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Elliott v. Acosta

United States District Court, District of Columbia

January 26, 2018

R. ALEXANDER ACOSTA, [1] Secretary, United States Department of Labor, Defendant.


          RUDOLPH CONTRERAS United States District Judge.


         Plaintiff Kenneth Elliott, an African American male and an employee of the U.S. Department of Labor (“DOL”), alleges that DOL discriminated against him on the basis of race and/or sex when it failed to select him for three separate promotions. DOL moves for summary judgment, offering qualification-based explanations for each hiring decision. While DOL is entitled to summary judgment with respect to two of the hiring decisions, the Court finds that DOL improperly destroyed interview notes that corroborate its rationale for the one remaining decision, that Plaintiff is entitled to an inference that the notes would have contained information favorable to his claim, and that his claim regarding that position survives DOL's motion. Accordingly, the Court grants in part and denies in part DOL's motion.


         Plaintiff Kenneth Elliott has been a Labor Economist in the DOL's Bureau of Labor Statistics (“BLS”), Office of Compensation and Working Conditions since March 1992. EEO Affidavit of Kenneth Elliott (“Elliott Aff.”) at 2, Ex. E, ECF No. 18-2. He is currently employed at the GS-13 grade level. Elliott Aff. at 2.

         In March 2014, the BLS, Office of Compensation and Working Conditions, Office of Compensation Levels and Trends (“OCLT”) posted Vacancy Announcement No. MS-14-BLS-CW-018, which advertised two GS-14 positions: the position of Branch Chief for Survey Information and Publications (“Branch Chief for SI&P”) in the Division of Compensation Data Analysis and Planning and the position of Branch Chief for Data Capture and Review (“Branch Chief for DCR”) in the Division of Compensation Data Estimation. Ex. A, ECF No. 18-2. The BLS Division of Human Resources and Organization Management prepared a single certificate of eligible candidates covering both vacancies. Affidavit of Phillip Doyle, (“Doyle Aff.”) at 3, Ex. B, ECF No. 18-2. Mr. Elliott applied for and was deemed eligible for both positions. See Elliott Aff. at 3.

         Phillip Doyle-a white man who was then Assistant Commissioner for OCLT-was involved in selecting candidates for the Branch Chief for SI&P position while Frances Harris- an African American woman who is Division Chief of Compensation and Data Estimation in OCLT-was involved in selecting candidates for the Branch Chief for DCR position. Doyle Aff. at 1-2; Affidavit of Frances Harris (“Harris Aff.”), at 2-3, Ex. C, ECF No. 18-2. Mr. Doyle and Ms. Harris each independently reviewed the list of eligible applicants to identify candidates to jointly interview. Doyle Aff. at 4. Mr. Doyle and Ms. Harris also jointly prepared interview questions to ask all candidates. Doyle Aff. at 4; Affidavit of Frances Harris (“Harris Aff.”) at 3, Ex. C, ECF No. 18-2. Likewise, Mr. Doyle and Ms. Harris conducted interviews together and discussed reactions to the candidates after the interviews. Doyle Aff. at 3; Harris Aff. at 2, 8.

         Thirteen or fourteen individuals interviewed with Ms. Harris and Mr. Doyle. Doyle Aff. at 11 (listing fourteen interviewees); Harris Aff. at 10 (listing thirteen interviewees). Of the candidates, Mr. Doyle selected Jesus Ranon-Hernandez, a Hispanic male, for the position for Branch Chief for SI&P. Doyle Aff. at 12; Pl.'s Statement of Material Facts in Dispute (“Pl.'s SMF”) ¶ 22. According to Mr. Doyle, Mr. Ranon-Hernandez was selected based on his superior interview. In his interview, Mr. Ranon-Hernandez “demonstrated his ability to juggle multiple projects by citing examples from his current position and during a previous assignment [in OCLT], ” “provided details of the types of projects he coordinated and the challenges they presented, ” and “used a role-playing strategy to demonstrate how he would coach and mentor an employee.” Doyle Aff. at 12. Mr. Ranon-Hernandez also explained the challenges he faced as a new employee in another BLS office and explained how he worked with BLS staff to resolve problems, gain the confidence of others, and encourage the development of junior staff. Doyle Aff. at 12. In addition, Mr. Ranon-Hernandez described what Mr. Doyle regarded as a “low-key approach to dealing with conflict that included non-confrontational fact-finding and an emphasis on problem resolution.” Doyle Aff. at 12.

         Though Mr. Doyle observed that “to varying degrees” Mr. Elliott met most of the requirements for the Branch Chief of SI&P position, Mr. Doyle described Mr. Elliott's interview in less than glowing terms and inferior to that of Mr. Ranon-Hernandez. According to Mr. Doyle, Mr. Elliott demonstrated only “some ability to juggle conflicting assignments” and only “for limited periods.” Doyle Aff. at 10. Likewise, according to Mr. Doyle, Mr. Elliott failed to “demonstrate how he would coach and mentor an employee.” Doyle Aff. at 10. In Mr. Doyle's opinion, Mr. Elliott's response to a hypothetical conflict situation “provided little detail.” Doyle Aff. at 10. In addition, Mr. Doyle was surprised to hear Mr. Elliott mention during the interview his “past performance [and] past conduct issues, ” such as his attendance issues and his non-completion of a BLS leadership development program. Doyle Dep., Ex. 7 at 59:15-60:8.

