UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARY J. BAILEY,
Plaintiff,
v. Civil Action No. 09-1027 (JEB)
WASHINGTON METROPOLITAN
AREA TRANSIT AUTHORITY et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Mary Bailey is a white female employed by Defendant Washington
Metropolitan Area Transit Authority who suffers from an anxiety disorder. Her initial suit
against WMATA included claims of race, age, and disability discrimination. As her causes of
action under the Americans with Disabilities Act and the Age Discrimination in Employment
Act have since been dismissed, her remaining claims are twofold. First, she alleges Defendant
discriminated against her because of her race and disability when it declined to offer her a
promotion. Second, she contends that Defendant retaliated against her for complaining about
discrimination by offering her a severance package. The parties have now filed Cross-Motions
for Summary Judgment. Because no reasonable jury could find that Defendant’s stated reason
for its hiring decision was pretextual and because Plaintiff did not suffer an adverse employment
action in the severance episode, the Court will grant Defendant’s Motion.
I. Background
Plaintiff has been employed by Defendant in various capacities within the human
resources department since 2001. See Def.’s Mot., Exh. 6 (Pl.’s Dep.) at 12; First Am. Compl., ¶
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2. She has been diagnosed with and receiving treatment for generalized anxiety for twenty years.
First Am. Compl., ¶ 10. In addition, she was “treated for thyroid cancer in 1989 and since that
time has been taking [a] daily dose of thyroid hormone replacement medication. Her doctors
have discovered that during the time in question her thyroid hormone level was very high, which
causes emotional behavior.” Id. Indeed, Plaintiff has suffered “anxiety attacks at work where
she would lose control of her emotions and would frequently cry and tremble.” Id.
In November 2007, Defendant hired Delecia Sampson, a black female, as Chief of
Workforce Client Services. Def.’s Mot., Exh. 7 (Dep. of Delecia Sampson) at 14; First Am.
Compl., ¶ 5. In March 2008, Sampson terminated one of the Supervisors in the HR department,
Robert McFerron, leaving a vacancy. Id., ¶ 7; Sampson Dep. at 30. The terminated employee
had suggested to Sampson that Plaintiff could take his place, First Am. Compl., ¶ 7; Pl.’s Dep. at
20-21, but Sampson nevertheless appointed Lora Wright, a black female, to the vacant
Supervisor position. First Am. Compl., ¶ 3. Sampson unilaterally promoted Wright to the
Supervisor position without posting the vacancy and opening the position to competition, as is
required by WMATA internal guidelines. Id., ¶¶ 7-8. Plaintiff complained to the Inspector
General’s Office about Sampson’s failure to adhere to the guidelines, and Sampson issued a
statement acknowledging the lapse and retracting her appointment of Wright. See id., ¶ 8.
Sampson then posted the position to the employees in the department, opening it to
competition. Id. The posting, however, was made more narrowly and for a shorter time than
WMATA’s internal guidelines require. See id; Pl.’s Dep. at 24; Pl.’s Mot. and Opp. at 3.
Plaintiff and Wright were the only two applicants. See Sampson Dep. at 51. Both candidates
interviewed in front of a panel of individuals selected by Sampson, see id.: 1) Sampson herself;
2) Andrea Burnside, “a white female who was Ms. Sampson’s supervisor”; 3) Gary Baldwin, “a
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white male who was the Human Resources Director for Client Services”; 4) Deborah Coram, a
black female who worked in the Office of Civil Rights; and 5) Kim Thompson, “a white female
who was the Executive Assistant for the head of Rail transportation, David Kubicek.” Def.’s
Mot. at 4 (citing Pl.’s Dep. at 24-27). Sampson stated she selected panelists from “all areas of
HR,” hoping to represent “a broad spectrum of opinions.” Sampson Dep. at 51.
The panel asked both applicants the same ten questions, and the panelists each scored
both applicants out of 100 points. See id. at 52; Pl.’s Dep. at 26. Four of the panelists scored
Wright higher than Plaintiff; one panelist scored the two candidates equally. Def.’s Mot. at 5.
Wright was selected to fill the vacancy. First. Am. Compl., ¶ 9. Defendant explains its decision
as follows: “The panel scored Ms. Wright higher than Plaintiff and Ms. Wright better answered
the questions in regard to strategic partnering with the client office.” Def. Mot. at 16 (citing Def.
Mot., Exh. B (Dep. of Andrea Burnside) at 25). In addition, Defendant states that “the panel felt
Ms. Wright conducted herself more impressively during the interview, and selected Ms. Wright
as the better candidate to interface with Mr. Kubicek.” Id.
