ROSEMARY M. COLLYER, United States District Judge.
Sampath Krishnan is a telecommunications specialist/program manager at the Federal Aviation Administration (FAA), an agency of the U.S. Department of Transportation (DOT). Mr. Krishnan is a seventy-two year-old Asian, East Indian and Hindu male who has worked at DOT for 28 years. His current job title is FV-J Telecommunications Specialist/Program Manager. In 2011, Mr. Krishnan applied for two posted supervisory specialist positions, but the FAA filled a single position and selected another candidate, David Meusel, who is a "white, younger, Caucasian, Christian, non-Asian Indian." Am. Compl. [Dkt. 4] ¶ 23. As a result, Mr. Krishnan, proceeding pro se, brought this action under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), 42 U.S.C. § 621 et seq., against Anthony Foxx in his official capacity as the Secretary of DOT.
Specifically, Mr. Krishnan asserts claims of race discrimination (Count I), age discrimination (Count II), retaliation (Count III), "Preferential Treatment Resulting in Discrimination" (Count IV), "Ongoing Pattern of Discrimination" (Count V), religious discrimination (Count VI), national origin discrimination (Count VII), ethnic background discrimination (Count VIII), and gender discrimination (Count IX). See Am. Compl. ¶¶ 103-48. DOT has filed a Motion to Dismiss or, in the alternative, a Motion for Summary Judgment on all claims. Mot. for Summ. J. [Dkt. 6] (MSJ). Mr. Krishnan filed a timely opposition, to which DOT replied. For the reasons that follow, the Court will grant DOT's Motion to Dismiss as to some claims and Motion for Summary Judgment as to others.
Mr. Krishnan's discrimination and retaliation claims arise from his non-selection in 2011 for two posted supervisory specialist
Mr. McCoy concluded that Mr. Krishnan could have been successful in the supervisory specialist position, but that it would have required a considerable amount of time, training, and close supervision as he learned the ropes. Id. ¶ 38. Mr. Meusel did not present the same concerns due to his prior experience as Acting Manager and his detailed responses to questions during his interview. Id. ¶ 45.
Mr. Krishnan also asserts that since 1991, he has been discriminated against and consistently turned down for promotions. See, e.g., Am. Compl. ¶ 16 ("Krishnan was interviewed for close to two dozen positions, but learn[ed] that these positions went to younger non-Asian Indians, non-Hindu, non-brown and mostly to white, Caucasian Christians."); ¶ 39 ("Since 2002, Krishnan has applied for numerous promotional positions with the USDOT/FAA"); ¶ 42 (alleging a reassignment request made around 2003); ¶ 63 (alleging that DOT "[b]locked Krishnan's promotions to more than 30 positions"); ¶ 93 ("[A]t least since 2003, employment history for DOT/FAA ... show[s] that it gives its employees who are white, Caucasian, Christian and younger disproportionately more leadership roles, higher performance appraisals, more frequent and larger bonuses, awards and pay increases, and more frequent and faster promotions."). Mr. Krishnan included his own affidavit in support of his opposition, but it contains equally imprecise allegations concerning events prior to 2011. See generally Opp'n, Ex. 1 (Krishnan Aff.).
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6). A complaint must be sufficient "to give a defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.Cir.2007). If, in considering a Rule 12(b)(6) motion, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56[.]" Holy Land Found. For Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.Cir.2003).
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, summary judgment is properly granted against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).
Sampath Krishnan has had a long career at FAA and has never been promoted above a GS-13, despite his many applications for such positions. At some points in the past, he filed discrimination complaints against FAA, in which the most recent event was a 2009 settlement. In the instant case, he complains of years of discriminatory treatment. Most particularly, he complains that he was not promoted in 2011 and that a younger, white, non-Hindu male got the job instead.
