UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
ADA GONZALES, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-0676 (PLF)
)
ERIC H. HOLDER, JR., Attorney General, )
1
United States Department of Justice, )
)
Defendant. )
__________________________________________)
OPINION
This matter is before the Court on defendant’s motion for summary judgment
(“Mot.”), plaintiff’s opposition thereto (“Opp.”), and defendant’s reply (“Reply”). Plaintiff, Ada
Gonzales, brought suit against her employer, the United States Department of Justice, alleging
retaliation for engaging in protected activity in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e et seq. Ms. Gonzales alleges that DOJ retaliated against
her when it failed to select her for promotion. DOJ maintains that it is entitled to summary
judgment on this claim because it has asserted legitimate, non-retaliatory reasons for not
selecting Ms. Gonzales, and because Ms. Gonzales has failed to produce evidence that these
reasons are a pretext for retaliation. Upon consideration of the motion, plaintiff’s opposition,
1
The complaint named Alberto Gonzales, former Attorney General, as the
defendant in this case. The Court previously substituted Michael Mukasey, Mr. Gonzales’
successor, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. The Court now
substitutes Eric H. Holder, Jr., Mr. Mukasey’s successor, pursuant to the same Rule.
defendant’s reply, and the entire record in the case, the Court grants defendant’s motion for
summary judgment.
I. BACKGROUND
Plaintiff Ada Gonzales, a Hispanic female, has worked in the DOJ Office of
Justice Programs (“OJP”) since June 1995. See Opp. at 1. Starting as a financial analyst at the
GS-12 level, Ms. Gonzales was promoted to a GS-13 position and then a GS-14 position with
increasing supervisory responsibilities. Id. In March 2000, Ms. Gonzales was named a branch
manager in the Training and Policy Division (“TPD”) of OJP’s Office of the Comptroller.
Defendant’s Statement of Material Facts Not in Dispute (“Def.’s Statement”) ¶ 1.
On February 27, 2002, while still a branch manager in TPD, Ms. Gonzales
contacted her employer’s Equal Employment Opportunity Office, alleging that her direct
supervisor, then-TPD director Travis McCrory, had discriminated against her and subjected her
to a hostile work environment because of her national origin, gender and age in violation of
federal law. See Def.’s Statement ¶ 3; Opp., Ex. 11 at 2-3. The director of the Office of the
Comptroller, Cynthia Schwimer, became aware of Ms. Gonzales’ EEO complaint on April 16,
2002, when she was copied on an email notifying Mr. McCrory of Ms. Gonzales’ EEO activity.
Def.’s Statement ¶ 4. Ms. Gonzales filed a formal complaint against Mr. McCrory with the EEO
Office in June 2002. See Opp., Ex. 11 at 2.
On June 4, 2002, OJP’s Office of Personnel announced an opening for the TPD
director position, which became vacant when Mr. McCrory accepted a position in another federal
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agency. Def.’s Statement ¶¶ 6-7. Ms. Schwimer was the selecting official for the position, for
which Ms. Gonzales submitted a timely application. Id. ¶¶ 11-12.
Ms. Schwimer received a promotion candidate list that identified four eligible GS-
14 OJP employees who were qualified for the position, including Ms. Gonzales and the candidate
eventually selected for the promotion, Joanna Suttington, an African American female. Def.’s
Statement ¶ 13. At that time, Ms. Suttington was a GS-14 manager of the Financial Services
Branch of the Financial Management Division in OJP. See Mot., Ex. 11 at 4. Ms. Schwimer
“had known each of the four candidates professionally for at least ten years.” See Def.’s
Statement ¶ 14. In July 2002, Ms. Schwimer officially selected Ms. Suttington for the open
position. Id. ¶ 15. Ms. Gonzales subsequently amended her pending EEO complaint to include a
claim of retaliation by Ms. Schwimer. See Mot. at 2.
Ms. Gonzales’ discrimination and retaliation claims against the DOJ were
considered by an Administrative Judge for the Equal Employment Opportunity Commission in
2005. The Administrative Judge granted DOJ’s motion for judgment without a hearing on Ms.
Gonzales’s discrimination and hostile work environment claims and, after a hearing, ruled in
favor of DOJ on her retaliation claim. Mot. at 2. The DOJ Complaints Adjudication Office
issued a final agency decision on July 6, 2005, affirming the decision in favor of DOJ, and the
EEOC Office of Federal Operations affirmed that decision again on Ms. Gonzales’ further
appeal. Id. On April 13, 2007, Ms. Gonzales filed a complaint in this Court, alleging that DOJ
had deprived her of the promotion to TPD director in retaliation for her contact with the EEO
Office.
