Opinion
IP 02-0146-C M/S
December 30, 2003
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendant's, The Honorable Norman Y. Mineta, Secretary, U.S. Department of Transportation ("Defendant"), Motion for Summary Judgment on the claims of Plaintiff, Michelle Y. Wells-Fenton ("Plaintiff' or "Wells"). In her amended complaint, Wells advances racial discrimination and retaliation claims under Title VII, 42 U.S.C. § 2000e, et seq. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question). In the instant motion, Defendant seeks summary judgment on all of Wells' claims. For the reasons set forth below, the Court GRANTS Defendant's motion.
I. BACKGROUND A. PLAINTIFF'S NON-COMPLIANCE WITH LOCAL RULES
Local Rule 56.1 governs summary judgment practice in the Southern District of Indiana. After a moving party files a motion for summary judgment and supporting brief, the non-movant:
shall serve and file a supporting brief and any evidence not already in the record upon which the party relies. The brief shall include a section labeled "Statement of Material Facts in Dispute" which responds to the movant's asserted material facts by identifying potentially determinative facts and factual disputes which the nonmoving party contends demonstrate that there is a dispute of fact precluding summary judgment.
Local Rule 56.1(b) (emphasis added). Wells, the non-movant, does not comply with the letter of Local Rule 56.1(b). Instead of including a section in her brief that responds to Defendant's asserted material facts by identifying potentially determinative facts and fact disputes that preclude summary judgment, she simply recites her version of the facts in a section entitled "Statement of Disputed and Undisputed Facts." Wells does, however, identify potential genuine issues of fact in a separate brief entitled "Plaintiff's Answer to Defendant's Motion for Summary Judgment," and include some potentially determinative facts in her "Statement of Disputed and Undisputed Facts" section. The Court will not penalize Wells for this formal non-compliance with local rules. However, in accordance with Local Rule 56.1(e), the Court will assume that Defendant's facts supported by admissible evidence are admitted without controversy, except to the extent that (1) Wells specifically controverts them with admissible evidence; (2) Wells shows that Defendant's facts are not supported by admissible evidence; or (3) Wells shows that Defendant's facts, alone, or in conjunction with other admissible evidence, allow reasonable inferences to be drawn in her favor which preclude summary judgment.
Wells also improperly includes argument in her fact section. For example, Wells alleges: "in a dubious attempt to defend against Wells' charge of discrimination, the [Defendant] claims that its agents were incompetent in failing to put the offer in writing;" "[t]he system of ranking was entirely subjective;" Defendant had "ad hoc ranking committee;" and Wells had "an impressive resume." As noted in the Local Rules Advisory Committee Comments to the 2002 Amendment, a non-movant's "Statement of Material Facts in Dispute" should not be argumentative. Accordingly, the Court will ignore the above-listed statements and any other similar argumentative language in Wells' fact section.
B. EVIDENTIARY ISSUES
Defendant makes a series of objections to the evidence upon which Wells relies in her opposition memorandum. First, Defendant objects to Plaintiff's Exhibit 5 as hearsay, irrelevant, and conclusory. Exhibit 5 is National Black Coalition of Aviation Employees press release that makes general allegations about hostile environments towards African-Americans at the Indianapolis and Terre Haute Federal Aviation Administration facilities. The press release relies on information from "several employees" of those facilities, and relates one specific incident involving an African-American air traffic controller. The press release is an out-of-court statement offered for the truth asserted therein, and also irrelevant to Wells' claims. Accordingly, the Court excludes Plaintiffs Exhibit 5 as hearsay and irrelevant. FED. R.EVID. 802, 402.
Based on Defendant's objections, the Court also excludes the hearsay statements in ¶¶ 5-10 of the Overton Affidavit (Pl.'s Ex. 10), and bars Plaintiff's Exhibit 31 in its entirety, which details ranking procedures that did not apply at the time in question. The Court will also exclude any statements from Wells' "Statement of Disputed and Undisputed Facts" that are not supported by the evidence cited.
C. THE FACTS
Wells, an African-American female, is an employee of the Federal Aviation Administration ("FAA"). Comp. ¶ 8. Wells joined the FAA in 1989 as a General Schedule-5 ("GS" pay scale) employee. Comp. ¶ 9. Wells was promoted to GS-6 in 1993, and remains at GS-6 in her current position as secretary, Office of Automation, Indianapolis Airways Facilities Systems Management Office. Id. Wells alleges that she was discriminated and/or retaliated against on four separate occasions at the FAA.
