Opinion
Civ. Action No. 02-2042 (EGS).
March 31, 2005
OPINION ORDER
Plaintiff David Moore brings this suit alleging that his employer, the Library of Congress, discriminated against him on the basis of his race and retaliated against him for engaging in protected activity, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. and 42 U.S.C. § 1981a. Pending before the Court is defendant's Motion for Summary Judgment. Upon consideration of the defendant's motion, the responses and replies thereto, and for the reasons detailed below, this Court concludes that defendant's motion should be DENIED.
I. BACKGROUND
Plaintiff David Moore, a white male, has been an employee of the Library of Congress since 1987. In August 2000, defendant Library of Congress posted a vacancy announcement for an Acquisitions Specialist position in the Northern European Acquisitions Section. The vacancy announcement authorized the selection of two applicants for Acquisition Specialist positions. The initial closing date for the application process was September 5, 2000. On that date, only Mr. Moore had submitted his application. The deadline was apparently extended for reasons not known to the Court, however, and ultimately seven other individuals applied for the vacancy. In addition to Mr. Moore, one of the other applicants was Ms. Saunders, an African-American woman, who was ultimately selected to fill the position.
The vacancy announcement stated that qualified applicants must demonstrate the ability to read German. A ranking panel screened applications and assigned scores to each applicant based on the factors listed in the vacancy announcement. Mr. Moore was given a score of 73 out of 75 and ranked highest among the applicants; Ms. Saunders was given a score of 65 and ranked fifth among the eight applicants. According to plaintiff, although the selecting official would typically have been Ms. Dixson, who was acting Head of the Northern European Acquisitions Section at the time, Mr. Panzera, Chief of the European/Latin American Acquisitions Directorate, appointed himself as the selecting official in this case.
Plaintiff asserts that he had previously formed an adversarial relationship with Mr. Panzera based on two prior events. First, in his role as a union representative, Mr. Moore intervened on behalf of a Jewish mail room employee who was being harassed by members of Mr. Panzera's office. Mr. Moore urged Mr. Panzera to transfer the employee, and when Mr. Panzera refused to do so, Mr. Moore initiated a complaint that resulted in a Federal Labor Relations Authority complaint and ultimately caused Panzera to transfer the employee.
Several years later, Mr. Moore was transferred to a division under Mr. Panzera. According to plaintiff, Mr. Moore was thereafter recommended by his immediate supervisor for a monetary award, but Mr. Panzera overrode that recommendation. Mr. Moore later filed a pro se lawsuit against Mr. Panzera and others for retaliating against him based on his involvement with the mail room employee's harassment case. That pro se case is also pending before this Court. See Moore v. Billington, et al., Civ. Action No. 00-2019.
Mr. Moore claims that Mr. Panzera discriminated against him when he selected Ms. Saunders for the Acquisitions Specialist and that by not selecting Mr. Moore, despite his obvious qualifications for the position, Mr. Panzera was retaliating against Mr. Moore for the prior dispute regarding the mail room employee and the pending lawsuit.
II. STANDARD OF REVIEW
Summary judgment should be granted pursuant to Fed.R.Civ.P. 56 only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). Although the party opposing the motion may not rely solely on pleadings or conclusory factual allegations, the court must resolve ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III. DISCUSSION
A. Burden of Proof in Title VII Cases
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court established a three-part test for discrimination cases brought pursuant to Title VII. First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Id. at 803. If plaintiff proves such a prima facie case, the burden then shifts to the defendant to provide legitimate, nondiscriminatory reasons for the employment decision. Id. If the defendant satisfies its burden, plaintiff must then prove that the defendant's stated reasons were not its true reasons, but instead a pretext for discrimination. Id. at 804.
1. Plaintiff's Burden to Prove Prima Facie Case of Discrimination
In order to establish a prima facie case of discrimination in a Title VII case, plaintiff must show that (1) he is a member of a protected class; (2) he suffered an adverse personnel action; (3) under circumstances giving rise to an inference of discrimination. See Stella v. Mineta, 284 F.3d 135, 144-45 (D.C. Cir. 2002) (citing Brown v. Brady, 199 F.3d 446, 452 (D.C. Cir. 1999)).
Because this is a case of alleged "reverse discrimination," to satisfy the first element of the prima facie case Mr. Moore need not show that he is a member of a protected class, but instead he must demonstrate "background circumstances that support the suspicion that the defendant is the unusual employer that discriminates against the majority." See Harding v. Gray, 9 F.3d 150, 152-53 (D.C. Cir. 1993) (citing Parker v. Baltimore Ohio R.R., 652 F.2d 1012, 1017 (D.C. Cir. 1981). According to Hardy, such background circumstances can be shown with evidence that an employer had reason or inclination to discriminate invidiously, or with evidence "indicating that there is something `fishy' about the facts of the case at hand that raises an inference of discrimination." Harding, 9 F.3d at 153.
The third element of the prima facie case, i.e., that the adverse employment action occurred under circumstances giving rise to an inference of discrimination, may be satisfied with evidence that employees similarly situated to the plaintiff but not in plaintiff's protected class were treated differently. See Neuren v. Adduci, Mastriani, Meeks Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995). To do this, the plaintiff is "required to demonstrate that all of the relevant aspects of her employment were `nearly identical' to those of the male associate". Id. (citing Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994)).
