ROBERT L. WILKINS, District Judge.
Plaintiff DeLarse Montgomery ("Montgomery") brings this lawsuit against his former employer the Pension Benefit Guaranty Corporation ("PBGC"), proceeding against Joshua Gotbaum, Director of the PBGC, in his official capacity.
The Pension Benefit Guaranty Corporation is a wholly-owned United States Government corporation established by the Employee Retirement Income Security Act of 1975 (ERISA), 29 U.S.C. § 1302, to administer the pension plan termination insurance program under Title IV of ERISA, 29 U.S.C. §§ 1301-1461. PBGC is funded preliminary through the collection of premiums paid by certain types of pension plans. Id. at §§ 1306-07. (Dkt. No. 43-1, Joint Statement of Material Facts ("Joint Facts") at ¶ 1).
On September 14, 2005, PBGC issued vacancy announcement "FODCCD-2005-006," for a GS-510-12/13 Accountant position within the Collections and Compliance Division of PBGC's Financial Operations Department. (Id. at ¶ 11). The vacancy announcement was posted on the PBGC Online Automated Referral System ("POLARS"), as well as the Office of Personnel Management's USA JOBS website. (Id.). The announcement advised that "it [was] strongly recommended that applicants submit a complete online application and electronic resume via [POLARS]." (Id.).
Plaintiff DeLarse Montgomery began his employment with PBGC in 1986 as a GS-5 secretary in the Financial Operations Division. (Id. at ¶ 2). He subsequently progressed within PBGC, ultimately becoming a GS-12 Financial Specialist in the Investment Accounting Branch. (Id. at ¶ 3). On October 5, 2005, Montgomery applied for the GS-510-12/13 Accountant position, submitting a paper copy of his application to PBGC's Human Resources Division. (Id. at ¶ 14). At the time the vacancy announcement was published, PBGC's Human Resources Department used a program called "QuickHire" to determine whether an applicant met the minimum qualifications for the position. (Id. at ¶ 15). Based on applicants' responses in the POLARS electronic system, QuickHire automatically "screened out" applicants when the software determined that the minimum qualifications for the position were not met, and it generated a list of the remaining candidates that did meet the position's qualifications. (Id.). The lists were then reviewed by Human Resources Specialists, who generated a roster of minimally-qualified applications for the Subject Matter Expert ("SME") to review. (Id.).
In this case, after QuickHire conducted an initial screening of the candidates, the list of eligible applicants was forwarded to Kenneth Kofsky, the SME for the vacancy, in early November 2005. (Id. at ¶ 16). Mr. Kofsky rated the applicants and they were then placed on "Certificates of Eligibles," which were forwarded to the sole decisionmaker for the position, Robert Callahan, the Financial Program Manager for the Collections and Compliance Division. (Id. at ¶¶ 16, 18). Because Montgomery did not submit his application electronically, it appears that the QuickHire system failed to include his application on the original list of eligible applicants, which meant that his application was not initially provided to Mr. Kofsky for rating, or to Mr. Callahan for consideration. (Id. at ¶¶ 16-17). Based on the listing he did
After Ms. Gillis turned down the position, PBGC proceeded to compile a second round of candidates to be considered for the vacancy. During that timeframe, on December 13, 2005, Montgomery contacted Human Resources to inquire about the status of his application. (Id. at ¶ 17). Montgomery was initially informed that his application was not considered because he did not apply electronically via POLARS. (Id.). Nevertheless, Rick Lattimer, a Human Resources Manager, directed Jacqueline Isaac, a Human Resources Specialist, to place Montgomery's name on the second round of certificates to be sent to Mr. Callahan. (Id. at ¶ 19; Dkt. No. 34-3 at ECF pp. 107-113; Dkt. No. 34-10 at 33).
Thereafter, Mr. Callahan contacted Montgomery to schedule an interview, and because Montgomery was on a scheduled leave of absence at the time, Mr. Callahan offered Montgomery the option of interviewing in person or by telephone. (Joint Facts at ¶ 21.). Montgomery chose to interview by telephone; he was the only candidate who did not interview in person. (Id.). During the interview, Mr. Callahan recognized that Montgomery met the "minimum" educational requirements for the position, but asked if Montgomery had any intention of pursuing further education that could be beneficial to the position. (Id.). According to Mr. Callahan, Montgomery replied that he had no interest in pursuing additional education because he "was tired." (Id.; Dkt. No. 34-13 at ¶ 3).