1. First Claim — GS-7 Secretary Position
In September 1996, Wells learned that Sandra Miller("Miller"), a GS-7 secretary, was considering retirement. Pl.'s Stmt. of Facts at 3. As a result, Wells submitted an Individual Development Plan ("IDP") indicating her short-term goal to be a GS-7 secretary. Id. An IDP is a plan designed to aid employees in meeting their career goals, and does not guarantee promotions or consideration for vacancies. Def.'s Ex. F5 at 2. Wells also submitted a voluntary application for promotion to a GS-7 secretary position. Pl.'s Stmt. of Facts at 3. Voluntary applications are considered under the Merit Promotion Process ("MPP"). Def.'s Ex. F5.
The FAA underwent a realignment in October 1995. To aid employees adversely affected by the realignment, the FAA developed a priority placement program that put those adversely affected employees on a priority list. Def.'s Stmt. of Facts ¶ 4. The relevant FAA Order states: "Employees on this list (priority placement list) shall be considered for suitable vacancies in advance of efforts to fill the vacancy by other means." Def.'s Ex. F5 at 3. In other words, employees on the priority placement list were considered for appropriate, vacant positions prior to employees who submitted voluntary applications or bids.
As a result of the 1995 realignment, Diane Jones ("Jones"), a Caucasian, was involuntarily reassigned and downgraded to a position in Indianapolis. Def.'s Stmt. of Facts ¶ 6. There was some discussion within the FAA about whether Jones qualified for the priority placement list because she had been reassigned from another region, but she eventually was placed on the list for any position at the GS-7 level. Pl.'s Ex. 14. Jones remained on the list despite turning down a verbal offer to take a GS-7 position at the Air Traffic Division. Id. Employees on the GS-7 priority list who turn down reasonable written offers to GS-7 positions are taken off the priority list. Pl.'s Ex. 15.
When Miller vacated her GS-7 secretary position, Walter Daigle, the hiring supervisor, offered the position to Jones because she was entitled to priority consideration. Def.'s Stmt. of Facts ¶ 18. Jones accepted the position. The FAA never posted the vacancy or considered applications from the Merit Promotion Process because the position was filled through priority placement. Def.'s Stmt. of Facts ¶¶ 19-21.
2. Second Claim — GS-7 Administrative Technician Position
In 1993, the FAA issued a merit promotion announcement for the position of Administrative Officer. Pl.'s Stmt. of Facts at 6. The announcement defined the area of consideration as "facility-wide," and listed the Indianapolis Flight Standards District Office as the "Facility Name and Location." Pl.'s Ex. 20. Wells works in the Airways Facilities Division (Systems Management Office). Def.'s Stmt. of Facts ¶ 3. Although both offices are in the same building in Indianapolis, the Airways Facilities Division is not part of the Flight Standards District Office.
Wells submitted an application for the position, and her application was considered. Pl.'s Stmt. of Facts at 7. However, Wells was not offered an interview. Id. A Caucasian female accepted the position. Id. Wells filed an EEO complaint about her non-selection. During the EEO process, the FAA never said that Wells was not eligible for the position due to its facility-wide limitation.
On April 15, 1998, the FAA issued a facility-wide announcement for a GS-7 Administrative Technician position. Pl.'s Ex. 23. As in 1993, the location of the position was the Indianapolis Flight Standards District Office. Id. Wells applied for the position, but her application was not forwarded to the selecting official. Pl.'s Stmt. of Facts at 8. On May 5, 1998, a Caucasian female was selected for the position. Id.
Pamela Morang ("Morang") was the FAA employee responsible for organizing the application process for the 1998 Administrative Technician position. Def.'s Ex. I-D; Reply Ex. 2. Morang received two bids for the position, and the first thing she did upon receiving the bids was to check the if the bidders were within the proper area of consideration. Def.'s Ex. I-D at 93. Wells was outside the area of consideration because she did not work in the Flight Standards District Office. Id. The announcement was limited to employees already working in the Indianapolis Flight Standards District Office because budgetary constraints did not allow for an increase in employees at the office. Def.'s Reply Ex. 2. Morang testified that any consideration of Wells' application in 1993 would have been a mistake. Def.'s Stmt. of Facts ¶ 29.
