United States District Court, District of Columbia
CASSANDRA M. MENOKEN, Plaintiff.
MARGARET WEICHERT Acting Director, United States Office of Personnel Management, et al., Defendants.
BERMAN JACKSON, UNITED STATES DISTRICT JUDGE
se plaintiff Cassandra M. Menoken filed this lawsuit
against the United States Office of Personnel Management
(“OPM”) and the United States Department of
Health and Human Services (“HHS”), alleging that
they discriminated and retaliated against her in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq. (“Title VII”) when she was
not selected to be an Administrative Law Judge
(“ALJ”) in 2005. Am. Compl. [Dkt. # 8]. Plaintiff
challenges OPM's use of four
“location-specific” certificates, listing
eligible candidates for vacant ALJ positions, instead of one
omnibus list that would have included a greater total number
of candidates. She alleges that this practice had a disparate
impact on African American candidates in general, and that
OPM intentionally used this method to discriminate and
retaliate against her in particular.
before the Court is defendants' motion for summary
judgment. Defs.' Mot. for Summ. J. [Dkt. # 37]
(“Defs.' Mot.”). Defendants argue that
plaintiff has failed to come forward with any evidence of
discrimination or retaliation. Mem. of P. & A. in Supp.
of Defs.' Mot. [Dkt. # 37-1] (“Defs.'
Mem.”). Plaintiff opposes the motion, contending that
defendants' evidence is unreliable and that there are
still factual issues in dispute. Pl.'s Mem. in Opp. to
Defs.' Mot. [Dkt. # 41] (“Pl.'s Opp.”).
Court cautioned in its ruling on the motion to dismiss in
this case, “mere conclusory allegations . . . will not
be enough to sustain a claim at the summary judgment
stage.” Menoken v. McGettigan, 273 F.Supp.3d
188, 202 (D.D.C. 2017). Now we are at that stage, and after
discovery, plaintiff has not mustered the evidence needed to
support her claims. Thus, the Court will grant
defendants' motion for summary judgment.
become an ALJ, applicants undergo a competitive examination
process administered by OPM. See 5 C.F.R. §
930.201; Defs.' Statement of Undisputed Material Facts
[Dkt. # 37-2] (“Defs.' SUMF”) ¶
In an initial screening, applicants must demonstrate that
they satisfy a set of minimum professional qualifications,
such as at least seven years of experience as an attorney
engaged in administrative law matters and at least two years
of experience at a senior level. Qualification Standard
for Administrative Law Judge Position, U.S. Office of
(hereinafter “ALJ Qualification Standard”). Those
applicants who pass the initial screening must take an
examination, “the purpose of which is to evaluate the
competencies/knowledge, skills, and abilities (KSAs)
essential to performing the work of an Administrative Law
applicants complete the examination, OPM ranks them by score
in an electronic database called the ALJ Register. 5 C.F.R.
§ 332.311, 332.401. The register also stores
applicants' geographic preferences. Id.
agency seeks to hire ALJs, it submits a request to OPM. Using
the ALJ Register, OPM identifies candidates whose
geographical preferences match the agency's needs, and it
then sends the agency “certificates of eligibles”
listing the top-scoring candidates. Defs.' SUMF ¶ 4;
5 C.F.R. § 332.402. OPM generally provides at least
three candidates from the register per vacancy. §
332.402. When selecting candidates from certificates, an
agency must follow the “rule of three, ” which
requires the agency to fill each vacancy from the three
highest-scoring candidates on the certificate who have yet to
be selected. 5 C.F.R. § 332.404. As a result, the agency
cannot simply select any candidate who appears on a
certificate, but it must generally proceed in score .
1993, plaintiff took the ALJ examination. Pl.'s Opp. at
1, citing Am. Compl. [Dkt. # 8] ¶ 4. Her examination
results, along with her identified geographic preferences,
were maintained in the “1993 ALJ Register.”
Defs.' SUMF ¶ 3. This register was used to fill ALJ
positions until it was retired in October 2007. Id.
¶ 5. In 2005, HHS sought to hire approximately
forty-nine ALJs to staff the new Office of Medicare Hearings
and Appeals in four different locations: Arlington, Virginia;
Cleveland, Ohio; Miami, Florida; and Irvine, California.
Id. ¶¶ 6-7. OPM responded by issuing four
location-specific certificates of eligibles from the 1993 ALJ
Register. Id. ¶ 8. Plaintiff had indicated that
she was available for all four of the locations, but her name
did not appear on any of the certificates, and she was not
selected for an ALJ position. Am. Compl. ¶¶ 38, 49;
Defs.' Mot. at 6 (indicating that plaintiff's score
was lower than the lowest score selected); Pl.'s Opp. at
1 (indicating that the parties agree that plaintiff was not
considered for the ALJ vacancies in 2005).
is a long history of prior litigation arising out of
plaintiff's attempts to become an ALJ. Because the
previous cases were described in detail in the Court's
decision granting and denying in part defendants' motion
to dismiss, McGettigan, 273 F.Supp.3d at 193-95, the
Court will describe them only briefly here.