(Dkt. No. 34-13 at ¶ 4).
Mr. Callahan also interviewed Rhonda Dickerson-Mack for the vacancy. (Joint Facts at ¶ 22). Ms. Mack submitted her application electronically via POLARS, but she initially received a notification that she did not qualify for the position. (Id.). After she contacted the Human Resources Department, PBGC determined that the QuickHire software erroneously "screened out" Ms. Mack, such that her name was also not included on the initial candidate listings forwarded to Mr. Callahan for consideration. (Id.). Upon discovering the issue, PBGC forwarded Ms. Mack's application to Mr. Callahan for review and consideration.
On January 23, 2006, Montgomery was notified that he was not chosen for the Accountant vacancy because "[a]nother candidate was selected." (Dkt. No. 37-15). On March 7, 2006, Montgomery filed a formal complaint of discrimination with the EEOC, and he subsequently filed the instant lawsuit on July 20, 2010. (Joint Facts at ¶¶ 25-26). Overall, Montgomery has filed a total of four complaints with the EEOC, including the complaint that preceded the instant lawsuit.
Summary judgment is appropriate when the moving party demonstrates 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. FED.R.CIV.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). To establish a genuine issue of material fact, the nonmoving party must demonstrate — through affidavits or other competent evidence, FED.R.CIV.P. 56(c)(1) — that the quantum of evidence "is such that a reasonable jury could return a verdict for the nonmoving party." Steele v. Schafer, 535 F.3d 689, 692 (D.C.Cir.2008) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). While the Court views all facts in the light most favorable to the nonmoving party in reaching that determination, Keyes v. District of Columbia, 372 F.3d 434, 436 (D.C.Cir.2004), the nonmoving party must nevertheless provide more than "a scintilla of evidence" in support of its position, Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
Title VII forbids an employer from discriminating against any individual because of race or sex. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting 42 U.S.C. § 2000e-2(a)(1)). Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Title VII discrimination claims are assessed under a familiar, three-step framework. First, to establish a prima facie case of discrimination a plaintiff must demonstrate,
The Age Discrimination in Employment Act (ADEA) makes it unlawful for an employer to terminate or otherwise discriminate against an individual "because of such individual's age." 29 U.S.C. § 623(a)(1). Like claims under Title VII, ADEA claims are evaluated pursuant to the same three-part, burden-shifting framework outlined above. Barnette, 453 F.3d at 515. As to both categories of claims, however, the D.C. Circuit has instructed that, once an employer provides a legitimate, non-discriminatory basis for its decision at the summary judgment stage, "the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case." Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008) (emphasis in original). Rather, the central question for the Court to resolve is whether "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 race, ... sex, [and/or age]." Id.; see also Hampton v. Vilsack, 685 F.3d 1096, 1100 (D.C.Cir.2012). In so doing, the Court must consider: "(1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanations for its actions; 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) or any contrary evidence that may be available to the employer (such as evidence of a strong track record in equal opportunity employment)." Czekalski v. Peters, 475 F.3d 360, 363-64 (D.C.Cir.2007) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir. 1998) (en banc)). "This boils down to two inquiries: could a reasonable jury infer that the employer's given explanation was pretextual, and, if so, could the jury infer that this pretext shielded discriminatory motives?" Murray v. Gilmore, 406 F.3d 708, 713 (D.C.Cir.2005).
Here, since the PBGC has advanced a legitimate reason for its decision — that it simply selected a better-qualified candidate for the Accountant position — the Court proceeds directly to the ultimate question and asks whether Montgomery has adduced sufficient evidence for a reasonable jury to conclude that the PGBC's proffered reason for its decision is pretextual, and that its real motivation was discrimination based on Montgomery's race, sex, and/or age. The Court concludes he has not.
