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McManus v. Nielsen

United States District Court, District of Columbia

March 22, 2019

KIRSTJEN NIELSEN, Secretary of Homeland Security,[1] Defendant.



         The matter is before this Court on Defendant's renewed motion to dismiss and for summary judgment. Dkt. 33. Plaintiff Sheree McManus, an African American woman who was fifty-eight years old when she filed this case, alleges that her employer, the Federal Emergency Management Agency (“FEMA”), unlawfully discriminated against her on the basis of her age and race, and retaliated against her for engaging in protected Equal Employment Opportunity (“EEO”) activity, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act of 1967 (“ADEA”). Previously, the Court granted in part and denied in part Defendant's motion to dismiss and for summary judgment. McManus v. Kelly, 246 F.Supp.3d 103, 106 (D.D.C. 2017) (“McManus I”). For the reasons explained below, the Court will GRANT Defendant's renewed motion.

         I. BACKGROUND

         A. Factual Background

         The background of this case is detailed in the Court's previous opinion. See Id. at 107- 08. Because McManus has failed to oppose Defendant's renewed motion to dismiss and for summary judgment, Dkt. 33, despite thrice being ordered by the Court to file an opposition, [2] the Court will accept as true the facts set forth in Defendant's Statement of Undisputed Material Facts (“SUMF”), Dkt. 33 at 3-7, to the extent that those facts are supported by declarations, deposition transcripts, or other competent evidence. See Winston & Strawn, LLP v. McLean, 843 F.3d 503, 507 (D.C. Cir. 2016) (Rule 56 “allows the District Court to ‘consider [a] fact undisputed' if it has not been properly supported or addressed as required by Rule 56(c).” (alteration in original) (citation omitted)); Fed.R.Civ.P. 56(e) (“If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion [or] . . . grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it”); Local Civ. R. 7(h)(1) (“In determining a motion for summary judgment, the Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion.”).

         The relevant events are as follows:

         Plaintiff Sheree McManus is an African American woman born in 1955. Dkt. 33-4 at 1, 11 (Ex. A) (McManus EEO Aff.). At all times relevant to the present suit, McManus was employed as a Grants Management Specialist within the Grants Program Directorate (“GPD”) of FEMA at level GS-13/8. Id. at 1 (Ex. A) (McManus EEO Aff.); Dkt. 33-11 at 2 (Ex. H) (McManus Resume). McManus first began working at FEMA in 1993, and, with the exception of two years, has worked at FEMA ever since. Dkt. 33-4 at 1 (Ex. A) (McManus EEO Aff.). Throughout her tenure at FEMA, McManus alleges that she was denied various management positions to which she applied because of her age and race and in retaliation for her protected EEO activity. Dkt. 18 at 10-11 (Amd. Compl. ¶¶ 83-90). Ten non-selections are the subject this lawsuit.[3] Those job announcements were posted in 2010 while Elizabeth Harman was the Assistant Administrator for GPD and the final decisionmaker for the hiring decisions. Dkt. 33 at 4, 5, 6 (Def. SUMF ¶¶ 7, 13, 20, 22).

         1. Announcement AN343825

         On May 6, 2010, FEMA announced openings for three Supervisory Grants Management Specialist positions. Id. (Def. SUMF ¶ 8) (citing Dkt. 33-7 at 1 (Ex. D) (AN343825)). Applicants were allowed to apply at either the GS-13 or GS-14 level. Id. McManus applied only at the GS-14 level. Id. (Def. SUMF ¶ 9) (citing Dkt. 33-5 at 4 (Ex. B) (McManus Dep.)). A selection panel comprised of branch chiefs reviewed the applications and recommended that Harman hire two GS-13 applicants, Natalie Romanoff and Betsy Colon. Id. (Def. SUMF ¶¶ 10, 12) (citing Dkt. 33-3 at 1-2 (Walker Decl. ¶ 3-4, 7)). According to the declaration of Marketa Walker, the Branch Chief of the Award Administration Branch and a member of the selection panel, consistent with longstanding GPD practice, “every attempt was made to try and fill positions at the lowest grade level possible” to “save money” and to “allow employee growth within a position.” Dkt. 33-3 at 2 (Walker Decl. ¶ 6). As a result, the panel recommended the selection of two applicants at the GS-13 level. Id. (Walker Decl. ¶ 7). Walker does not “recall interviewing or otherwise considering any applicants from the GS-14 list” because “there were qualified applicants who applied at the GS-13 level.” Id. (Walker Decl. ¶ 8). In July 2010, Harman “relied on the recommendations of the selection panel” in making her final decision to hire Romanoff and Colon. Dkt. 33-2 at 2 (Harman Decl. ¶ 4).

