ELLEN SEGAL HUVELLE, District Judge.
Plaintiff Sharrelle Higgins has sued the Office of Inspector General ("OIG"), United States Department of Housing and Urban Development ("HUD"), under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. She alleges that, because of her race (African-American) and sex (female), she was not selected for the position of Deputy Assistant Inspector General ("DAIG"). Defendant now moves to dismiss or, in the alternative, for summary judgment. For the reasons stated below, defendant's motion for summary judgment will be granted.
Higgins was hired by OIG
In June 2009, Albert reclassified Higgins' position to make her the Director of OIG's Human Capital and Management Services, which gave her additional responsibilities to "round out her experience." (Def.'s Mot., Ex. C ("Raschka Dep.") 92:2-92:22; Raschka Decl. ¶ 2.) In this role, she assumed duties including contracting, procurement, and space management. (Higgins 1st Dep. 23:20-26:14.)
In fall 2009, Raschka announced that he was planning to retire and that Albert would be promoted to AIG. In November 2009, an announcement was circulated inviting applications for the newly vacant position of DAIG, which is a Senior Executive Service ("SES") position
The requisite qualifications included executive-level leadership and management skills,
Applications that met the minimum qualifications were passed on to the Executive Review Board ("ERB") for ranking.
In January 2010, Albert selected Rokosz as DAIG. (Id. at 8.) Inspector General Stephens subsequently concurred in her selection. (See Def.'s Mot., Ex. 9 (Merit Staffing Certificate); Pl.'s Opp'n, Ex. 14 ("Stephens Dep.") 46:16-46:19, 49:19-50:3; Raschka Dep. 93:7-93:19; Pl.'s Opp'n, Ex. 19 ("Albert Dep.") 44:15-44:18; see also Def.'s Mot., Ex. K ("Matthews Decl.") ¶ 7.) Albert personally told Higgins that she had not been selected (Albert Aff. at 7), and Stephens sent an email to all OIG employees informing them that Rokosz had been chosen. (See Pl.'s Opp'n, Ex. 21 at 12.)
After Rokosz' selection, Higgins left her position in OIG. (Albert Aff. at 14.) On November 24, 2010, she filed suit, claiming that she was discriminated against on the basis of her race and gender when she was not promoted to be DAIG. Following a period of discovery, defendant filed the instant motion to dismiss or, in the alternative, for summary judgment.
A motion for summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There is a "genuine issue" of material fact if a "reasonable jury could return a verdict for the nonmoving party." Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1031 (D.C.Cir.2007) (quoting Anderson,
When considering a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. 2505; see also Wash. Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C.Cir.1989). However, the non-moving party "may not rely merely on allegations or denials in its own pleading." Fed.R.Civ.P. 56(e)(2). "While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of her obligation to support her allegations by affidavits or other competent evidence showing that there is a genuine issue for trial." Calhoun v. Johnson, No. 95-2397, 1998 WL 164780, at *3, 1998 U.S. Dist. LEXIS 22376, at **7-8 (D.D.C. Mar. 31, 1998) (internal citation omitted), aff'd, No. 99-5126, 1999 WL 825425, 1999 U.S.App. LEXIS 25165 (D.C.Cir. Sept. 27, 1999).
Under Title VII, it is unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, condition, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The "two essential elements" of a discrimination claim under this section are "that (1) plaintiff suffered an adverse employment action (2) because of the plaintiff's race ... [or] sex." Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir. 2008).
In the absence of direct evidence of discrimination or retaliation, Title VII claims are assessed under a burden-shifting framework set out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Pursuant to that framework, the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). To establish a prima facie case of discrimination, Higgins must show that (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. Wiley v. Glassman, 511 F.3d 151, 155 (D.C.Cir.2007) (internal quotation marks omitted).
Once the plaintiff has made a prima facie case, "the burden shifts to the defendant `to articulate some legitimate, nondiscriminatory reason for the [challenged employment action].'" Id. (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). However, the D.C. Circuit has stressed that once an employer has proffered a nondiscriminatory reason, the McDonnell Douglas burden-shifting framework disappears, and the court must simply determine whether the plaintiff has put forward enough evidence to defeat the proffer and support a finding of retaliation. Woodruff v. Peters, 482 F.3d 521, 530 (D.C.Cir.2007); see also Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008) ("[W]here an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not — and should not — decide whether the plaintiff
Plaintiff has sued the Inspector General of OIG in his official capacity. Title VII provides a cause of action against "the head of the department, agency, or unit." 42 U.S.C. § 2000e-16(c). Under Title VII, an "agency" is "an Executive department, a government corporation, [or] an independent establishment." 5 U.S.C. § 105. The "Executive department[s]" are statutorily defined and include HUD. See 5 U.S.C. § 101. "Independent establishment[s]" are not listed, but are defined as any "establishment in the executive branch... which is not an Executive department." 5 U.S.C. § 104(1).
