Opinion
Civil Action No. CCB-04-432.
January 14, 2005
MEMORANDUM
Plaintiff Alberta Dwivedi has brought claims alleging employment discrimination based on race, gender, and reprisal for prior protected activity under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and age under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 633a(a). She is seeking injunctive and compensatory relief under Title VII and the ADEA and declaratory relief by the court's authority under 28 U.S.C. § 2201. After unsuccessfully pursuing an administrative remedy with the Equal Employment Opportunity Commission ("EEOC"), Ms. Dwivedi filed a complaint in this court on February 18, 2004. Defendant Secretary Tommy Thompson moved for a dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and (6) or for summary judgment under Fed.R.Civ.P. 56 on April 26, 2004. Because there was considerable discovery already undertaken pursuant to the EEOC proceedings, the parties have agreed that the motion now pending before the court should be treated as one for summary judgment. This matter has been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons stated below, the court will grant defendant's motion for summary judgment.
BACKGROUND
Alberta Dwivedi, the plaintiff, is an African-American woman born December 26, 1947. Dwivedi is employed by the Office of Research, Development and Information Research Dissemination and Resources Group in the Centers for Medicare Medicaid Services (CMS), which is a part of the U.S. Department of Health Human Services ("the agency"). She has been an employee of the federal government since May of 1966, and of the predecessor agency to CMS since October of 1984. At the time of the alleged discrimination, she was working as a Health Insurance Specialist, serving at the GS 107/13 level, in the CMS offices in Baltimore County, Maryland. Dwivedi has served at the GS-13 position level since 1988. She applied for supervisory and GS-14 level positions multiple times from 1988 to 1999, yet each time she was not selected and the position was given to white applicants. Dwivedi filed several complaints with the EEOC during this time as a result of the repeated non-selections.This case arises from plaintiff's non-selection for a GS-14 supervisory position in April 2002. A 32 year old white male, Mathew Leipold, was selected for the position. Dwivedi alleges she was discriminated against because of her race, gender, age, and prior history of protected activity.
Dwivedi's complaint also alleges disparate impact discrimination. After the defendants argued that she failed to state a prima facie disparate impact case and that she lacked standing to assert this claim because she failed to raise it during the EEOC administrative process, she consented to dismissal of the claim. (Pl.'s Memo. in Opp'n. at 1.) Similarly, Dwivedi alleged that the agency had a pattern and practice of discrimination, but she failed to respond to the defendant's argument that she lacked standing to assert this claim as an individual plaintiff in a non-class suit, and therefore abandoned the claim. See Adams v. Calvert County Public Schools, 201 F. Supp. 2d 516, 519 (D. Md. 2002); Mentch v. Eastern Sav. Bank, FSB, 949 F. Supp. 1236, 1246-47 (D. Md. 1997).
A. History of Protected Activity
According to her complaint, Dwivedi filed six equal employment opportunity ("EEO") complaints between 1988 and 1999. (Compl. ¶¶ 10-15.) She filed the first complaint against the agency in March 1988 after a white female was selected instead of her for a GS-13 supervisory position. She withdrew that complaint when she was promoted to a GS-13 position in December 1988. (Compl. ¶ 10.) On April 24, 1995 Dwivedi filed a second EEO complaint in response to an allegedly offensive e-mail that was written and distributed by two white male coworkers. (Compl. ¶ 11.) The agency issued a final decision dismissing Dwivedi's complaint on June 23, 1995 because she had failed to show an injury in fact resulting from the e-mail; this decision was affirmed by the EEOC on February 7, 1996. See 1996 WL 60519, EEOC Doc. 01955546.
The plaintiff filed her third EEO complaint on January 14, 1997 after she was not selected for a GS-14 supervisory position. Two white females were selected. (Compl. ¶ 12.) On March 13, 1998, plaintiff filed a fourth EEO complaint when she was again passed over for a GS-14 position. Two white males were selected. (Compl. ¶ 13.) The plaintiff filed the fifth and sixth EEO complaints on August 16, 1998, and June 16, 1999, respectively, after white applicants were selected for two other GS-14 positions to which she applied. (Compl. ¶¶ 14, 15.) Plaintiff states that in all instances she was included on the "Best Qualified" list for the GS-14 positions. (Compl. ¶ 16.)