         2. Announcement AN343955

         On May 10, 2010, FEMA announced openings for three non-supervisory Grants Management Specialist positions. Dkt. 33 at 4 (Def. SUMF ¶ 14) (citing Dkt. 33-8 at 1 (Ex. E) (AN343955)). Again, applicants were allowed to apply at either the GS-13 or GS-14 level, id., and, again, McManus applied only at the GS-14 level, id. at 5 (Def. SUMF ¶ 15) (citing Dkt. 33-5 at 10 (Ex. B) (McManus Dep.)). The panel recommended two applicants from the GS-13 list, Nicole Dubins and Rosalie Vega, and one applicant from the GS-14 list, Andrea Day. Id. (Def. SUMF ¶ 16) (citing Dkt. 33-3 at 3 (Walker Decl. ¶ 11)). Day is the only applicant that the panel interviewed from the GS-14 list. Dkt. 33-3 at 3 (Walker Decl. ¶ 10). Walker explains that she chose to interview Day because Day “had worked for FEMA for over seven years and had significant knowledge of GPD's day to day operations;” in addition, Walker attests that she had also “worked with [Day] previously and knew she produced a superior work product and had experience with all of GPD's systems.” Id. (Walker Decl. ¶ 14). In contrast, Walker further explains, “McManus'[s] resume demonstrates why [she] did not identify [McManus] as an individual [she] wanted to interview.” Id. (Walker Decl. ¶ 16). Although FEMA has provided the Court with a copy of McManus's resume, Dkt. 33-11 (Ex. H), what matters for present purposes is Walker's uncontroverted perspective. In her view:

[McManus's] resume is disorganized, unfocused, rambling, disjointed, and extremely hard to read. Her resume reads like a task list and appears to be [McManus's] stream of consciousness about every aspect of grants management rather than a concise explanation of how she was qualified for the position. Her resume also embellishes her experience by taking credit for projects that I know other employees worked on. . . . Similarly, she contends that she prepared legal opinions on grant issues. That is not true. . . . Her resume also fails to clearly and succinctly identify her knowledge, responsibilities, or abilities in a fashion that permits the reader to evaluate her qualification and experiences.

Dkt. 33-3 at 3-4 (Walker Decl. ¶ 16). Walker denies knowing that McManus had filed an EEO complaint at the time of her recommendation, id. (Walker Decl. ¶ 18), and further denies that any of her decisions or recommendations “were based on any applicant's race, sex, age, or prior EEO activity, ” id. (Walker Decl. ¶ 19). In July 2010, Harman selected Dubins, Vega, and Day for the positions based on the panel's recommendations. Dkt. 33 at 5 (Def. SUMF ¶ 20) (citing Dkt. 33-2 at 2 (Harman Decl. ¶ 4)).

         3. Announcement AN343590

         On May 13, 2010, FEMA announced openings for four senior supervisory grants management specialist positions at the branch chief level. Dkt. 33 at 5 (Def. SUMF ¶ 21) (citing Dkt. 33-9 at 1 (Ex. F) (AN343590)). This time, applicants were allowed to apply at either the GS-14 or GS-15 level. Id. Because of the seniority of the positions, Harman did not rely on a panel to vet applicants; she interviewed candidates and made the final decision herself. Id. At 6 (Def. SUMF ¶ 22) (citing Dkt. 33-3 at 2 (Harman Decl. ¶ 5)). Harman selected Dana Bourne and Deborah Scott from the GS-15 list and Andrea Gordon and Vanessa Pert from the GS-14 list. Dkt. 33 at 6 (Def. SUMF ¶ 22). Harman attests that she selected Bourne and Scott because they “were experienced supervisors with significant grants management experience.” Dkt. 33-3 at 2 (Harman Decl. ¶ 7). She further explains that she selected Pert and Gordon because of their clearly demonstrated supervisory and work experience. Id. (Harman Decl. ¶ 8) (“Ms. Pert had been section chief for nearly two years and Ms. Gordon had been section chief for a year.”). In contrast, Harman attests that she chose not to interview McManus because of “her resume, which was poorly written, unfocused, and difficult to understand.” Id. at 2 (Harman Decl. ¶ 6).

         Specifically, Harman explains that:

[McManus] . . . failed to articulate her experience that qualified her for the position in a manner that was easy to understand and embellished her experience by contending that she had significant supervisory experience. However, her resume failed to demonstrate that she actually possessed that experience. . . . [S]he provided no details of this alleged supervisory experience and none of the positions listed in her resume were supervisory positions. In fact, the way her resume was written made it very difficult to determine what her previous positions were.

Id. Like Walker, Harman denies any knowledge of McManus's EEO complaint at the time of her decision and denies making any of her decisions based on any applicant's race, sex, age, or prior EEO activity. ...

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