Defendant moves to dismiss all claims based on pre-2011 events because the Amended Complaint fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). The Court agrees. Mr. Krishnan concedes that he
While he argues that his numerous unsuccessful applications for promotion constitute a continuing violation of his rights to equal employment opportunity (EEO), each was a discrete event that required a timely EEO complaint. See Morgan, 536 U.S. 101 at 113, 122 S.Ct. 2061, 153 L.Ed.2d 106; Smith-Haynie v. District of Columbia, 155 F.3d 575 (D.C.Cir.1998). These old matters cannot be remedied now. Since Mr. Krishnan failed to satisfy the exhaustion requirement on these claims, he "will be denied a judicial audience." Brown v. Marsh, 777 F.2d 8, 14 (D.C.Cir.1985) ("Exhaustion is required in order to give federal agencies an opportunity to handle matters internally whenever possible and to ensure that the federal courts are burdened only when reasonably necessary.").
Defendant moves for summary judgment on Mr. Krishnan's discrimination claims under Title VII and ADEA based on the 2011 non-selection, that is, Counts I, II, and IV-IX of the Amended Complaint.
A plaintiff can adduce either direct or circumstantial evidence of discriminatory
In the instant case, Mr. Krishnan does not, and cannot, show that Mr. Meusel's selection supports a claim of gender discrimination because Mr. Meusel and Mr. Krishan share the same gender. Accordingly, Mr. Krishnan has failed to establish a prima facie case of gender discrimination with regard to his 2011 non-selection and the claim will be dismissed. See Greer v. Bd. of Trustees of Univ. of D.C., 113 F.Supp.3d 297, 310 (D.D.C.2015) (dismissing discrimination claims because plaintiff failed to allege that the "two supervisory positions" that he applied for "went to someone outside of [his] protected class").
With respect to the other discrimination claims,
Mr. Krishnan does not contest Defendant's proffered facts, specifically that: (1) Mr. Krishnan lacked "direct managerial or leadership experience in managing a large workforce responsible for managing mission critical telecommunications networks;" (2) Mr. Krishnan's written responses to the Knowledge, Skills, and Abilities and Other Characteristics (KSAO) "provided few details and/or examples of where he actually applied those concepts;" and (3) Mr. Krishnan's responses during his interview were not concrete on how to "build coalitions, lead change, or resolve conflicts." McCoy Aff. ¶ 38. Mr. Krishnan does not dispute that Mr. Meusel had some direct experience as an acting manager and does not address Mr. McCoy's statement that Mr. Meusel's written and oral responses were more detailed and comprehensive than Mr. Krishnan's. See McCoy Aff. ¶ 45.
Second, Mr. Krishnan argues that he was more qualified than the selectee, Mr. Meusel. Mr. Krishnan's assertion contradicts his own Amended Complaint, which states that "he is equally or better qualified" than Mr. Meusel "in terms of job performance, education, professional certifications, and pre-DOT work experience...." Am. Compl. ¶¶ 84, 88 (emphasis added). Discrimination will not be inferred from a comparison of candidate qualifications absent a showing that "plaintiff's qualifications were far superior to the successful candidate's." Singleton v. Potter, 402 F.Supp.2d 12, 31 (D.D.C.2005) (citing Aka, 156 F.3d at 1296) (emphasis in original); see also Edwards v. Principi, 80 Fed. Appx. 950, 952 (5th Cir.2003) (holding that "a plaintiff [must] show a difference in his qualifications superior to that of the person selected so apparent as to virtually jump off the page and slap us in the face"). Aside from general allegations and legal conclusions, Mr. Krishnan has not marshalled
Mr. Krishnan invites the Court to compare his qualifications to those of Mr. Meusel. It is undisputed that both Mr. Krishnan and Mr. Meusel were qualified for the position and that Mr. Meusel scored higher than Mr. Krishnan on Mr. McCoy's written and oral questions. Am. Compl. ¶¶ 30, 47-48. Mr. Krishnan's comparison of his qualifications to those of Mr. Meusel does not show that Mr. Krishnan was far superior, particularly since Mr. McCoy's decision was based on other factors. See McCoy Aff. ¶¶ 38, 45 (explaining that selection was based on Mr. Meusel's acting manager experience and his detailed written and oral responses). Morevoer, Mr. Krishnam's assessment of his own qualifications is not persuasive evidence of pretext. See Waterhouse v. District of Columbia, 124 F.Supp.2d 1, 7 (D.D.C.2000), aff'd, 298 F.3d 989 (D.C.Cir.2002); Keeley v. Small, 391 F.Supp.2d 30, 50 (D.D.C.2005).
