ELLEN SEGAL HUVELLE, District Judge.
Peter Kranz has sued District of Columbia Mayor Vincent Gray, in his official capacity, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. This action is based on allegations of discrimination and retaliation by the District of Columbia Public Schools ("DCPS"), which defendant operates.
Kranz was born on December 5, 1944. He was employed by DCPS to teach science and math in District of Columbia schools on an annual contract basis from 1985-1995. (Pl.'s Opp'n, Ex. 4 ("Kranz Dep."), 32:9-13, June 15, 2011.) In 1995, he was certified as a teacher in the District of Columbia. (Id. 57:6-9). Since that time, Kranz has submitted multiple applications in pursuit of a permanent teaching position with DCPS, two of which form the basis of this suit. (Am. Compl. ¶¶ 3, 11, 13-14.)
On August 30, 2001, Kranz filed a complaint of discrimination with the District of Columbia Office of Human Rights ("OHR"), alleging age discrimination because he was not selected for a full-time teaching position after having submitted three applications to DCPS. (Def.'s Mot., Ex. A ("OHR Order").) On January 3, 2003, plaintiff amended his OHR complaint to add retaliation, claiming that, after he filed the OHR complaint, DCPS failed to act on his application to work as a substitute teacher. (Id. at 4.)
On April 20, 2004, OHR found no probable cause for his age discrimination claim, but found probable cause for his claim that DCPS retaliated against him by not processing his application for a substitute teaching position after learning that he had filed an OHR complaint. (Id. at 1.) Plaintiff was reinstated as a substitute teacher in September 2004. (Id. at 4.) In an OHR Order dated March 28, 2008, he was awarded backpay and costs in connection with his retaliation claim (OHR Order), and this award was paid in July 2008. (Pl.'s Opp'n at 8; see also id., Ex. 6.)
On December 20, 2007, plaintiff submitted an application seeking a full-time teaching position with DCPS. (Def.'s Mot., Ex. C ("Application 1").) Applicants were required to provide materials, including 1) a completed application form; 2) a resume; and 3) a written response to the following question:
(Id. at 3.)
The instructions for the response read as follows:
(Id.)
For his response, plaintiff submitted a generic personal statement that did not address the question. (See Def.'s Mot., Ex. D (Response to Essay Question for Application 1.) He was not selected to move forward in the application process. (Def.'s Mot, Ex. E (DCPS' Response to Request for Information from EEOC ("EEOC Response")) at 4.)
On March 31, 2008, plaintiff submitted another application for a teaching position to DCPS. (Def.'s Mot., Ex. F ("Application 2").) The application contained the same essay question as the prior year. (See id. at 3.) This time, plaintiff answered with three phrases: "hands-on activities field trips student-led projects." (Id.) Again, Kranz was not selected for an interview. (Am. Compl. ¶ 15; EEOC Response at 5.)
Kranz describes receiving an email on June 28, 2008, from the Teach D.C. Recruitment Team stating that he was "ineligible for employment" for four reasons:
(Am. Compl. ¶ 18; see also Kranz Dep. 84:10-25.) Contrary to the email, it is undisputed that Kranz was not then a DCPS teacher, held a bachelor's degree from an accredited college, was certified as a teacher with DCPS, and, as a United States citizen, was eligible to work in the United States. (Id.)
On July 9, 2008, he sent Jasmine Jose, Chief of Recruitment, a letter asking that she explain the email because it was "clearly false" and appeared to rely on inaccurate data about him. (Am. Compl. ¶ 21.) On July 11, 2008, he emailed both Jose and Michelle Rhee, the Chancellor of DCPS, to ask for an explanation. (Id. ¶ 21; see also Pl.'s Opp'n, Ex. 17 ("Jose and Rhee Emails").) That same day, he received email responses from Jose and Rhee, both of which confirmed that plaintiff was correct — he did meet the minimum eligibility requirements for the position. (See id.; Am. Compl. ¶ 22.) They went on to explain that, eligibility notwithstanding, DCPS had received thousands of applications and Kranz had not been selected to proceed to the next stage of the process. (See Jose and Rhee Emails.)
Thereafter, on October 30, 2009, plaintiff filed the instant suit, and on June 17, 2010, filed an amended complaint. He claims that defendant discriminated and retaliated against him in violation of Title VII and the ADEA when it did not hire him for a full-time teaching position. Defendant now seeks summary judgment on both claims.