After being passed over for the promotion, Plaintiff complained to Jim Wynne, the
Director of Civil Rights, about the selection process and the panel’s decision, alleging that she
had been treated in a discriminatory fashion. First Am. Compl., ¶ 11. “Wynne worked out an
arrangement for Plaintiff to work on the Client Services Team for Bus Service in Landover,
Maryland.” Id.
Approximately two weeks after Plaintiff started work in Landover, Sampson requested a
meeting with her during which Sampson “stated that she believed Plaintiff Bailey was unable to
control her emotions at work, was not happy and was not expressing support for her new
organization.” Id., ¶ 12. Sampson offered Plaintiff a severance package, which Plaintiff
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declined. Pl.’s Dep. at 55-56. Plaintiff discussed the offer and the events surrounding it with
some friends and, shortly thereafter, received an email from Sampson “informing her that she
was engaging in disruptive and gossipy conduct.” First Am. Compl., ¶ 12. Plaintiff again
contacted Wynne, the Civil Rights Director, about what she believed to be “discrimination and
unfair treatment.” Id. Wynne “was not responsive.” Id.
Plaintiff then filed a claim with the Equal Employment Opportunity Commission on
August 20, 2008, alleging discrimination on the basis of age, race, and disability. See Def.’s
Mot., Exh. A (Charge of Discrimination). The EEOC ultimately issued Plaintiff a Notice of
Right to Sue. First Am. Compl., ¶ 14. Plaintiff filed this suit on June 2, 2009, and filed an
Amended Complaint on July 31, 2009. She alleged violations of Title VII of the Civil Rights
Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act,
and the Rehabilition Act. See id., ¶¶ 15-33. Though Plaintiff initially named both WMATA and
Sampson as Defendants, id., ¶ 3, Sampson was never served, and the case has not proceeded
against her. See Def.’s Mot. at 1, n.1. Defendant subsequently filed a Motion to Dismiss, and
Judge Ricardo Urbina, to whom this case was previously assigned, dismissed Plaintiff’s ADA
and ADEA claims on March 17, 2010. See Bailey v. WMATA, 696 F. Supp. 2d 68, 71 n.5
(D.D.C. 2010). After discovery, both parties moved for summary judgment on the remaining
claims. 1
II. Legal Standard
Summary judgment may 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
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In considering both parties’ summary judgment motions, the Court has reviewed both parties’ Motions,
Oppositions, and Replies.
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Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at
248. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, Inc.,
477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by citing to particular parts of materials in the
record.” FED. R. CIV. P. 56(c)(1)(A).
The party seeking summary judgment “bears the heavy burden of establishing that the
merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc., v.
Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). When a motion for summary judgment is under
consideration, “the evidence of the non-movant[s] is to be believed, and all justifiable inferences
are to be drawn in [her] favor.” Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. PEPCO,
447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288
(D.C. Cir. 1998) (en banc). On a motion for summary judgment, the Court must “eschew
making credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360,
363 (D.C. Cir. 2007).
The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is
required to provide evidence that would permit a reasonable jury to find in its favor. Laningham
v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovant’s evidence is
5
“merely colorable” or “not significantly probative,” summary judgment may be granted. Liberty
Lobby, Inc., 477 U.S. at 249-50.
III. Analysis
Three claims remain in this case: (1) that, in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-3(a), Defendant retaliated against Plaintiff for expressing her belief
that she had been discriminated against; (2) that Defendant discriminated against her on the basis
of disability in violation of the Rehabilitation Act, 29 U.S.C. § 794(a); and (3) that Defendant
discriminated against her on the basis of race in violation of Title VII, 42 U.S.C. § 2000e-2(a).
The Court will address each in turn.
A. Retaliation
As a preliminary matter, Plaintiff contends that Defendant is barred from seeking
summary judgment on the retaliation claim under the law-of-the-case doctrine. See Pl.’s Mot.
and Opp. at 7. Plaintiff insists that Defendant “previously moved the Court to dismiss this claim,
and the Court did not grant its motion. The Court’s refusal to grant Defendant’s motion thus
constitutes the law of the case, and Defendant cannot be heard to advance the same argument a
second time.” Id. (citation omitted).
Such a position is clearly belied by Judge Urbina’s March 17, 2010, Memorandum
Opinion. As Defendant rightly points out, see Def.’s Opp. and Reply at 4, Judge Urbina
explicitly stated that he did not rule on the retaliation issue at the motion-to-dismiss stage:
WMATA also moved to dismiss the plaintiff’s claim of
Retaliation, see Def.’s Mot. at 5-6, but later withdrew that portion
of its motion, electing instead to pursue that argument following
discovery, see Def.’s Reply at 1 n.1. Accordingly, the court will
not address the plaintiff’s retaliation claim.
