Menoken v. Weichert

          MEMORANDUM OPINION

          AMY BERMAN JACKSON, UNITED STATES DISTRICT JUDGE

         Pro 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.

         Pending 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.”).

         As the 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.

         BACKGROUND

         I. Factual Background

         To 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”) ¶ 1.^[1] 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 Personnel Management, https://www.opm.gov/policy-data-oversight/classification-qualifications/general-schedule-qualification-standards/specialty-areas/administrative-law-judge-positions/ (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 Judge.” Id.

         After 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.

         When an 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 .

         In 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).

         II. Related Cases

         There 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.

         A. Menoken v. OPM, EEOC No. 100-95-7644X (“EEOC Action”)

         In 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.^[2] 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.

         However, 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 at 63.

         In 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.

         B. Menoken v. Whipple, 605 F.Supp.2d 148 (D.D.C. 2009) (“Menoken I”)

         In the 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.

         C. Menoken v. Cobert, et al., No. 1:16-cv-0084 (D.D.C. 2016) (“Menoken II”)

         On 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.

         D. Menoken v. Weichert, et al., No. 1:16-cv-0083 (D.D.C. 2016) (the instant case)

         On the 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.

         On 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 ...