United States District Court, District of Columbia
RODRIGO A. PATZY, Plaintiff,
JEFFREY GERRISH, Acting Chairman and President of the Export-Import Bank of the United States, Defendant.
Rosemary M. Collyer, United States District Judge.
A. Patzy, an employee at the Export-Import Bank of the United
States and a Latino male, alleges that he was denied a
promotion at the Bank because of his race, national origin,
and gender, in violation of Title VII. Defendant responds
that Mr. Patzy was not promoted because he was not the best
qualified applicant for the position and moves for summary
judgment. Having considered the parties' arguments and
the record, the Court will grant Defendant's motion.
A. Patzy is a Latino male who emigrated from Bolivia and is
now a citizen of the United States. Compl. [Dkt. 1]
¶¶ 7, 17. He has been employed by the Trade Credit
Insurance (TCI) Division of the Export-Import Bank of the
United States (the Bank) since 2002, and has been a Senior
Loan Specialist, a GS-13 position, since 2006. Patzy Aff.,
Ex. 1, Def.'s Mot. for Summ. J. [Dkt. 28-2] at 2. In that
capacity and for the time period relevant to this case, Mr.
Patzy has been responsible for reviewing transactions
underwritten by the Bank, particularly in the Southeast
region. Kosciow Aff., Ex. 5, Def.'s Mot. for Summ. J.
[Dkt. 28-6] at 3. From 2008 until at least the events at
issue in this case, Mr. Patzy's first-line supervisor was
Miguel Cornejo, a Latino male and TCI Director. Id.
at 2. Before 2008, Mr. Patzy's first-line supervisor was
Jean Fitzgibbon, a white female and TCI Director.
Id. At all times relevant to this case, Mr.
Patzy's second-line supervisor was Walter Kosciow, a
white male and Vice President of the TCI Division.
2012, the Bank posted two vacancy announcements for a single
Supervisory Loan Specialist (TCI Director) hire, graded as a
GS-14 position. The first vacancy announcement
(M035-12-SB-665332) was open only to internal Bank
candidates. Internal Vacancy Announcement, Ex. 2, Def.'s
Mot. for Summ. J. [Dkt. 28-3]. The second vacancy
announcement (D032-12-SB-654498) was external, i.e.,
open to all U.S. citizens. External Vacancy Announcement, Ex.
3, Def.'s Mot. for Summ. J. [Dkt. 28-4]. Applicants who
apply through internal postings are evaluated without
preference. Kosciow Tr., Ex. 8, Def.'s Mot. for Summ. J.
[Dkt. 28-9] at 119:10-120:20. However, military veterans who
apply through external postings are entitled to a
veteran's preference-if a veteran and a non-veteran
external candidate are both similarly qualified for the job,
the veteran will be preferred. Id. at 133:2-12. Mr.
Patzy applied through both announcements. Patzy Tr., Ex. 4,
Def.'s Mot. for Summ. J. [Dkt. 28-5] at 22:3-5.
candidates, pulled from both announcements, were interviewed
for the position, including Michelle Miller, Sandra Donzella,
and Mr. Patzy. Kosciow Aff. at 4. The interview panel
consisted of Mr. Kosciow, Ms. Fitzgibbon, Mr. Cornejo, and a
third TCI Director, Christine Gerges. Id. Mr.
Kosciow was the Selecting Official. Id.
the interviews, Mr. Kosciow determined that Ms. Miller, a
white female, was the most qualified applicant and offered
her the position. Id. She declined. Id. Mr.
Kosciow also determined that Ms. Donzella was the next-best
qualified applicant. Id. However, Ms. Donzella was
based in California, not Washington, D.C., and was unwilling
to relocate. Id. Mr. Kosciow did not offer her the
Kosciow was also made aware that, due to complications with a
new electronic application form, three internal applicants,
Johnny Gutierrez, a Latino male, Carlos Vidal, also a Latino
male, and Anita Turi-Wright a white female, had inadvertently
applied through the external announcement. Id. at 5;
Kosciow Tr. 217:3-12. Although these applicants would have
qualified for an interview had they applied through the
internal announcement, because they applied through the
external announcement and because none of them was a veteran,
Mr. Patzy's veteran status precluded their interview.
