Opinion
Civ. No. 00-584 (WGB)
March 8, 2002
Gregory R. Preston, Esq., PRESTON WILKINS, South Orange, New Jersey, Appearing for Plaintiff Venson Davis.
Robert Kirsch, AUSA, Newark, N.J., Appearing for the United States.
O P I N I O N
Plaintiff Venson C. Davis ("Davis") has brought this employment discrimination action against Attorney General John Ashcroft ("Defendant" or "the Government"), alleging that in the course of his employment with the Immigration and Naturalization Service ("INS") he was passed over for promotion on the basis of his race and retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Defendant now moves for summary judgment. Plaintiff opposes the motion. For the following reasons, Defendant's motion for summary judgment is granted.
BACKGROUND
Plaintiff Venson C. Davis is an African American employee of the INS, who began his career as a Border Patrol Agent in 1980. Between 1980 and 1996, Davis advanced through the ranks at INS, and in 1996 (the period relevant to this dispute) served at Newark International Airport as a GS-12 level Supervisory Immigration Inspector.
The Elizabeth Detention Facility Supervisory Detention and Deportation Officer Position
In 1998, after the period relevant to this dispute, Davis laterally transferred to another GS-12 position, and now serves as a Special Agent, Criminal Investigator.
On May 29, 1996, the INS locally posted Vacancy Announcement No. ER MSP II 96-60 (the "First Announcement") for a GS-13 Supervisory Detention and Deportation Officer position (the "Vacancy"). (Preston Decl. Ex. D.) Mr. Davis applied for the position, and based on his qualifications, was placed on a competitive staffing list by the INS's Office of Human Resources as one of the six applicants that were deemed "Best Qualified" for the position. (Preston Decl. Ex. H.) In addition to the six individuals on the competitive staffing list, one applicant, Mason Ruhlen ("Ruhlen"), who is Caucasian, was listed as "Non-Competitive" for the position.
The distinction between competitive and non-competitive applicants is somewhat counter-intuitive. Non-competitive applicants are those who already serve at the same grade as the position applied for (in this case GS-13). Ruhlen, as a GS-13, did not need to "compete" for the position because he was deemed automatically eligible to apply for the position. Davis, on the other hand, as a GS-12, would have had to "compete" with the other GS-12 applicants before even being considered for the position.
The GS-13 Supervisory Detention and Deportation Officer position for which Davis and Ruhlen applied was at the INS's Elizabeth Detention Facility in Elizabeth, New Jersey. This facility had been closed in 1995 because of a violent detainee riot, but was being re-opened in 1996. Robert Brown, then INS's Acting Regional Director for the Eastern Region of the United States (which included the Detention Facility), stated of the riots that "[a] review had been conducted of what caused the problems, and a lot of it was laid to poor management." (Deposition of Robert Brown ("Brown Dep.") 63:12-18, Kirsch Decl. Ex. 9.) As part of the re-opening process, which was viewed within the INS as a "particularly high priority and sensitive opening," (Decl. of Deputy Assistant Regional Director Michael Rozos ("Rozos Decl.") ¶ 4, Kirsch Decl. Ex. 8), Acting Regional Direct Brown stated that it was "very important that if the facility was going to reopen, that we have the best possible persons in [management] positions possible before the [Elizabeth] facility was reopened." (Brown Dep. 63:12-18.)
At the time the First Announcement was made, selecting authority for GS-13 positions rested with INS Executive Associate Commissioner William Slattery ("Slattery"). Slattery served as third in command of the entire INS, subordinate only to the Commissioner and one Deputy Commissioner, and had supervisory authority over 20,000 to 25,000 INS employees worldwide. Because the Vacancy to be filled was a field position in New Jersey, Slattery sought the input of Acting Eastern Regional Director Brown. Brown, who himself supervised some 8,000 employees, sought the input of then New Jersey District Director Warren Lewis ("Lewis"), an African American.
To aid in the selection process, the Eastern Region forwarded Lewis the list of qualified "Competitive" and "Non-Competitive" candidates for the vacancy that had been prepared by the INS's Human Resources office. Lewis reviewed the list, and also spoke with the newly installed officer-in-charge of the Elizabeth Detention Facility, Leroy Frederick. Frederick, an African American, suggested that Lewis recommend Earline Boyer, also an African American, for the position. (Deposition of Leroy Frederick ("Frederick Dep.") 51:1-23, Kirsch Decl. Ex. 14.)
Lewis ultimately wrote a letter memorandum to Eastern Region Director Brown recommending three candidates. The letter states:
I received your July 16, 1996 memorandum regarding the Elizabeth Detention Facility Assistant Officer in Charge (AOIC) position. Thank you for the opportunity to review the lists of candidates and make a recommendation for selection to that position, AOIC, (ER MSP II 96-60).
In priority order, my recommendations are:
• Venson DAVIS — (Supervisory Immigration Inspector) Presently, Mr. Davis has been detailed to the position of Acting Assistant Area Port Director, Newark International Airport (NIA). Mr. Davis has been a Supervisory Inspector at NIA approximately 4 years and had been in the Border Patrol Agent for 12 years. His airport supervisory experience will give balance to the extensive detention and deportation experience that the Officer in Charge (OIC) and Supervisory Detention Officer (SDO) possess. Additionally, his NIA supervisory expertise will be an asset at this user fee facility where our primary customers will be NIA and JFK International Airport.
• Mason RUHLEN — (Supervisory Special Agent) Mr. Ruhlen is presently a Supervisory Special Agent, having held that position for 8 years. He has been with the Service in excess of 18 years, all within the Investigations Program.
OTHER OPTION
• Earline D. BOYER — (Supervisory Deportation Officer) Presently, Ms. Boyer is a GS-13 SDO at NEW and has in excess of 11 years supervisory experience within the Deportation Program. She has 28 years INS experience and was previously an Investigator and Contact Representative. Although Ms. Boyer did not apply competitively for this position, she has expressed interest in this position several times since it has closed. Since she is presently a GS-13, she can be non-competitively selected (management need reassignment) for this position.
Her extensive deportation experience can only compliment the expertise of the OIC and SDO.
(July 30, 1996 Letter, Rozos Decl. Ex. A, Kirsch Decl. Ex. 8.)