Similarly, to establish a prima facie case of retaliation, plaintiff must show (1) that he engaged in statutorily protected activity; (2) that the employer took an adverse personnel action; and (3) that a causal connection exists between the two. See Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985) (quoting McKenna V. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984).
For purposes of its Motion for Summary Judgment, the defendant assumes that Mr. Moore can establish a prima facie case of discrimination and retaliation. Thus, the burden shifts to the defendant to establish a legitimate, nondiscriminatory reason for not selecting Mr. Moore for the position. Def. Motion at 7.
2. Defendant's Burden to Show Legitimate, Nondiscriminatory Reason for Employment Decision
Defendant argues that Ms. Saunders was "a better fit" for the Acquisitions Specialist position based on her extensive experience in acquisitions and collection development. Def. Mot. at 8. Therefore, defendant claims, the Library of Congress has satisfied its burden to show a legitimate, nondiscriminatory reason for selecting her over Mr. Moore. In the Court's view, however, plaintiff has established that a reasonable jury could find that these stated reasons are a pretext for what was in fact discrimination and retaliation.
3. Plaintiff's Burden to Establish that Defendant's Stated Reasons were not its True Reasons, and Instead a Pretext for Discrimination
In a recent race discrimination and retaliation case, Salazar v. WMATA, 2005 WL 645224 (D.C. Cir.), our Circuit reversed a district court's grant of summary judgment for defendant Washington Metropolitan Area Transit Administration ("WMATA"). In that case, the plaintiff, a Latino, had applied five times for promotions to entry-level supervisory positions. When he applied for the fifth time, plaintiff Salazar explained to the Deputy General Manager, Charles Thomas, that Gary Lewis, a Superintendent, discriminated against Latinos and that Lewis had selected the interview panel members for at least some of Salazar's previous promotion denials. Id. at *1. Salazar had previously filed a grievance against Lewis. Id.
Thomas apparently told Salazar that Lewis would not make the panel selections for this round, and selected panel members who were not Lewis's friends. Id. When it came time for the interview, however, Salazar found that, contrary to the usual procedure, a fourth panel member was present, Buddy Jaggie, who chaired the panel and was Lewis's assistant and friend. Id. at *2. In fact, Jaggie had designed the questions for the interview and assigned the point value for each question, in consultation with Lewis. The questions and point values de-emphasized experience and education and instead focused on answers to hypotheticals and questions about Metro policies and the applicants' motivation. Id.
Salazar came in fourth among the applicants, and, even if Jaggie's score had not been counted, would still have finished fourth. Id. The top-scoring applicant, however, was not promoted and instead was transferred by Lewis to Greenbelt to a position that required less responsibility. Id. When Salazar was not selected for the position, he filed his discrimination and retaliation claim. The district court granted summary judgment for WMATA, finding that Salazar did not establish that WMATA's asserted reason for not promoting him was pretextual. Id.
On appeal, WMATA claimed it had selected a more qualified applicant through a fairly administered process. Therefore, the Circuit Court stated,
the question then becomes whether a reasonable jury could find in Salazar's favor based on all the evidence, including `(1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer).'Id. at *3 (citing Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (D.C. Cir. 2002) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc))).
The Circuit Court reversed the grant of summary judgment, finding that a jury "could infer something `fishy' from the fact that Lewis placed himself squarely at the center of a process designed to exclude him. Specifically, a jury could conclude that WMATA failed to provide a `fairly administered selection process' and that its claim to the contrary was pretextual." Salazar, 2005 WL 645224 at *4. The Court found this more likely when it considered the fact that the highest-scoring candidate, Tucker, was not selected for the position. Id. The Court concluded, "we think a reasonable jury could infer that Tucker was unsuited for the Metro Center job and that the selection process was geared not to finding the best person for the position, but rather to keeping Salazar from advancing." Id.
The Court also determined that a jury could find that "Jaggie and Lewis selected an interview agenda which, though facially acceptable, was designed to downplay Salazar's strengths." Id. at *5. Finally, the Court concluded, "Because given this evidence we would not disturb a jury verdict in Salazar's favor, we cannot uphold a summary judgment order concluding otherwise." Id. at *7.
In the instant case, this Court concludes that a reasonable jury could also find that the defendant Library of Congress's proffered reasons for selecting Ms. Saunders were a pretext for what were in fact discriminatory and retaliatory reasons for not selecting Mr. Moore. Considering plaintiff's facts in the light most favorable to him and giving him the benefit of all reasonable inferences, the Court finds that plaintiff has established a number of genuinely disputed issues of material fact.
For example, Ms. Saunders does not read German, a stated "minimum qualification" for the job. Also, Mr. Moore, an undisputedly qualified candidate with the highest rating, had applied for the position before the closing date — in fact he was the only candidate to timely apply for the position — and yet he was not given an interview before the closing date to apply was extended. The closing date to apply for the position was then extended and the reason for the extension is not clear in the record. Next, Mr. Panzera appointed himself as the selecting official, contrary to the usual procedure.
A reasonable jury could conclude, given the adversarial history between Mr. Panzera and Mr. Moore over the mail room employee's harassment claims and Mr. Moore's pending civil suit against Mr. Panzera, that these facts establish a discriminatory and retaliatory motive for Mr. Panzera's selection of Mr. Saunders over Mr. Moore. Thus, summary judgment is inappropriate.
IV. CONCLUSION
For the reasons stated herein, it is hereby
ORDERED that defendant Library of Congress's motion is DENIED.