In October 2000 the plaintiff and her representative, the American Federation of Government Employees (AFGE), Local 1923, entered into a settlement agreement with the agency to resolve the four EEO complaints she filed between 1997 and 1999. (Def. Mem., Ex. 1, Settlement Agreement, EEOC Case No. 120-AO-3497X.) The settlement agreement granted Dwivedi the use of one "priority consideration" for the position of her choosing. (Def. Mem., Ex. 1 at 3). Priority consideration entitles the holder to be given "bona fide consideration" for a vacancy prior to other applicants. Id. To exercise this option, the employee must alert the appropriate officials that she would like to use her priority consideration for an open position in which she is "interested, is eligible, and which leads to the same grade level as the vacancy for which proper consideration was not given." (Pl.'s Memo. in Opp'n, Ex. 1, Article 26, Section 14 of the Master Labor Agreement between the AFGE AFL-CIO and the Health Care Financing Administration.) Once notified that an individual would like to use her priority consideration for an open position, the selecting official will evaluate that applicant before any others. Id.
B. Position Currently at Issue
CMS posted vacancy announcement No. H-01-166 for a GS-14 supervisory position, titled Supervisory Health Insurance Specialist, on November 26, 2001. (Pl.'s Memo. in Opp'n, Ex. 2, Dwivedi Aff.) The position description summarized the duties as follows: "The incumbent serves as first line manager. The incumbent will plan; direct and coordinate the work activities of a staff engaged in the day-to-day systems operations of data systems, information technology and contract management which support the ESRD program." (Def.'s Memo., Ex. 2, Position Announcement No. H-01-166.) The position announcement described the relevant experience desired, including fifty-two weeks at the GS-13 level and "work concerned with the administration and operation of national health insurance programs, such as Medicare and Medicaid; experience interpreting program requirements and formulating policies, methods, and procedures; monitoring, reviewing, evaluating, and assessing the integrity and quality of program operations; preparing and analyzing health care data related to the programs." Id. The announcement also listed five rating criteria in the "Knowledge, Skills and Abilities" ("KSAs") categories related to business process model development, contractor oversight, and management capabilities. Id.
"ESRD" stands for End Stage Renal Disease.
The KSAs were listed as follows: (1) Ability to direct detailed requirements analyses and/or information/business process model development; (2) Ability to plan, direct and organize work products by determining priorities and allocating resources, lead a subordinate staff; (3) Ability to manage or direct independent teams and contractors, with a focus on developing or maintaining health care program-related systems and applications; (4) Ability to supervise and lead a subordinate staff; (5) Ability to communicate orally and in writing. Numbers 2 and 3 were rated "Critical."
The selecting officials explained that these KSAs were "fairly general, as our intention was to solicit as wide a pool as possible from which to interview and select." (Def.'s Memo., Ex. 5, Stricker Non-Selection Letter.) According to selecting officer Dennis Stricker:
ESRD is the only disease-specific way to become a Medicare beneficiary and Medicare is responsible for implementing a program for providing dialysis services for people with chronic kidney failure, and placing beneficiaries on a list for transplants, in the hope that they may receive a kidney transplant and be able to cease dialysis treatment. The incumbent of this position would be responsible for implementing this program through the integration of three major computer systems, REBUS (Renal Beneficiary Utilization System), REMIS (Renal Management Information System), and VISION (Vital Information System to Improve Outcomes in Nephrology)." (Def.'s Memo., Ex. 4, 2002 Stricker Aff. at 2-3.)
The new division director would be overseeing the transition from an outmoded mainframe system to a mid-tier computer management system in order to eliminate paper filing of Medicare forms and streamline the reporting process. Id.
