United States District Court, District of Columbia
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE.
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.
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,
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
relevant events are as follows:
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. 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).
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).
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)).
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).
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.