The term "facility-wide" means the Indianapolis Flight Standards District Office only. Def.'s Stmt. of Facts ¶ 27. During the period of March 1, 1998, to September 20, 1998, there were 50 announcements in the Great Lakes Region that were announced facility-wide only. Id. ¶ 28. Eight of those positions were in Indianapolis. Id. None of those positions was filled with persons from outside the Flight Standards division. Id. No bids were accepted for any of those positions from persons outside of the Flight Standards division. Id.
3. Third Claim — Administrative Service Coordinator Position
In August 1998, the FAA issued a vacancy announcement for an Administrative Service Coordinator ("ASC") position in Indianapolis. Pl.'s Ex. 26. Ten candidates, including Wells, applied for the position. Def.'s Stmt. of Facts ¶ 32. The responsible FAA employee ranked the ten candidates based on their qualifications. Id. ¶ 34.Four candidates were referred for interviews. Id. ¶ 35. Three of the four selected for interviews were the top three in the ranking, and the fourth was an in-grade bidder who did not have to be ranked. Id. The three candidates who received interviews based on their ranking all scored 90 or above. Pl.'s Ex. 28. Wells scored an 88 in the ranking and was not offered an interview. Id. Glynn Williams, an African-American, was the selecting official for the position. Def.'s Stmt. of Facts ¶ 37. The person selected for the position was an African-American female. Id. ¶ 38.
On January 11, 1999, Wells contacted an EEO counselor about her non-selection for the Administrative Services Coordinator position, alleging race discrimination and retaliation.
4. Fourth Claim — GS-7 Administrative Coordinator Position
Around May 1998, a GS-7 Administrative Coordinator position opened at the FAA. Pl.'s Stmt. of Facts at 10. The FAA did not announce the position. Id. Management offered the position to a Caucasian female employee pursuant to its Internal Placement Process. Def.'s Stmt. of Facts ¶ 44. The Caucasian female accepted the position on July 5, 1998. Def.'s Ex. I-C.
Under the Internal Placement Process, FAA employees can request reassignment from one position or geographic location to another in-grade or lower-graded position. Id. ¶ 43. The Caucasian female who accepted the Administrative Coordinator position already had a GS-7 position in another area, and had requested the placement to join her husband, who already had moved to Indianapolis. Id. ¶¶ 42, 44.
At the time the Administrative Coordinator position opened, Wells had two voluntary applications on file. Pl.'s Stmt. of Facts at 10. Voluntary applications are only considered when there is a bid announcement for an open position. Def.'s Stmt. of Facts ¶ 45. It is not necessary to bid a position when an Internal Placement Process request is on file from a qualified candidate. Id. ¶ 46.
Wells contacted an EEO officer on January 11, 1999, regarding her non-selection for the Administrative Services Coordinator position (her third claim). In February 1999, Wells filed a formal administrative complaint regarding her third claim, and included allegations about her lack of opportunity to bid for the GS-7 Administrative Coordinator position (her fourth claim). Def.'s Ex. I-C.
II. STANDARDS A. SUMMARY JUDGMENT
As stated by the Supreme Court, summary judgment is not a disfavored procedural shortcut, but rather is an integral part of the federal rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). See also United Ass'n of Black Landscapers v. City of Milwaukee, 916 F.2d 1261, 1267-68 (7th Cir. 1990). Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
The judgment sought 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.
Once a party has made a properly-supported motion for summary judgment, the opposing party may not simply rest upon the pleadings but must instead submit evidentiary materials which "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). A genuine issue of material fact exists whenever "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears the burden of demonstrating that such a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 997 (7th Cir. 1996). It is not the duty of the Court to scour the record in search of evidence to defeat a motion for summary judgment; rather, the nonmoving party bears the responsibility of identifying the evidence upon which she relies. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). When the moving party has met the standard of Rule 56, summary judgment is mandatory. See Celotex, 477 U.S. at 322-23; Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992).
In evaluating a motion for summary judgment, the Court should draw all reasonable inferences from undisputed facts in favor of the nonmoving party and should view the disputed evidence in the light most favorable to the nonmoving party. See Estate of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that might affect the outcome of the suit in light of the substantive law will preclude summary judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94 F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir. 1992). "If the nonmoving party fails to establish the existence of an element essential to [her] case, one on which [she] would bear the burden of proof at trial, summary judgment must be granted to the moving party." Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996).
