TANYA S. CHUTKAN, United States District Judge.
In this employment discrimination action filed pro se, Plaintiff alleges that Defendant, Washington Metropolitan Area Transit Authority ("WMATA"), unlawfully discriminated against him because of his national origin (Chilean) and age, and retaliated against him for engaging in protected activity. (Am. Compl., ECF No. 20). Following a period of discovery, Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 (ECF No. 27). For the reasons explained below, the Court will GRANT Defendant's motion.
Plaintiff worked as a Project Manager in WMATA's engineering services department from August 1999 until his retirement in April 2015, at age 80. Plaintiff alleges that he "was disappointed by the lack of promotion during [his] 16 years of uninterruptible work for WMATA and tired of the daily long walking from the Eisenhower Metro Station to the office" in Alexandria, Virginia. As a result, Plaintiff "felt like" he was "forced to retire ... at the same job classification ... and the same grade/pay 14." (Am. Compl. ¶ 2).
Plaintiff alleges that over the course of his employment, WMATA denied him "any promotion and discriminated against [him] in the selection process in about 12 ... engineering job[] positions" for which he had applied. (Am. Compl. ¶ 3). When he first applied for a position in 2003, Plaintiff "had graduate level education and a good 25 years of engineering experience, which [were] better than any of the selected candidates' qualification[s]." (Id.). In January 2014, Plaintiff "suffered stress and emotional pain when on or around January 31, 2014," he apparently learned that WMATA's hiring manager, Mr. John Thomas, had "refused to interview [him] to compete for promotion against other candidates for a position in the Construction Department," despite the Human Resources Department's alleged assessment of Plaintiff "as a well-qualified candidate for that engineering position." (Id. ¶ 4, citing Compl. Ex. 1, Thomas's Jan. 31, 2014 Memorandum re: Selection of Project Manager Interviewees). That decision, stemming from events that occurred in November 2013, forms the basis of this action.
In the fall of 2013, Plaintiff applied for two advertised project manager positions in WMATA's Office of Major Capital Projects ("MCAP"). Plaintiff's resume was among "a package" of six or seven applicants forwarded to Thomas from the Human Resources department. (June 15, 2017 Oral Dep. of John D. Thomas, P.E., at 17:17-18, 18:3, ECF No. 27-3). Thomas, who was "ultimately responsible" for hiring individuals to fill the positions, reviewed Plaintiff's resume but did not select him for an interview. (See WMATA's Stmt. of Material Facts Not in Dispute ¶ 7; Decl. of John D. Thomas ¶ 3, ECF No. 27-1). Thomas avers that both of the positions were "primarily to manage projects, as opposed to performing engineering tasks and functions." (Thomas Decl. ¶ 3). The primary function of the first position, filled by an African American man, was "to oversee the installation of canopies over escalators at Metrorail station entrances." (Id.). The second position, filled by a white woman, was "financial manager for the various projects at MCAP." (Id.).
Plaintiff alleges that "WMATA Hiring Managers did not promote me and discriminated against me because of several factors: my age (79 years old), my strong Hispanic accent, and also as a way of retaliation" because he had "complained twice" to the Equal Employment Opportunity Commission ("EEOC") about WMATA's alleged violations of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), and the Age Discrimination in Employment Act ("ADEA"). (Am. Compl. ¶ 5). Plaintiff also complained to WMATA's Civil Rights Office about alleged violations of the Hiring and Promotion Policy. (Id.).
Plaintiff states that he filed his first complaint with the EEOC in 2009, "followed by another similar complaint to EEOC in 2013." (Am. Compl. ¶ 10). Allegedly, each complaint raised "the same ... argument and content, as they were all related to no promotions due to discrimination," which resulted in "a diminished salary affected by long-past discriminatory decisions." (Id.).
