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Glasgow v. United States Department of Defense

United States District Court, District of Columbia

November 9, 2018




         Ronald Glasgow applied for a series of jobs with the Defense Intelligence Agency (“DIA”), a component of defendant Department of Defense (“DOD”), in 2010. When he was not hired, he filed a complaint with the DIA's Equal Opportunity & Diversity Office. He alleged that the DIA rejected his application due to his race (white), sex (male), age (54), and disability (a spinal injury), and retaliated against him for attempting to assert his rights, all in violation of various federal antidiscrimination statutes. His complaint made its way to the Equal Employment Opportunity Commission (“EEOC”), which granted summary judgment in favor of the DIA and affirmed that decision on appeal. Glasgow, proceeding pro se, now brings the same grievances in federal court. But because Glasgow cannot show that the agency's proffered legitimate, non-discriminatory explanation of its hiring process is pretextual, and because there is no evidence of retaliation, the Court reaches the same conclusion that the EEOC did. Glasgow is not entitled to any relief, and the Court will grant DOD's motion for summary judgment.

         I. Background

         Before setting out the relevant facts of this case, the Court should explain why it construes this motion as one for summary judgment-since that affects what facts and evidence the Court can consider at this stage in the litigation.

         The DOD has moved either to dismiss the case or for summary judgment. The critical difference is that a motion to dismiss, in the usual case, concerns exclusively the plaintiff's complaint. All the Court must consider is whether, taking plaintiff's factual allegations in the complaint as true, he has alleged sufficient facts to give rise to a colorable legal claim. A motion for summary judgment, by contrast, ordinarily comes after the parties have developed an evidentiary record through discovery. The Court then must consider whether, on the basis of that record, either party is entitled to judgment as a matter of law.

         The Court concludes this motion is best construed as one for summary judgment. The EEOC permits a complainant who requests a hearing to conduct discovery. Here, Glasgow was given 75 days to conduct discovery, see Def's Motion to Dismiss (“MTD”), Ex. A (“EEOC Decision”) at 3-4, ECF No. 35-3, and he took that opportunity, including by deposing multiple DOD employees and one of the women the agency hired instead of him, see Pl's Opp., Exs. H-K at 63-83.[1] That explains why the administrative judge's decision in the EEOC proceeding was styled as a summary judgment decision-one based on a developed evidentiary record-and not a dismissal. EEOC Decision at 23. Moreover, the parties' arguments here go well beyond the face of the complaint and rely extensively on the record developed in the EEOC proceeding. Though Glasgow would still be entitled to additional discovery if he showed that he is unable to “present facts essential to justify [his] opposition, ” he must establish that through “affidavit or declaration.” Fed.R.Civ.P. 56(d). He has not done so. In light of all this, the Court will construe the DOD's motion as one for summary judgment, based on the evidentiary record developed in the EEOC proceeding. Now, to the facts as they were developed in that proceeding.

         In early 2010, the DIA solicited applications on USA Jobs, the public-facing website of the U.S. Office of Personnel Management, for several vacancies. EEOC Decision at 5. Thousands applied, including Mr. Glasgow, who submitted applications for various positions, including Drug Program Specialist, Nuclear Physicist, Intelligence Officer, and Security Guard. Id. at 6. At the time of his application, Glasgow, a white male, was 54 years old and suffering from a spinal cord injury. Glasgow attempted to apprise the agency of these facts by sending letters that communicated as much to the DIA's human resources department and to its equal employment opportunity office after he applied. See Pl's Opp., Exs. A-B at 18-22.

         Ultimately, the agency did not select Glasgow for any of the positions he sought, nor did it invite him to participate at a hiring fair. Shortly after he learned of this, in February 2011, Glasgow filed a complaint with the DIA Equal Opportunity & Diversity Office. DIA Notice of Final Agency Action (“DIA Notice of FAA”) at 1. Glasgow complained of seven discrete instances of discrimination and retaliation. Id. at 1-2. Though it is unclear which of the DOD's acts Glasgow believed constituted bare discrimination versus retaliation, the basic premise underlying each incident was Glasgow's belief that the agency opted for less qualified-but younger, female, and disability-free-candidates.