In his declaration, Lewis indicated that both the acting program manager and the detention program had reviewed the applicants and recommended Venson Davis. (Warren Lewis Interrogatory Answers ("Lewis Interrog.") ¶¶ 11,14, Preston Decl. Ex. J.) Aside from Lewis's assertion, there is no evidence in the record to support this contention. Lewis also stated that beyond his July 30, 1996 letter to Brown, he spoke to Brown at a headquarters meeting and requested Brown's support for the selection of Davis. (Lewis Interrog. ¶ 7.) Of that conversation, Brown recalled that "[Lewis] did approach me in Washington D.C. about filling vacancies in his district, and I believe he called me on the phone and asked me to help get his vacancies filled." (Brown Dep. 46:22-47:1.)
Deputy Assistant Regional Director Rozos, who worked under Brown at the Eastern Region, helped formulate the Eastern Region's recommendation to Slattery, and in so doing, coordinated any input from Lewis. (Rozos Decl. ¶¶ 8-9.) After reviewing Lewis's July 30, 1996 letter, Rozos concluded that Lewis was not satisfied with the candidate pool, because his letter had listed more than one individual, and had proposed consideration to "management need" Earline Boyer, which would likely have presented Labor Management problems. (Rozos Decl. ¶ 11.)
Based on Lewis's letter and based on alleged discussions with others in the District of New Jersey, Rozos drafted a memorandum to Slattery under Acting Regional Director Brown's signature. (Rozos Decl. ¶ 13.) This memorandum, signed by Peter Batchelder for Brown, stated in its entirety:
Because Brown was frequently away from Washington, it was the common practice of his subordinates to draft, review, and approve correspondence under his title. (Brown Dep. 67:5-68:5; Rozos Decl. ¶ 13.) Typically management personnel would communicate and coordinate with Brown by telephone during these periods. (Id.) Acting Director Brown stated at his deposition that he does not recall either receiving Lewis's letter or seeing/discussing the memorandum drafted by Rozos to Slattery in response. (Brown Dep. 30:13-18; 56:14-19.)
Batchelder was Assistant Regional Director of the Border Patrol, and was authorized as next-in-command during Brown's travels. (Rozos Decl. ¶ 13.)
Based upon review of the candidates and discussion with Leroy Fredericks, [sic] Officer in Charge, Elizabeth, N.J. and Warren A. Lewis, District Director, Newark, the following decision has been rendered:
Both the noncompetitive and competitive lists has [sic] not satisfied the need to draw qualified Detention Deportation applicants for this position. The request to "management need" SDO Boyer to the position, while having merit, would create LMR issues that may not be properly defended.
Based upon the above it is recommended that this announcement be canceled and the position reannounced Department wide and an active recruitment campaign be instituted in an effort to solicit candidates.
While this approach is time consuming, I believe this to be in the best interest of the Service.
(August 6, 1996 Memo, Ex. C to Rozos Decl., Kirsch Decl. Ex. 8.)
According to Defendant, non-selections and re-announcements of the type recommended by Rozos and Batchelder are routine at the INS, for a variety of reasons. (See, e.g., Rozos Decl. ¶ 16; Brown Dep. 65:21-66:3); Frederick Dep. 57:2-7.)
Although Slattery was the designated selecting official for the Vacancy at the Elizabeth Detention Facility, and although the August 6, 1996 memorandum was directed to his attention, Slattery claims to have had no knowledge about the Vacancy. (Declaration of William Slattery ("Slattery Decl.") ¶ 5, Kirsch Decl. Ex. 11.) This was because he did not get personally involved with evaluating GS-13 level field positions, such as the one in question. (Id.) According to Slattery, Correspondence for vacancies at this level would have been processed through his office by his managerial staff, who had been directed to seek the input of the Region with jurisdiction over the District in which the position was located. (Id.)
The Regions would typically make recommendations for selection which would be reviewed by Slattery's staff. (Id. at ¶ 7.) If the staff supported the Region's recommendation, Slattery would sign the Selection Certificate designating the individual selected. (Id.) Slattery indicated that "undoubtedly, a recommendation made by the Region overseeing this vacancy which sought a re-announcement due to insufficient candidates would be honored by my office. Thus, no selection would have been reannounced, which is, in fact, what occurred." (Slattery Decl. ¶ 8.)
A few days after Rozos and Batchelder sent their memorandum to Slattery under Brown's name, Warren Lewis was replaced by Andrea Quarantillo ("Quarantillo") as District Director for New Jersey. (Quarantillo Dep. 32:12-18, Kirsch Decl. Ex. 7.) Roughly contemporaneous with Lewis's replacement, the authorization to select certain field vacancies, including the GS-13 position at the Elizabeth Detention Facility, was delegated from Headquarters to the individual District Directors for the regions where the positions were located. (Slattery Decl. ¶¶ 3, 11.) As a result, Quarantillo became the designated selecting official for the Vacancy. (Id.)
On August 23, 1996, a memorandum was sent to the Director of the INS's Administrative Center requesting that the Vacancy at the Elizabeth Detention Facility be re-listed. This memorandum read in relevant part:
Vacancy announcement ER MSP II 96-60 . . . which was opened locally from 05/20/96 through 06/07/96 resulted in an insufficient number of applicants with detention experience from which to make a selection. Therefore, we request this position be advertised on an Eastern Region Weekly Vacancy Listing.
(August 23, 1996 Memo, Preston Decl. Ex. N.) The memorandum bore Quarantillo's name and title, but was signed by William W. Bittner. (Id.) Based on the August 23, 1996 memorandum and a follow-up memorandum sent approximately 10 days later, Plaintiff contends that Quarantillo made the actual decision to cancel and re-announce the Vacancy. Despite the existence of these memorandums bearing her name, Quarantillo claims that she was not involved in the decision to reissue the Vacancy, (Quarantillo Dep. 93:11), and instead states that the decision was made by Acting Regional Director Brown a few days before she came on board. (Quarantillo Interrog. ¶ 19, Preston Decl. Ex. K.)
The second memorandum to the Personnel Services Branch also bears Quarantillo's name, and states "please re-announce the position for the reasons stated on my memorandum. I would prefer the listing state that those who applied previously will be considered and need not re-apply." (September 4, 1996 Memo, Preston Decl. Ex. O.) It appears to the Court that this memorandum may have been signed by Quarantillo herself.
On September 16, 1996, in response to the memorandums sent by Quarantillo, ER MSP II 96-106 (the "Second Announcement") was issued in order to fill the Vacancy at the Elizabeth Detention Facility. (September 16, 1996 Vacancy Announcement, Preston Decl. Ex. S.) The Second Announcement indicated that all those who had applied under the First Announcement did not need to reapply; because Davis and Ruhlen had previously applied they were again automatically considered for the position. (Id.) Davis and three previous candidates were again placed on the "Best Qualified" list; Ruhlen was again placed on the "Non-Competitive" list, along with a new candidate. (Merit Staffing Plan II Selection Certificates, Preston Decl. Ex. I.)
