Davis v. Napolitano, No. 1:2009cv00485 - Document 95 (E.D. Va. 2010)
Court Description: MEMORANDUM OPINION: For the reasons stated above, defendant's Motion for Summary Judgment 86 has been GRANTED. An appropriate order will issue with this opinion.Signed by District Judge Leonie M. Brinkema on 04/01/10. (yguy)
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division BETTY J. DAVIS, Plaintiff, ) ) v. JANET NAPOLITANO, l:09cv485 (LMB/TRJ) Secretary United States Department of Homeland Security, ) Defendant. ) MEMORANDUM OPINION Plaintiff Betty J. Davis, an employee of the United States Department of Homeland Security, has sued her employer for employment discrimination based on race and retaliation pursuant to Title VII of the Civil Rights Act of 1964, U.S.C. § 2000e, U.S.C. § 1981a et sea., 42 and the Civil Rights Act of 1991, ("Title VII")- Motion for Summary Judgment argument, as amended, Before [86]. the Court is 42 the defendant's After the Court held oral the defendant's Motion was granted. This memorandum opinion expands upon the reasons for that decision. Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Corp. v. Catrett, 477 U.S. 317, motion for summary judgment, of the nonmovant, her favor. Fed. R. 322-23 Civ. P. 56 (c) ; (1985). Celotex In ruling on a a court should accept the evidence and all justifiable inferences must be drawn in Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 255 (1986} . I. BACKGROUND This action arises from plaintiff's employment with the Transportation Security Administration ("TSA"). The plaintiff had originally been employed as the Manager for Budget and Finance in the Office of Civil Aviation Security at the Federal Aviation Administration ("FAA"), ("DOT"). within the Department of Transportation In December 2001, she, along with other employees, was transferred to the Office of the Secretary of Transportation to work on the formation of the TSA, then in its infancy. The plaintiff's role was to help construct the original TSA budget, attend senior-level meetings, services. In March 2002, and provide financial management Robert Gardner, as the Chief Financial Officer ("CFO") a white male, of the TSA. was hired He appointed the plaintiff as the Acting Deputy CFO.1 Although there is a dispute over what duties she performed in that position,2 she appears to have had some decision-making authority, level meetings, attended high stepped in for the CFO in his absence, and maintained contracts. Although plaintiff's position was titled Acting Deputy CFO, her official title of record for personnel purposes was "Program Analysis Officer/Special Assistant." The record indicates that this was the position the plaintiff held when she was at the DOT before her transfer to the TSA and she remained so classified through her tenure at TSA, including through the present. This dispute is laid out in more detail in the analysis section infra. In early 2002, Gardner announced that he would be converting the Acting Deputy CFO position to a permanent position in September of that year. and in November 2002, about the position, for advancement. However, that ultimately did not happen when the plaintiff had heard nothing more she met with Gardner to discuss her potential In that meeting, he told her that people had commented that she had a negative attitude.3 Plaintiff asked him "why is it that African-Americans have an attitude problem while non-African-Americans have a bad day." Davis Dep. at 54. replied that the comment had nothing to do with her race. Dep. at 31. Plaintiff thereafter expressed concern about Gardner Gardner the lack of minority representation in the professional and managerial positions at the TSA. appears to be Compl. This exchange about race the only incident of plaintiff any race-based issue until May at K 10. complaining about she filed her first EEO complaint in 2004. In March 2003, Department transfer of of the TSA was moved Homeland Security employees, from the DOT to ("DHS"), resulting in a mass including the plaintiff. maintained her permanent DOT position title, Officer/Special Assistant" Although plaintiff's the Although she "Program Analysis ("Special Assistant"), the plaintiff's case partially rests on an assumption that she believed this comment was racial, she admitted in her deposition that she believes these statements were based on her tight budget management style and her unwillingness to sign every Davis Dep. at 64-65. budget request that crossed her desk. 3 duties and responsibilities continued to be consistent with what she had been doing as Acting Deputy CFO: monitoring contracts, liaising with the DOT and the FAA, CFO's absence. Davis Dep. In April 2003, at and attending meetings in the 44. the TSA advertised openings for two positions, Deputy CFO and Director of Budget and Performance ("DBP"), both of which were Transportation Security Executive Service ("TSES") the agency. was used. positions, the highest level of employment in For the DBP position, First, a panel