United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE
Debra Stoe, a scientist in the Department of Justice's
(“DOJ”) Office of Science and Technology
(“OST”), was denied a promotion in 2014. Mark
Greene, a younger man with less experience in the office,
received the job instead. Thereafter, Stoe brought this
lawsuit against the Attorney General in his official capacity
as her employer (hereinafter “the government” or
“OST”). Stoe alleges that OST's failure to
promote her resulted from gender and age discrimination, in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”) and the Age Discrimination in
Employment Act (“ADEA”). After a period of
discovery, the government now moves for summary judgment,
asserting that Stoe's failure to receive a promotion was
due, not to discrimination, but simply to Greene being a
better candidate for the position. The Court has reviewed the
record evidence and, for the reasons explained below, will
grant the government's motion.
has worked in DOJ's Office of Justice Programs
(“OJP”) since 1998. Pl.'s Ex. 16 [ECF No.
18-2] at 627-28. In 2004, she received a position in OST,
an office within the National Institute of Justice
(“NIJ”) in OJP. Def.'s Statement of Material
Facts Not in Genuine Dispute (“Def.'s SMF”)
[ECF No. 16-2] ¶ 1. The position was graded at
GS-14. She has remained at the GS-14 level since,
id. ¶ 3, and has been the only female scientist
working in OST since 2010, see Pl.'s Ex. 8
(“Stoe Decl.”) at 514 ¶ 4.
“Chris” Tillery has been the GS-15 Director of OST
since 2010. Def.'s SMF ¶ 6. That year, there was an
opening for the GS-15 Operational Technology Division
Director position, which supervises Stoe's GS-14 role.
Pl.'s Ex. 35 at 784. Stoe was one of two finalists, but
Tillery ultimately selected Davis Hart, a male candidate.
Id. at 785, 789. In a memorandum to the director of
NIJ, Tillery recommended Hart for the position over Stoe
because Hart had more supervisory experience and hands-on
experience relating to compliance testing and standards
development. Id. at 788-89. However, Tillery noted
that Stoe had a “more detailed and in-depth
understanding of . . . managing NIJ's standards
development and compliance-testing programs.”
Id. at 788. Tillery informed Stoe that he had not
selected her for the Division Director position because she
lacked supervisory experience; Ms. Stoe subsequently
underwent formal supervisory training. Stoe Decl. at 514-15
after her rejection from the Division Director position, Stoe
informed Tillery that she believed she was performing
GS-15-level work in her GS-14 Physical Scientist role.
Id. at 515 ¶ 7. After Tillery agreed but did
not take action to rectify the pay grade discrepancy, Stoe
raised the issue with Hart (then her first-line supervisor)
in January 2011. Id. He agreed that she was
performing GS-15-level work, and Stoe, Tillery, and Hart
assembled a “desk audit” package to advocate for
a re-classification of Stoe's position to GS-15.
Id. ¶¶ 7-8. The desk audit explained that
Stoe had “received ‘exceeds
expectations'” on her last two annual evaluations
“as a GS-14 doing GS-15 work.” Pl.'s Ex. 9-11
(“Desk Audit Request”) at 531. Tillery recalled
that, after the official submission of the desk audit in May
2012, then-NIJ director Dr. John Laub decided not to proceed
with the audit because he believed that NIJ already had too
many non-supervisory GS-15 employees. Def.'s SMF ¶
In 2013 or 2014, Tillery discussed the desk audit request
with Laub's successor, Dr. Gregory Ridgeway. Id.
¶ 12. In connection with the request, Tillery spoke to
the Human Resources Division, which gave him three options
for Stoe's position: (1) create a new GS-15 position and
place Stoe into it non-competitively; (2) create a new GS-15
position and allow Stoe and others to compete for it; or (3)
remove the GS-15 duties from Stoe. Id. ¶ 13.
Because Ridgeway also did not want to add non-supervisory
GS-15 employees, he directed Tillery to take the third option
and remove the GS-15 duties from Stoe's workload.
Id. ¶ 15.
March 2014, Hart left DOJ and the Division Director position
re-opened. Def.'s SMF ¶ 16. Tillery updated the
position description (now called “GS-15 Supervisory
Program Manager”) before announcing the vacancy and
accepting applications in April 2014. Id.
¶¶ 17- 19. The updated description identified four
equally-weighted groups of duties: supervisory and/or
managerial responsibilities, program planning and management,
business process analyses for program planning and
management, and program advice and guidance. See
Pl.'s Ex. 17 (“Position Description”) at
630-33; Def.'s SMF ¶ 18. Tillery testified that some
of these duties were GS-15-level work that Stoe had been
performing, see Def.'s Ex. 5 [ECF No. 16-8] at
53:1-10; for example, Tillery added that the Division
Director must “be one of the two alternate standards
executives” on DOJ's Interagency Council on
Standards Policy (ICSP), after he determined that it was a
duty which had to be removed from Stoe's GS-14 role.