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Bailey v. WMATA, 696 F. Supp. 2d 68, 71 n.5 (D.D.C. 2010). Plaintiff’s suggestion that
Defendant is precluded from seeking summary judgment is thus entirely misplaced.
Title VII provides, in relevant part, that it is unlawful for an employer “to discriminate
against any of [its] employees . . . because [she] has made a charge . . . or participated in any
manner in an investigation” of discrimination. 42 U.S.C. § 2000e-3(a). “In order to prevail upon
a claim of unlawful retaliation, an employee must show ‘she engaged in protected activity, as a
consequence of which her employer took a materially adverse action against her.’” Taylor v.
Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009) (quoting Weber v. Battista, 494 F.3d 179, 184 (D.C.
Cir. 2007)). “[A] ‘materially adverse’ action for purposes of a retaliation claim is one that ‘could
well dissuade a reasonable worker from making or supporting a charge of discrimination.’”
Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010) (quoting Burlington Northern & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
Plaintiff initially suggested in her First Amended Complaint that she suffered a materially
adverse employment action when “she was transferred to Landover, Maryland to work as a
recruiter for bus operators.” First Am. Compl., ¶ 24. Plaintiff, however, appears to have
abandoned this theory, since it appears nowhere in her briefs. Instead, she now argues that the
adverse action occurred when “Sampson attempted to force her to resign” by offering her a
severance package and then questioned her about “projects she was expected to work on.” Pl.’s
Reply at 4.
Such an allegation is plainly insufficient to prevail here because no reasonable jury could
find that the proffer of a severance package and resulting discussion constituted a materially
adverse employment action. “To establish an adverse personnel action in the absence of
diminution of pay or benefits, plaintiff must show an action with ‘materially adverse
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consequences affecting the terms, conditions, or privileges of employment.’” Stewart v. Evans,
275 F.3d 1126 (D.C. Cir. 2002) (quoting Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999));
see also Walker v. WMATA, 102 F. Supp. 2d 24, 29 (D.D.C. 2000) (“An employment decision
does not rise to the level of an actionable adverse action . . . unless there is a ‘tangible change in
the duties or working conditions constituting a material employment disadvantage.’” (quoting
Kilpatrick v. Riley, 98 F. Supp. 2d 9, 10 (D.D.C. 2000))). Despite styling the offer of the
severance package as an “attempt[] to force her to resign,” Pl.’s Reply at 4, Plaintiff simply has
not identified any adverse action taken because she declined to accept it. In other words,
Plaintiff lost no benefit, no salary, and no leave in connection with the severance offer. Plaintiff,
moreover, points to no threats, implicit or explicit, connected with Defendant’s offer. And while
Plaintiff may well have found it uncomfortable to “come up with a list of projects” she wanted to
work on and “stat[e] how [she] would make a positive contribution,” Pl.’s Reply at 4 (quoting
Pl.’s Dep. at 54-56), this is the type of work typical employees are required to do every day.
Even if they were not, such “petty slights [and] minor annoyances” do not rise to the level of a
materially adverse employment action. Burlington Northern, 548 U.S. at 68.
Because no reasonable jury could find that the severance-package offer and resulting
discussion constituted “materially adverse consequences affecting the terms, conditions, or
privileges of employment or future employment opportunities such that a reasonable trier of fact
could find objectively tangible harm,” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002),
Plaintiff’s retaliation claim cannot survive summary judgment.
B. Disability Discrimination
In addition to retaliation, Plaintiff alleges she was discriminated against on the basis of
her disability. The Rehabilitation Act provides that “[n]o otherwise qualified individual with a
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disability . . . shall, solely by reason of her or his disability, . . . be subjected to discrimination
under any program or activity receiving Federal financial assistance or under any program or
activity conducted by any Executive agency.” 29 U.S.C. § 794(a). To withstand summary
judgment on a disability-discrimination claim under the Rehabilitation Act, Plaintiff “must
produce enough evidence to allow a reasonable jury to conclude that [s]he (1) has a disability;
(2) was qualified to perform the essential functions of employment with or without reasonable
accommodation; and (3) suffered an adverse employment decision due to [her] disability.”