         In October 2011, the DIA dismissed all seven claims. Id. at 2. Glasgow appealed that decision to the EEOC in December 2011, and the EEOC remanded three of the seven claims to the agency for further investigation in August 2012. Id. The three remanded claims focused on Glasgow's non-selection for the Drug Program Specialist, Nuclear Physicist, and Intelligence Officer positions, and the fact that he was not invited to participate in a hiring fair for a security position. Id.; EEOC Decision at 3. In February 2013, the Investigations and Resolutions Directorate of the Civilian Personnel Management Service provided Glasgow with its report, and Glasgow quickly requested a hearing before an EEOC administrative judge. Id. In May 2013, the administrative judge assigned to the case gave the parties 75 days to conduct discovery and supplement the investigative record. EEOC Decision at 3-4.

         The DOD moved for summary judgment in December 2013, and Glasgow filed his opposition in January 2014. Id. The DOD contended before the EEOC (as it does here) that its hiring processes for the positions at issue make Glasgow's version of events impossible. According to the agency's description of that process, once it concluded its collection of resumes, it put them into a single “talent pool” database; a panel of agency employees sorted through the resumes by conducting keyword searches that matched resumes with particular job descriptions; the search terms included only qualifications listed in the agency's job descriptions and did not include race, sex, age, or disability; and the panel members then reviewed the resumes yielded by that search to arrive at a final slate of 10 candidates to refer to the selecting official. EEOC Decision at 8-10 (citing testimony from the administrative record). The agency further stated that Glasgow's resume was not selected and thus was never even reviewed by a selecting official. Id. at 10. The agency offered a similarly benign explanation for its decision not to invite Glasgow to the hiring fair. Id. at 14-16 (hiring manager stating that Glasgow's application was rejected because his two most recent jobs fit poorly with security work and that he had no knowledge of Glasgow's protected characteristics).

         The administrative judge sided with the DOD. EEOC Decision at 23. He found “no evidence in the record that any Agency employee or member of the Panel considered age, race, sex, or disability in connection with any resume.” Id. at 9; see also id. at 16 (finding “no evidence in the record that any person was aware of or considered [Glasgow's] race, age, sex, or disability in connection with the job fair”). The administrative judge further concluded that the individuals the agency did hire were as (if not more) qualified than Glasgow. Id. at 20. Accordingly, he concluded that the DOD had “articulated[] legitimate, non-discriminatory reasons for its actions, ” and that Glasgow had failed to show those reasons were pretextual. Id.

         After an unsuccessful administrative appeal, Glasgow headed to federal court.[2] While Glasgow's EEO complaint identified seven discrete instances of discrimination or retaliation, his complaint in this Court focuses on just three. The first is his non-selection for an entry-level Drug Program Specialist position on April 30, 2010. Complaint at 2-3, 9-13. The second is the agency's decision not to invite Glasgow to participate in a job fair. Id. at 13. And the third is the agency's alleged retaliation against him for notifying it of his membership in various protected classes. Id. at 13-16. Glasgow alleges that these acts variously violate Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, and the Rehabilitation Act, 29 U.S.C. § 791(f). See Complaint at 8-9; Def's MTD at 1. The DOD has moved to dismiss the complaint, or, in the alternative, for summary judgment. Glasgow has opposed the motion, and the matter is now ripe for the Court's resolution.

         II. Legal Standard

         “The court shall grant summary judgment 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A party moving for summary judgment must “show[] that the materials cited do not establish the . . . presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed R. Civ. P. 56(c). A fact is material if it “might affect the outcome of the suit under the governing law, ” and a factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In determining whether a genuine ...

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