On December 6, 2001, Mathew Leipold submitted an application for the position. (Pl.'s Memo. in Opp'n, Ex. 2, Dwivedi Aff.) The next day, Dwivedi submitted a request for priority consideration along with an application for the position. Id. In accordance with the 2000 settlement agreement, the selecting officials for position No. H-01-166 were notified that Dwivedi should be considered before all other applicants. (Def. Memo., Ex. 3, Letter from Stuart Hoffman.) The notification letter specifically mentioned Dwivedi's settlement agreement and case number with the EEOC. The selecting officials, Dennis Stricker and William Crochunis, Director and Deputy Director of the Information Systems Group at CMS, were informed that if they chose not to select Dwivedi for the position, they must submit a letter explaining why they did not. Id.
Dwivedi was the first candidate interviewed for the position. She was interviewed by both Dennis Stricker and William Crochunis on January 4, 2002 for "well over an hour." (Def.'s Mem., Ex. 4, 2002 Stricker Aff. at 6.) Stricker and Crochunis were provided with Dwivedi's application beforehand, which consisted of her resume and a written summary of work examples demonstrating her capabilities for each of the five KSAs. (Pl.'s Memo. in Opp'n, Ex. 3.) Stricker and Crochunis handed Dwivedi a list of seven questions and asked her to respond. The questions covered topics such as management experience and philosophy, knowledge and experience with determining priorities and allocating resources, and experience working with application systems development and various kinds of technology. (Def. Mem., Ex. 4.) Stricker and Crochunis explained that prior to the interview they had "already prepared a list of standard questions we intended to ask all interviewed parties." (Def. Mem., Ex. 5.)
The seven questions posed to each interviewee were: (1) Tell me about yourself, including your work history at CMS; (2) Provide me with a description of your management philosophy. (a) What's your approach to dealing with difficult employees? (b) What's your approach to filling vacancies when you have competing needs? (c) How do you motivate people?; (3) How do you determine priorities and allocate resources? (a) What toolsets do you use? (b) What budgeting experience do you have? (c) How do you formulate budgets/financial plans?; (4) Explain how you have used SDLC in your approach to application systems development; (5) What knowledge of and experience do you have in the current technology area? (a) web development (b) client-server (c) midtier (d) security; (6) What techniques would you use for rapid cycle development in today's fast paced technology world?; and (7) How would you operate in a matrix management environment?
After the interview, Stricker and Crochunis decided that Dwivedi did not meet the requirements for the position. As required by the priority consideration guidelines, Stricker wrote a letter detailing the reasons for Dwivedi's non-selection. The January 23, 2002 letter identified five "areas of concern" where they deemed Dwivedi's qualifications to be insufficient. Specifically, the selecting officials indicated that Dwivedi had "little knowledge and/or experience in the use of automated tools in project planning;" that she had "no knowledge and/or experience of contract budgeting techniques;" and "no experience in mid-tier and/or Web development arenas." (Def.'s Mem., Ex. 5.) Finally, they noted that Dwivedi "did not demonstrate an in-depth knowledge of the SDLC [system development life cycle planning] processes" nor did she "demonstrate any experience or knowledge of the use of Joint Application Development (JAD), Rapid Application Development (RAD) or Joint Requirements Planning (JRP) sessions." Id. Generally speaking, Stricker and Crochunis were concerned that Dwivedi's experience in a mainframe development environment had not equipped her to manage and oversee the development of and transition to a new system using mid-tier and Web development technology. They concluded that although Dwivedi was "an intelligent, articulate and pleasant individual," she was not qualified for the division director position and they therefore requested to interview other employees on the "best qualified list" ("BQL") for the position. Id.
On February 28, 2002 a separate selection panel generated a BQL of thirteen applicants for the position, each of whom had been scored and ranked according to the criteria listed in the KSAs. The list also indicated the race and gender of each applicant. The cut-off score for the list was 21 and the highest score on the list was 28. Stricker and Crochunis then interviewed seven of these applicants, including Mathew Leipold, who had a score of 28. Dwivedi achieved a score of 27 but she was not interviewed with the general pool because she had already been interviewed and not selected. (Def.'s Mem. at 8-9). Stricker and Crochunis conducted the interviews with the remaining BQL candidates in the same manner as Dwivedi's interview; that is, they handed each candidate the same list of seven questions and asked him or her to respond.
