United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS United States District Judge.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
Title VII Framework
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)).
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))).
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)).