Two candidates who were listed as "Best Qualified" for the Vacancy after the First Announcement were not included on the "Best Qualified" list after the Second Announcement.
Human Resources sent the certified list of candidates along with the candidates' applications to Quarantillo's office for her consideration and/or selection. (Quarantillo Dep. 43:12-44:6.) Her office, in turn, sent the materials to Leroy Frederick, the officer in-charge at the Elizabeth Detention Facility, to whom the vacant position would report, for his recommendation. (Id. at 45:8-24; Frederick Dep. 58:16-59:7; 79:3-15.) After receiving the materials, Frederick conducted interviews of all the eligible candidates, including Davis and Ruhlen. (Frederick Dep. 62:13-15, 67:6-9, 82:11-14.)
Traditionally, prior to conducting interviews Frederick would create a list of questions based on a job's requirements to determine how applicants responded to certain situations, whether they thought logically, and whether they were abreast of recent INS developments. (Frederick Dep. 28:18-29:11.) He did this for the Vacancy at issue, and on his own devised a list of open-ended questions which he used as a framework for "follow-up questions." (Id. 65:8-19, 66:16-22; Interview Questions, Kirsch Decl. Ex. 16.)
Frederick hoped to find someone to serve as his deputy "who had strong decision-making abilities, somebody who I know can come into the position and function, make decisions and be able to run the facility when I'm not there. Somebody who is familiar with . . . detention and deportation issues. People who have actually worked around criminal aliens and things like that . . . I was looking for somebody who . . . was going to have general supervisory experience, who was strong with the candidates, with employees, who has some knowledge, again . . . of the detention facility . . . I was just looking for somebody with strong managerial skills who would be able to walk in there and run the place while I had the overall picture and taking care of the facility." (Frederick Dep. 63:19-64:19.)
Frederick interviewed each candidate for about an hour, without taking notes, and sought to get a sense of the candidates' opinions and how they thought. (Id. at 62:16-18, 88:12-18.) He found that while the experience levels of the applicants varied, all who were included on the certified lists were "qualified" to be considered for the Vacancy. (Id. at 68:11-13.) This included both Davis and Ruhlen. (Id.)
Although both candidates had supervisory experience, Frederick found that Davis, who had been with the Border Patrol, and Ruhlen, who had been in Investigations, had very different backgrounds. (Frederick Dep. 71:7-12.) Plaintiff's experience in the Border Patrol would have, in Frederick's estimation, primarily involved apprehension of illegal aliens coming into the country, as well as some anti-smuggling investigation. (Id. 72:15-21.) Ruhlen's experience in Investigations would have involved apprehending fugitive aliens, working with deportation and detention officers, and even staffing the detention facility in certain circumstances. (Id. 71:15-72:1.)
Unlike Davis, whom Frederick had met for the first time at his interview, Frederick had known Ruhlen for fifteen or twenty years. (Id. 79:16-19, 84:8-12.) During that period, Frederick had interacted with Ruhlen at the detention facility when Ruhlen had either brought in new detainees, or had worked as a guard or a guard supervisor. (Frederick Dep. 84:19-85:9.) Ruhlen also worked under Frederick for a time when Frederick because a Section Chief in Investigations. (Id. 85:15-18.)
When asked to describe his impressions of Ruhlen, Frederick stated that he "always [knew] him to conduct himself in a professional manner," and "considered him to be hard working." (Id. 85:19-86:7.) He also stated that "I've known him for years and I've seen him work at [the detention facility]. I've seen him come over there and handle riots when we had riots and I've worked with him and I had strong confidence in him that he's a very straightforward, partial [sic] and hard-working individual." (Id. 86:17-22.)
In explaining his impressions of Davis's interview, Frederick stated "Mr. Davis was qualified for the position. He had the experience. He knew immigration laws and stuff like that. He had experience as a supervisor manager. He had experience as a manager in inspections," however, "when I asked him the questions on that, I was not particularly impressed with the way he responded to some of my questions because he was kind of vague, you know, with some of his responses to my questions." (Frederick Dep. 87:20-88:3.) This was in contrast to Ruhlen, whom Frederick had found to be "straightforward and [who] answered the questions I asked him. I was direct and to the point . . . I was looking for people's opinions, how they think, how they respond to situations because we were in a high profile situation there and Mason, again, was kind of straight and to the point." (Id. 88:10-18.)
After his interviews with Plaintiff, Ruhlen, and the remainder of the candidates who had been certified, Frederick, who is an African-American, recommended to Quarantillo that Ruhlen, who is a Caucasian, be selected. Quarantillo claims that she deferred to Frederick's recommendation, because he would serve as the candidate's immediate supervisor. (Quarantillo Dep. 74:9-13; 95:10-12.) Accordingly, on November 15, 1996, Quarantillo selected Ruhlen to fill the position. (Signed Selection Certificate, Kirsch Decl. Ex. 18.)
One candidate declined the interview. (Frederick Dep. 82:11-14.)
Following the First Announcement, Frederick recommended to Lewis that Earline Boyer, an African-American, fill the Vacancy. (Frederick Dep. 81:11-82:4.) After the Eastern Region determined that her selection would present Labor Management issues (because she had neither applied for the position nor been certified as a candidate), the position was reannounced. The Court does not know whether Boyer formally applied for the position after the Second Announcement, but for whatever reason Boyer's name was neither included on the second certified list of candidates nor mentioned as a "management need" option for the Vacancy.
On May 15, 1997 Plaintiff filed an EEO Complaint against Quarantillo, alleging that she discriminated against him on the basis of his race and retaliated against him when she failed to promote him to the Supervisory Detention and Deportation position. (EEO Complaint, Kirsch Decl. Ex. 2A.) On September 27, 1999 ALJ Francis A. Polito issued detailed Findings and Conclusions, finding no discrimination. (Findings and Conclusions, Kirsch Decl. Ex. 3A.) Polito found that the INS articulated legitimate nondiscriminatory reasons for Plaintiff's non-selection; that Plaintiff failed to show the stated reasons were pretextual; and that Plaintiff failed to make a prima facie case of reprisal. (Id., pp. 6-8.) Plaintiff's request to reject the ALJ's findings was denied, and on November 4, 1999, the Department of Justice issued its Final Decision, concluding that the "Administrative Judge's recommendation was clear and detailed . . . [and that] there were no appropriate grounds to find discrimination or retaliation." (D.O.J. Final Decision, p. 2, Kirsch Decl. Ex. 4A.) On February 3, 2000 Plaintiff commenced this action.