Stricker ultimately selected Mathew Leipold for the division director position. Leipold was a 32 year old white male who had worked at the GS-13 level as a computer specialist for CMS since 1994. (Compl. ¶ 20 and Pl.'s Memo. in Opp'n at 17.) According to Stricker, Leipold was selected for the division director position because he "had more of the relevant experience and skills than any other candidate, including Ms. Dwivedi." (Def. Mem., Ex. 4 at 5). In particular, Stricker cited Leipold's applications development experience using RADs and JADs, as well as his experience working with health care data systems and web technology. Id. Mr. Stricker explained that "[t]hough Mr. Leipold did not have ESRD program experience or management experience, he had expansive technical skills and knowledge of mid-tier and/or client/server applications. We considered [sic] to be the most important of the skills we were looking for, because we felt it was much easier to learn the program than acquire highly technical systems skills which take years to cultivate." Id.
Stricker clarified in a later affidavit that Leipold did indeed have management experience in the U.S. Army and that his management skills earned him a "4" or "superior" rating on the Best Qualified List of candidates for the position. (Def's. Resp., Ex. 1, 2004 Stricker Aff. at 3.)
After Dwivedi learned she was not selected for the position, she wrote to the Director of CMS's Office of Equal Opportunity and Civil Rights ("OEOCR") on March 1, 2002, stating that by not selecting her for the position, CMS violated the settlement agreement. (Def.'s Mem., Ex. 7). The Director of the OEOCR responded on March 5, 2002 with the final agency decision that the agency had properly given her priority consideration for the position, and therefore the terms of the settlement agreement had been fully implemented. Id. Plaintiff appealed the final agency decision to the EEOC on March 14, 2002. The EEOC denied her appeal on March 24, 2003, concluding that "the terms of the agreement did not guarantee that complainant would be selected for the position, only that she would be granted priority consideration," and that there had been no breach of this agreement. See Dwivedi v. Thompson, 2003 WL 1625213, *2-3, EEOC Doc. 01A22252.
Dwivedi also contacted an EEO counselor on May 8, 2002. (Def.'s Mem. at 10.) Counselor Mike Busacca conducted an investigation, and issued a report of investigation ("ROI") on August 16, 2002. Id. Dwivedi filed a formal complaint with the OEOCR alleging discrimination based on age, race, gender, retaliation/reprisal and disparate treatment, on August 20, 2002. (Def.'s Mem., Ex. 11.) Dwivedi subsequently requested a hearing before the EEOC; after the parties conducted documentrelated discovery and served interrogatories, and after unsuccessful settlement negotiations, Dwivedi withdrew her request for an administrative hearing and instead elected to pursue her case in this court. (Compl. ¶¶ 28-31.)
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion, "[b]y its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
"The party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [its] pleading, but must set forth specific facts showing that there is a genuine issue for trial." Rivanna Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236, 240 (4th Cir. 1988). The court must "view the facts and draw reasonable inferences in a light most favorable to the nonmoving party," Shaw v. Stroud, 13 F. 3d 791, 798 (4th Cir. 1994), but it also must abide by its affirmative obligation to ensure that factually unsupported claims and defenses do not proceed to trial. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986)).
Under both the ADEA and Title VII, a plaintiff can prove discrimination and retaliation claims through either direct or circumstantial evidence. See Mereish v. Walker, 359 F.3d 330, 334 (4th Cir. 2004) (recognizing that a plaintiff can establish an ADEA claim through circumstantial evidence of discrimination under the pretext method established in McDonnell Douglas); Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1354 (4th Cir. 1995) (citing United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 n. 3, 103 S. Ct. 1478 (1983), for the proposition that in a Title VII action, "[a]s in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence").