Def.'s SMF ¶ 17. The vacancy announcement also
identified five knowledge, skills, and abilities
(“KSAs”) required for the role: “(1)
ability to develop and promote a diverse workforce; (2)
ability to supervise; (3) ability to analyze organizational
and operational problems and develop solutions; (4) knowledge
of program management principles; and (5) ability to provide
advice and guidance on business and program management
issues.” Def.'s SMF ¶ 20.
the selecting official for the position, enlisted two other
employees, Gordon Gillerman and Maria Swineford, to review
applications and interview candidates on a panel with him.
Id. ¶ 24. Tillery chose Gillerman, the manager
of an organization within the National Institute of Standards
and Technology, “because of his experience with
standards.” Id. ¶ 25. Swineford, the
Deputy Director of the Grants Management Division of the OJP
Office of Audit Assessment and Management, was asked to
provide a “business processes perspective.”
Id. ¶ 26.
reviewing all applications for the position, the Human
Resources Division (“HR”) sent Tillery four lists
of “best qualified” candidates; none of the three
finalists for the position (Stoe, Greene, and Kathleen
Higgins) appeared on the lists. Id. ¶¶
28-32; Pl.'s Ex. 14 at 546. Tillery replied to HR
expressing disappointment with the lists of candidates.
Def.'s SMF ¶ 33. He specifically complained
that many of the listed candidates had little or no
experience in “conformity assessment (standards and
testing), ” which he wrote “bodes ill for their
ability to replace [Stoe] as [DOJ's] alternate
Standard's Executive.” Def.'s Ex. 21 [ECF No.
16-24] at 1. In response to his concerns, HR generated an
expanded list of “best qualified” applicants that
included the three finalists. Def.'s SMF ¶ 36;
Pl.'s SMF ¶ 36.
divided the applications among himself, Gillerman, and
Swineford to determine who should be invited to interview.
Def.'s SMF ¶ 40. Swineford, who was tasked with
reviewing Stoe's application, initially recommended that
the panel not interview Stoe. Id. ¶ 44.
Swineford stated in her deposition that she did not recommend
Stoe because Stoe's application did not demonstrate
sufficient supervisory experience. Pl.'s Ex. 4
(“Swineford Dep.”) at 36:5-12.Gillerman reviewed
Greene and did not recommend that he be interviewed based on
his written application materials and résumé.
Def.'s SMF ¶ 43; Pl.'s Ex. 1 (“Gillerman
Dep.”) at 110:16- 111:3. After the panelists conferred,
Plaintiff was selected for an interview despite
Swineford's recommendation because her work
“leading the standards activities within NIJ . . .
justified or supported her leadership skills.”
Def.'s SMF ¶ 46 (citation omitted). Greene was also
selected for an interview at that time because of a policy
requiring that if one OJP employee is granted an interview
all other OJP employees on the same HR list must be
interviewed. Id. ¶ 47.
panel interviewed finalists on July 11 and July 16, 2014.
Id. ¶ 49. All candidates answered the same five
questions, with some variations in follow-up. Id.
Each panelist assigned scores-calculated based on a score
between one and five for each of the five questions-and
shared them with the other panelists by email. Id.
¶¶ 50-52, 54, 56. Tillery scored Greene and Higgins
highest, Swineford scored Greene highest, and Gillerman
scored Stoe and Greene highest. Id. ¶ 59. After
combining and averaging each candidate's scores, Greene
finished with a final score of 21.33, Stoe with 19.00, and
Higgins with 18.67. Id. Tillery selected Greene for
the position over Stoe. Id. ¶ 60. In an email
to Ridgeway on July 21, 2014, Tillery stated that although
Stoe had a more detailed understanding of DOJ's standards
strategy, Greene demonstrated a sufficient grasp on standards
strategy and a more detailed understanding of the OJP grants
process. Id. ¶ 61.
August 22, 2014, Stoe contacted OJP's Equal Employment
Opportunity Office. Answer [ECF No. 8] ¶ 15. She filed a
formal EEO complaint on October 22, 2014. Id. After
exhausting her administrative remedies, Stoe filed a
complaint in this Court on August 10, 2016. Compl. [ECF No.
1] ¶ 15. The government moved for summary judgment on
October 27, 2017. Def.'s. Mot. for Summ. J. [ECF No. 16].
That motion is now fully briefed and ripe for decision.
judgment is appropriate when the pleadings and the evidence
demonstrate 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). The party seeking
summary judgment bears the initial responsibility of
demonstrating the absence of a genuine dispute of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). In determining whether there exists a genuine
dispute of material fact sufficient to preclude summary
judgment, the Court must regard the non-movant's
statements as true and accept all evidence and make all
inferences in the non-movant's favor. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court
must deny summary judgment if “reasonable jurors could
find by a preponderance of the evidence that the [non-moving
party] is entitled to a verdict.” Id. at 252.