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II. STANDARD OF REVIEW
Summary judgment may be granted “if the pleadings, the discovery and disclosure
materials on file, and any affidavits [or declarations] 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, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A fact is ‘material’ if a dispute over it might affect
the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or
unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d
at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue 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); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb
v. Powell, 433 F.3d at 895.
On a motion for summary judgment, “the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in [her] favor.” Anderson v. Liberty
Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 849-50
(D.C. Cir. 2006). In considering such a motion, 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.
See FED . R. CIV . P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). She is required to
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provide evidence that would permit a reasonable jury to find in her favor. Laningham v. United
States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovant’s evidence is “merely
colorable” or “not significantly probative,” summary judgment may be granted. Anderson v.
Liberty Lobby, Inc., 477 U.S. at 249-50. To defeat a motion for summary judgment, a plaintiff
must have more than “a scintilla of evidence to support [her] claims.” Freedman v. MCI
Telecomms. Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).
III. LEGAL FRAMEWORK
Title VII makes it unlawful for an employer to retaliate against an employee for
engaging in protected activity, such as filing a charge of discrimination. See 42 U.S.C. § 2000e-
3(a).2 Absent direct evidence that an employment-related decision was retaliatory, a retaliation
claim must be analyzed under the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009). To
establish a prima facie case of retaliation under that framework, the plaintiff must first show
“(1) that [she] engaged in statutorily protected activity; (2) that [she] suffered a materially
adverse action by [her] employer; and (3) that a causal link connects the two.” Jones v.
Bernanke, 557 F.3d at 677; see also Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006).
“Such a showing raises a rebuttable presumption of unlawful [retaliation] and shifts to the
defendant the burden to rebut the presumption by asserting a legitimate, non-discriminatory [or
non-retaliatory] reason for its actions.” Smith v. District of Columbia, 430 F.3d 450, 455 (D.C.
2
Federal employees must exhaust their administrative remedies before filing suit
under Title VII. In this case, the parties do not dispute that Ms. Gonzales appropriately
exhausted her administrative remedies. See Compl. ¶ 3; Mot. at 2.
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Cir. 2005) (citation and internal quotation marks omitted). Once the defendant has done so, the
burden-shifting framework “disappears,” and the Court “must decide whether a reasonable jury
could infer” illegal retaliation from all available evidence, whether related to the prima facie
showing, plaintiff’s attempts to show that the defendant’s proffered reason is pretextual, or other
aspects of the case. Murray v. Gilmore, 406 F.3d 708, 713 (D.C. Cir. 2005) (citing Waterhouse
v. District of Columbia, 298 F.3d 989, 992-93 (D.C. Cir. 2002)); see also Brady v. Office of the
Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. Cir. 2008).
Once an employer has asserted a legitimate, non-retaliatory reason for the adverse
action taken against the plaintiff, the Court “need not — and should not — decide whether the
plaintiff has actually made out a prima facie case” under the burden-shifting framework
described above. Brady v. Office of Sergeant at Arms, 520 F.3d at 494. The Court must instead
“proceed to the question of retaliation vel non.” Taylor v. Solis, 571 F.3d 1313, 1320 n.4 (D.C.
Cir. 2009). In resolving that question on summary judgment, the Court may find for a defendant
if the plaintiff has failed either (1) to rebut the legitimate, non-retaliatory reason offered by the
employer for the employment action at issue, or (2) to adduce evidence supporting a necessary
element of her case, such as her employer’s commission of a materially adverse act against her.
Id. “[T]he 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-retaliatory] reason was
not the actual reason and that the employer intentionally [retaliated] against the employee on the
basis” of her protected activity? Brady v. Office of Sergeant at Arms, 520 F.3d at 492.
6
IV. DISCUSSION
While the DOJ acknowledges that plaintiff engaged in protected EEO activity and
that her non-selection constitutes a legally cognizable injury, it nevertheless argues that Ms.