When the plaintiff's claims are based on circumstantial evidence, such as in this case, the claims must be evaluated using the McDonnell Douglas burden-shifting framework. See, e.g., Thompson v. Potomac Electric Power Co., 312 F.3d 645, 649 (4th Cir. 2002) ("Because [the plaintiff] presented no direct evidence of discriminatory denial of training based on race, he was obliged to proceed under the McDonnell Douglas proof scheme . . ."); Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000) ("The McDonnell Douglas burden-shifting scheme applies in analyzing retaliation claims under Title VII.").
First, the plaintiff must prove a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). "In order to establish a prima facie case [of a failure to promote in violation of Title VII], [the plaintiff is] required to demonstrate by a preponderance of the evidence that: (1) she is a member of a protected class; (2) her employer had an open position for which she applied; (3) she was qualified for the position; (4) she was rejected for the position under circumstances giving rise to an inference of unlawful discrimination." Taylor v. Virginia Union University, 193 F.3d 219, 230 (4th Cir. 1999) (citation omitted). Similarly, in order to make a prima facie case of retaliation, a plaintiff must show that: "(1) she engaged in a protected activity; (2) the employer took an adverse employment action against her; and (3) a causal connection existed between the protected activity and the asserted adverse action." Von Gunten v. Maryland, 243 F.3d 858, 863 (4th Cir. 2001).
If the plaintiff is able to prove a prima facie case the burden of going forward then shifts to the employer to articulate a non-discriminatory reason for the failure to promote. If the employer is able to articulate such a non-discriminatory reason, the burden shifts back to the plaintiff to show that the articulated reason is pretextual. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-49, 120 S. Ct. 2097 (2000) (clarifying evidentiary burdens as set forth under McDonnell Douglas). That is, the plaintiff may offer evidence that the defendant's reasons are false or unworthy of credence. Id. at 143. While it is " permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation," that inference is not required, id. at 146-47, and "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. at 143 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093 (1981)).
The parties in this case agree that the plaintiff has stated a prima facie case for disparate treatment discrimination and retaliation based on race, gender, and age. The focus of this analysis, therefore, is whether the defendant has articulated legitimate, non-discriminatory, and non-retaliatory reasons for not selecting the plaintiff and whether the plaintiff has offered evidence showing that the defendant's reasons are pretextual.
As described above and as explained in Mr. Stricker's affidavits (Def.'s Mem., Ex. 4 and Def.'s Resp., Ex. 1), Mr. Crochunis's affidavit (Def.'s Resp., Ex. 2), the non-selection letter (Def.'s Mem., Ex. 5), and the Agency's Responses to Complainant's Second Set of Interrogatories and Requests for Production of Documents (Def.'s Mem., Ex. 6), the defendant asserts that Leipold was selected for the Supervisory Health Insurance Specialist position because he was more qualified than Dwivedi. The Supervisory Health Insurance Specialist would manage the transition from three outdated mainframe systems to one new ESRD system. The agency chose not to select Dwivedi in large part because her technical experience was limited to mainframe development, and she lacked sufficient experience in mid-tier technology, rapid cycle development techniques, and systems development life cycle planning, the methods which would be critical to developing the new ESRD system. (Def's. Mem., Ex. 5.; Def.'s Resp., Ex. 1 and 2.) In addition, the agency noted that Dwivedi's contract budgeting experience was "limited to training budgets," whereas the Supervisory Health Insurance Specialist would need to manage multi-million dollar technical development contracts with external vendors. (Def.'s Mem., Ex. 5 at 2.) In contrast, when presented with the same questions that Dwivedi was asked during her interview, Leipold provided examples of his experience with mid-tier technology, as well as his work as a project officer on application development contracts, "precisely the type of contract experience we were looking for." (Def.'s Resp., Ex. 1, 2004 Stricker Aff. at 2.) Considering the above, the defendant has met its burden to produce evidence that its hiring decision was based on legitimate, non-discriminatory reasons.
In an effort to persuade the court that the defendant's proffered reasons are pretextual, the plaintiff makes primarily three arguments: (1) that the interview process was not conducted uniformly and in good faith; (2) that Leipold was not more qualified than she, and that she in fact met the requirements for the position; and (3) that the reasons cited for selecting Mr. Leipold do not correspond to the criteria set forth in the position announcement.