Plaintiff alleges that on June 18, 2009, and June 26, 2009, he emailed WMATA's Office of Civil Rights about his "lack of selection for the Manager of Engineering (job ref # 090035) position and was "notified" that the Office "does not investigate claims unless there is evidence of discrimination." (Am. Compl. ¶ 12(c)). In November 2009, Plaintiff filed a charge with the EEOC, claiming discrimination based on "race/national origin (Hispanic-Chilean)" and age (74). (Charge of Discrimination, ECF No. 27-7). Plaintiff checked the box for "continuing action" but listed the earliest date of discrimination as March 13, 2009, and the latest date as September 2, 2009. (Id.). In the "Particulars" section, Plaintiff wrote that since October 2006, he had been denied "promotion to various positions" for which he was "well qualified." (Id.). Plaintiff claimed specifically that on March 13, 2009, he applied for an open Manager of Engineering position (# 090035) but was not interviewed, and on September 2, 2009, he was interviewed for another Manager Engineering position (# 08064) but was not hired. (Id.). In each instance, Plaintiff wrote, "a younger less qualified non-Hispanic American was hired." (Id.) The EEOC issued its Dismissal and Notice of Rights on March 15, 2011, informing Plaintiff, inter alia, of his right to file a lawsuit within 90 days from his receipt of the notice (ECF No. 27-8). Plaintiff did not file a lawsuit. WMATA's Facts ¶ 4.
In January 2014, Plaintiff filed a charge with the EEOC, claiming discrimination based on "race (White)," national origin (Chilean), age (78), and retaliation. (Charge of Discrimination, ECF No. 27-5). Plaintiff listed the earliest date of discrimination as January 1, 2013, and the latest date as November 18, 2013, but specifically claimed that on the latter date, WMATA failed to interview him for "the position of Project Manager." (Id.). Plaintiff did not check the "continuing action" box. In the Particulars section, Plaintiff wrote: "I believe
In the Amended Complaint, Plaintiff lists seven engineering positions announced between October 27, 2006 and August 2011 for which he applied but was not selected. (Am. Compl. ¶ 11). Plaintiff claims generally that "supervisors and staff members" failed (1) to "provide an equal opportunity on the job competition," (2) to select "the best candidates," (3) to follow "WMATA Hiring and Promotion practices," and (4) to enforce Title VII and the ADEA. Plaintiff alleges that the interviewers allowed their "personal judgment [to prevail] over the candidate with the best qualifications. (Id.). Plaintiff also claims he sought "numerous times" to redress his discrimination claims with WMATA between September 2007 and June 2009. (Id. ¶ 12).
Summary judgment is appropriate where there is no disputed genuine issue of material fact, and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute is "genuine" only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
The moving party bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits...' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. The nonmoving party, in response, must "go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). "[A]t the summary judgment stage the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. 2505.
Defendant contends that summary judgment is warranted on Plaintiff's age discrimination claim because WMATA is immune from suit under the ADEA. The Court agrees. The Eleventh Amendment to the Constitution immunizes a State from suit in federal court, unless immunity is waived.
Defendant contends that summary judgment is warranted on the discrimination and retaliation claims because (1) Plaintiff failed to exhaust his administrative remedies with respect to all claims, except the claim based on the November 2013 decision to not interview Plaintiff for the two Project Manager positions ("non-selection decision"); (2) WMATA has articulated legitimate, non-discriminatory reasons for not interviewing Plaintiff for those positions; and (3) Plaintiff has not established a temporal connection between his protected activity and the non-selection decision, which is a necessary element of his retaliation claim that he cannot prove at trial.
Defendant argues first that Plaintiff "cannot resurrect [his] stale claims" arising from his non-selection to positions he applied for over the course of his employment beginning in 2003 because he failed to exhaust certain claims with the EEOC and, as to others, failed to file a lawsuit after receiving the EEOC's March 12, 2011 right-to-sue notice. (Def.'s Mem. at 6). The Court agrees.