Defendant argues that this Court lacks subject matter jurisdiction because plaintiff has named the Inspector General as defendant rather than the Secretary of HUD. (Def.'s Mot. at 15; Def.'s Reply to Opp'n to Mot. for Summ. J. ("Def.'s Reply") at 3-4.) It is true that the head of HUD — the executive department — is Secretary Shaun Donovan and the Inspector General is head of OIG, which is an office within HUD. However, despite being located in an "Executive department," the OIG is also an "independent establishment." See United States Dep't of Justice v. Fed. Labor Relations Auth., 39 F.3d 361, 365-66 (D.C.Cir.1994) ("The Inspector General's Office plainly qualifies as an `agency' because it is an `independent establishment'... [though may be] viewed as simultaneously `in' the parent `agency,' the Department of Justice.") (quoting 5 U.S.C. § 104(1)). Applying this reasoning, the Court has subject matter jurisdiction over the instant suit.
Plaintiff contends that she was not selected as DAIG because race and gender discrimination occurred at all three stages of the selection process: during the initial screening when Rokosz was deemed minimally qualified; during the ERB rating process; and in the final selection, when he was chosen to be DAIG. (Pl.'s Opp'n at 5, 20.) In response, defendant argues that there was a legitimate, non-discriminatory reason that Higgins was not selected to be DAIG: Rokosz was better qualified for the position. (Def.'s Mot. at 2, 17-25.)
Rokosz and Higgins were both strong candidates. At the initial screening stage, both applications were deemed minimally qualified and passed on to the ERB for consideration. (Farrior Decl. ¶¶ 3-4.) They received exactly the same score from the ERB panel: they were rated "very strong" by two of the ERB reviewers (Raschka and Patterson) and "strong" by the third (Davis). (Id. ¶ 6.)
After considering the candidates' work experience, interview performance, and discussions with the candidates' colleagues, Albert selected Rokosz. She chose him because of his experience within HUD, private industry and the military, work with the media and in preparing congressional testimony; key roles in major audits; and the unanimously good reports from colleagues. (Albert Aff. at 7-8, 11-12.) According to Albert, Higgins was not chosen because her experience and role within OIG was limited; her previous work was primarily human resources-related; she lacked experience in several areas, including congressional and media relations, which Albert considered to be critical; and there was negative feedback about her ability to get along with her colleagues. (Id. at 7-8.)
Since defendant has provided a legitimate and non-discriminatory explanation for its decision to select Rokosz, the burden now shifts back to plaintiff and "`the only question is whether [her] evidence creates a material dispute on the ultimate issue of [discrimination].'" McGrath v. Clinton, 666 F.3d 1377, 1380 n. 3 (D.C.Cir. 2012) (quoting Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009)); see also Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C.Cir.2012).
Plaintiff appears to argue that a jury could infer discrimination in both the initial screening and the ERB review stage. (Pl.'s Opp'n at 5.) She insists that the process must have been flawed because Rokosz should not have made the minimally qualified list during the screening stage, the "best qualified" list during the ERB review stage, and should not have received an ERB rating equal to hers. (Pl.'s Opp'n at 5.) The only support she offers is her own uninformed opinion about the relevance of Rokosz' experience and her subjective assessment of her abilities. (See Higgins 2nd Dep. 52:3-56:13.)
The record, however, indicates otherwise. It appears — and plaintiff does not dispute — that the selection process functioned normally and complied with agency procedures. (Compare Farrior Decl. ¶¶ 2-8 with OPM, Guide to SES Qualifications Manual 4-7 (2010).) Moreover, the adequacy (indeed strength) of Rokosz' qualifications for the DAIG position have been reaffirmed by multiple different actors within OIG, including one person who is a personal friend of Higgins (Farrior Decl. ¶ 1; Higgins 1st Dep. 129:2-129:09) and various people against whom Higgins makes no claim of discrimination. (See id. 155:2-155:4 (denying claims against Raschka); Higgins 2nd Dep. 13:14-13:18 (denying claims against Farrior or Hathaway)). Therefore, there is absolutely no basis to infer that something "fishy" occurred. Salazar
Plaintiff focuses primarily on the final stage of the DAIG selection, arguing that defendant's reason for choosing Rokosz is pretextual because she was "significantly more qualified" than Rokosz. (Pl.'s Opp'n at 22-25.) However, her estimation of their relative qualifications is based on limited knowledge of Rokosz' experience, a narrow conception of the skills necessary for an executive-level position, and her own assessment of her qualifications (see id.; Higgins 2nd Dep. 52:3-56:13), which is insufficient. See Vatel v. Alliance of Automobile Manuf., 627 F.3d 1245, 1247 (D.C.Cir.2011) ("It is settled that `it is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff.'") (quoting Hawkins v. PepsiCo., Inc., 203 F.3d 274, 280 (4th Cir.2000)).