A motion for summary judgment shall be granted "`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 judgment as a matter of law.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(c)). "An issue is `genuine' if the `evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). In determining whether a genuine issue of material fact exists, a court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1003 (D.C.Cir.2009) (quoting McCready v. Nicholson, 465 F.3d 1, 7 (D.C.Cir.2006)). Plaintiff's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The ADEA, under which plaintiff brings this action, prohibits an employer from taking an adverse action against an employee "because of such an individual's age," 29 U.S.C. § 623(a)(1), and includes persons forty years of age or older in the protected class. Id. at § 631(a). To succeed on an ADEA claim, a plaintiff "must demonstrate facts sufficient to create a reasonable inference that age discrimination was `a determining factor' in the employment decision." Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C.Cir.1982) (internal quotation marks omitted). The essential elements of a discrimination case under the ADEA are that "(i) the plaintiff [must have] suffered an adverse employment action (ii) because of the plaintiff's... age." Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008) (applying Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493 (D.C.Cir.2008), to ADEA claims).
Title VII contains an anti-retaliation provision that makes it unlawful for an employer to "discriminate against any of his employees or applicants for employment... because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title." 42 U.S.C. § 2000e-3(a). The two essential elements of a retaliation claim under this section are that plaintiff has "suffered (i) a materially adverse action (ii) because he or she had brought or threatened to bring a discrimination claim." Baloch, 550 F.3d at 1198.
In the absence of direct evidence of discrimination or retaliation, Title VII and
Once a plaintiff has made a prima facie case, "the burden shifts to the defendant `to articulate some legitimate, nondiscriminatory reason for the [challenged employment action].'" Tex. Dep't of Cmty. Affairs, 450 U.S. at 253, 101 S.Ct. 1089 (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). However, once an employer has proffered a nondiscriminatory reason, the McDonnell Douglas burden-shifting framework disappears, and a court must simply determine whether the plaintiff has put forward enough evidence to defeat the proffer and support a finding of discrimination or retaliation. Woodruff v. Peters, 482 F.3d 521, 530 (D.C.Cir.2007); see also Brady, 520 F.3d at 494 ("[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 actually made out a prima facie case under McDonnell Douglas."). Instead, when deciding the employer's motion for summary judgment, the district court "must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of... [age]?" Id.
Here, defendant concedes, for the purposes of the instant motion, that Kranz has made a prima facie case of age discrimination and retaliation and that he suffered an adverse employment action in that he was not hired for a permanent teaching position. (Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Def.'s Reply") at 1.) Thus, the Court will first determine whether DCPS has asserted a legitimate reason for its action, and then it will address the "central question" of whether Kranz has produced sufficient evidence to establish that DCPS' reason was pretextual.
DCPS contends that it had a legitimate, nondiscriminatory reason for not hiring Kranz: it did not select Kranz to proceed to the interview stage of the competitive selection process "because of [his] inadequate responses to the essay question in his applications for teaching positions at DCPS." (Def.'s Mot. at 5; see also id. at 6-7.)
Defendant has explained the selection processes it used in 2007 and 2008 — the years in which plaintiff submitted the applications at issue in this suit. (See EEOC Response at 1-4.) In both years, applications were submitted online and screened to ensure that candidates possessed the requisite educational credentials, had passed the Praxis exam, and were certifiable as teachers. (EEOC Response at 1.)
In 2007, the group of eligible applicants was then screened based on their responses to the essay question. Specifically, responses were evaluated based on candidates' demonstration of six "key skills: achievement, critical thinking, professional interaction, personal responsibility, commitment to urban schools, and communication." (Id. at 2.) Reviewers evaluated each applicant's performance within each skill area and assigned a rating of either "Fully Acceptable" or "Not Fully Acceptable." (Id.) The applicants who received a "Fully Acceptable" rating for all six skill areas were placed in the pool of candidates to be considered by the principals. (Id.) Those who received at least one "Not Fully Acceptable" were not placed in that pool. (Id.)
In 2008, this selection process was modified slightly. (Id.) Applicants were assigned points based on (1) their basic qualifications and (2) their responses to the essay question. (Id.) If the applicant received at least 50%
When reviewing applications, DCPS placed significant emphasis on the essay response and on an applicant's commitment to teaching in DCPS. (See EEOC Resp. at 2-3 (describing review processes in 2007, 2008, and subsequently); see also Def.'s Reply at 4 (explaining that "the failure to exhibit a desire to work with the type of underprivileged students DCPS serves was a compelling indication that [plaintiff] was not a good fit for the position").)
Thus, DCPS has provided a legitimate, nondiscriminatory and nonretaliatory reason for not hiring Kranz. Therefore "[w]here, as here, the employer has proffered a [non-discriminatory,] non-retaliatory explanation for a materially adverse employment action, the sufficiency of the plaintiff's prima facie case is no longer in issue, and `the only question is whether the employee's evidence creates a material dispute on the ultimate issue of [discrimination or] retaliation.'" McGrath v. Clinton, 666 F.3d 1377, 1380 n. 3 (D.C.Cir.2012) (citing Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009)); see also Hamilton v. Geithner, 666 F.3d 1344, 1351-52 (D.C.Cir. 2012).