Defendant had a difficult decision to make between candidates who were qualified in different respects. "Fine distinctions" between applicants are not sufficient to infer discrimination and Mr. Krishnan's "pointing to differences in qualifications that merely indicate a `close call' does not get him beyond summary judgment." Stewart v. Ashcroft, 352 F.3d 422, 430 (D.C.Cir.2003); see also Carter v. George Wash. Univ., 387 F.3d 872 (D.C.Cir.2004). Mr. Krishnan does not dispute Mr. McCoy's assessment that Mr. Meusel was better qualified in several critical areas. Title VII and ADEA do "not authorize a federal court to become a super-personnel department that reexamines an entity's business decisions." Barbour v. Browner, 181 F.3d 1342, 1346 (D.C.Cir. 1999) (internal quotation marks omitted).
Additionally, Mr. Krishnan contends that Mr. McCoy did not follow agency procedures during the interview process and that this shows discrimination. In opposition to Defendant's motion for summary judgment he states, "Krishnan contends that the vacancy announcement required the use of `Knowledge, Skills, Abilities and Other Characteristics' (KSAO) criteria, which Defendant acknowledged not using in these interviews because Defendant `devised his own interview tool.'" Opp'n at 4.
Accordingly, judgment will be entered in favor of Defendant on Mr. Krishnan's discrimination claims.
Defendant moves to dismiss Mr. Krishnan's retaliation claims under Title VII and ADEA based on the 2011 non-selection, which is in Count III of the Amended Complaint. Mr. Krishnan has not produced any direct evidence of retaliation and, therefore, must assert his claims subject to the McDonnell Douglas framework. To establish a prima facie case of retaliation, Mr. Krishnan must show that: (1) he engaged in protected activity; (2) he suffered a materially adverse action by his employer; and (3) a causal link existed between the protected activity and the adverse action. See Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009); see also Saunders v. Mills, No. 11-cv-486 (RMC), 172 F.Supp.3d 74, 85-86, 2016 WL 1170924, at *5 (D.D.C. Mar. 24, 2016). The third element may be established by showing that an employer knew about the protected activity and that the materially adverse action took place shortly thereafter. See Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985).
The Amended Complaint does not clearly identify Mr. Krishnan's prior protected activity, but he argues in opposition that he is relying on discrimination complaints filed in 1997, 2004, and 2008. See Opp'n at 22 (indicating that: (1) his 1997 complaint was partially settled in 2007; (2) his 2004 complaint was closed in 2007 and settled in 2009; and (3) his 2008 complaint was closed the same year). "[A]ny inference of causal connection is ... unwarranted" because Mr. Krishnan's non-selection occurred several years after the most recent of these protected activities. Singleton, 402 F.Supp.2d at 40; see also Mokhtar v. Kerry, 83 F.Supp.3d 49, 82 (D.D.C. 2015), aff'd, No. 15-5137, 2015 WL 9309960 (D.C.Cir. Dec. 4, 2015) ("Cases in this Circuit consistently have found a lack of causal connection when a year or more has passed between the protected activity and the alleged adverse action ....") (citations omitted). The passage of time here is too great to infer causation and the fact that both Mr. Dash and Mr. McCoy "knew that Krishnan [had] engaged in protected activity" years ago, Opp'n at 26, does not establish a causal link between the former protected activity and the alleged current material adverse action. Gibson v. Old Town Trolley Tours of Washington, D.C., Inc., 160 F.3d 177, 182 (4th Cir.1998) ("Knowledge is necessary to establish causation, but it is not sufficient."). Accordingly, Mr. Krishnan's retaliation claims must be dismissed.
For the foregoing reasons, the Court will grant Defendant's Motion to Dismiss as to some Counts and Summary Judgment
A memorializing Order accompanies this Memorandum Opinion. This case is closed.