Davis's Discrimination Allegations
At the core of this dispute, Davis contends that when Quarantillo selected Ruhlen to fill the Vacancy, she impermissibly failed to promote him because of his race. Additionally, Davis claims that Quarantillo retaliated against him for his prior protected employment activity.
Plaintiff's Complaint also contained a number of disparate impact claims, but Plaintiff withdrew these claims by Letter dated May 7, 2001.
Plaintiff's Complaint states that in September, 1995 he engaged in activity protected under Title VII. Specifically, Plaintiff claims that in September, 1995 he submitted a written affidavit adverse to John Lonergan ("Lonergan"), as part of an EEOC proceeding commenced by Lonergan against then District Director Lewis. (Davis EEO Interrog. pp. 3-4, Kirsch Decl. Ex. 6.) Plaintiff further claims that Lonergan's EEO Complaint stemmed from an investigation of corruption in the INS Newark District that had been conducted by Lewis. (Davis Dep. 76:11-25; Preston Decl. Ex. R.) Lonergan, who was allegedly a close personal friend of William Slattery, was ultimately terminated as a result of Lewis's investigation and was convicted of accepting bribes from immigrants. (Id.; Brown Dep. 29:16-21.)
Subsequent to the investigation of Lonergan, Slattery is alleged to have pressured Acting Regional Director Brown to discipline Lewis. (Brown Dep. 30:18-20, 61:20, 63:17-64:13.) Brown, who felt there was no basis to discipline Lewis, declined to do so. (Brown Dep. 113:3-114:3.) In response Slattery accused Brown of being derelict in his duties for failing to discipline Lewis. (Id.) As further evidence of Slattery's pattern of hostility towards Lewis, Plaintiff notes that when the position of District Director was upgraded from a GS-15 level, Quarantillo was selected for the position over Lewis. (Lewis Interrog. ¶ 21.)
After he was passed over for promotion, Lewis brought a whistleblower's complaint against Slattery and the INS, and was ultimately vindicated. (Davis Dep. 76:15-77:9; Ex. R.) Plaintiff alleges that as a result of Lewis's successful whistleblower action, Slattery was given the option of either resigning from the INS or being indicted for criminal activities. (Davis Dep. 77:9-11; Ex. R.) Slattery ultimately resigned from the INS. (Id.)
Plaintiff now contends that he was not selected to fill the Vacancy at the Elizabeth Detention Facility because of his race and because of the affidavit adverse to Lonergan that he submitted in support of Lewis. Davis notes that when the Vacancy was first announced, he was told by Lewis that Lewis had made a recommendation for his selection for the position. (Lewis Interrog. ¶ 16.) Rather than selecting Davis, however, Quarantillo re-announced the Vacancy, and ultimately selected Ruhlen, who is Caucasian, for the position. Noting that Quarantillo had previously reported to Slattery (Quarantillo Dep. 15:6-25), Davis contends that Quarantillo's failure to act on Lewis's recommendation must have amounted to retaliation somehow directed by Slattery. In support of his contention, he relies heavily on the statement of Lewis that "I am sure there is some connection with Mr. Ruhlen's selection, Ms. Quarantillo and Mr. Slattery." (Lewis Interrog. ¶ 21.)
Because Lewis was not the selecting official for the position, he did not make a selection on either of the certificates for the Vacancy; he could only make a recommendation when asked.
Davis contends that management (presumably including Quarantillo) was aware of his prior protected conduct. (Complaint, ¶ 7.)
By way of response, the Government points out that in October, 1998 Plaintiff applied for his present position of Criminal Investigator, Special Agent, and was selected to fill the position by Quarantillo. (Davis Dep. 47:17-48:4.) Despite this, Plaintiff has named Quarantillo in three separate unsuccessful EEO Complaints in less than three years, each setting forth assorted allegations of discrimination stemming from non-selection for promotion. (ALJ Findings, Kirsch Decl. Exs. 2A, 2B, 2C.)
These EEO Complaints are in addition to a class action discrimination suit against the INS Plaintiff joined in the mid-1990's. (Davis Dep. 13:2-15:19.)
The Government has also noted that despite the fact that Plaintiff admitted he first met Quarantillo on August 15, 1996, at her introductory staff meeting to the District, (Davis Dep. 89:17-21), he claimed that at this first meeting, "I detected her disdain for me through the tone of her voice. Ms. Quarantillo gazed insolently far off in a distance [sic] and defiantly stated that she was going to re-announce the AOIC position." (Davis Interrog. p. 6.) He made this allegation while also conceding at his deposition that he did not know if Quarantillo, who supervised over 600 people, either knew who he was or knew that he had applied for the position at the time of the meeting. (Davis Dep. 88:24-89:6, 92:5-24.)
Nine days after Rozos and Batchelder sent their memorandum recommending that the Vacancy be reannounced.
In further conflict with Plaintiff's allegations, several of the individuals responsible for either recommending that the position be reannounced or for selecting Ruhlen have also expressly stated that they were not pressured into making their decisions. Rozos stated his recommendation to Slattery on behalf of Brown that the position be reannounced "was made by me without any coercion or pressure from anyone." (Rozos Decl. ¶¶ 15-16.) Frederick testified that when he interviewed the candidates and recommended Ruhlen, he received no communications, recommendations, or directives from Quarantillo or anyone else with regard to influencing his assessment of the candidates for the vacancy. (Frederick Dep. 83:21-84:7.)
Finally, Quarantillo stated that she had no conversations with Slattery regarding Davis or Ruhlen, and Slattery confirmed the same. (Quarantillo Dep. 32:10-12, 56:14-16; Slattery Decl. ¶¶ 5, 9, 12.) While Quarantillo had heard through "hallway conversation" that Lonergan had filed an EEO Complaint against Lewis, she did not know that Davis had any involvement with the matter until she prepared for her deposition in this matter in November, 2000. (Quarantillo Dep. 31:10-32:9, 40:9-14.)
Slattery, Brown, Batchelder, Rozos, and Frederick all stated under oath that they had no knowledge of Davis's involvement, in any way, in an EEO proceeding or other protected activity, prior to the commencement of this lawsuit. (Slattery Decl. ¶¶ 12,13; Brown Dep. 27:19-28:4; Batchelder Decl. ¶ 6; Rozos Decl. ¶ 17; Frederick Dep. 79:20-24.)
DISCUSSION
The Summary Judgment StandardThe standard for granting summary judgment pursuant to Federal Rule of Civil Procedure 56 is a stringent one. Summary judgment is appropriate only if all the probative materials in the record "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." Fed.R.Civ.P. 56(c); Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). An issue involving a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219 n. 3 (3d Cir. 1988).