On certain occasions, the Seventh Circuit has suggested that a court approach a motion for summary judgment in an employment discrimination case with a particular degree of caution. See, e.g., Sarsha v. Sears, Roebuck Co., 3 F.3d 1035, 1038 (7th Cir. 1993); Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). The language implied that summary judgment might be less appropriate in this context based upon the presence of issues of motive and intent. See Holland, 883 F.2d at 1312. As the Seventh Circuit emphasized, however, these cases do not establish a heightened summary judgment standard for employment-related cases. Instead, the language from the prior cases simply means "that courts should be careful in a discrimination case as in any case not to grant summary judgment if there is an issue of material fact that is genuinely contestable, which an issue of intent often though not always will be." Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). Even when discriminatory intent is at issue, summary judgment is appropriate when the nonmovant presents no evidence to indicate motive or intent in support of her position. See Holland, 883 F.2d at 1312. Further, the nonmovant will not defeat summary judgment merely by pointing to self-serving allegations without evidentiary support. See Cliff v. Board of School Comm'rs, 42 F.3d 403, 408 (7th Cir. 1994).
B. RACE DISCRIMINATION UNDER TITLE VII
Title VII makes discrimination on the basis of race illegal in the employment context: It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate 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; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.42 U.S.C. § 2000e-2. Plaintiffs bringing suit under Title VII may prove their case through direct evidence of discriminatory intent, or through indirect, circumstantial evidence of discriminatory intent. See, e.g., Jackson v. E.J. Branch, Corp., 176 F.3d 971, 982 (7th Cir. 1999).
Plaintiffs who do not have direct evidence of discrimination must establish a prima facie case under the McDonnell Douglas burden-shifting framework to survive summary judgment. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). "This may be done by showing (i) that [plaintiff] belongs to a racial minority; (ii) that [plaintiff] applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite [plaintiff's] qualifications, [plaintiff] was rejected; and (iv) that, after [plaintiff's] rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications," id. at 803, or that "the position was filled with a person not in the protected class." Gorence v. Eagle Food Ctrs., Inc., 242 F.3d 759, 765 (7th Cir. 2001).
If a plaintiff can establish a prima facie case, an inference of discrimination exists. "The burden of production then shifts to the defendant-employer to produce evidence of a legitimate, nondiscriminatory reasons for its employment decision." Millbrook v. IBP, Inc., 280 F.3d 1169, 1174 (7th Cir. 2002) ( citing Emmel v. Coca-Cola Bottling Co. of Chicago, 95 F.3d 627, 629 (7th Cir. 1996)). "Once this burden of production is met, any inference of discrimination evaporates. To prove unlawful discrimination at this stage, the plaintiff must demonstrate to the jury that the reason proffered by the employer was mere pretext, an explanation designed to obscure the unlawful discriminatory action." Emmel, 95 F.3d at 629.
C. RETALIATION UNDER TITLE VH
A recent Seventh Circuit case clarified the proper summary judgment standard for courts considering Title VII retaliation claims. See Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 643-44 (7th Cir. 2002) (creating "a new rule for adjudication of retaliation cases"). There are two distinct routes to prevent/obtain summary judgment in a retaliation action. See id. at 644. The first avenue "is to present direct evidence (evidence that establishes without resort to inferences from circumstantial evidence) that [s]he engaged in protected activity (filing a charge of discrimination) and as a result suffered the adverse employment action of which [s]he complains." Id. If a plaintiff has no direct evidence of retaliation, she must resort to the second route:
[T]he adaptation of McDonnell Douglas to the retaliation context . . . requires the plaintiff to show that [1] after filing a charge [2] only [s]he, and not any similarly situated employee who did not file a charge, [3] was subjected to an adverse employment action [4] even though [s]he was performing [her] job in a satisfactory manner. If the defendant presents no evidence in response, the plaintiff is entitled to summary judgment. If the defendant presents unrebutted evidence of a noninvidious reason for the adverse action, he is entitled to summary judgment. Otherwise there must be a trial.Id. (numbers added). A plaintiff need not present evidence of a "causal link" between the protected expression in which she engaged and the adverse employment action of which she is complaining. See id. at 642-43 (reasoning that the imposition of a causation requirement on a plaintiff proceeding under the McDonnell Douglas retaliation test essentially required direct evidence of retaliation rather than indirect evidence for which McDonnell Douglas was designed).