         After Mr. Doyle had “made [his] selection decision to choose Jesus Ranon-Hernandez, ” he reports that he had a discussion with Mr. William Wiatrowski, Associate Commissioner, Senior Executive Service at BLS and Mr. Doyle's immediate superior. Doyle Aff. at 8; Affidavit of William J. Wiatrowski (“Wiatrowski Aff.”) at 2, Ex. 8, ECF No. 22-10. Mr. Doyle states that he “informed Mr. Wiatrowski about the reasons that [he] had chosen Mr. Ranon-Hernandez, ” but he “did not discuss with Mr. Wiatrowski the reasons that [he] did not choose the other candidates who were interviewed.” Doyle Aff. at 8. According to Mr. Doyle, “Mr. Wiatrowski did not have any objections to [the] selection decision and he concurred with it.” Doyle Aff. at 8.

         Of the candidates interviewed for the position of Branch Chief for DCR, Ms. Harris selected Neil McIntyre, a white man. Harris Aff. at 10. According to Ms. Harris, Mr. McIntyre was selected because, among other things, he was “a seasoned team leader engaged in day-to-day production for nearly 15 years.” Harris Aff. at 12. Ms. Harris also reportedly valued that Mr. McIntyre had “both broad and specific, current and historical knowledge of review processes, systems, and tools, ” and that “he has leveraged this knowledge.” Harris Aff. at 12. In addition, Mr. McIntyre “focuse[d] on building a team, leverage[d] the unique strengths of each team member, and s[ought] opportunities to coach, mentor, direct, and empower[] the team as a whole to higher performance.” Harris Aff. at 12. Ms. Harris observed that Mr. McIntyre had “long standing experience leading and developing larger teams consisting of eight to ten staff employees.” Harris Aff. at 12. By contrast, Ms. Harris reportedly believed that Mr. Elliott had “dated” knowledge of certain subjects. Harris Aff. at 12. She also found that while “Mr. McIntrye focused attention on building, guiding, bringing together, collaborating, and leading people to success, ” “Mr. Elliott mainly focused on how he individually accomplished assigned tasks, but did not present thorough examples which demonstrated his ability to collaborate with and develop the skills of other staff members.” Harris Aff. at 12-13. Furthermore, in his interview, Mr. Elliott “did not note extensive or recent familiarity with all the relevant production processes” and “did not provide answers that reflected the desired experience with team development” or “highlight achievements that reflected his ability to manage others to achieve results.” Harris Aff. at 9.

         Like Mr. Doyle, Ms. Harris consulted with others before extending Mr. McIntyre an offer of employment. Specifically, Ms. Harris shared her top two candidates with Mr. Doyle, who was Ms. Harris's immediate supervisor. Harris Aff. at 7. However, according to Ms. Harris, “Mr. Doyle had no input on [her] consideration of [Mr. Elliott] or any other candidate.” Harris Aff. at 8. Ms. Harris also presented Mr. Wiatrowski-her second-line supervisor-with a proposed justification document, which clarified the reasons that she had selected Mr. McIntyre. Wiatrowski Dep. 51:13-52:11, Ex. 4, ECF No. 22-6. By email, Ms. Harris requested “any comments or suggested changes” on the justification document. Wiatrowski Dep. 51:17-52:1; see also Wiatrowski Dep. 59:2-14 (acknowledging that, under DOL's selection process Ms. Harris officially “ma[d]e a recommendation to [Mr.] Doyle, [Mr.] Doyle ha[d] a discussion with [Mr. Wiatrowki], [then] it [was] signed off by the commissioner”). Mr. Elliott learned of his non-selection for both positions in May 2014. See Elliott Aff. at 7.