However, summary judgment is warranted if the non-movant
fails to offer “evidence on which the jury could
reasonably find for the [non-movant], ” or if the
evidence offered is “merely colorable” or
“not significantly probative.” Id. at
alleges that she was not promoted to Division Director in
2014 because Tillery discriminated against her based on her
gender and age, in violation of Title VII and the ADEA. Title
VII states that “[a]ll personnel actions affecting
employees or applicants for employment . . . in executive
agencies . . . shall be made free from any discrimination
based on . . . sex . . . .” 42 U.S.C. §
2000e-16(a). Similarly, the ADEA states that “[a]ll
personnel actions affecting employees or applicants for
employment who are at least 40 years of age . . . in
executive agencies . . . shall be made free from any
discrimination based on age.” 29 U.S.C. § 633a(a).
has not put forward direct evidence of gender or age
discrimination, the Court must apply the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Johnson v. Perez, 823 F.3d 701,
706 (D.C. Cir. 2016). Under this framework, the burden of
production and order of presentation of evidence proceeds in
three steps. First, the plaintiff must make a prima facie
case of prohibited discrimination. See Aka v. Wash. Hosp.
Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc).
This done, the burden shifts to the employer to proffer a
neutral, nondiscriminatory reason for taking the adverse
employment action at issue. See id. If the employer
proffers such a reason, the burden shifts once again to the
plaintiff “to discredit the employer's
explanation” and show that the employment action was,
in fact, discriminatory. Id. While the burden of
production shifts during these three steps, “[t]he
ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.” Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
case, OST has provided a nondiscriminatory reason for failing
to promote Stoe: it chose the new Division Director based on
the applicants' interview scores, and Greene received the
highest score. See Def.'s SMF ¶¶
59-60. Therefore, the Court “need not-and should
not- decide whether [Stoe] 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 Court moves immediately to the final
step of the McDonnell Douglas framework, in which
Stoe must “demonstrate that the proffered reason was
not the true reason for the employment decision”-a
burden that “merges with the ultimate burden of
persuading the [C]ourt that she has been the victim of
intentional discrimination.” Burdine, 450 U.S.
this case is before the Court on defendant's motion for
summary judgment, rather than before a jury at trial, Stoe
need not prove that her case is stronger than OST's to
meet that burden. Rather, Stoe must “produce
sufficient evidence for a reasonable jury to find that
[OST's] asserted non-discriminatory reason was not the
actual reason and that [OST] intentionally discriminated
against [her] on the basis of . . . sex.”
Brady, 520 F.3d at 494. Stoe may do this either by
providing affirmative evidence that a different motivation
more likely underlay the decision or by attacking the
credibility of OST's explanation (or both). See
Burdine, 450 U.S. at 256. Hence, the Court must consider
several types of evidence, including: (1) Stoe's prima
facie case; (2) evidence attacking OST's explanation for
not promoting her; and (3) “any further evidence of
discrimination that may be available to [Stoe] (such as
independent evidence of discriminatory statements or
attitudes on the part of [Tillery]) or any contrary evidence
that may be available to [OST].” Aka, 156 F.3d
at 1289. In this case, Stoe has proffered evidence of all
three varieties. Therefore, the Court must consider each form
of proof and “determine whether they ‘either
separately or in combination' provide sufficient evidence
for a reasonable jury to infer” discrimination.
Jones v. Bernanke, 557 F.3d 670, 679 (D.C. Cir.
2009) (citation omitted).
evidence falls roughly into four buckets: (1) her prima facie
case; (2) evidence about hers and Greene's relative
qualifications; (3) evidence about the selection process
itself; and (4) evidence regarding Tillery's prior
behavior. The Court will examine each in turn.
Prima Facie Case
Stoe no longer needs to establish a prima facie case to
proceed with her suit, the facts underlying that case remain
relevant to her discrimination claims. To state a prima facie
case of discrimination, a plaintiff must provide evidence
that “(1) she is a member of a protected class; (2) she
suffered an adverse employment action; and (3) the
unfavorable action gives rise to an inference of
discrimination.” Stella v. Mineta, 284 F.3d
135, 145 (D.C. Cir. 2002) (citation omitted). Stoe meets all
three of these criteria. As a woman over the age of forty,
Stoe is a member of a protected class under both Title VII
and the ADEA. See 42 U.S.C. § 2000e-16(a); 29
U.S.C. § 633a(a). Stoe lost out on a promotion, and
failure to promote constitutes an actionable adverse
employment action. See Cones v. Shalala, 199 F.3d
512, 521 (D.C. Cir. 2000).
the third factor, Stoe has shown that “she was treated
differently from [a] similarly situated employee” who
is “not part of the protected class[es].”