Title VII "requires that a person complaining of a violation file an administrative charge with the EEOC and allow the agency time to act on the charge," Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995), and "[c]omplainants must timely exhaust the[ir] administrative remedies before bringing their claims to court," Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (quoting Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (alterations in original)). In the case of WMATA, "an aggrieved party must exhaust his administrative remedies by filing a charge of discrimination with the EEOC within 180 days of the alleged discriminatory incident." Washington v. Washington Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998). Each "discrete act" of discrimination or retaliation must be exhausted "regardless of any relationship that may exist between those discrete claims and any others." Coleman-Adebayo v. Leavitt, 326 F.Supp.2d 132, 138 (D.D.C. 2004); see id. ("Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire" are individual acts that "occur" at a fixed time.") (quoting Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). And "only those acts occurring within the limitations period [are] actionable, regardless of any connection between the earlier acts and the ones" underlying "a timely complaint." Id. at 137. While the exhaustion requirement "should not be construed to place a heavy technical burden" on a plaintiff, it is "not a mere technicality," and a plaintiff's "Title VII lawsuit following the EEOC charge is limited in scope to claims that are like or reasonably related to the allegations of the
Plaintiff has neither alleged nor produced evidence that he filed charges with the EEOC regarding most of the unsuccessful job applications listed in paragraph eleven of the Amended Complaint. The "Particulars" section of Plaintiff's first discrimination charge with EEOC identifies only two adverse decisions. (See Nov. 24, 2009 Charge). Plaintiff wrote that on March 13, 2009, he "applied for an open Manager of Engineering position (# 090035)," but was not selected for an interview; and on September 2, 2009, he "interviewed for the position of Manager Engineering (# 08064)" but was not selected to fill the position. (Id.). In each instance, Plaintiff wrote that "a younger less qualified non-Hispanic American was hired." (Id.). Although Plaintiff checked the box for "continuing action," he did not complain about any actions beyond those two. (Id.). Regardless, it is undisputed that Plaintiff did not file suit after receiving the EEOC's March 15, 2011 Dismissal and Notice of Rights. (Def.'s Facts ¶ 4; Pl.'s Dep. at 45: 12-17). And Plaintiff has not articulated a meritorious argument for equitable tolling.
Title VII's anti-discrimination provision makes it unlawful for an employer `to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color ... or national origin." 42 U.S.C. § 2000e-2(a). Title VII's anti-retaliation provision makes it unlawful for an employer "to discriminate against [an] employee [] ... because he has opposed any practice" made unlawful by Title VII or "has made a charge, testified, assisted, or participated in" a Title VII proceeding. Steele v. Schafer, 535 F.3d 689, 695 (D.C. Cir. 2008) (quoting 42 U.S.C. § 2000e-3(a)). "Title VII's substantive provision and its anti-retaliation provision are not coterminous," and the "scope of the anti-retaliation provision" may extend "beyond workplace-related or employment-related retaliatory acts and harm[.]" Id. at 695-96 (quoting Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ). Title VII claims may be proved by direct or circumstantial evidence.
Plaintiff offers as "direct evidence" of discrimination his allegation that on "some different occasions, WMATA's managers made derogatory remarks about [my] ethnicity and my Hispanic accent[.]" (Am. Compl. ¶ 5). "Direct evidence of discriminatory intent alone is sufficient to survive summary judgment." Robinson v. Red Coats, Inc., 31 F.Supp.3d 201, 216 (D.D.C. 2014) (citing Stone v. Landis Constr. Corp., 442 Fed.Appx. 568, 569 (D.C. Cir. 2011) (per curiam)). This is because "direct evidence of discrimination is evidence that, if believed by the fact finder, proves the particular fact in question without any need for inference[.]" Hajjar-Nejad v. George Washington Univ., 37 F.Supp.3d 90, 125 (D.D.C. 2014) (emphasis in original). Hence, a statement that itself shows bias in the adverse decision is direct evidence that would generally entitle a plaintiff to a jury trial. Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011); see Wilson v. Cox, 753 F.3d 244, 247 (D.C. Cir. 2014) ("A statement that itself shows ... bias in the employment decision qualifies as direct evidence.") (citation and internal quotation marks omitted) (ellipsis in original)). "While courts have not precisely defined what constitutes direct evidence, it is clear that at a minimum, direct evidence does not include stray remarks in the workplace, particularly those made by nondecision-makers or statements made by decisionmakers unrelated to the decisional process itself." Hajjar-Nejad, 37 F.Supp.3d at 125 (citation and internal quotation marks omitted); see accord Ajisefinni v. KPMG LLP, 17 F.Supp.3d 28, 44 (D.D.C. 2014) ("In order for Plaintiff to establish discriminatory animus in an adverse employment decision ... there must be a clear nexus between the `stray workplace remark[]' and the adverse action....Such a nexus can be shown if the remark was made by an individual with the power to influence Plaintiff's termination, and the remark was temporally close in time to the [adverse determination].")
Plaintiff has neither identified the managers who made the alleged remarks nor produced evidence of when and in what context they were made.