         That same month, the BLS posted Vacancy Announcement No. MS-14-BLS-CW-062, which advertised the position of Branch Chief for Procedures and Program Development (“Branch Chief for PPD”) in the OCLT's Division of Compensation Data Analysis and Planning. Ex. K, ECF No. 18-3. Mr. Elliott applied for and was deemed eligible for the position. Elliott Aff. at 10-11. Bryandt Dickerson, an African American woman and a Supervisory Economist at the GS-15 level, received the certificate of eligible candidates and conducted all nine interviews for the position. Elliott Aff. at 10; Affidavit of Bryandt Dickerson (“Dickerson Aff.”) at 1-2, 12, 17, Ex. M, ECF No. 18-3. Of the candidates, Ms. Dickerson selected Renee Marshall and did not select Mr. Elliott. Dickerson Aff. at 14. Ms. Dickerson offered that she did not select Mr. Elliott because he lacked recent economic survey experience, which she gleaned because during his interview Mr. Elliott seemed unable to provide her with examples of his experience working with recent survey data. Dickerson Aff. at 14; Dickerson Dep., 61:18-63:4, 65:21-66:5, Ex. N, ECF No. 18-4. According to Ms. Dickerson, “[a]fter [she] made [her] selection decision, ” she shared her reasons for selecting Ms. Marshall with Mr. Doyle and Mr. Wiatrowski, two supervisors in her chain of command. Dickerson Aff. at 14. However, her “discussions with Mr. Doyle and Mr. Wiatrowski did not positively or adversely impact [Mr. Elliott's] non-selection for the position.” Dickerson Aff. at 14.

         Mr. Elliott initiated the EEO complaint process on May 9, 2014. Compl. ¶ 7; Def.'s Answer to Pl.'s Am. Compl. (“Def's Answer”) ¶ 7. The next month, he filed a formal complaint of discrimination. Compl. ¶ 7; Def.'s Answer ¶ 7. The Final Agency Decision in this matter was issued in July 2015. Compl ¶ 7; Def.'s Answer ¶ 7. Mr. Elliott filed the present action in October 2015. Currently before the Court is DOL's motion for summary judgment.


         A. Summary Judgment

         A court may grant summary judgment when “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). A “material” fact is one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380 (2007). The inquiry under Rule 56 is essentially “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

         The principal purpose of summary judgment is to streamline litigation by disposing of factually unsupported claims or defenses and determining whether there is a genuine need for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The movant bears the initial burden of identifying portions of the record that demonstrate the absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the party opposing summary judgment must point to specific facts in the record that reveal a genuine issue that is suitable for trial. See Celotex, 477 U.S. at 324. In doing so, the nonmovant may not rely on “statements that are impermissible hearsay or that are not based on personal knowledge.” Shuler v. District of Columbia, 744 F.Supp.2d 320, 327 (D.D.C. 2010). In considering a motion for summary judgment, a court must “eschew making credibility determinations or weighing the evidence, ” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and inferences must be analyzed in the light most favorable to the nonmovant, see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).

         B. Title VII Framework

         Title VII of the Civil Rights Act of 1964 promises that “[a]ll personnel actions affecting employees . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). To prevail on a claim brought under Title VII, a plaintiff must show that he suffered an adverse employment action because of his race, color, religion, sex, or national origin. Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008). Direct evidence of discrimination generally entitles the plaintiff to a jury trial. See Vatel v. All. of Auto Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011). In the absence of direct evidence of discrimination, courts typically assess a claim under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under that framework, a plaintiff is required to first make out a prima facie case of discrimination by showing that he “(1) is a member of a protected class; (2) suffered an adverse employment action; and that (3) the unfavorable action gives rise to an inference of discrimination.” Nurriddin v. Bolden, 818 F.3d 751, 758 n.6 (D.C. Cir. 2016). Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to supply “some legitimate, nondiscriminatory reason for the [action in question].” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (alteration in original). After the employer makes such a showing, the plaintiff must show that “the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

         An employee may not show pretext by “simply criticizing the employer's decisionmaking process.” Hairston v. Vance-Cooks, 773 F.3d 266, 272 (D.C. Cir. 2014). “Even if a plaintiff ‘was victimized by poor selection procedures, ' [courts] may not ‘second-guess an employer's personnel decision absent demonstrably discriminatory motive.'” Id. (quoting Fischbach v. D.C. Dep't of Corrs., 86 F.3d 1180, 1183 (D.C. Cir. 1996)). Rather, “[t]he plaintiff must identify evidence from which a reasonable jury could find that the employer's stated reasons were ‘phony.'” Moeller v. LaFleur, 246 F.Supp.3d 130, 140 (D.D.C. 2017) (quoting Fischbach, 86 F.3d at 1183). In addition, “[t]he evidence of record must be such that a reasonable jury could not only disbelieve the employer's reasons, but conclude that the real reason the employer took a challenged action was a prohibited one.” Walker v. Johnson, 798 F.3d 1085, 1093 (D.C. Cir. 2015); see also Mount v. Johnson, 174 F.Supp.3d 553, 561 (D.D.C. 2016) (“[P]roviding sufficient evidence for a jury to reject the defendant's reason is not sufficient ‘if it is nevertheless impossible for a rational factfinder to conclude the action was discriminatory.'” (quoting Rochon v. Lynch, 139 F.Supp.3d 394, 404 (D.D.C. 2015))).

         The D.C. Circuit has clarified that district courts are to abbreviate the customary inquiry under certain circumstances: “In a Title VII disparate-treatment suit 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). Instead, “the district 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. To answer this question, district courts consider “all the evidence, including ‘(1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its action; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer).'” Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (quoting Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (D.C. Cir. 2002)).

         IV. ...

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