Dwivedi argues that by handing her a list of questions to respond to, the "selecting officials were going through the motions," rather than granting her bona fide consideration. (Pl.'s Memo. in Opp'n at 7.) She suggests that the selecting officials treated her in a perfunctory manner because they were aware of her past EEOC complaints and her settlement agreement. Moreover, Dwivedi argues that she was not given priority consideration because she was not interviewed for the position when it was opened to competition and she was not ultimately selected for the position.
First, as both the OEOCR and the EEOC have concluded, the record clearly demonstrates that the agency granted Dwivedi priority consideration in accordance with the terms of the settlement agreement. Stricker and Crochunis, the selecting officials for the Supervisory Health Insurance Specialist position, reviewed Dwivedi's application and interviewed her before all other candidates. The fact that she was given a list of questions to respond to does not suggest that Stricker and Crochunis did not take her candidacy seriously. Preparing a list of standard questions to use with each interviewee is a legitimate, non-discriminatory manner in which to conduct an interview process. If anything, their doing so indicates their desire to give each candidate an equal opportunity to present his or her qualifications in each of the relevant areas. Once Stricker and Crochunis determined that Dwivedi did not have the necessary knowledge or experience for the position, Stricker wrote a letter detailing the reasons for her non-selection, as required by the priority consideration settlement agreement. ( See Def.'s Mem., Ex. 5.) They then asked to open the interview process to a list of best qualified candidates. Given that the selecting officials had already determined that Dwivedi did not possess the necessary qualifications for the position they were seeking to fill, it would have made little sense for them to re-interview her along with the other candidates, as Dwivedi argues they should have done. Furthermore, priority consideration, as defined by the labor agreement and the settlement agreement, did not, as plaintiff suggests, require the officials to hire Dwivedi for the position in which she expressed an interest. The agency's only obligation was to consider her candidacy before any other applicants, an obligation they fulfilled.
Similarly, Dwivedi's argument that Stricker and Crochunis were aware of her prior protected activity and, as a result, retaliated against her by failing to give her candidacy due consideration, is not supported by the record. Although Stricker presumably knew about Dwivedi's EEOC complaint because the letter directing him to grant her priority consideration referenced her EEOC case number and settlement agreement, see Def's. Mem. Ex. 3, Dwivedi offers no evidence, other than her own opinion, to support her claim of retaliation. Stricker stated that "I did not know Ms. Dwivedi prior to posting this vacancy and did not know that she had previously filed an EEO complaint" (Def.'s Mem., Ex. 4, 2002 Stricker Aff. at 5), and Dwivedi provides no evidence to suggest he was motivated by anything other than the desire to select the most qualified person for the position.
Dwivedi further faults the interview process by arguing that she was not asked about her experience with JAD, RAD, and JRP application development methods, and that although Leipold states in his deposition that he cannot remember if he was asked about these techniques, the hiring officials cited his experience in these areas as one important reason for his selection over Dwivedi. Dwivedi argues that she has participated in JADs and JRPs, and that she has knowledge of RAD through internet training, and therefore the hiring officials' assessment that she lacked experience in this area was inaccurate. In addition to her experience with JADs and JRPs, Dwivedi insists that her mainframe programming skills were transferable, and that, as an information technology professional accustomed to a fast-changing environment, she was more than qualified to manage the development of a new mid-tier system. In support of this claim, she explains that she has taken two mid-tier programming classes and encountered no problems.
(Pl.'s Memo. in Opp'n at 20.) She further cites to positive reviews she has received from supervisors and colleagues as evidence of her superior qualifications for the job. Id. at 28.
