United States District Court, District of Columbia
E. BOASBERG, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
“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,
firstname.lastname@example.org, 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
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.
Failure to Obtain 2014 NOM Promotion
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.
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).
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.
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.
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 ...