III. DISCUSSION
Both parties agree that Wells does not have direct evidence of discrimination to support her failure to promote claims. Thus, Wells must establish a prima facie case under the McDonnell Douglas burden-shifting method in order to survive summary judgment. Because Wells' claims are essentially failure to promote or non-selection claims, she must demonstrate that: (1) she belongs to a protected group; (2) she applied for and was qualified for a position for which the Defendant was seeking applicants; (3) despite her qualifications, her application was rejected; and (4) the Defendant granted promotions to persons who were not in her protected group. See Bell v. E.P.A., 232 F.3d 546, 549 (7th Cir. 2000). If Wells establishes her prima facie case, she must also rebut any legitimate, noninvidious reasons offered by the Defendant for her non-promotion. See id.
A. FIRST CLAIM — GS-7 SECRETARY POSITION 1. Race Discrimination
Wells' first claim involves her non-promotion to a GS-7 secretary position around September 1996. Defendant asserts that Wells cannot establish her prima facie discrimination case because she did not apply for a position for which her employer was seeking applications. Even if Wells could establish a prima facie case, Defendant contends that she cannot show pretext. In response, Wells argues that she has established her prima facie discrimination case, and asserts that she has rebutted Defendant's stated reason for her non-selection.Under the second prong of the McDonnell Douglas framework, Wells must establish that she "applied and was qualified for a job for which the employer was seeking applicants." McDonnell Douglas, 411 U.S. at 803. Defendant advances the same argument on this issue that it does when proffering a non-discriminatory explanation for its failure to consider Wells' application. Because the Court will also have to consider Defendant's non-discriminatory explanation and Wells' pretext showing in connection with her retaliation claim, the Court will proceed to the pretext stage to analyze this issue.
Defendant articulates a noninvidious reason for its failure to consider Wells' voluntary application. Employees adversely affected by the 1995 FAA realignment were placed on a priority placement list, and considered for appropriate vacancies in advance of efforts to fill vacancies by other means. As a result of the 1995 realignment, Diane Jones was involuntarily reassigned and downgraded to a GS-6 position. When the GS-7 secretary position opened in Indianapolis, Defendant's selecting official offered the position to Jones because she was on the priority list. Defendant never posted the vacancy or considered voluntary applications through the Merit Promotion Process because the employees on the priority list were entitled to consideration in advance of efforts to fill the job through other means. In response to this explanation, Wells argues that Jones should not have been on the priority list because she had declined a previous offer and, under FAA rules, that would require Jones to be taken off the priority list.
Wells' pretext argument misses the mark. Defendant explained its failure to consider Wells' application by offering evidence about its priority placement program and Jones' presence on the priority list for GS-7 positions. Arguing that Defendant made an administrative error by placing Jones on the list does little to undermine Defendant's explanation. The officials responsible for placing Jones on the priority list were not the same officials responsible for filling the GS-7 secretary position in Indianapolis. Because Jones was on the priority list, the selecting officials in Indianapolis had to consider her for the vacancy before filling the vacancy by other means.
Wells admits that Jones was on the priority list and she does not expose the priority placement program as a sham. In other words, Wells does not demonstrate that Defendant's explanation is factually baseless. See Jackson, 176 F.3d at 983. Moreover, Wells does not have any direct evidence indicating that Defendant was more likely motivated by Wells' race or EEO activity than the stated reasons. See id. Even if the FAA made a mistake by leaving Jones on the priority list after she turned down a position in another area, it does not follow that this error was a pretext for discrimination. See Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000) ("[P]retext means a dishonest explanation, a lie rather than an oddity or an error."). Because Wells has not shown that a fact issue exists as to whether Defendant's non-discriminatory explanation was truthful, the Court GRANTS Defendant's Motion for Summary Judgment with respect to the GS-7 secretary position.
2. Retaliation
With regard to Wells' retaliation claim, Defendant maintains that Wells cannot show differential treatment toward similarly situated employees who did not file a charge, and that she cannot show pretext. Wells does not respond to Defendant's arguments on the retaliation issue in a meaningful way. She asserts that she can establish causation due to the timing of her EEO complaints and subsequent, allegedly discriminatory acts by Defendant. However, Stone v. City of Indianapolis, 281 F.3d 640 (7th Cir. 2002), created "a new rule for adjudication of retaliation cases," and plaintiffs no longer have to present evidence of a causal link between the protected expression and the adverse employment action. See id. at 642-43.