The court must resolve all reasonable doubts in favor of the nonmoving party when determining whether any genuine issues of material fact exist.Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983);Smith v. Pittsburgh Gage Supply Co., 464 F.2d 870, 874 (3d Cir. 1972). Even though a court must resolve reasonable doubts in favor of the nonmoving party, because a motion for summary judgment is designed to go beyond the pleadings, factual specificity is required of a party who opposes such a motion. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Accordingly, in order to defeat a properly supported motion for summary judgment, a party may not merely restate the allegations of its pleadings, or rely upon self-serving conclusions, unsupported by specific facts in the record. Celotex, 477 U.S. at 322-23; Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D.Pa. 1988). A non-moving party must point to concrete evidence in the record which supports each essential element of its case. Id. If the party fails to provide such evidence, then it is not entitled to a trial and the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(e).
B. Plaintiff's Failure to Promote Claim
Plaintiff alleges that he was discriminated against on the basis of his race when a Caucasian (Ruhlen) was selected over him to fill the Vacancy at the Elizabeth Detention Facility. An employer commits an unlawful employment practice and therefore violates Title VII of the Civil Rights Act of 1964 by:
fail[ing] or refus[ing] to hire or . . . discharg[ing] any individual, or otherwise . . . discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2(a)(1). To state a claim under Title VII, Plaintiff must first establish by a preponderance of the evidence a prima facie case of discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981). In order to establish a prima facie case of discriminatory denial of promotion, Plaintiff must establish that (i) that he belongs to a protected class; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, a non-member of the protected class was hired. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Bennun v. Rutgers State Univ., 941 F.2d 154, 170 (3d Cir. 1991).
Once a prima facie case is made, the burden shifts to the defendant to produce evidence that there was a "legitimate, non-discriminatory reason" why the plaintiff was not selected. McDonnell Douglas, 411 U.S. at 802. A defendant's burden is a relatively light burden of production and not of persuasion; Defendant need only introduce evidence of "reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action."St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993).
Assuming the defendant produces such evidence, the burden of persuasion, which has been plaintiff's throughout, shifts back to the plaintiff to show that the defendant's reasons are merely a pretext for discriminatory conduct. Burdine, 450 U.S. at 256; Molthan v. Temple University of Com. System of Higher Educ., 778 F.2d 955, 961 (3d Cir. 1985). To establish pretext, Plaintiff must "point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve [Defendant's] articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of [Defendant's] action." Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1067 (3d Cir. 1996),cert. denied, 117 S.Ct. 2532 (1997); see Burdine, 450 U.S. at 256.
Defendant does not seriously contest that Plaintiff has established a prima facie case of discriminatory denial of promotion: Davis is an African-American, who applied for and was qualified for the Vacancy, but was not hired for that position, while a similarly situated employee outside the protected group, Mason Ruhlen (a Caucasian), was hired instead.
The Government contends that a credible argument can be made Plaintiff and Ruhlen were not "similarly situated employees," for purposes of this vacancy, as Ruhlen had served at a higher grade than Davis for 8 years, and had more extensive detention and deportation experience. The Court need not reach the merits of this argument, however, given Plaintiff's failure to meet his burden of persuasion in demonstrating pretext.
To counter Plaintiff's prima facie case, Defendant has proffered evidence supporting a chain of events that demonstrate it had a legitimate, non-discriminatory reason for its decision not to promote Plaintiff. At its core, the Government's argument rests on its conclusion that the initial candidate pool did not generate enough applicants with detention and deportation experience, and that after the re-announcement Ruhlen demonstrated himself to be a better candidate for the position than Davis did.
The Government also contends that the re-announcement of the position to enlarge the pool of qualified applicants should not be considered an adverse employment decision sufficient to create a prima facie case of discrimination. Because no one was selected for the position and no one was rejected from consideration by virtue of closing the First Announcement, the Government argues that the decision was necessarily non-discriminatory and non-pretextual. In support, the Government relies on Blong v. Secretary of the Army , 886 F. Supp. 1576 (D.Kan. 1995), aff'd., 86 F.3d 1166 (10th Cir. 1996). The Court will not embrace the rule that the Government suggests, i.e. that a re-announcement can never, in and of itself, be considered a discriminatory employment practice. In Blong, the district court found that the re-announcement to expand the applicant pool was not presumptively discriminatory, as only one applicant had originally applied, and an employer should never be bound to select a candidate from a pool of one. That is not the case here. Although Plaintiff has failed to provide any evidence to support a conclusion that the Government's asserted basis for the re-announcement was pretextual, the Court can imagine other instances where an employer, confronted with a qualified applicant from a protected class, might impermissibly re-announce the position solely to justify not hiring a protected applicant.
According to the Government, when the Vacancy at the Elizabeth Detention Facility was first announced, selecting authority for all GS-13 level positions rested with Executive Associate Commissioner William Slattery. Slattery's policy was not to become involved with GS-13 selections, and instead to delegate authority over the process to his staff. As a matter of normal procedure his staff sought advice on how to fill the position from Eastern Regional Director Brown. Brown's staff, in turn, sought advice on how to fill the position from New Jersey District Director Warren Lewis, an African-American.
Warren Lewis, who was not the selecting official for the position, sought input from several sources, including Leroy Frederick, who had recently taken over as head of the Elizabeth Detention Facility. Frederick, an African-American, apparently without interviewing any of the candidates, recommended Earline Boyer for the position, even though she was not a candidate. Lewis, without interviewing any candidates himself, drafted a letter to Brown, which recommended Venson Davis and Mason Ruhlen in priority order. Acting on Frederick's suggestion, Lewis also included Boyer as another recommended option for filing the position.
When Brown's staff received the letter, Michael Rozos assumed that by listing three options (including one non-applicant), Lewis was indicating a dissatisfaction with the candidate pool. Although Rozos found Boyer, who is African-American, to be an appealing option given her extensive detention and deportation experience, he also felt that the selection of a non-applicant would create Labor Management problems. For those reasons, he recommended that the position be re-announced nationally to allow for more applicants with detention and deportation experience. Peter Batchelder, Brown's second-in-command, signed a letter for Brown endorsing Rozos' recommendation, and sent it to Slattery.
Slattery's staff, upon receiving a letter recommending that the position be re-announced because it had failed to attract a sufficient number of candidates with detention and deportation experience, would have normally have acted upon this recommendation. It is not clear from the record whether Slattery's staff actually acted upon the recommendation, because contemporaneous with Rozos' recommendation two things occurred in a short span of time. First, selecting authority for GS-13 positions was handed down to District Directors, and second, Andrea Quarantillo replaced Warren Lewis as Newark District Director. For those reasons, actual authority to direct that the position be re-announced likely fell to her.