To show pretext, a plaintiff may generally offer evidence that similarly-situated employees outside the protected class were treated "more favorably in the same factual circumstances," or "[a]lternatively,
Montgomery attempts to establish pretext by attacking the legitimacy of PBGC's explanation for not selecting him for the Accountant position. He principally argues that Mr. Callahan's explanations for selecting Ms. Mack (and, in turn, for not selecting Montgomery) are "inconsistent" and have "shifted" over time. (Pl.'s Opp'n at 12-16). In turn, he contends that a jury could infer from this evidence that Mr. Callahan's explanations are pretextual and that his true motivation was discrimination — whether based on Montgomery's age, gender, and/or race. More specifically, Montgomery points out then when Mr. Callahan initially explained his decision — in his statement to the EEOC in 2007 — he first indicated that the main reason he chose Ms. Mack over Montgomery was that she held a Bachelor's Degree in Accounting, while Montgomery did not. (Id. at 14). In reality, Ms. Mack has an Associate's Degree in accounting, not a Bachelor's Degree. (Joint Facts at ¶ 22). Second, during his deposition in the EEOC proceedings, Mr. Callahan testified that he found Ms. Mack to be a better candidate because of her experience — she was an accountant and had previous accounting experience, while Mr. Montgomery did not. (Pl.'s Opp'n at 14 (citing Dkt. No. 37-19 at 65)). Finally, Montgomery points to the affidavit submitted by Mr. Callahan in connection with the instant motion, wherein he attested that he did not select Montgomery due to "his overall performance in the interview ... and his specific posture in exhibiting no interest in professional growth or improvement." (Id. at 15 (citing Dkt. No. 34-13)). Pointing to these explanations, Montgomery argues that Mr. Callahan's "waffling" between reasons is sufficient evidence of pretext to withstand summary judgment. The Court disagrees.
It is true that a decision-maker's "shifting and inconsistent" explanations for an adverse employment action can be probative of pretext. See Geleta v. Gray, 645 F.3d 408, 413 (D.C.Cir.2011) (collecting cases); Czekalski, 475 F.3d at 367. However, the Court does not find Mr. Callahan's explanations in this case to be "inconsistent." While it is true that he did not always articulate his decision in precisely the same manner or using precisely the same words, his overarching rationale for choosing Ms. Mack over Montgomery has always remained the same — he found Ms. Mack to be the better-qualified candidate for the position. Moreover, the key issue is whether Mr. Callahan "honestly and reasonably believed" that Ms. Mack was more qualified for the position, Brady, 520 F.3d at 496, and Montgomery offers no
The Court recognizes that Mr. Callahan may have misremembered the level of Ms. Mack's accounting degree during his first explanation — recounting that she had a Bachelor's Degree, rather than an Associate's Degree — but the fact remains that Ms. Mack has a specialized degree in accounting, while Montgomery does not. Montgomery does not dispute this fact. (Joint Facts at ¶ 22). Additionally, it bears noting that, in his initial response to the EEOC, Mr. Callahan only stated that the candidates' educational comparison was "the biggest difference," not the only difference. (Dkt. No. 37-3 at 13). He never contradicted that justification, but he later elaborated on his rationale during deposition proceedings, explaining that Ms. Mack's prior accounting experience — as compared to Montgomery's lack of any accounting experience — made her a better candidate for the position.
Montgomery also argues that Mr. Callahan's explanation is pretextual because he conducted Montgomery's interview differently from all of the other candidates — deciding not to administer the writing and Microsoft Excel exercises during the interview. He argues that, based on this distinction, a jury could infer that Mr. Callahan "had made up his mind not to select [Montgomery] even before the interview." (Pl.'s Opp'n at 16). But Mr. Callahan offered an explanation for this discrepancy — he did not administer the exercises because Montgomery "made the least favorable impression among all the candidates" during his interview. (Dkt. No. 34-13 at ¶ 4). Furthermore, although Mr. Callahan testified that he already had a "pretty good idea who [he] wanted to select" by the time he interviewed Montgomery, "evidence of pre-selection is relevant only insofar as it logically supports an inference of discriminatory intent." Kolstad v. Am. Dental Ass'n, 139 F.3d 958, 969 (D.C.Cir.1998), vacated on other grounds by 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999); Oliver-Simon v. Nicholson, 384 F.Supp.2d 298, 310 (D.D.C. 2005) ("[P]laintiff's pre-selection claim does not advance h[is] case for pretext unless [he] produces some evidence that discrimination played a role in [the selectee's] pre-selection and thus plaintiff's non-selection."). Even if Mr. Callahan were already leaning toward selecting Ms. Mack for the position at the time he interviewed Montgomery, Montgomery fails to point to any evidence suggesting that any such pre-selection was motivated by a discriminatory animus towards Montgomery, whether due to his age, his gender, or his race. If anything, the record strongly suggests the opposite — that Mr. Callahan was leaning toward Ms. Mack because she was a strongly-qualified candidate for the position.