Kosciow Tr. 150:4-19. After consulting with the Bank's
Human Resources Division, Mr. Kosciow reposted the vacancy
announcement internally (M047-12-SB-711432), allowing the
three to reapply, along with Mr. Patzy. Kosciow Aff. at 5;
Second Internal Vacancy Announcement, Ex. 9, Def.'s Mot.
for Summ. J. [Dkt. 28-10].
second internal posting, the interview panel included only
Ms. Gerges and Mr. Kosciow. Kosciow Aff. at 5. Together they
interviewed five candidates, including Mr. Gutierrez, Mr.
Vidal, Ms. Turi-Wright, and Mr. Patzy. Gerges Aff., Ex. 10,
Def.'s Mot. for Summ. J. [Dkt. 28-11] at 4. After the
interviews were completed, Mr. Kosciow determined that Ms.
Turi-Wright was the best qualified applicant and offered her
the position. Kosciow Aff. at 5-6. She accepted. Mr. Patzy
filed suit. See Compl.
Patzy alleges discrimination on the basis of race, national
origin, and gender, in violation of Title VII of the Civil
Rights Act of 1964. 42 U.S.C. § 2000e et seq.
The Bank argues that Mr. Patzy was not awarded the position
because he was not always attentive to detail, did not have
as much experience as Ms. Turi-Wright working with large,
complex transactions, and did not perform as well as Ms.
Turi-Wright on the technical component of the interview. Mr.
Patzy contends that this explanation is a pretext to hide
discrimination. The parties having completed discovery, the
Bank has moved for summary judgment.
of the Federal Rules of Civil Procedure states that summary
judgment shall be granted “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); accord Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). Summary judgment is
properly granted against a party who “after adequate
time for discovery and upon motion . . . fails to make a
showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on
a motion for summary judgment, a court must draw all
justifiable inferences in the nonmoving party's favor.
Anderson, 477 U.S. at 255. A nonmoving party,
however, must establish more than “the mere existence
of a scintilla of evidence” in support of its position.
Id. at 252. The nonmoving party must point to
specific facts showing that a genuine issue of material fact
that requires trial. Celotex, 477 U.S. at 324. The
nonmoving party may not rely solely on allegations or
conclusory statements. Greene v. Dalton, 164 F.3d
671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must
present specific facts that would enable a reasonable jury to
find in its favor. Id. at 675. If the evidence
“is merely colorable, or is not significantly
probative, summary judgment may be granted.”
Anderson, 477 U.S. at 249-50. “While summary
judgment must be approached with special caution in
discrimination cases, a plaintiff is not relieved of his
obligation to support his allegations by affidavits or other
competent evidence showing that there is a genuine issue for
trial.” Hussain v. Principi, 344 F.Supp.2d 86,
94 (D.D.C. 2004) (quoting Calhoun v. Johnson, No.
95-2397, 1998 WL 164780, at *3 (D.D.C. March 31, 1998)).
VII prohibits discrimination in the workplace because of an
individual's race, color, sex, religion, or national
origin. The “two essential elements of a discrimination
claim” under Title VII are “that (1) the
plaintiff suffered an adverse employment action (2) because
of the plaintiff's race, color, religion, sex, [or]
national origin.” Baloch v. Kempthorne, 550
F.3d 1191, 1196 (D.C. Cir. 2008). In McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court
laid out a three-part burden-shifting test necessary to
establish a claim for discrimination under Title VII: (1) the
plaintiff must establish a prima facie case demonstrating
that he was subjected to an adverse employment action under
circumstances that would support an inference of
discrimination; (2) the defendant then may offer a