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Stoe v. Sessions

United States District Court, District of Columbia

August 28, 2018

DEBRA STOE, Plaintiff,
JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States, Defendant.[1]



         Plaintiff 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.


         Stoe has worked in DOJ's Office of Justice Programs (“OJP”) since 1998. Pl.'s Ex. 16 [ECF No. 18-2] at 627-28.[3] 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.[4] 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.

         George “Chris” Tillery has been the GS-15[5] 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 ¶ 6.

         Shortly 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 ¶ 11.[6] 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.

         In 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.

         Tillery, 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.

         After 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.

         Tillery 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.[7]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.

         The 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.

         On 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.


         Summary 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 249-250.


         Stoe 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).

         As Stoe 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).[8] 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 (1981).

         In this 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. at 256.

         Because 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).

         I. Stoe's Case

         Stoe's 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.

         A. Prima Facie Case

         While 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).

         As for 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.

         B. Qualifications Evidence

         Perhaps 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).

         Neither 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.

         Laying 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.

         However, 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 sufficient ...

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