Finally, the Court notes that Montgomery can also attempt to "avoid summary judgment by presenting other evidence, direct or circumstantial, that permits an inference of discrimination," such as "discriminatory statements," "other attitudes suggesting the decision maker harbors discriminatory animus," and/or other "data" concerning his protected class(es). Holcomb v. Powell, 433 F.3d 889, 899 (D.C.Cir.2006) (internal citations omitted). But Montgomery presents no such evidence. Most notably, the Court observes that Montgomery expressly does not argue that he actually was more qualified for the Accountant position than Ms. Mack. (See Pl.'s Opp'n at 15-16) ("[W]hether Ms. Mack was more qualified ... is not the critical issue in this case."). Instead, he has sought to establish pretext by "expos[ing] other flaws in the employer's explanation," Aka, 156 F.3d at 1295 — namely, that the reasoning underlying Mr. Callahan's decision has changed over time and that the veracity of that reasoning should
Therefore, the Court concludes that Montgomery fails to raise a genuine issue of material fact with respect to his age, gender, or race discrimination claims. No reasonable jury could find discrimination under these circumstances, even when viewing the evidence in the light most favorable to Montgomery. Even if the Court were to find that Montgomery created a "weak issue of fact" as to pretext, the uncontroverted evidence of Ms. Mack's superior qualifications and experience constitutes "independent evidence that no discrimination... occurred." Reeves, 530 U.S. at 148, 120 S.Ct. 2097 (citing Aka, 156 F.3d at 1291-92).
Title VII also prohibits an employer from retaliating 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 investigation or proceeding." Steele, 535 F.3d at 695 (quoting 42 U.S.C. § 2000e-3(a)). Retaliation claims under Title VII are also subject to the three-part burden-shifting framework of McDonnell Douglas. Thus, a plaintiff must first establish a prima facie case of retaliation by showing: "(1) that he engaged in statutorily protected activity; (2) that he suffered a materially adverse action by his employer; and (3) that a causal link connects the two." Jones v. Bernanke, 557 F.3d 670, 677 (D.C.Cir.2009) (citing Wiley, 511 F.3d at 155). Thereafter, if the plaintiff is able
Here, even assuming that Montgomery can establish a prima facie case, he fails to adduce sufficient evidence to suggest that PBGC's legitimate justification for his non-selection — i.e., that Ms. Mack was simply more qualified — is pretextual.
(Dkt. No. 42-1 at ECF p. 2). The Court thus finds that Montgomery failed to raise a genuine issue of material fact to suggest that PBGC's proffered explanation for its decision is pretextual, nor does he otherwise present evidence sufficient to raise an inference of retaliation. In turn, the Court grants summary judgment in favor of PBGC on Montgomery's retaliation claim.
For the foregoing reasons, the Court concludes that PBGC's Motion for Summary Judgment must be
(Dkt. No. 37-19 at 65). While Mr. Callahan focused his response on Ms. Mack's experience, rather than her education, he did not "disavow," as Montgomery suggests, that her education played no role in his decision.
Montgomery argues that Mr. Callahan also contradicted himself by testifying, at pages 61 and 63 of his deposition transcript, that he believed both Montgomery and Ms. Mack "met the minimum [educational] qualification." (Pl.'s Opp'n at 14-15). But the excerpts Montgomery submitted from Mr. Callahan's deposition at Docket No. 37-19 do not include pages 61 or 63. (See Dkt. No. 37-19 (comprised of transcript pages 1, 65-66, 68, 80, 87)). Accordingly, no such testimony or evidence is before the Court. But even if the Court were to take that supposed testimony into account, the fact that Mr. Callahan testified that both candidates met the minimum educational qualifications certainly does contradict the explanation that he found Montgomery's qualifications — though minimally sufficient — to be less impressive than Ms. Mack's.