Menoken v. OPM, EEOC No. 100-95-7644X (“EEOC
1994, plaintiff filed a formal charge with the EEOC against
OPM for discriminating against African American and female
applicants in its scoring of several components of the 1993
exam that she had taken. Ex. 1 to Defs.' Mot. to Dismiss
[Dkt. # 10-2] (“EEOC Order”) at 3-4, 51. She also
alleged that OPM retaliated against her for pursuing the
discrimination claim. Id. at 4. In 2000, the EEOC
administrative judge ruled in plaintiff's favor on one of
her discrimination claims, which concerned the “partner
benchmark” in the “supplemental qualifications
statement” (“SQS”) portion of the ALJ
examination. Id. at 63. The benchmark awarded
points to applicants who had been partners at large law
firms. Id. The judge found that the benchmark
“impermissibly create[d] disparate impact on grounds of
race” and ordered OPM to “cease use of that
benchmark until its use has been properly validated . . . or
until the disparate impact disappears.” Id.
the judge rejected plaintiff's claim that the
benchmark's usage had deprived her of an ALJ position,
since the “record clearly and convincingly established
that, even after taking into account the effects of the
improper use by OPM of the discriminatory benchmark, the
Complainant would not have been selected for an ALJ
vacancy.” Ex. 2 to Defs.' Mot. to Dismiss [Dkt. #
10-3] (“Relief Order”) at 29-30. The judge
rejected the remainder of plaintiff's claims. EEOC Order
2001, plaintiff appealed this administrative determination
within the EEOC, alleging that OPM had failed to comply with
the order to cease use of the partner benchmark and
challenging the administrative judge's decision about her
other claims. Ex. 3 to Defs.' Mot. to Dismiss [Dkt. #
10-4] (“EEOC Appeal”). In May 2003, the EEOC
rejected her compliance challenge and affirmed the
administrative judge's decision. Id. at 9.
Plaintiff then sought reconsideration of the decision within
the EEOC, Menoken v. James, EEOC Decision No.
05A30918, 2005 WL 38762, at *2 (Jan. 3, 2005), and she filed
a related civil action in this court. See Menoken v.
Whipple, 605 F.Supp.2d 148 (D.D.C. 2009)
(“Menoken I”). Because of the pending
civil action, the EEOC denied the request for
reconsideration. James, 2005 WL 38762 at *4.
Menoken v. Whipple, 605 F.Supp.2d 148 (D.D.C. 2009)
civil case arising out of the conclusion of the EEOC action,
plaintiff alleged that OPM had not complied with the EEOC
Order, and that several components of the ALJ selection
process, including the Personal Reference Inquiry
(“PRI”) and SQS portions of the exam, unlawfully
discriminated against African American and female applicants,
in violation of Title VII. Menoken I, 605 F.Supp.2d
at 151. In 2009, the court granted summary judgment for OPM
on all counts: it found that OPM had complied with the EEOC
Order and corrected the discrimination caused by the partner
benchmark, and that plaintiff's evidence of disparate
discrimination was insufficient to create a triable issue of
fact. Id. at 152-55. Specifically, the court found
that OPM “(1) ceas[ed] use of or reliance upon the
partner benchmark when scoring completed but unscored ALJ
applications; (2) review[ed] the scores of applicants on the
1993 ALJ Register; and (3) confirm[ed] that no applicants
received five points on the basis of the . . . partner
benchmark.” Id. at 151-52.
Menoken v. Cobert, et al., No. 1:16-cv-0084 (D.D.C.
2016) (“Menoken II”)
January 15, 2016, plaintiff filed another complaint in this
court against OPM and the Social Security Administration
(“SSA”), this time alleging retaliation under
Title VII. Compl. [No. 1:16-cv-0084, Dkt. # 1]. She claimed
that in a 2001 selection of ALJs for the SSA, OPM and SSA
used the discriminatory partner benchmark,
“manipulat[ing] the ALJ selection process to deny
plaintiff consideration for an ALJ position because she was a
party in the 1994 EEOC Action.” McGettigan,
273 F.Supp.3d at 194. On August 11, 2017, in a decision
covering both Menoken II and the instant case, the
Court dismissed the claims in Menoken II.
Id. at 192. It found that the claims were
“precluded under the doctrines of res judicata
and issue preclusion, ” id., since Menoken
I had already decided that the discriminatory benchmark
did not enter into OPM's selection process. Id.
at 196, 198.
Menoken v. Weichert, et al., No. 1:16-cv-0083
(D.D.C. 2016) (the instant case)
same date that plaintiff filed Menoken II, she filed
a second complaint against OPM and HHS alleging Title VII
discrimination and retaliation in the course of the 2005
selection of HHS ALJs. Compl. [Dkt. # 1]. On August 23, 2016,
she amended her complaint. Am. Compl. [Dkt. # 8]. Plaintiff
alleged that OPM's use of four location-specific
certificates, as opposed to a single certificate spanning all
four locations, discriminated against African American
applicants, including herself, and OPM retaliated against her
for the 1994 EEOC Action when they did not select her to be
an ALJ in 2005. Id. ¶¶ 38-52.
October 11, 2016, defendants filed a consolidated motion to
dismiss the claims in this case and Menoken II.
Defs.' Mot. to Dismiss [No. 1:16-cv-0084, Dkt. # 11];
Mem. of P. & A. in Supp. of Defs.' Mot. to Dismiss
[No. 1:16-cv-0084, Dkt. # 11-1]; Defs.' Mot. to Dismiss
[Dkt. # 10]; Defs.' Mem. of P. & A. in Supp. of
Defs.' Mot. to Dismiss [Dkt. # 10-1]. On August 11, 2017,
the Court granted the motion in part. McGettigan,
273 F.Supp.3d at 203. It found that plaintiff stated a
disparate impact claim of discrimination against OPM and HHS,
but it dismissed the retaliation claim ...