Acting on the recommendation of Rozos, a memorandum was issued under Quarantillo's name directing that the position be reannounced. In a follow-up memorandum, Quarantillo herself requested that all who had applied for the first announcement automatically be re-considered for the position after the re-announcement.
After the re-announcement, new selection certificates were sent directly to Quarantillo. Quarantillo sought the advice of Frederick, who would supervise the position to be filled. Frederick conducted hour-long interviews of the candidates, and found Ruhlen to be a better candidate than Davis who, although qualified, lacked Ruhlen's detention and deportation experience and had failed to answer Frederick's open-ended interview questions in as satisfactory a manner as Ruhlen. For those reasons, Frederick recommended to Quarantillo that Ruhlen be selected. Because Frederick would be Ruhlen's direct supervisor and would work with him closely, Quarantillo deferred to Frederick's recommendation and selected Ruhlen.
According to the Government, Ruhlen was selected because he had generally broader experience than Davis, had more hands-on detention and deportation experience, and had served at a more senior level than Davis for approximately eight years. Ruhlen's qualifications and personality were better known by Leroy Frederick, the individual to whom Ruhlen would report, and in Frederick's estimation made him better suited to the position than Davis. Ultimately, the Government asserts that Frederick's recommendation and Quarantillo's adoption of it provide a more than legitimate basis to justify the selection of Ruhlen, on a basis other than race. Having reviewed all the evidence in the record, the Court agrees that the Government has more than met its burden in demonstrating legitimate reasons for both the re-announcement of the Vacancy and Ruhlen's selection for the job.
Because the Government has met its burden of production and has shown that legitimate reasons existed for the decisions it made in this case, the Court's analysis shifts back to Plaintiff's burden of persuasion, and to determining whether Defendant's asserted justifications are pretextual. In order to establish pretext, the burden is on the Plaintiff to demonstrate that his non-selection was something "more than a denial of promotion as a result of a dispute over qualifications." Molthan, 778 F.2d at 962. Although Plaintiff need not come forward with additional evidence of discrimination beyond his prima facie case, he must still point to evidence sufficient "to discredit the defendant's proffered reasons" for making the adverse employment decision in order to survive summary judgment. Fuentes, 32 F.3d at 764.
In Fuentes, the Third Circuit provided detailed clarification of a Plaintiff's burden on a motion for summary judgment. According to the Third Circuit, Plaintiff's burden is satisfied if, taking all of the evidence in a light most favorable to the plaintiff,
the plaintiff's evidence rebutting the employer's proffered legitimate reasons [allows] a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext.) To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is wether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them 'unworthy of credence,' and hence infer 'that the employer did not act for the asserted non-discriminatory reasons.Fuentes, 32 F.3d at 764-65 (Internal citations and footnotes omitted);See also Shaner v. Synthes, 204 F.3d 494, 501 (3d Cir. 2000), and Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 283 (3d Cir. 2001), quoting Fuentes.
Plaintiff contends that Defendant's summary judgment motion should be denied because the Government's asserted legitimate reasons for the non-selection of Davis suffer from weaknesses, implausibilities, inconsistencies, incoherencies and contradictions, such that a reasonable factfinder could rationally find them unworthy of credence. After a careful review, the Court concludes that, even if all of the evidence in the record is taken in a light most favorable to the Plaintiff, Plaintiff has not met the burden articulated in Fuentes, for the following reasons.
In his failed effort to show pretext, Davis relies on a shotgun list of facts to create weaknesses and contradictions where none exist. In support of his argument that Rozos gave a pretextual explanation of why the position was re-announced, the "evidence" that Plaintiff points to is: 1) Rozos' determination that Lewis was not satisfied with the candidate pool despite Lewis's unequivocal recommendation of Davis for the position, which is inconsistent with the plain reading of the Lewis recommendation letter; 2) that it is implausible Rozos would have concluded that Lewis was not satisfied without first contacting Lewis; 3) that Defendant has failed to submit a declaration of Lewis indicating that he was in fact not satisfied; and 4) Rozos' Declaration does not state that he had responsibility for coordinating a response to Slattery regarding the Vacancy. The Court will address the forgoing items in turn.
The Court notes that Plaintiff has repeatedly misstated the importance of Lewis's letter. While Plaintiff's brief repeatedly indicates that Lewis "selected" Davis for the Vacancy, this was not the case. The evidence clearly demonstrates that Lewis was not in a position to make a selection; instead, he merely "recommended" Davis as his first choice. More importantly, Lewis also "recommended" two alternate choices, one of whom had not even applied for the position.
Although Plaintiff is insistent that Lewis's recommendation letter was "unequivocal," the document on its face is anything but that. While the letter does demonstrate that Davis was Lewis's first choice, and while taken in a light most favorable to Davis the letter might allow a trier of fact to conclude that Davis was Lewis's clear favorite choice for the position, a jury would not be able to escape the fact that the letter recommends three individuals for the position, one of whom had not even applied for the job. Earline Boyer, listed as an "OTHER OPTION" in Lewis's letter, was described as having "extensive deportation experience," which the letter did not say of either Davis or Ruhlen. Far from demonstrating that Rozos' conclusions were pretextual, the letter lends ample credence to Rozos' conclusion in the memorandum he drafted for Brown that:
Both the noncompetitive and competitive lists has [sic] not satisfied the need to draw qualified Detention Deportation applicants for this position. The request to "management need" SDO Boyer to the position, while having merit, would create LMR issues that may not be properly defended.
(August 6, 1996 Memo, Ex. C to Rozos Decl., Kirsch Decl. Ex. 8.)
Similarly, a reasonable trier-of-fact could not find pretext in Rozos' failure to contact Lewis to confirm that Lewis had doubts about the applicant pool. The relevant inquiry is not whether Lewis was actually dissatisfied with the candidate pool; the issue is whether Rozos' assertion that he believed Lewis to be dissatisfied is any less credible in light of Rozos' failure to contact Lewis. "To discredit the employer's proffered reason . . . the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Fuentes, 32 F.3d at 765. While contacting Lewis may have been the wise or prudent thing to do, it escapes the Court how the failure to do so, in and of itself, would allow a reasonable juror to find that the re-announcement was motivated by animus.
For this reason, it is irrelevant that the Government has failed to introduce an affidavit demonstrating Lewis had doubts. The Government's own evidence demonstrates Lewis supported Davis; unfortunately for Davis it also demonstrates that those who received Lewis's recommendation sought individuals with "detention and deportation experience."