Desmond v. Mukasey, 530 F.3d 944, 952 (D.C. Cir. 2008) (citing Duncan v. WMATA, 240 F.3d
1110, 1114 (D.C. Cir. 2001) (en banc)). As with her retaliation claim, therefore, Plaintiff must
demonstrate that a reasonable jury could conclude that she suffered an adverse employment
action in order to proceed on her disability discrimination claim. See Baloch v. Kempthorne,
550 F.3d 1191, 1196 (D.C. Cir. 2008).
Plaintiff’s First Amended Complaint suggested three potential adverse employment
actions in connection with her disability-discrimination claim: Sampson (1) failed to promote
Plaintiff, (2) “later requested that [she] resign her position,” and (3) “transferred her to Landover,
Maryland.” Id., ¶ 33. In her pleadings here, however, Plaintiff appears to have abandoned the
first and third theories, neither of which was argued in any of her briefs. Indeed, Plaintiff
conceded in her deposition that she did not believe she was discriminated against on the basis of
disability when she failed to obtain the promotion to the Supervisor position:
Q. Do you feel that there was discrimination based on
disability with respect to the position that was filled by Lora
Wright that we talked about at length?
A. No.
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Pl.’s Dep. at 51-52. Instead, Plaintiff’s briefs rely solely on the theory that Defendant’s offer of
a severance package and the discussions that followed – what Plaintiff labels “Defendant[‘s]
attempt[] to force her to resign” -- constituted an adverse employment action. See Pl.’s Mot. and
Opp. at 18-19; Pl.’s Reply at 9.
As discussed in detail in Part III.A, supra, however, the offer of a severance package and
the requirement that Plaintiff discuss the projects on which she intended to work in the future do
not, as a matter of law, constitute an adverse employment action. Indeed, “[a]s the Supreme
Court recently explained, Title VII's retaliation provision ‘cover[s] a broad range of employer
conduct’ that extends beyond the statute's substantive antidiscrimination provision.” Rattigan v.
Holder, 643 F.3d 975, 986 (D.C. Cir. 2011) (quoting Thompson v. N. Am. Stainless, LP, 131
S.Ct. 863, 868 (2011)) (second alteration in original); see also Gaujacq v. EDF, Inc., 601 F.3d
565, 577 (D.C. Cir. 2010). If the severance package and discussion do not constitute adverse
employment action for the purpose of Plaintiff’s retaliation claim, a fortiori, they do not
constitute such for her discrimination claim.
C. Race Discrimination
Plaintiff last sets forth a claim of race discrimination in connection with her failure to be
promoted. Title VII makes it unlawful for an employer to “to discriminate against any individual
with respect to [her] compensation, terms, conditions, or privileges of employment, because of
such individual's race . . . .” 42 U.S.C. § 2000e-2(a). “This statutory text establishes two
elements for an employment discrimination case: (i) the plaintiff suffered an adverse
employment action (ii) because of the employee's race . . . .” Brady v. Office of Sergeant at
Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). It is undisputed that Plaintiff suffered an adverse
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employment action when she failed to obtain a promotion to the Supervisor position; the only
question remaining, therefore, is whether this occurred “because of” her race.
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court laid out
the familiar three-step, “burden-shifting approach to employment discrimination claims in cases
where the plaintiff lacks direct evidence of discrimination.” Chappell-Johnson v. Powell, 440
F.3d 484, 487 (D.C. Cir. 2006). If “an employer has asserted a legitimate, non-discriminatory
reason” for its employment decision, however, the Court utilizes a more streamlined analysis:
[I]n considering an employer's motion for summary judgment or
judgment as a matter of law in those circumstances, 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 race, color, religion, sex, or national
origin?
Brady, 520 F.3d at 494. Our Circuit has eschewed focusing on the McDonnell “prima-facie
case” inquiry in favor of this more streamlined approach even in so called “reverse-
discrimination cases” involving alleged discrimination against white individuals. See, e.g.,
Ginger v. District of Columbia, 527 F.3d 1340, 1344 (D.C. Cir. 2008).
It is beyond dispute here that Defendant has offered a legitimate, nondiscriminatory
reason for choosing Wright over Plaintiff: “The panel scored Ms. Wright higher than Plaintiff
and Ms. Wright better answered the questions in regard to strategic partnering with the client
office.” Def. Mot. at 16 (citing Burnside Dep. at 25). In addition, Defendant states that “the panel
felt Ms. Wright conducted herself more impressively during the interview, and selected Ms.
Wright as the better candidate to interface with Mr. Kubicek.” Def. Opp. and Reply at 10.