In a non-selection case, a plaintiff can satisfy her burden of persuasion by showing that "a reasonable employer would have found the plaintiff to be significantly better qualified for the job." Calhoun v. Johnson, 632 F.3d 1259, 1263 (D.C.Cir.2011) (quotation marks and citation omitted). To do so, she must present evidence of "stark superiority of credentials over those of the successful candidates." Stewart v. Ashcroft, 352 F.3d 422, 429-30 (D.C.Cir.2003)); see also Jackson v. Gonzales, 496 F.3d 703, 707 (D.C.Cir.2007) ("[I]n order to justify an inference of discrimination, the qualifications gap must be great enough to be inherently indicative of discrimination.") (quotation marks and citation omitted). Absent such a gap, courts "may not `second-guess an employer's personnel decision absent demonstrably discriminatory motive.'" Fischbach v. D.C. Dep't of Corrections, 86 F.3d 1180, 1183 (D.C.Cir.1996) (quoting Milton v. Weinberger, 696 F.2d 94, 100 (D.C.Cir.1982)).
Higgins' central claim is that her OMAP-related experience made her better qualified than Rokosz, who had never worked in OMAP. (Pl.'s Opp'n at 10-12, 22-25.) However, OMAP-related experience was not a pre-requisite for the job (see Gilbert v. Napolitano, 670 F.3d 258, 263 (D.C.Cir.2012)),
Although Higgins had more experience with human resources, that was only one of the many areas of required competence listed in the vacancy announcement. (See
At a minimum, a comparison of their work experience shows that Rokosz was at least as qualified as Higgins. Rokosz had over twenty years of experience within OIG and ten years of experience as a supervisor (Rokosz Application at 5, 9; Albert Dep. 68:14-68:17), whereas Higgins had only six years of experience within OIG and six years of experience as a supervisor. (Higgins Application at 3-5). Rokosz managed large groups of people and implemented projects in cooperation with external actors (Rokosz Application at 5-8, 15-16, 19-22; Albert Aff., at 8, 11-12; Albert Dep. 68:14-68:17), while Higgins oversaw a small office focused on internal human resources support. (See Albert Decl. ¶ 6; Raschka Dep. 43:2-45:18, 47:2-47:20 (explaining that Higgins did not do strategic planning or budgeting).) Rokosz had participated in five congressional hearings that year alone, had received an award for his participation in congressional hearings, and had participated in interview
Given this undisputed evidence, Higgins was not "significantly better qualified" than Rokosz. Adeyemi v. Dist. of Columbia, 525 F.3d 1222, 1227 (D.C.Cir.2008) (internal quotation marks omitted). In fact, it may not have been a close call. But, even if it were, that would not defeat summary judgment. Stewart, 352 F.3d at 430; see also Aka v. Washington Hospital Center, 156 F.3d 1284, 1294 (D.C.Cir.1998). Given the absence of evidence of pretext, "the court must respect the employer's unfettered decision to choose among qualified candidates." Fischbach, 86 F.3d at 1183.
A plaintiff attacking an employer's reason is of course not limited to comparing his qualifications against those of the successful candidate and "can also attempt to show by other means that the explanation was made up to disguise illegitimate bias." Aka, 156 F.3d at 1295, 1299. Despite a substantial record, however, there is not a shred of evidence that unlawful bias played a role in this decision.
Although plaintiff devotes much space to her claim that Stephens, not Albert, made this selection, she nonetheless fails to provide any evidentiary support for this assertion. (See Pl.'s Opp'n at 14-15, 27.) On the contrary, the record demonstrates convincingly that it was Albert alone who made this decision and that she did not receive direction from Stephens. (Albert Aff. at 16-17; Raschka Decl. ¶ 6; Raschka Dep. 68:4-68:8; Stephens Dep. 49:19-50:03.)
This renders irrelevant plaintiff's argument that other complaints of discrimination may have any bearing on the instant case. (See Pl.'s Opp'n at 18, 20.) It is true that, in some cases, evidence of prior acts may be admissible to show discriminatory motive or intent. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008). However, plaintiff's
On the contrary, the record shows that in October 2005, Albert promoted Higgins to the position of Director of Human Resources. (Albert Decl. ¶ 3; Raschka Dep. at 92:2-92:6.) Then, in June 2009, she realigned divisions to allow Higgins to gain broader experience beyond the human resources realm. (Id. at 92:7-92:11.) This not only makes it difficult to impute discrimination to Albert's decision a mere six months later, see Vatel, 627 F.3d at 1247, but also supports Albert's explanation that Higgins' experience was limited.
Finally, in an attempt to salvage her case, Higgins argues that there is a dispute of fact as to Albert's credibility based on insignificant discrepancies in the extensive record. (See Pl.'s Opp'n at 17-18.) Higgins fails to recognize, however, that "factual disputes that are `irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505).
Where, as here, there is no evidence of discrimination or pretext, the Court must "`assume that the employer is more capable of assessing the significance of small differences in the qualifications of the candidates, or that the employer simply made a judgment call." Adeyemi, 525 F.3d at 1227 (quoting Aka, 156 F.3d at 1294).
For the foregoing reasons, the Court grants defendant's motion for summary judgment. A separate order accompanies this Memorandum Opinion.