Dwivedi has not demonstrated that she was asked different questions or treated differently in the interview process. It is undisputed that the selecting officials handed each interviewee, including Dwivedi, the same list of seven standard questions and was asked to respond. As Stricker explains in his second affidavit, all applicants were asked what techniques they would use for rapid cycle development. (Def.'s Resp., Ex. 1 at 3; see also supra note 4, question 6.) Dwivedi could have, at that time, discussed her knowledge of and experience with JADs, JRPs and RADs, since these methods were most applicable. The fact that she did not does not somehow imply that Stricker and Crochunis unfairly evaluated her qualifications. Leipold, when questioned during deposition (more than a year after the job interview) whether he was asked about JADs, JRPs and RADs in the job interview, responded: "I think I was, but I don't know with absolute certainty. I know I was with the system development life cycle. I do know that came up, but I don't know." Leipold's response suggests that he did discuss the application development techniques and his experience with the system development life cycle (SLDC) in response to the questions. In contrast, Stricker reported that "[a]t no time during her response to this question did Ms. Dwivedi ever discuss her knowledge and/or experience with . . . JADs. . . . RADs . . . or JRP, even though these methods were the most applicable," and that her response when asked about SLDC "did not suggest to me that she in fact knew very much at all about them, and certainly not enough to be selected for a position where these methods are critical." (Def.'s Resp., Ex. 1 at 3.)
As for Dwivedi's belief that she was more qualified for the position than Leipold, this subjective view does not give rise to an inference that the hiring officials unlawfully discriminated against her when they decided not to select her for the GS-14 position. It is well recognized that it is "the perception of the decision maker which is relevant, not the self-assessment of the plaintiff." Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000) (citations omitted). See also Evans v. Technologies Applications Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996) ("relative employee qualifications are widely recognized as valid, non-discriminatory bases for any adverse employment decision"); Langerman v. Thompson, 155 F. Supp. 2d 490, 501 (D.Md. 2001) ("A defendant is free to choose among equally qualified individuals for a position as long as the selection is not based on illegal criteria.").
Finally, Dwivedi contends that the position announcement did not accurately describe the qualifications CMS was seeking for the position. Therefore, Dwivedi argues, the reasons relied upon for Leipold's hiring are post-hoc rationalizations intended to obscure the discriminatory reasons she was not selected. Dwivedi focuses on the non-selection letter by Stricker in which he explained their determination that she was not qualified for the position. In that letter, Stricker stated that the position:
requires a manager with experience and knowledge of current technologies, budget formulation and knowledge and experience in rapid cycle application development techniques. We are currently in the process of a complete redesign and integration of all our ESRD systems. In this effort, the line manager will have responsibility for the work of 5 separate contractors and federal staff. These contractors are using modern mid-tier development and Web techniques in the redesign effort. In our interview, Ms. Dwivedi did not demonstrate any experience or detailed knowledge of these techniques.
(Def.'s Mem., Ex. 5.)
Dwivedi contends that these requirements were not included among the KSAs and duties listed in the position vacancy announcement. This is not correct. While the position announcement may not have contained this exact description, the KSAs listed encompass the more specific requirements described by Stricker. See supra note 3. For example, the first KSA, "[a]bility to direct detailed requirements analyses and/or information/business process model development," and the third KSA, "[a]bility to manage or direct independent teams and contractors, with a focus on developing or maintaining health care program-related systems and applications," describe, in general terms, exactly the type of work on which Stricker focused in his non-selection letter. Stricker explained that "[w]e competed the position of Division Director from all sources, made the KSA's fairly general to attract the largest number of individuals, and had no individual in mind when advertising the position. We planned to be more specific during the interviews and use that process to determine the best candidate for the job." (Def.'s Mem., Ex. 4, 2002 Stricker Aff. at 4.) This a legitimate, non-discriminatory approach to hiring, and the plaintiff has failed to present evidence that suggests Stricker's reasoning was pretextual.
Ultimately, the plaintiff has failed to show sufficient evidence of pretext to raise a genuine issue of material fact that the defendant intentionally discriminated against her on the basis of race, gender, age, or reprisal. The defendant's motion for summary judgment will be granted. A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby Ordered that:1. the defendant's Motion for Summary Judgment is granted;
2. copies of this Order and the accompanying Memorandum shall be mailed to counsel of record; and
4. the clerk of the court shall CLOSE this case.