Because Defendant has asserted a legitimate, nondiscriminatory reason for selecting
Wright, the Court now must determine whether Plaintiff has “produced sufficient evidence for a
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reasonable jury to find [this] reason was not the actual reason and that the employer intentionally
discriminated against the plaintiff . . . .” Adeyemi v. District of Columbia, 525 F.3d 1222, 1226
(citing Brady, 520 F.3d at 493-95). In attempting to demonstrate that Defendant’s stated reason
for choosing Wright over her is pretextual, Plaintiff proffers three primary arguments: (1) “that
Ms. Wright falsified her application”; (2) “that Ms. Bailey was more qualified for the position
than Ms. Wright”; and (3) that “Ms. Sampson engineered the selection process specifically to
place Ms. Wright into the position.” Pl.’s Mot. and Opp. at 11-12. The Court will consider each.
1. Wright’s Falsified Application
Plaintiff first attempts to show Defendant’s proffered explanation for promoting Wright
over Plaintiff is pretextual by contending that Wright falsified her application in certain respects.
Id. at 12. Namely, Plaintiff suggested that Wright’s claim that she possessed a college degree
was “highly suspect,” id., and contended that she “misrepresent[ed] her work as an HR
Generalist III on her resume” when she stated “that she had seven years as an HR Generalist III,
though she had been in the position for less than six months.” Pl.’s Reply at 7. Defendant
contests these allegations, attempting to explain Sampson’s statement regarding the HR
Generalist III position, see Def.’s Opp. and Reply (Aff. of Lora Wright) at ¶ 2, and producing a
copy of Wright’s college diploma. See id., Exh. 1. But even if accurate, Plaintiff’s claims are
irrelevant. Absent some evidence that the decisionmakers were aware – or, at the very least,
should have been aware – of the alleged misrepresentations, they have nothing to do with
Defendant’s motives. In other words, if WMATA believed that Wright’s credentials were
authentic, then their purported falsification was never considered as a factor in the selection
process. In determining whether a reasonable jury could find pretext, the Court accordingly
gives no weight to Plaintiff’s suggestion that Wright falsified her application.
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2. Plaintiff Was More Qualified
In examining Plaintiff’s second argument – that she was more qualified than Wright --
the Court bears in mind that where, as here, an employer’s legitimate, nondiscriminatory reason
“rel[ies] heavily on subjective considerations,” the Court must treat it with caution. Aka v.
Washington Hosp. Ctr., 156 F.3d 1284, 1298 (D.C. Cir. 1998) (en banc). Evidence that Plaintiff
was better qualified, however, does not suffice to support an inference of discrimination; rather,
a jury must be able to find Plaintiff was “significantly better qualified for the job” than Wright.
Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006). The difference must be “great enough
to be inherently indicative of discrimination.” Id. Only then could a jury “legitimately infer that
the employer consciously selected a less-qualified candidate -- something that employers do not
usually do, unless some other strong consideration, such as discrimination, enters into the
picture.” Aka, 156 F.3d at 1294. “In a close case, a reasonable [fact-finder] would usually
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.” Id. at
1294. Deference to the employer is therefore appropriate in close cases because otherwise the
Court would function as “a super-personnel department that reexamines an entity’s business
decisions – a role which [the D.C. Circuit has] repeatedly disclaimed.” Jackson, 496 F.3d at 707
(internal quotation marks omitted).
In this case, a reasonable jury could not find that Plaintiff possessed the “stark superiority
of credentials” over Wright that can give rise to an inference of pretext. Stewart v. Ashcroft, 352
F.3d 422, 429 (D.C. Cir. 2003). Even with the benefit of all inferences from the evidentiary
record, Plaintiff can only demonstrate that, at best, she was slightly more qualified for the
Supervisor position. “It is well-settled that plaintiff may not overcome a legitimate exercise of
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defendant’s nondiscriminatory business judgment regarding an applicant simply by showing that
she may be equally, or slightly more, qualified.” Armstrong v. Jackson, 2006 WL 2024975 at *8
(D.D.C. July 17, 2006) (citing Holcomb, 433 F.3d at 897).
“In evaluating the alleged qualifications gap, the Court must assess the qualifications
necessary for the position at issue, rather than considering the candidates’ qualifications in a
vacuum.” Alford v. Providence Hospital, 2011 WL 2341096 at *4 (D.D.C. 2011). Under the
heading “Minimum Qualifications and Experience,” the Job Description for the Supervisor
position provides:
This is a senior CLVS HRG position with front line supervisory
responsibilities. Candidates must possess specialized
multifunctional HR experience. Position requires regular strategic
client engagement. Candidates assigned to this level will identify
and resolve strategic issues following established policies and
procedures. Must be able to work autonomously while
collaborating with functional HR leadership. Demonstrated
experience effectively motivating and directing staff.