To rebut defendant's proffered reason for the challenged action, Kranz must "show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory reason." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.Cir.2003). He may show that this reason is mere pretext "directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Tex. Dep't of Cmty. Affairs, 450 U.S. at 256, 101 S.Ct. 1089. However, "[i]t is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible. He must show that the explanation given is a phony reason." Fischbach v. D.C. Dep't of Corr., 86 F.3d 1180, 1183 (D.C.Cir.1996) (quoting Pignato v. Am. Trans Air, Inc., 14 F.3d 342, 349 (7th Cir.1994)); see also Madan v. Chao, No. 05-5146, 2005 U.S.App. LEXIS 21741, at *2 (D.C. Cir. Oct. 5, 2005) (same). That has not been done here.
In an attempt to show pretext, Kranz argues that his academic and professional credentials should have earned him an interview even if his response to the essay question was inadequate. (Pl.'s Opp'n at 18-19.) To do this, he tries to downplay the importance of the essay question by pointing out that there was no word minimum and that he in fact "responded to the essay question" by submitting (1) the personal statement in 2007 and (2) a three-phrase response in 2008. (Pl.'s Opp'n at 14 (Pl.'s Resp. to Def.'s Statement of Material Facts Not in Dispute); see also Pl.'s Opp'n at 7, 20-21.)
However, while plaintiff insists that his response was adequate, he does not argue that his answer in fact evinced "proper grammar, depth, [or] analysis" or that it demonstrated the insight that DCPS considered to be important. Rather,
Ultimately, plaintiff's focus on his "outstanding" qualifications misses the mark because defendant's reason is not that Kranz lacked credentials, but rather, he provided inadequate essay responses. (Def.'s Mot. at 1, 3, 5-7.) Kranz has not offered any evidence to undermine the legitimacy of DCPS's selection process as applied to him or that the selection process in his case deviated from the norm. See, e.g., Salazar, 401 F.3d at 508-09. And, significantly, although Kranz points out that DCPS hired teachers with less impressive credentials (Pl.'s Opp'n at 2-3, 19), he has not offered any evidence that
Plaintiff also argues that DCPS' reason is not credible because DCPS has violated municipal regulations in declining to hire Kranz. (Pl.'s Opp'n. at 20 (referencing the entirety of Chapter 5 of the District of Columbia Municipal Regulations ("DCMR")); see also Am. Compl. ¶ 29 (citing to the DCMR, ch. 5, §§ 1005.1-1005.3, 1110.1).) These regulations, however, simply mandate that DCPS "operate a continuing recruitment program designed to meet current and projected personnel needs of the school system" that is compliant with, inter alia, a merit plan and provide that applicants may be required to submit supporting documents including records of prior professional and academic experience. DCMR, ch. 5, §§ 1005.1-1005.3; see also id. § 1110.1 (explaining that, with regard to promotions, the Board of Education shall choose the "best qualified candidates available"). Thus, they do not preclude or conflict with the selection process here. Along the same lines, plaintiff contends that DCPS has violated its own policy requiring "that the application is to be rated, scored and analyzed in its entirety." (Pl.'s Opp'n at 20.) In support of this contention, he cites only to an "Application Rating Sheet" that offers no support for his claim, for it neither conflicts with DCPS' emphasis on candidates' responses to the essay question, nor indicates that any specific point value must be ascribed to the essay question. (Id. (citing to Exhibit 2).) Therefore, there is no evidence that the selection process was "`irregular or inconsistent with [DCPS'] established policies." Porter v. Shah, 606 F.3d 809, 816 (D.C.Cir.2010) (citing Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir.1999)).
Kranz also makes much of the seemingly inconsistent explanations that were provided for why he was not hired. (See Pl.'s Opp'n at 5-8, 21.)
The alleged inconsistency here is quite different. Plaintiff's argument rests on his claim that he received an email from the Teach D.C. Recruitment Office which indicated that he was ineligible for a teaching position for four different reasons, not one of which applied to him.
Unlike Geleta, Thurman, or Domínguez-Cruz, this is not a case where Rhee
Finally, plaintiff contends that this Court should find DCPS' nonselection of Kranz retaliatory based on its "pattern of discrimination against him." (Pl.'s Opp'n at 21.) This claim is based on the OHR finding that Kranz was retaliated against in 2004 for his 2001 complaint of age discrimination. (Pl.'s Opp'n at 21.) While pursuit of the OHR judgment may well be protected activity, see Singletary v. Dist. of Columbia, 351 F.3d 519, 525 (D.C.Cir. 2003) (considering ongoing pursuit of discrimination claims to be protected activity); see also Hamilton, 666 F.3d at 1358-59 (reaffirming that protected activity may occur years after the original protected activity),
Ultimately, plaintiff has not carried his burden of establishing pretext. He has not provided evidence that defendant's decision not to give him an interview was motivated by anything other than his patently inadequate responses to an important part of the selection process. Defendant's motion will therefore be granted. A separate order accompanies this Memorandum Opinion.