Relatedly, it escapes the Court what Plaintiff hopes to prove by pointing out that Rozos' Declaration fails to state that he had the responsibility for coordinating a response to Slattery regarding the Vacancy. The unrefuted evidence in the record is that Rozos DID coordinate this response.
In addition to his allegations about Rozos' veracity, Plaintiff also attempts to discredit Defendant's position by pointing to alleged inconsistencies in Acting Regional Director Brown's involvement with the re-announcement. Specifically, Plaintiff claims that 1) the re-announcement decision was undercut because Brown did not prepare or sign the memorandum sent to Slattery under his name, nor was he even aware of it; 2) even if Lewis's letter was vague, Lewis had a conversation with Acting Regional Director Brown where he requested that Brown support his recommendation of Davis; and 3) while Brown's memorandum stated that "based upon review of the candidates and discussion with Leroy Fredericks [sic] . . . and Warren A. Lewis . . . the following decision has been rendered," Brown does not recall any meeting or discussions with Frederick or Lewis regarding the Vacancy.
Plaintiff's first argument is easily discounted. There is unrefuted evidence in the record that Brown was responsible for supervising some 8,000 employees, and that he traveled frequently. There is also unrefuted evidence in the record that when he traveled, he designated responsibilities to his staff, and that his staff had the authority to generate and sign correspondence for him. Finally, there is unrefuted evidence in the record that members of his staff, namely Rozos and Batchelder, prepared the memorandum for Brown, and sent it out under his signature. For those reasons, there is was no contradiction when Brown stated that had never seen the document, did not sign the document, and was not aware of who had signed the document, because the document had been generated, signed, and mailed by his staff.
Turning to Plaintiff's second and third points, the Court finds that a contradiction does exist. The Court notes that the contradiction, however, lies not in Defendant's reasons for re-announcing the position, but in Plaintiff's argument. On the one hand, when challenging the validity of Rozos' memo Plaintiff states in his brief that "Mr. Brown however, does not recall any meeting or discussions with Messrs. Frederick or Lewis with regard to [the Vacancy]," (Pls. Oppo. Brief, p. 18.), presumably to document that Brown never actually met with Lewis. On the other hand, when claiming that even if Lewis's letter were vague, Brown would have known about Lewis's choice of Davis, Plaintiff states in his brief that "Mr. Lewis had a conversation with Mr. Robert Brown . . . at an INS Washington headquarters meeting where Mr. Lewis requested that Mr. Brown support his recommendation for the selection of Mr. Davis." (Id., p. 16.)
In order for Plaintiff's attack on the memorandum to succeed (i.e. to demonstrate that it is erroneous because Brown never met with Lewis), Lewis's contention about the meeting in Washington must be false. If, on the other hand, Lewis's contentions are true, then Brown's memory must have been at fault when he stated that "I have no recollection of any specific discussion about 96-60 with Warren Lewis." In either event, Plaintiffs second and third arguments are entirely irrelevant to the issue of pretext, because even if both of Plaintiff's allegations are assumed to be true, they fail to undermine Defendant's version of the re-announcement, for the following reasons.
Even if Lewis did have a conversation with Acting Regional Director Brown where he requested that Brown support his recommendation of Davis, and even if Brown did pledge support, there is no evidence in the record to refute the Government's contention that the decision to re-announce the Vacancy was made by Brown's staff, and not by Brown. Similarly, while his memorandum to Slattery reads in relevant part that "based upon review of the candidates and discussion with Leroy Fredericks, [sic] Officer in Charge, Elizabeth, N.J. and Warren A. Lewis, District Director, Newark, the following decision has been rendered . . .," the memorandum does NOT state that Brown met with Frederick, or that Brown made the decision to re-announce the Vacancy; instead the language is neutral. Even in a light most favorable to Plaintiff, the mere fact that Brown personally does not recall meeting with Lewis or Frederick does not undermine the fact that a member of his staff may have. More importantly, assuming even that Brown knew Davis to be Lewis's first choice, it does not undermine the Government's contention that members of Brown's staff concluded that the applicant pool did not contain "qualified detention and deportation applicants" for the position.
It bears noting that Plaintiff has never stated that he has the "detention and deportation" experience that the Government claims it sought. Plaintiff only states that he was certified as "Best Qualified" for the position, in comparison to the other members of the applicant pool.
Similar to Plaintiff's efforts to undermine the testimony of Brown, Davis has also attempted to document inconsistencies in the statements of Quarantillo. Plaintiff argues that despite Quarantillo's statement that she was not involved with reissuing the vacancy, documents demonstrate that she was in fact involved with the decision to re-announce the position. Those documents are the two memorandums from Quarantillo to the INS Human Resources Office requesting that the Vacancy be re-announced. The initial memorandum indicated that the First Announcement "resulted in an insufficient number of applicants with detention experience from which to make a selection. Therefore we request that this position be advertized" more broadly. (Preston Decl. Ex. N.) The second memorandum reiterated the first, and asked that it be made known that all previous applicants would automatically be reconsidered. (Preston Decl. Ex. O.)
Bearing in mind that the memorandums only ask that the position be re-announced, a close reading of Quarantillo's deposition testimony reveals no discrepancy at all:
Q: so the record is clear, were you involved in any way in deciding to reissue that vacancy?
A: No.
Q: And were you affiliated with the district of New Jersey at the time the decision was made to reissue 96-60?
A: I don't know when the decision was actually made. So no, I was not aware of it.
(Quarantillo Dep. 93:9-18 (emphasis added.)) According to the Government, Quarantillo did not decide to re-announce the Vacancy herself, but instead acted on the decision that Brown's staff had made in their recommendation to Slattery, prior to her installation as District Director. Given the Government's version of events, the Court finds Quarantillo's testimony (that she did not help decide to re-announce the position) and her memorandums (implementing the re-announcement) are not at odds with one another, as making a decision and implementing someone else's decision are two entirely different things. The two pieces of evidence certainly do not help establish pretext, even when considered with a presumption in favor of the Plaintiff.
Beyond those instances where Plaintiff attempts to create contradictions where none exist, Plaintiff also attempts to generate weaknesses seemingly out of thin air. One of Plaintiff's arguments is that Slattery would not act on the Lewis's recommendation to promote Davis to fill the Vacancy. The Court finds two substantial problems with this argument. First, Plaintiff's argument is disingenuously based on a single segment of questioning in Regional Director Brown's deposition:
Q: Did you ever speak to Mr. Slattery about the status of these vacancies [under Lewis] in the Newark office?
A: Not directly, but I spoke with Scott Blackman.