Gonzales has failed to establish a prima facie case of retaliation because she has not
demonstrated a causal connection between the protected activity and the injury. Opp. at 5. For
the reasons explained above, however, the existence of a prima facie case “almost always”
becomes “irrelevant” once a defendant has asserted a non-retaliatory justification for an adverse
employment action. Brady v. Office of Sergeant at Arms, 520 F.3d at 494. Here, the DOJ has
offered a legitimate, non-retaliatory reason for Ms. Suttington’s promotion over Ms. Gonzales,
explaining that, in the estimation of Ms. Schwimer, Ms. Suttington possessed stronger
“supervisory skills” and was “more responsive to the needs of the office, a better team player,
more accountable for the work completed by her office, a better problem solver . . . , and more
flexible” than the plaintiff. Mot. at 8 (citing Mot., Ex. 6 at 22, 24, 47-48). As a result, Ms.
Gonzales can survive summary judgment only by pointing to evidence in the record sufficient to
convince a reasonable jury that the reasons proffered by DOJ are pretextual, and that Ms.
Schwimer’s choice was actually motivated by retaliatory intent. See Jones v. Bernanke, 557 F.3d
at 678; Brady v. Office of the Sergeant at Arms, 520 F.3d at 494. The Court therefore will
proceed directly to consideration of that issue.
Plaintiff’s arguments can be reduced to four assertions intended to show pretext
and retaliatory intent: (1) Ms. Gonzales was in fact better qualified than Ms. Suttington but was
passed over anyway; (2) DOJ’s proffered justification for the selection of Ms. Suttington over
Ms. Gonzales rests on criteria that are “highly subjective” and hence not credible; (3) Ms.
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Schwimer “preselected” Ms. Suttington for the post of TPD director; and (4) Ms. Schwimer lied
about various aspects of the hiring process. The Court will address each of these contentions in
turn and explain why they do not establish a genuine issue of material fact that would qualify this
case for trial.
A. Comparative Qualifications of the Candidates
Plaintiff insists that, as compared to Ms. Suttington, the woman who was
eventually chosen to fill the position of TPD director, Ms. Gonzales “was the significantly better
qualified candidate and as such the Defendant’s reason was mere pretext for retaliation.” Opp. at
9 (internal quotation marks omitted). It is true that, when an employer asserts that a plaintiff was
not promoted because she was less qualified than another candidate, a factfinder may deem the
employer’s explanation pretextual if “a reasonable employer would have found the plaintiff to be
significantly better qualified for the job.” Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1294
(D.C. Cir. 1998) (en banc). Nevertheless, because courts do not serve as “super-personnel
department[s] that reexamine[ ] an entity's business decisions,” Holcomb v. Powell, 433 F.3d at
897 (internal quotation marks and citation omitted), “[a] plaintiff asserting that an employer's
explanation is pretextual based upon comparative qualifications faces a formidable task,” Nyunt
v. Tomlinson, 543 F. Supp. 2d 25, 39 (D.D.C. 2008). “[I]n order to justify an inference of
discrimination, the qualifications gap must be great enough to be inherently indicative of
discrimination.” Jackson v. Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007) (internal quotation
marks and citation omitted). For example, in Aka, the court of appeals found evidence of a
qualifications gap sufficient to raise a genuine question of fact where, inter alia, the plaintiff had
8
nineteen years of relevant employment experience, while the candidate who was hired had two
months of relevant volunteer work. Aka v. Washington Hosp. Ctr., 156 F.3d at 1296.
No such stark gap exists here. On the contrary, the qualifications of Ms. Gonzales
and Ms. Suttington are closely matched. Ms. Gonzales argues that she was more qualified than
Ms. Suttington because she was “directly in line” for the position of TPD director, and had
served as Acting Director for several months in 2000. There is, however, no evidence that the
Training and Policy Division of the Office of the Comptroller made lockstep promotions, so that
an employee of particular seniority or with a certain title could be assured of filling the next
open, more senior position. Indeed, the only evidence that Ms. Gonzales was “directly in line” is
her own unsupported assertion. See Opp. at 10; see also Hastie v. Henderson, 121 F. Supp. 2d
72, 81 (D.D.C. 2000) (a plaintiff’s “unsupported, conclusory assertion” regarding her own
performance is “insufficient to defeat a motion for summary judgment”); Waterhouse v. Dist. of
Columbia, 124 F. Supp. 2d at 7 (“Plaintiff cannot establish pretext simply based on her own
subjective assessment of her own performance.”). Nor does Ms. Gonzales’ brief tenure in 2000
as Acting Director distinguish her significantly, since Ms. Suttington had periodically served as
Acting Director of her own division within the Office of the Comptroller. Mot., Ex. 11 at 4.