Wells still must identify similarly situated employees who did not complain that were treated more favorably. Wells has not identified any such similarly situated employees. Consequently, she has failed to establish a prima facie retaliation claim. In addition, as discussed above, Wells has not rebutted Defendant's nondiscriminatory explanation for its failure to consider her application. Accordingly, even if Wells could establish a prima facie case, Wells' retaliation claim foils at the pretext stage. The Court GRANTS Defendant's Motion for Summary Judgment on Wells' retaliation claim relating to the GS-7 secretary position.
B. SECOND CLAIM — GS-7 ADMINISTRATIVE TECHNICIAN POSITION 1. Race Discrimination
Wells also asserts that she was discriminated and/or retaliated against in connection with her non-selection for a GS-7 Administrative Technician position in May 1998. In April 1998, the FAA issued a facility-wide announcement for the position, and Wells submitted an application. Wells' application was not forwarded to the selecting official, and a Caucasian woman was selected for the position in May 1998. Defendant contends that Wells cannot establish the second prong of her prima facie case because she was not qualified for the position, as she was not within the facility to which the position was opened. Defendant advances the same argument as its legitimate, nondiscriminatory reason for Wells' non-selection, and argues that Wells cannot show that this explanation is pretextual. The Court will proceed to the pretext stage to consider the facility-wide argument.
Defendant explains that the area of consideration for the position was facility-wide, and that the facility was the Indianapolis Flight Standards District Office ("FSDO"). Because Wells worked in the Airways Facilities Systems Management Office and not the FSDO, she was not eligible for the position. The area of consideration was limited to the FSDO because budgetary constraints did not allow the FSDO to increase the number of employees at its office.
Defendant's nondiscriminatory explanation for its failure to consider Wells' application shifts the burden back to Wells to show pretext. Because Wells does not have direct evidence of pretext, she must establish pretext indirectly, by showing that Defendant's explanation is not credible. See Jackson, 176 F.3d at 983. "Indirect evidence of pretext showing that an employer's proffered reasons are not credible maybe made by demonstrating that the reasons are factually baseless, were not the actual motivation for the discharge, or were insufficient to motivate the discharge." Id. "In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).
Wells attempts to show that the facility-wide explanation is factually baseless. Wells submits evidence that she applied for an FSDO facility-wide position announced in 1993, and that although she was not offered the position, the selecting officials considered her application. Wells also sought EEO counseling with regard to the 1993 non-selection, and Defendant never said that she was not eligible because she was not an FSDO employee.
Wells asserts that she has created an issue of fact as to whether Defendant's stated reason is true. Because her non-FSDO application was considered in 1993, Wells asserts that an FSDO facility-wide announcement is not limited to FSDO employees. However, the relevant time period here is 1998. Wells does not contradict Morang's (the selecting official in 1998) testimony that no applications from non-FSDO employees were accepted for the eight FSDO facility-wide vacancy announcements during the relevant time period in 1998. Nor does Wells undermine Morang's testimony that the 1998 facility-wide announcements were limited to FSDO employees because budgetary constraints did not allow for an increase in the number of employees at the FSDO. Wells' position — that the FAA is lying about the definition of facility-wide to cover for discriminatory intent, supported almost exclusively by the fact that she was considered for a facility-wide position in 1993 — would require the jury to make a leap that is not supported by the evidence.
It would not be reasonable for a factfinder to infer from the 1993 consideration of Wells' application that the stated reason for the 1998 failure to consider (FSDO facility-wide announcement is limited to FSDO employees) was a pretext for discrimination. "Pretext means deceit used to cover one's tracks," Kulumani, 224 F.3d at 685, and Wells has not provided the Court with any evidence of deceit on the part of the FAA. The FAA is a large, bureaucratic organization, and evidence of administrative error or the "Vagaries inevitable in any substantial organization" is not sufficient to rebut a noninvidious explanation for an employment action. Kulumani, 224 F.3d at 684. Accordingly, the Court concludes that Wells' discrimination claim relating to the Administrative Technician position fails at the pretext stage. The Court GRANTS Defendant's Motion for Summary Judgment on Wells' second discrimination claim.