Q: What did Scott Blackman tell you about the reason why the vacancies were sitting there?
A: He says, "They're with Bill." There was vacancies from a lot of districts under Bill Slattery. So he said, "They're in there. They're in there."
(Brown Dep. 105:18-106:3 (emphasis added.)) The Court believes that, even giving Plaintiff all doubts, it would torture reality to conclude from the foregoing language that Slattery 'would not act' on Lewis's recommendation of Davis out of some sort of animus specifically directed at Davis. Regardless, and fatal to Plaintiff's contention, the second flaw in Plaintiff's argument is that there is not a shred of evidence in the record that Brown, who was between Lewis and Slattery in the chain of command, ever placed Lewis's recommendation of Davis in front of Slattery for Slattery to act on. Absent that evidence, no reasonable juror could conclude that Slattery vetoed Lewis's recommended selection of Davis out of animus.
Similarly, Plaintiff argues Defendant's proffer that Ruhlen was more qualified than Davis is inconsistent and contradictory with the testimony of Frederick. In this instance, Plaintiff mischaracterizes the following testimony of Frederick:
Q: Let me ask you this, how would you compare the qualifications of Mr. Davis to the qualifications of Mr. Rueland [sic] or would you say they are qualified, less qualified, or better qualified for the position of 96-106?
A: What I would say is that all of the candidates on this list were qualified. They had varied experience, but they were all qualified.
(Frederick Dep. 68:6-13.) The Government's assertion that Ruhlen was more qualified for the position given his past detention and deportation experience and given his more satisfactory answers to Frederick's questions does not run contrary to Frederick's preceding deposition testimony. No one, including the Court, doubts or could doubt that Davis was qualified for the Vacancy. Frederick recognized it. Unfortunately, Frederick ultimately decided that Ruhlen was more qualified, because Ruhlen had the valued detention and deportation experience that Davis did not. In essence, agreeing with Davis's argument on this point would require the Court to find that pre-text is demonstrated whenever an employer fails to hire a qualified member of a protected class and instead hires a more qualified member of a non-protected class. Such an outcome would turn Title VII law on its ear, and for that reason the Court can not embrace it.
Plaintiff's final contention is that the purported inadequacy of the first pool of candidates cannot serve as a legitimate non-discriminatory reason for the re-announcement, because there were fewer candidates certified on the selection lists for the re-announced position than had been present on the original lists. This argument goes against logic itself. Simply put, when an employer decides to re-announce a position in order to generate a larger qualified applicant pool, they have no way of knowing how many employees will chose to apply for it. They can not even ensure that all those who previously applied will elect to remain under consideration. For that reason, the fact that the re-announcement generated fewer candidates is simply not probative of whether the Government's asserted reasons for re-announcing the position were pretextual.
Plaintiff's preceding collection of arguments notwithstanding, the Court finds that Plaintiff has failed to point to any genuine question of material fact that might support a finding of pretext. A reasonable juror, viewing the facts available in the light most favorable to Plaintiff, could not conclude that the employer's proffered reasons are not worthy of belief. Defendant has failed to submitted clear evidence of anything more than a dispute over Plaintiff's qualifications; in the Court's estimation there is not a hint of evidence in the record which could establish the possibility of pretext, even when all of the evidence is taken in a light most favorable to the Plaintiff. Ultimately, Plaintiff's belief and his conclusory allegations that Defendant discriminated against him are insufficient to withstand Defendant's motion for summary judgment. Avril v. Village S. Inc., 934 F. Supp. 412, 417 (S.D.Fla. 1996) (citation omitted). Accordingly, Defendant's motion for summary judgment is granted.
C. Plaintiff's Retaliation Claim
Plaintiff's second cause of action is that Defendant's failure to promote him constituted retaliation against him. Specifically, Plaintiff claims that because he filed an affidavit adverse to John Lonergan, William Slattery (through Andrea Quarantillo) orchestrated Davis's being passed over for promotion.
Claims of retaliation against an employer for protected anti-discrimination activity follow the same framework as more traditional Title VII litigation. Charlton v. Params Bd. Of Educ., 25 F.3d 194, 201 (3d Cir. 1994). "To establish a prima facie case of retaliation, a plaintiff must show that: (1) he or she engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with the protected activity; and (3) a causal link exists between the protected activity and the adverse action." Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001) (collecting cases).
Having reviewed the submissions in this matter, it is apparent to the Court that Plaintiff cannot succeed on his retaliation claim. Even assuming for purposes of argument that Plaintiff engaged in a protected activity when he filed his affidavit, and assuming further that the INS took adverse employment actions when it re-announced the Vacancy and selected Ruhlen, Davis's retaliation claim must ultimately fail because he has failed to demonstrate that a causal link exists between his protected conduct and the adverse action.
Simply put, there is not a shred of evidence in the record to demonstrate that any of the individuals involved in the promotion process acted on the basis of Plaintiff's prior protected conduct when they either recommended that the Vacancy be re-announced or selected Ruhlen. More importantly, there is not a shred of evidence in the record to demonstrate that any of the individuals involved in the promotion process were even aware of Plaintiff's prior protected conduct.
Plaintiff has only argued that a causal link has been established "based upon the [previously articulated] inconsistences, weaknesses, contradictions, and implausibilities of Defendants proffered reasons for the failure to promote Mr. Davis." (Plaintiff's Oppo. Brief, p. 24.) Having already determined that there is no merit to any of Plaintiff's claims of weakness or inconsistency, the only weapon remaining in Plaintiff's arsenal is the statement of Warren Lewis that "I am sure there is some connection with Ruhlen's selection, Ms. Quarantillo and Mr. Slattery." (Lewis Interrog. ¶ 21.) As Defendant rightly notes, such unsupported assumptions are wholly insufficient for Plaintiff to withstand a motion for summary judgment.
Although Plaintiff has made it abundantly clear that he does not believe the Government's asserted chain of events, and that he instead believes a nefarious conspiracy robbed him of his promotion, he has presented no evidence to contradict the legitimate reasons articulated by the Government. Although Plaintiff was not required to provide direct evidence of discrimination, he was required to provide sufficient circumstantial evidence for a reasonable trier-of-fact to conclude that the Government's asserted reasons for failing to promote him were not credible, and were instead pretextual excuses designed to conceal discrimination. Because Plaintiff failed to point to any such evidence in the record, there is no factual foundation for his retaliation claims, and Defendant's motion for summary judgment must be granted.
III. CONCLUSION
For the foregoing reasons, the Court grants Defendant's motion for summary judgment in its entirety.
An appropriate Order follows.