Ms. Gonzales claims to have more experience in the relevant fields of financial
management training, but offers no evidence that Ms. Suttington lacks such experience. See Opp.
at 10. In fact, the defendant offers undisputed evidence that Ms. Suttington had extensive
experience in financial management training in the Office of the Comptroller, albeit outside of
TPD. See Reply at 7-9. Similarly, contrary to Ms. Gonzales’ assertion that she has “more
accomplishments” than Ms. Suttington, she cites no qualification of her own that is unmatched
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by those of Ms. Suttington: Plaintiff has a Master’s in Business Administration, Opp. at 11; Ms.
Suttington has a Master’s degree in accountancy and is a Certified Public Accountant, Mot., Ex.
11 at 11, two facts that are undisputed. Ms. Gonzales has attended seminars on a “wide-range of
management, leadership and grant management related [sic] fields,” Opp. at 11; Ms. Suttington’s
resume, its contents uncontroverted by the plaintiff, also shows participation in a long list of
professional development activities, Opp., Ex. 19 at 8.
Finally, while Ms. Gonzales claims “superior management ability,” she has
produced no evidence showing that her ability is superior to Ms. Suttington’s. Instead, she cites
the statements of two supervisees who deem Ms. Gonzales to be a “good” and “positive”
supervisor. Opp. at 11. In isolation, however, these assessments have no significance. Ms.
Gonzales’ task is not to point to evidence that would allow a reasonable jury to conclude that she
is a good supervisor; it is to point to evidence from which a jury could reasonably infer that she is
a better supervisor than Ms. Suttington. Ms. Gonzales has produced no evidence to support that
latter contention. See Opp. at 11.
In sum, plaintiff’s evidence on this issue amounts largely to conclusory summaries
of Ms. Gonzales’ qualifications with little or no meaningful comparison to relevant qualifications
held by Ms. Suttington. As a result, there is insufficient evidence to permit a reasonable jury to
conclude that Ms. Gonzales was significantly better qualified for the director position than was
Ms. Suttington, and this line of argument therefore does not support plaintiff’s claim of pretext.
See Barnette v. Chertoff, 453 F.3d 513, 518 (D.C. Cir. 2006); Stewart v. Ashcroft, 352 F.3d 422,
430 (D.C. Cir. 2003).
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B. Subjective Criteria
According to plaintiff, Ms. Schwimer’s claim that she chose Ms. Suttington rather
than Ms. Gonzales because of the former’s greater supervisory skills and sense of accountability
is based on “highly subjective reasoning that is unsupported by concrete evidence,” which “can
only lead to the conclusion that Defendant’s explanation is pretext for retaliation.” Opp. at 15.
This argument is both legally and factually incorrect. An employer’s use of subjective criteria in
justifying the promotion of one candidate instead of another does not necessarily permit the
inference of pretext. See Aka v. Washington Hosp. Ctr., 156 F.3d at 1298; accord Manning v.
Chevron Chemical Co., LLC, 332 F.3d 874, 882 (5th Cir. 2003) (citing Millbrook v. IBP, Inc.,
280 F.3d 1169, 1176 (7th Cir. 2002)); Denney v. City of Albany, 247 F.3d 1172, 1185 (11th Cir.
2001). “A subjective reason can be legally sufficient, legitimate and nondiscriminatory if the
defendant articulates a clear and reasonably specific factual basis on which it based its subjective
opinion.” Pearsall v. Holder, 610 F. Supp. 2d 87, 102 (D.D.C. 2009) (citing Laboy v. O’Neill,
180 F. Supp. 2d 18, 23 (D.D.C. 2001)) (internal quotation marks omitted).
Here, the defendant has presented uncontroverted record evidence tending to show
that Ms. Shwimer’s assessment of the relative leadership skills and work performance of Ms.
Gonzales and Ms. Suttington was founded upon a “clear and reasonably specific factual basis.”
For example, Ms. Gonzales’ supervisors received complaints regarding her time management
and leadership skills from at least two DOJ employees. See Mot. at 10 (citing Mot., Ex. 12 at
16-27; Mot., Ex. 13 at 16-17). Ms. Schwimer herself had known the plaintiff in a professional
capacity for over ten years, Mot., Ex. 6 at 16, and observed that Ms. Gonzales had a tendency to
blame her supervisees for her own mistakes, id. at 35. There is no evidence, on the other hand,
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of similar problems in Ms. Suttington’s record. Ms. Schwimer’s arguably “subjective” reasons
for choosing Ms. Suttington as the better qualified candidate therefore are supported by specific
facts in the record and would not — merely because they are subjective — lead a reasonable jury
to conclude that they are pretextual.