2. Retaliation
Wells also asserts that her May 1998 non-selection was retaliatory. However, as with her first claim, she does not specifically identify comparables who were treated more favorably than she. Even if Wells could identify similarly situated individuals who did not file EEO charges that were treated more favorably, she has not sufficiently rebutted Defendant's explanation that it was not considering applications from non-FSDO employees. Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment on Wells' retaliation claim.
C. THIRD CLAIM — ADMINISTRATIVE SERVICE COORDINATOR POSITION 1. Race Discrimination
Wells' third claim relates to her non-selection for an Administrative Service Coordinator position. Defendant issued a position vacancy announcement for the job in August 1998, and filled it in early 1999 with an African-American female. The selecting official was also African-American.
According to Defendant, Wells must establish that Defendant filled the position for which she applied with a person not in her protected class to meet the fourth prong of her prima facie case. See, e.g., Bell, 232 F.3d at 549. In this case, another African-American female accepted the Administrative Service Coordinator position. Thus, it appears that Wells cannot establish the fourth prong of her prima facie case.
However, in Carson v. Bethlehem Steel Corporation, 82 F.3d 157 (7th Cir. 1996) (per curiam), the Seventh Circuit explained that a court should not place undue emphasis on the demographic characteristics of the replacement worker (or the worker who filled the job at issue):
The question instead is whether the plaintiff has established a logical reason to believe that the decision rests on a legally forbidden ground. That one's replacement is of another race, sex, or age may help to raise an inference of discrimination, but it is neither a sufficient nor a necessary condition. Any demonstration strong enough to support a judgment in the plaintiff's favor if the employer remains silent will do, even if the proof does not fit into a set of pigeonholes.Carson, 82 F.3d at 159. In the Court's view, Wells has not made a demonstration strong enough to support a judgment in her favor with regard to the Administrative Service Coordinator position. Wells speculates that race or her prior EEOC activity played a role in her non-selection for the position, but offers the Court scant evidence in support of her opinion. Although proof that the person selected for the position was not in her protected class is not a necessary condition to establish her prima facie case, Wells, an African-American, has a "tough row to hoe" on this race discrimination claim where both the selecting official and the selected applicant are African-American. See Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 572 (7th Cir. 1998) (observing that plaintiff has "tough row to hoe" in discrimination case where person making challenged employment decision is also within the protected class).
Even if Wells had sufficient proof to survive the prima facie stage, she does not adequately rebut Defendant's legitimate, nondiscriminatory explanation for her non-selection. Ten candidates applied for the position, and they were ranked based on their qualifications. Four candidates were selected for interviews. Three of the four candidates selected for interviews were the top three in the ranking, and the fourth was an in-grade bidder who did not have to be ranked. The candidates offered an interview all scored 90 or above. Wells scored an 88 and was not offered an interview.
In response to this noninvidious explanation, Wells argues, "Wells was far more qualified than at least two of the African-American candidates placed on the list. Wells performed her assignments very well and received commendations on a regular basis, but Wells was treated less favorably than candidates of races other than African-American." Memo in Opposition at 27. The Seventh Circuit has rejected this comparative line of argument many times. See, e.g, Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000) ("We do not sit as a superpersonnel department that reexamines an entity's business decision and reviews the propriety of the decision. Our only concern is whether the legitimate reason provided by the employer is in fact the true one."); Jordan v. Summers, 205 F.3d 337, 344 (7th Cir. 2000) ("Discrimination laws serve only to prevent consideration of forbidden characteristics — like race — but they are not, we have repeatedly noted, court-enforced merit selection programs."). Wells' personal opinion that she was more qualified than the other candidates does not discredit Defendant's ranking process.
On this point, the Seventh Circuit's recent pronouncement in Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir. 2002), also warrants repeating:
[W]e now hold that where an employer's proffered non-discriminatory reason for its employment decision is that it selected the most qualified candidate, evidence of the applicants' competing qualifications does not constitute evidence of pretext "unless those differences are so favorable to the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue." Deines, 164 F.3d at 279. In other words, "[i]n effect, the plaintiff's credentials would have to be so superior to the credentials of the person selected for the job that `no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.'" Byrnie, 243 F.3d at 103 (quoting Deines, 164 F.3d at 280-81).Id. at 1180-81. Wells does not provide the Court with any evidence that suggests that her credentials were "so superior to the credentials of the person selected for the job that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over [Wells] for the job in question." Millbrook, 280 F.3d at 1169 (citations omitted). Thus, because of this failure of proof and because Wells generally fails to cast doubt on Defendant's noninvidious explanation, the Court concludes that Wells' claim fails at the pretext stage. The Court GRANTS Defendant's Motion for Summary Judgment on Wells' discrimination claim.