Bachelors required in a related field with 10+ years of functionally
relevant experience. Previous supervisory and/or work guidance
experience. SPHR and/or Masters preferred. Functional
certifications appropriate.
12+ years of relevant HR work experience will be considered in
lieu of a BS if candidate can effectively demonstrate progressively
responsible and diversified experience and capability in at least
two human resource functional areas.
Pl.’s Mot. and Opp., Exh. D (WMATA Job Description, November 21, 2007).
The Job Description also contains a section headed, “Knowledge, Skills, and
Abilities”:
Existing working knowledge of or the capability to rapidly acquire
and consistently and effectively demonstrate:
• Thorough knowledge of the principles, practices and strategies
of human resources and ability to rapidly acquire a thorough
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knowledge of the laws, ordinances, regulations, etc. which govern
the human resources and related activities of the Authority
• Strong business acumen and understanding of the HR strategic
partnership in driving business results
• Understanding of the Authority’s collective bargaining
agreements and ability to provide interpretations and guidelines
regarding the application of those agreements and integrate them
into the human resources program
• Ability to establish and maintain effective working
relationships with other offices of the Authority, governmental
agencies, labor organizations, and other individuals or organization
with whom interface may be required
• Excellent interpersonal communications skills
• Creative problem solving with strong attention to detail,
organization, and follow-up skills
• Ability to influence and affect positive change management
strategies
• Solid integrity and demonstrated ability to work with all levels
of the organization and maintain high levels of confidentiality
• Strong working knowledge of email and associated standard
office applications including word processing, spreadsheet and
database management/maintenance.
Id.
Despite Plaintiff’s suggestion to the contrary, both applicants had a college degree. See
Pl.’s Mot. and Opp. at 12; Wright Aff., Exh. 1. Plaintiff had “over ten years of experience as a
Human Resources Generalist.” Pl.’s Mot. and Opp. at 3 (citing Pl.’s Dep. at 19-20). Wright had
been serving in a position with similar functions to those served by Human Resources
Generalists for seven years. See Wright Aff., ¶ 2. Plaintiff had “nearly twenty years of
experience in HR,” Pl.’s Mot. and Opp. at 3 (citing Pl.’s Dep. at 19-20); Wright had
approximately twenty-two years of experience in HR, see Def.’s Opp. and Reply at 10
(emphasizing that Wright’s resume, Pl.’s Mot., Exh. F (Wright Resume), “details [her]
experience in the human resources area dating back to 1986”). Plaintiff, however, was certified
as a Senior Professional in Human Resources, which is listed as a “preferred” qualification,
while Wright was not. First Am. Compl., ¶¶ 4-5; Pl.’s Mot. and Opp., Exh. E (Dep. of Lora
15
Wright), at 9. Plaintiff also “had over six years of supervisory experience and had served as
team lead for over two years on one of the largest teams at WMATA.” First Am. Compl., ¶ 9.
With respect to these facts, a jury could plausibly find that Plaintiff had slightly more experience
than Wright.
The Job Description makes clear, however, that human relations and communications
skills are particularly important for the Supervisor position. In particular, it identifies: “regular
strategic client engagement,” “collaborati[on] with functional HR leadership,” “experience
effectively motivating and directing staff,” “[a]bility to establish and maintain effective working
relationships,” “[e]xcellent interpersonal communications skills,” and “demonstrated ability to
work with all levels of the organization” among the qualifications and skills required for the
position. In this area, even viewing the evidence in the light most favorable to Plaintiff, Wright
was at least as qualified – and likely better so – than Plaintiff.
Sampson “frequently would have feedback from others that [Plaintiff] had been rude or
belittled or downplayed their contributions”; she also received “feedback from the clients that
[Plaintiff] was expressing her unhappiness about the new organizational restructure to them,
saying very negative comments about the new organization and the individuals in it.” Sampson
Dep. at 33. Such feedback would naturally raise questions about Plaintiff’s possessing the
interpersonal skills listed in the Job Description and enumerated above. By contrast, Sampson
did not recall having “receive[d] any complaints from any of the clients of Lora Wright.” Id. at
32.