C. Preselection
Ms. Gonzales also attempts to rebut the non-retaliatory reasons asserted by the
defendant by contending that Ms. Suttington was “preselected” for the position of TPD director
— that is, selected by Ms. Schwimer to fill the position before Ms. Schwimer had given any real
consideration to the other three qualified candidates. See Opp. at 17. Plaintiff relies for evidence
of this proposition on Ms. Suttington’s statements that she spoke informally with Ms. Schwimer
about the open TPD director position for about three minutes in June 2002, after Ms. Suttington
had submitted an application for the position. See Opp., Ex. 5 at 24-26.3 Ms. Suttington has
referred to this discussion as an “interview,” see id. at 24-25, while Ms. Schwimer has said that
she did not interview any of the candidates for the TPD director position. See Opp., Ex. 16 at 98.
The record suggests that this discrepancy may result from Ms. Suttington’s and Ms. Schwimer’s
differing definitions of the term “interview.” According to Ms. Suttington, she and Ms.
3
Ms. Gonzales also points to the form, signed by Ms. Schwimer, formally
requesting the appointment of Ms. Suttington to the position of TPD director. See Opp. at 17-18;
Opp., Ex. 6. Ms. Schwimer’s signature on that form is dated June 3, 2002, although Ms.
Suttington was not officially chosen for the position until July 2002. The defendant has
explained this discrepancy through uncontroverted affidavits which show that it was the practice
in the Office of Justice Programs at that time for a supervisor to sign and submit a blank request
form to the Office of Personnel whenever a position became open. The name of the person
eventually chosen to occupy that position would be filled in by an employee of the Office of
Personnel once the hiring process was concluded. See Reply, Ex. 3.
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Schwimer briefly discussed the nature of the TPD director position at the conclusion of a meeting
about an unrelated work matter. Opp., Ex. 4 at 149-50. The record contains no suggestion that
Ms. Schwimer asked about Ms. Suttington’s qualifications or implied that Ms. Suttington would
receive the job. See id. In light of the conversation’s brevity and informality, its status as an
interview is questionable.
But even if this discussion between Ms. Suttington and Ms. Schwimer were
assumed to be an interview, and even if it were further assumed to support a claim of
preselection, it provides no support for Ms. Gonzales’ attempt to create an inference of pretext.
“Preselection . . . does not violate Title VII when such preselection is based on the qualifications
of the party and not on some basis prohibited by Title VII.” Nyunt v. Tomlinson, 543 F. Supp.
2d at 39 (citing Goosetree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986)); see also Oliver-
Simon v. Nicholson, 384 F. Supp. 2d 298, 310 (D.D.C. 2005) (same). “Title VII does not
prohibit hiring practices that are unrelated to the protected status (e.g., race) of an applicant.”
Washington v. Chao, 577 F. Supp. 2d 27, 46 (D.D.C. 2008). Here, Ms. Gonzales has adduced no
evidence tending to show that, even if Ms. Schwimer did preselect Ms. Suttington, she did so out
of an intent to retaliate, rather than a desire to hire the most qualified candidate. After all, there
were four applicants qualified for the TPD director position, see Def.’s Statement ¶ 13, and Ms.
Schwimer did not single out Ms. Gonzales by interviewing everyone but her; rather, if Ms.
Schwimer interviewed anyone at all, she interviewed none of the four candidates except for Ms.
Suttington.
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D. Ms. Schwimer’s Veracity
Citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993), Ms. Gonzales
declares that “a ‘suspicion of mendacity’ is enough to support a finding of pretext and
discrimination,” and then proceeds to attack several statements of Ms. Schwimer’s as “not
truthful.” Opp. at 12. The context in which “a suspicion of mendacity” was discussed in Hicks,
however, simply is not present here. The “mendacity” to which the Supreme Court alluded was
that of a putative employer who may have manufactured the reasons cited as justifications for an
adverse employment action in order to hide a motivation that was, in fact, discriminatory. See
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 511. A factfinder’s reasonable inference that an
employer may have fabricated a nondiscriminatory rationale — “a suspicion of mendacity” —
could, in combination with “[t]he factfinder’s disbelief of the reasons put forward by the
defendant” and “the elements of the prima facie case, suffice to show intentional discrimination.”
