. Statement of Material Facts), ¶¶ 2, 3. By 2010, Casselle had become a Traffic Management Officer (TMO), a position in which he was responsible for overseeing all air traffic at the Detroit Metropolitan Wayne County Airport. See MSJ, Exh. A (Deposition of Perry Casselle) at 17:22-18:6. Four years later, however, Casselle was passed over for a job as a National Operations Manager (NOM). See DSMF, ¶ 49. This case concerns the circumstances of that hiring decision.

         A. 2010 Video

         Plaintiff alleges that his employment troubles began when a NOM named Mike Artist presented an allegedly offensive video at the October 2010 End of Season Meeting. Id., ¶¶ 52-56. The video, which was shown to an audience of 200 FAA managers and other personnel, was a 2002 Reebok commercial entitled “Terry Tate Takes a Vacation.” Id., ¶¶ 55-56. The commercial features former pro linebacker Lester Speight, who is black, as the character “Terrible Terry Tate, ” an overly zealous office worker who is finally forced to take a resort vacation. Id. Displeased by the prospect of lounging by the pool, the commercial shows Tate instead berating the hotel employees and threatening staff to do their jobs. As stated in the Complaint, Tate uses “threats, violence, and verbal abuse, ” kicks an employee lying on the ground, and, in one scene, “thrust[s] his pelvis and gesture[s] his hands toward his crotch . . . standing over the employee.” Am. Compl., ¶¶ 54-55.

         Casselle, “one of only a few African Americans” in attendance at the meeting, states that the audience “appeared to be shocked and offended by the video.” Id., ¶¶ 57-58; Exh. 6 (Plaintiff's Response to Interrogatory 3) at 8-9. Casselle certainly was. Two weeks after the showing of the Tate video, Casselle expressed his concerns in an email to Nancy Kalinowski, one of the FAA's vice presidents, on which he copied Ellen King, the Director of System Operations, and Fanny Rivera, who worked in the FAA's Civil Rights Office. See DSMF, ¶ 57. In his message, which was sent from his personal email address, arl.5308@aol.com, Plaintiff explained that he felt that the Terry Tate video was racist and unprofessional. Id., ¶¶ 58-59. The commercial, Casselle wrote, was “a clear reminder of the stereotypical big African American Athlete who cannot speak but is used only for his brute force and intimidation.” ECF No. 39 (Opposition to MSJ), Exh. 7 (Email Complaint) at 2. In particular, Casselle objected to the fact that Artist had, in what was seemingly a (failed) attempt at humor, associated the video with a recently retired NOM named Rico Short. Id. Short is also black, and Plaintiff took umbrage at Artist's suggestion that Short's behavior as a NOM resembled that of Terrible Terry Tate on his vacation rampage. Id. In contrast to Tate, Plaintiff wrote that Short was “professionally articulate in every meeting” and that “[n]ot once do I recall him ever bullying, cussing, or intimidating in order to make his point.” Id. Casselle also expressed his concern that the upper management at the FAA lacked racial diversity, concluding, “[S]hame on us if we allow the good old-boy network to remain alive [and] well.” Id. at 3. Casselle signed the email “Concerned FAA Manager” and intended for the complaint to be anonymous. Id.

         Four hours after Casselle sent his email, Kalinowski replied. See Email Compl. at 1. Addressing her response to “FAA Manager, ” Kalinowski began her email by thanking the author for the “very thoughtful note.” Id. She acknowledged that the video was “offensive, ” apologized for its showing, and offered her assurances that “we will take [the complaint] very seriously.” Id. In response to Casselle's remarks regarding the diversity of the FAA Command Center, Kalinowski stated that it was “an area that we are actively addressing” and wrote that the Center was “looking for diverse candidates with various backgrounds to fill vacancies” and would “continue our outreach to be even more representative.” Id. In addition to sending her response to Casselle, Kalinowski coped Ellen King, Fanny Rivera, Maria Fernandez-Greczmiel, the chair of the Accountability Board, and Pilar Madera, the Director of Administration. Id.; MSJ, Exh. S (Deposition of Nancy Kalinowski) at 20:8-19. At the time, Casselle was “satisfied with the response” to his email complaint. See MSJ, Exh. B (Deposition of Perry Casselle) at 126:6-16.