2. Retaliation
Wells also contends that she was not selected for the Administrative Service Coordinator position in retaliation for her EEO activity. However, she has not identified any similarly situated individuals who did not file discrimination charges. Thus, Wells has not met the second prong of her prima facie retaliation case, and "failure to satisfy any element of the prima facie case proves fatal to the employee's retaliation claim." Hilt-Dyson v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002). Even if Wells could establish her prima facie case, she has failed to undermine Defendant's non-discriminatory explanation for her non-selection. Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment with regard to Wells' retaliation claim.
D. FOURTH CLAIM — ADMINISTRATIVE COORDINATOR POSITION
Wells' fourth claim involves her non-selection for a GS-7 Administrative Coordinator Position in July 1998. Wells contends that she was not selected for the position due to her race and/or because of her EEO activity. Defendant asserts that this claim should be dismissed because Wells did not timely exhaust her administrative remedies with regard to the claim. The Court agrees with Defendant.
"Federal employees who seek to assert Title VII claims must exhaust the administrative remedies available to them in a timely fashion before they may assert their claims in a lawsuit." Ester v. Principi, 250 F.3d 1068, 1071 (7th Cir. 2001) (citing 42 U.S.C. § 2000e-16(c)). 29 C.F.R. § 1614.105(a) provides one such administrative requirement for federal employees:
(1) An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the cases of personnel action, within 45 days of the effective date of the action.
(2) The agency or the Commission shall extend the 45-day time limit in paragraph (a)(1) of this section when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know or reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
This early contact with an EEO counselor provides the parties with an opportunity for informal resolution of the dispute. If efforts at an informal resolution fail, "then the federal employer will issue a notice of a right to file a complaint to be processed administratively." Rennie v. Garrett, 896 F.2d 1057, 1059 (7th Cir. 1990).
The GS-7 Administrative Coordinator position became available in May 1998. Although the FAA did not announce the position vacancy, Wells had two voluntary applications on file at the time. The position was filled by a Caucasian female in July 1998. Wells did not initiate contact with an EEO counselor until January 11, 1999, well beyond the 45-day limit. In fact, it appears that Wells only mentioned her non-selection for the Administrative Services Coordinator position (her third claim) at the January 11, 1999, counseling meeting, and did not add the claim about her non-selection for the July 1998 GS-7 Administrative Coordinator position (her fourth claim) until she filed a formal administrative complaint in February 1999. Based on this timeline, an administrative law judge dismissed Wells' claim regarding the July 1998 non-selection for failure to contact an EEO counselor within 45 days of the effective date of the alleged discriminatory action.
Despite this administrative dismissal, Wells included the claim about the July 1998 non-selection in her federal district court complaint. Wells does not dispute the dates used by the administrative law judge. Nor does she offer the Court any evidence that circumstances prevented her from contacting a counselor in a timely fashion, or that she was unaware of the requirement that she contact an EEO counselor within 45 days of the alleged discriminatory act. It would be difficult for Wells to argue that she was not aware of the timing requirements because she had availed herself of the EEO complaint process numerous times prior to 1999.
Wells asserts that the February 1999 administrative complaint was accepted and investigated by Defendant. The Court construes this as a waiver argument. See Ester, 250 F.3d at 1071 (45-day time limit is subject to the doctrines of waiver, estoppel, and equitable tolling). Wells does not offer the Court any support for the proposition that investigation of a complaint precludes an agency from asserting failure to timely comply with administrative requirements. In fact, Defendant filed a motion to dismiss Wells' administrative complaint on this same issue, and the administrative law judge granted the motion. Defendant did not waive the timeliness defense. Because Wells failed to timely contact an EEO counselor with 45 days of the alleged discriminatory action and because no equitable doctrines toll the time period, the Court GRANTS Defendant's Motion for Summary Judgment with regard to Wells' fourth claim.
IV. CONCLUSION
For the reasons stated herein, the Court GRANTS Defendant's Motion for Summary Judgment.
IT IS SO ORDERED.