Id. Relevant evidence of dishonesty, then, is that evidence which tends to show that the
employer-defendant has given false reasons for its actions.
Ms. Gonzales has provided no such evidence here. Instead, she has seized upon
small to nonexistent inconsistencies in Ms. Schwimer’s accounts of nonmaterial events in an
attempt to demonstrate that Ms. Schwimer is an untruthful person who must have lied about her
reasons for selecting Ms. Suttington. For example, Ms. Gonzales points out that Ms. Suttington
has stated that she met briefly with Ms. Schwimer after applying for the TPD director position
and discussed the job’s requirements with her. See Opp., Ex. 5 at 24-26. Ms. Suttington has
termed this meeting an “interview.” Id. at 24-25. Ms. Schwimer, on the other hand, has denied
interviewing Ms. Suttington or any other candidate. Opp., Ex. 16 at 98; see discussion supra, at
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12-13. There may be a factual question as to whether Ms. Schwimer had a discussion about the
job with Ms. Suttington, even if she would not term that discussion an interview. But there
certainly is insufficient evidence to permit a reasonable factfinder to conclude that Ms. Schwimer
told a lie, rather than misremembered what occurred or differed from Ms. Suttington in what her
conception of an interview is. Regardless, the issue is not material here, because even if Ms.
Schwimer conducted a three-minute job interview with Ms. Suttington, that fact has no bearing
on whether Ms. Schwimer believed Ms. Suttington to be better qualified than Ms. Gonzales.
Any alleged dishonesty on Ms. Schwimer’s part, then, does not relate to the “suspicion of
mendacity” discussed in Hicks, because it does not undermine the defendant’s stated reasons for
promoting Ms. Suttington instead of Ms. Gonzales. See Aka v. Washington Hosp. Ctr., 156 F.3d
at 1293 (explaining Hicks’ “suspicion of mendacity” language in terms of an employer’s
dishonesty regarding the reasons for an adverse employment action); see also Pearsall v. Holder,
610 F. Supp. at 100 (“suspicion of mendacity” may be present where factfinder could reasonably
decide that defendant’s justifications for not hiring plaintiff were “not only inaccurate,” but were
also used by defendant “to cover up discriminatory and retaliatory motives”).
Ms. Gonzales’ other arguments on the subject of “mendacity” tread similar
ground, focusing on minor, immaterial inconsistencies in Ms. Schwimer’s accounts of the hiring
process. Ms. Schwimer said she never discussed her selection of Ms. Suttington with anyone
before finalizing it, see Opp., Ex. 16 at 98; Ms. Gonzales argues that this statement is “not
truthful” because Ms. Suttington said she was interviewed by Ms. Schwimer, see Opp. at 12.
Ms. Schwimer said, according to a deposition transcript, that Ms. Suttington had an “NBA,” see
Opp., Ex. 12 at 11, rather than a Master’s degree, and later corrected this error on an errata sheet,
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see Opp. at 13; Ms. Gonzales interprets this as evidence of Ms. Schwimer’s “utter lack of
credibility.” Id.4 Ms. Schwimer said that she did not know prior to July 16, 2002, who had
applied for the TPD director position, see Opp., Ex. 16 at 96; Ms. Gonzales says this cannot be
true, because Ms. Suttington allegedly interviewed Ms. Suttington in June 2002. Opp. at 12.
Some of these supposed lies by Ms. Schwimer do not even qualify as
inconsistencies. Discussing a job’s requirements, or even interviewing an applicant, for example,
does not logically qualify as a discussion of the hiring official’s actual selection of a particular
candidate. Furthermore, each of Ms. Gonzales’ contentions focuses, once again, on an issue that
is collateral to the question of pretext or retaliation. None of these statements by Ms. Schwimer
could even give rise to a reasonable inference of dishonesty, and certainly none represents
competent evidence of pretext.
V. CONCLUSION
For the foregoing reasons, the Court finds that the plaintiff has identified no
genuine issues of material fact, and that defendant is entitled to judgment as a matter of law on
Ms. Gonzales’ retaliation claim.
An Order consistent with this Opinion will be issued this same day.
/s/
PAUL L. FRIEDMAN
United States District Judge
DATE: September 22, 2009
4
The reference to an “NBA” is presumably a typographical error in the transcript.
See Reply at 13. Ms. Gonzales has a Master’s degree in business administration, see Opp. at 11,
while Ms. Suttington has a Master’s degree in accountancy, Mot., Ex. 11 at 11.
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