George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir.
2005). Greene, a man under age forty, was promoted while she
was not. Moreover, it is undisputed that the Division
Director position was open and that Stoe was qualified for
the job. See Def.'s SMF ¶¶ 19, 46. She
therefore also has shown that OST's failure to promote
her “is not attributable to ‘the two most common
legitimate reasons on which an employer might rely to reject
a job applicant: an absolute or relative lack of
qualifications or the absence of a vacancy in the job
sought.'” George, 407 F.3d at 412 (quoting
Stella, 284 F.3d at 145). Stoe's prima facie
case is relevant to the Court's determination, though it
does not tell one all that much on its own.
Stoe's strongest evidence is the comparison of her
qualifications with Greene's. Stoe's experience with
significant aspects of the position for which she applied is
highly relevant. “If a factfinder can conclude that a
reasonable employer would have found the plaintiff to be
significantly better qualified for the job, but this employer
did not, the factfinder can legitimately infer that the
employer consciously selected a less-qualified
candidate”-which in turn allows the factfinder to
assume that discrimination has entered the picture.
Aka, 156 F.3d at 1294. However, “a plaintiff
can directly challenge [a] qualifications-based
explanation” for an adverse employment action
“only if the plaintiff was
‘significantly better qualified for the
job' than those ultimately chosen.” Adeyemi v.
District of Columbia, 525 F.3d 1222, 1227 (D.C. Cir.
2008) (quoting Holcomb v. Powell, 433 U.S. 889, 897
(D.C. Cir. 2006)). The word “significantly” means
what it says. To defeat summary judgment, at least
singlehandedly, “[t]he qualifications gap must be
‘great enough to be inherently indicative of
discrimination.'” Id. (citation omitted).
party disputes that both Greene and Stoe had qualifications
relevant to the position. At the time of the interview, they
both were serving in GS-14 positions. Def.'s SMF
¶¶ 1, 3, 85. Stoe had been working at the GS-14
level since 2004, and Greene since 2012. Id. Stoe
was a “Physical Scientist” while Greene was a
“General Engineer.” Id. ¶¶ 3,
85. Greene obtained a Ph.D. in materials science and
engineering, had worked in the private sector, and had
completed a postdoctoral fellowship at the National Institute
of Standards and Technology. Id. ¶ 87. At NIJ,
Greene had led research into smart gun technologies and
worked on, inter alia, technology and equipment
performance standards. Id. ¶ 86. Stoe,
meanwhile, estimates that she had published at least ten
standards and had overseen the development of at least twenty
standards and test methods at OST by 2014. Stoe Decl. at 515
¶ 10. She had also worked substantially with OST's
standards and testing and conformity assessment programs,
worked with OST's compliance testing program, and served
as DOJ's alternate member on the ICSP, among other
things. See Desk Audit Request at 521-24.
out these qualifications side by side, Stoe appears to have
some advantage. She had eight more years' experience at
the GS-14 level than Greene when they applied for the Divison
Director position. At the time of the hiring decision at
issue, Stoe had held a GS-14 position for ten years, while
Greene had only been promoted to that level two years
previously. She also had published a number of standards
herself, and had moved beyond publishing standards to
“supervis[ing]” a number of program managers as
they directed the development of standards. Desk Audit
Request at 521. Although Greene had worked on developing
standards, there is no indication in the record that he had
published any himself or had supervised others in developing
them. Stoe also had supervisory experience (though not an
official supervisory role), see id. at 521-24, and
had received supervisory training after losing out on the
Division Director position in 2010, see Stoe Decl.
at 514-15 ¶ 6. Greene had received diversity training
but not supervisory training, and he had not been a
supervisor himself. See Pl.'s Ex. 2
(“Greene Dep.”) at 70:17-71:2, 219:16-221:2. All
of these factors point in Stoe's favor.
the difference in qualifications is not so stark as to permit
an inference of discrimination. For one thing, Greene had a
good deal of experience with grant-making and other
business-related aspects of OST's work, which was
weighted equally to program management in importance for the
position. See Position Description at 631-32.
Relatedly, all three panelists gave Greene higher marks than
Stoe for his interview response to the question related to
“[a]bility to provide advice and guidance on business
and program management issues.” Def.'s SMF at
¶ 50 n.4; see ¶¶ 53, 55, 57. Greene
also had a Ph.D., while Stoe did not. Tillery wrote
contemporaneously to Ridgeway that Greene won out due to
“his detailed understanding of the OJP grants processes
and their issues and his ability to provide guidance on
technology policy, ” along with “a solid
grasp” of OST's “standards strategy