Wright also scored significantly better in the candidates’ interviews. Four of the panelists
rated Wright higher than Plaintiff, while one panelist scored the two candidates equally. Def.’s
Mot. at 5. No panelist, therefore, preferred Plaintiff to Wright. The testimony of the panelists,
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moreover, indicates that the panel weighted interpersonal skills heavily. Panelist Thompson, for
example, emphasized her belief that Wright would be better able to interface with Kubicek, a
white male and the head of the client office the selectee would be serving:
My memory seems to recall that I said that I thought Lora’s
personality would be a better fit with my boss, Dave Kubicek, who
was at the time the Assistant General Manager for Rail Operations
and Delivery.
The dialogue mostly focused on levels of confidence and fit with
Dave Kubicek, and I feel that there was a general consensus at the
table that Lora was more of a good fit, personality-wise for Dave.
Def.’s Mot., Exh. 8 (Dep. of Kim Thompson) at 11. And panelist Burnside suggested that
Wright better answered “a question about strategic partering,” which was “where [she] found a
big difference.” Burnside Dep. at 24.
Given the evidence establishing that Wright was equally or better qualified with regard to
interpersonal and communication skills and the panel’s clear evaluation of Wright as superior, no
jury could find Plaintiff more than slightly better qualified than Wright. Indeed, a jury could
easily find her less so. The contrast between Plaintiff’s and Wright’s qualifications for the
Supervisor position was simply not “great enough to be inherently indicative of discrimination.”
Jackson, 496 F.3d at 707 (internal quotation marks omitted); see also Benjamin v. Duncan, 694
F. Supp. 2d 1, 7 (deferring to employer’s decision where decisionmaker believed selectee’s prior
work experience demonstrated his “communicati[on] and people skills” while decisionmaker and
other employees believed plaintiff was difficult to work with); cf. Aka, 156 F.3d at 1296 (finding
evidence of qualifications gap sufficient to defeat summary judgment where the plaintiff had
nineteen years of relevant work experience, while selectee had two months of volunteer
experience). At the end of the day, Plaintiff “cannot defeat summary judgment simply by
pointing to ‘small differences in the qualifications of the candidates’ or identifying a situation in
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which the ‘employer simply made a judgment call.’” Benjamin, 694 F. Supp. 2d at 7 (quoting
Barnette, 453 F.3d at 518). Plaintiff, therefore, has failed to raise an inference of pretext based
on her allegedly superior qualifications.
3. Manipulated Hiring Process
Finally, Plaintiff claims that Sampson “manipulated the selection process to cause the
selection of Wright for the position.” First Am. Compl., ¶ 19. Plaintiff contends that (1)
Sampson deviated from WMATA internal policies requiring the posting of vacancies both when
she initially hired Wright without posting the vacancy and when she later posted the vacancy to a
narrower audience and for a shorter period of time than usual; (2) Sampson “stacked the
interview panel with her direct reports and employees who were aware of Ms. Bailey’s prior
complaint regarding Sampson’s placement of Wright into the position”; and (3) “Sampson
discussed the selection with the panelists.” Pl.’s Reply at 4-5. No reasonable jury could conclude
that Defendant’s proffered promotion explanation is pretextual on the basis of these largely
unsupported allegations.
Unless it is “probative . . . in determining the true motivation behind the hiring decision,”
“a finding of a failure on the part of the . . . employer to follow its own regulations and
procedures, alone, may not be sufficient” to demonstrate pretext. Johnson v. Lehman, 679 F.2d
918, 922 (D.C. Cir. 1982). While Sampson admittedly failed to follow internal guidelines
regarding the posting of vacancies when she initially hired Wright, Plaintiff produces no
evidence suggesting that this was anything more than an oversight. Plaintiff does not suggest
that Sampson was aware of the internal policy regarding posting vacancies when she unilaterally
appointed Wright, and she acknowledges that Sampson retracted the appointment after she
learned of it. Sampson, moreover, stated that she believed she had the authority to appoint
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Wright unilaterally: “Where I come from, that’s something that a leader has a discretion to be
able to do.” Sampson Dep. at 43.
Even if Sampson’s premature selection of Wright influenced her decision during the
official selection process – which Plaintiff has not explicitly argued -- courts have not found
even an express pre-selection to necessarily be suggestive of discrimination. See, e.g., Oliver-
Simon v. Nicholson, 384 F. Supp. 2d 298, 312 (D.D.C. 2005) (“[P]rocedural irregularities, pre-
selection, [and] favoritism in the selection process” do not establish pretext “absent some actual
evidence that defendant acted on a motivation to discriminate against plaintiff based on her age,
race, or sex.”); Tolson v. James, 315 F. Supp. 2d 110, 118 (D.D.C. 2004) (“Pre-selection does
not violate Title VII unless it is based on discriminatory motives.”). As a matter of practicality,
some degree of pre-selection can be expected if a selection is to be made from among a small
group of current employees well known to the decisionmaker.