         B. Failure to Obtain 2014 NOM Promotion

         Four years after the Terrible Terry Tate incident, Casselle applied to become a NOM. See DSMF, ¶ 8; Casselle Depo. at 174:17-175:8. NOMs are responsible for “air traffic operations . . . throughout [the FAA] system across the entire country.” MSJ, Exh. Z (Deposition of Johnnie Garza) at 25:12-15. Although NOMs receive the same base salary as TMOs, Casselle's position at the time, the NOM position is higher profile and more desirable. See Casselle Depo. at 5. There are only four to six NOMs in the entire FAA, and, according to Casselle, NOMs often go on to have additional opportunities both within the government and the private sector. See MSJ, Exh. D (Deposition of Anthony Tisdall) at 22:5-6, 23:21-24:12. As a result, when two open NOM positions were posted in April 2014, Casselle was eager to apply.

         The FAA received 46 applications for the NOM posting, which were each evaluated by the FAA's Human Resources department. See DSMF, ¶ 12. The candidates were given numerical scores based on their responses to Knowledge, Skills, and Abilities (KSA) questions, relevant experience, and supervisor recommendations. Id., ¶¶ 14-16. From these assessments, eleven applicants were eventually selected to be interviewed by a panel. See Tisdall Depo. at 75:18-20. Although there were two black candidates in the initial pool of 46, Casselle was the only black applicant interviewed by the panel. See Opp., Exh. 12 (Referral List Summary). Totaling all of the quantitative assessments, Casselle received the second-highest cumulative score. Id. at 20; Opp., Exh. 13 (Review of Candidates Application Packages).

         In June 2014, the FAA official in charge of hiring, Anthony Tisdall, offered the NOM positions to Michael Richardson, a white male who had the highest total score on the quantitative assessments, and to Jay Clark, a white male who had the third-highest score. See DSMF, ¶¶ 30-36; Tisdall Depo. at 76:21-77:4. That same month, both Richardson and Clark declined these offers. See DSMF, ¶¶ 32, 36. Three months later, in September 2014, Casselle was notified that he was not selected as a NOM. See Casselle Decl. at 2. Instead, Tisdall had hired Patrick Somersall and had promoted Joe Varrati from a temporary to a permanent NOM position. See Tisdall Depo. at 83:11-15, 20-21. Both Somersall and Varrati are white, and both scored significantly lower than Casselle on the various quantitative assessments. See Opp., Exh. 13 (Review of Candidates' Application Packages); Opp., Exh. 18 (Supervisor Recommendation Scores); Opp., Exh. 19 (Scoring Matrix); Referral List Summary. Somersall and Varrati, however, had each previously worked in the FAA's central Command Center, while Casselle did not have such prior experience. See Tisdall Depo. at 98:7-9.

         C. Procedural History

         After having been informed of his non-selection as a NOM, Casselle contacted a counselor with the Department of Transportation Equal Employment Opportunity Division, alleging racial discrimination and retaliation. See Am. Compl., ¶ 18. The parties attempted to resolve the allegations in mediation and dispute whether or not, over the course of those negotiations, Plaintiff was ultimately offered a permanent NOM position. See Casselle Depo. at 226:3-11; MSJ at 10-11 Eventually, however, Casselle withdrew from the mediation process and, on January 14, 2015, he filed a formal complaint with DOT. See Am. Comp., ¶ 20. Having administratively exhausted his claims through DOT's EEO procedures, Casselle filed his Complaint in this Court on September 25, 2015, which he amended on March 22, 2016. Id., ¶¶ 18-23. Plaintiff's Amended Complaint alleged: (1) Racial discrimination under Title VII against the FAA; (2) Unlawful retaliation under Title VII against the FAA; and (3) Violations of the First Amendment against Anthony Tisdall. Defendant subsequently brought a motion to dismiss the third count, which this Court granted in its prior Opinion. See Casselle v. Foxx, 195 F.Supp.3d 270 (D.D.C. 2016). What remains are Plaintiff's allegations of racial discrimination and retaliation in violation of Title VII. See Am. Compl., ¶¶ 13-14. The FAA now moves for summary judgment on both counts. See ECF No. 38.

         II. Legal Standard

         Summary judgment may be granted 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in ...


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