In the absence of direct evidence, the court analyzes Title VII claims under the well-established burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Barnette v. Chertoff, 453 F.3d 513, 515 (D.C. Cir. 2006); Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003). Under this framework, the plaintiff has the initial burden of proving a prima facie case of discrimination or retaliation, which "is not onerous."
Pretext may be established by showing either "that a discriminatory reason more likely motivated the employer or... that the employer's proffered explanation is unworthy of credence." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). However, "Title VII ... does not authorize a federal court to become a super-personnel
The court considers "whether a reasonable jury could infer intentional discrimination or retaliation from all the evidence, including (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its action; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer)." Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (citations and internal quotation marks omitted) ). "`The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated [or retaliated] against the plaintiff remains at all times with the plaintiff.'" Wheeler, 812 F.3d at 1114 (quoting Texas Dep't of Cmty. Affairs, 450 U.S. at 253, 101 S.Ct. 1089).
Thomas claims that the purpose of the two positions for which Plaintiff applied "was primarily to manage projects, as opposed to performing engineering tasks and functions." (Thomas Aff. ¶ 3). And "the two persons who were ultimately selected for the two Project Manager positions... demonstrated to me that they had the best combination of leadership ability, breadth of experience, and technical knowledge so as to be the best candidates for the respective positions." (Id. ¶ 4). In contrast, Thomas testified that he "saw" in Plaintiff's resume "an extensive list of technical experiences in the electrical engineering area of Metro, both designs as well as review of submittals for electrical engineering," which, in his opinion, "was a very narrow focus of experience at Metro." (Thomas Dep. at 22:10-13). When pressed by Plaintiff about the candidates' levels of experience, Thomas insisted that "it wasn't the length of the experience" but "the breadth of the experience" that formed his opinion. (Id. at 20: 19-20). Thomas testified that Plaintiff's "resume read about somebody who was focused on electrical engineering design and review of submittals of electrical engineering." (Id. at 22: 3-5). But Thomas "wasn't looking for a highly technical person for any of these positions." (Id. at 23:20-21-24:1). Thomas's deposition testimony is consistent with his observations in the January 31, 2014 Memorandum, which contemporaneously memorialized his decision not to interview Plaintiff. Then, as in his deposition, Thomas explained:
(Ex. 1 to Am. Compl.). The memorandum, as well as Thomas' testimony, reflects a reasoned business decision that courts have no authority to reexamine without evidence of discriminatory or retaliatory animus, which, as discussed next, is absent from this case.
Plaintiff has produced no evidence from which a reasonable jury could infer that Thomas acted with a discriminatory or retaliatory
Similarly, Plaintiff has adduced no testimony or documentation from which a reasonable jury could find in his favor on the retaliation claim. Plaintiff must be able to prove that "the [decision-maker] had knowledge of the employee's protected activity, and ... the adverse personnel action took place shortly after that activity." Holcomb v. Powell, 433 F.3d 889, 903 (D.C. Cir. 2006) (emphasis supplied). "Temporal proximity can indeed support an inference of causation, but only where the two events are very close in time." Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (quoting Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir. 2007)); see id. (noting that although not established as "bright-line" rule, the Supreme Court has suggested "that in some instances a three-month period ... may ... be too lengthy to raise an inference of causation"). Indeed, "[t]his Circuit has held ... that when an inference of causation is premised on temporal proximity alone, even an eight to nine month gap between the protected activity and the adverse employment action is too great to establish an inference of causation." Ajisefinni, 17 F.Supp.3d at 46 (citing Mayers v. Laborers' Health & Safety Fund of N. Am., 478 F.3d 364, 369 (D.C. Cir. 2007) (other citations omitted)).
Plaintiff has pointed to nothing in the record to show that in November 2013 Thomas was aware, actually or constructively, of Plaintiff's prior EEO activity in 2009 that concluded in 2011 with the right-sue-notice.
In sum, Plaintiff has produced no evidence to rebut WMATA's legitimate reasons for choosing not to interview him for the Project Manager positions announced in November 2013. As a result, WMATA is entitled to judgment as a matter of law on the preserved Title VII claims.
For the foregoing reasons, Defendant's motion for summary judgment will be GRANTED. A corresponding order will issue separately.