Plaintiff also emphasizes that Sampson deviated from normal WMATA policy when she
ultimately posted the vacancy only to the HR department – as opposed to the entire company --
and for less than ten days. See Pl.’s Dep. at 24. While an “unexplained inconsistency can justify
an inference of discriminatory motive,” Lathram v. Snow, 336 F.3d 1085, 109 (D.C. Cir. 2003),
Plaintiff has not shown that Sampson’s small deviation from WMATA’s usual procedures
regarding vacancies was “so irregular or inconsistent with [WMATA’s] established policies as to
make its hiring explanation unworthy of belief.” Porter v. Shah, 606 F.3d 809, 816 (D.C. Cir.
2010) (quoting Simms v. Oklahoma ex rel Dep't of Mental Health & Substance Abuse Servs.,
165 F.3d 1321, 1330 (10th Cir.1999)) (internal quotation marks omitted). Sampson, moreover,
has provided an explanation for the deviation from the normal, ten-day window, suggesting that
she undertook “an expedited process” because “the team had no direct leader” while the position
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remained vacant. Sampson Dep. at 55-56. Although Wright was serving as acting Supervisor in
the interim, Sampson emphasized her belief that permanently filling the vacancy quickly was
important. See id. at 56-57.
What Plaintiff neglects to explain, furthermore, is how the deviation prejudiced her. She
knew about the vacancy, applied, and was one of two finalists. A failure to publish the vacancy
more broadly only helped her because it may have diminished the number of other potential
candidates. No harm to Plaintiff thus accrued from Sampson’s decision.
Additionally, Plaintiff’s suggestion that Sampson improperly “stacked” the panel is
unsupported by evidence. Plaintiff claims that Sampson “stacked the interview panel with her
direct reports and employees who were aware of Ms. Bailey’s prior complaint regarding
Sampson’s placement of Wright into the position,” Pl.’s Reply at 5; however, she identifies only
one panelist who was a “direct report” and one who was aware of the prior complaint. See Pl.’s
Mot. and Opp. at 4. Sampson stated that she selected panelists from “all areas of HR,” hoping to
represent “a broad spectrum of opinions.” Sampson Dep. at 51. Indeed, both parties
acknowledge that the panel was racially diverse. See Pl.’s Reply at 5; Def.’s Mot. at 17. Plaintiff
has thus not pointed to any internal guidelines or other evidence suggesting Sampson’s selection
of the panelists was improper.
Plaintiff’s final claim that Sampson unduly influenced the panel is similarly
undersupported. As a threshold matter, Plaintiff fails to explain exactly what she means by this
allegation. Each panelist wrote down his or her scores and feedback on individual sheets, and
each candidate was asked the same scripted questions. See Sampson Dep. at 52. Sampson
testified without contradiction that she did not recall “mak[ing] any comments about Ms. Bailey
or Ms. Wright after the last interview.” Id. at 66. Panelist Thompson recalls that she, and not
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Sampson, was the first to share her impression of the candidates after the interviews and that
there “was a general consensus at the table” that Wright was a better fit for the position.
Thompson Dep. at 11-12. Indeed, Plaintiff herself acknowledges that Sampson “did not instruct
the panelists how to evaluate the candidates.” Pl.’s Mot. and Opp. at 4.
While Plaintiff relies heavily on Salazar v. WMATA, 401 F.3d 504 (D.C. Cir. 2005), to
argue that a jury could infer pretext from Sampson’s role in selecting the panelists and
participation on the panel, Salazar turned on a fact not present in this case: the plaintiff in Salazar
had been promised “a panel that [a particular supervisor] would have no hand in selecting.” Id.
at 508. The Salazar court accordingly found that a reasonable jury could draw an inference of
discrimination from the fact that the supervisor remained heavily involved in the selection
process that had been “designed to exclude him.” Id. at 509. Here, however, Plaintiff provides
no evidence tending to suggest that Sampson ought not to have been involved in the selection
process or that she made any representations to Plaintiff to that effect.
Ultimately, a panel of racially diverse individuals made a judgment call that Wright was a
better fit for the position than Plaintiff, and the Court will defer to that decision absent a viable
showing of pretext. As Plaintiff has failed to make such a showing, the Court concludes that
there are no genuine issues of material fact that would warrant proceeding to trial.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
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Judgment and deny Plaintiff’s. A separate Order consistent with this Opinion will be issued this
day.
SO ORDERED.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: 9/16/2011
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