of a two-step selection process three persons reviewed and rated all the applications.4 The scores were Qualified List official, ("BQL"), would choose. then used to compile a Best from which Gardner, the selecting None of the three members of the rating panel5 knew the plaintiff's race or were aware of the comments she made the to Gardner in 2002 candidates criteria. to guide on a scale of about one race. to As the selecting official, Each member was to rate four on each of four Gardner issued the criteria the rating panel. The plaintiff received a total of 40 out of 48 possible 1 At the recommendation of Human Resources, Gardner solicited at least two panelists from outside the agency. Dep. at Gardner 73-75. The members of the panel were winona Varnon (an African- American female SES member at the Office of Personnel Managment), Mikki Atsatt (a female SES member, Deputy Budget Director at the Department internal to of Justice), and Martin Rajk (a white male the agency with CFO experience). SES member points and ranked seventh among the 33 candidates who applied for the position. Mary Ann Woodson, who was eventually selected, received 48 out of 48 points and ranked first. Eugenia Crowe, African-American female Human Resources executive ("HR") prepared the BQL that consisted of the top five candidates. an Crowe chose to place only five candidates on the BQL because none of those candidates received a single rating below a three. she had received two ratings below a three, on the list. 11, not a white female, on 2003. On September 26, position. the plaintiff was not Gardner interviewed the five BQL candidates and one non-compete candidate and selected Woodson, August Because 2003, a BQL was prepared for the Deputy CFO That BQL included the plaintiff. to make a selection and, on November 7, However, 2003, abolishing the Deputy CFO position as part of reorganization. he proposed an overall Along with the Deputy CFO position, proposed eliminating Gardner also the Deputy Chief Administrative Officer, another TSES position, the office so that Gardner chose in an effort to "flatten" it would run more efficiently. Chief Support Systems Officer, the structure of Gale Rossides, approved the reorganization, including the elimination of these positions, on November 10, 2003.6 Although the complaint included a claim based on the abolition of the Deputy CFO position, the Court dismissed that claim at a Motion to Dismiss hearing in September 2009 because On January 23, Atherton, 2004, Gardner, Chief Staff Officer Barbara and HR Specialist Martina Johnson met with the plaintiff to inform her that the Deputy CFO position had been abolished. At this time, original formal title, front office. disputed. plaintiff was assigned back to her Special Assistant, The extent of her duties and assigned to the CFO in that position is The defendant claims that she continued to work on projects similar to those she had as Acting Deputy CFO, conducting an overtime study, including coordinating the air marshals, and attending weekly staff meetings and certain agency-wide meetings. Plaintiff asserts that her duties were much less extensive and that she was largely isolated. on this "demotion" on May Woodson remained in 14, Plaintiff filed an EEO claim based 2004.1 the DBP position for only a leaving to become budget director for the entire DHS. 30, 2004, Marianna Merritt, position temporarily. a white female, DBP position was posted and in November 2004, March 2005, Gardner had left the TSA. for the permanent both Merritt and and both made He was On August was placed in the A vacancy announcement the plaintiff applied for the position, few months, the BQL. By replaced by David there was no support for the proposition that it was racially motivated, not budget-motivated. 'After receiving a Final Agency Decision finding no probable cause of discrimination or retaliation, she appealed. The appeal was later consolidated with an appeal of her second EEO claim, discussed infra, and the agency decision was upheld. Nicholson, a TSES member, the DBP position. who became the selecting official for In April 2005, he interviewed the candidates and ultimately chose Merritt.a He explained in his deposition that although both Merritt and the plaintiff were qualified, Merritt performed slightly better in the permanently in Management the TSES ("OPM") position, the interview. Office had to approve Merritt's of To be placed Personnel employment package, which had to be submitted within 90 days of her selection. a late submission of the package, resulting in Merritt's served as DBP the to support For during that this She years,9 when the position was reopened for permanent that time, disputes there is that Merritt performed no evidence in the record opinion. selection process, identical to plaintiff applied for this the package, appointment not being permanent. Although the plaintiff job well rejected temporarily for another two and a half until September 2006 selection. OPM those Nicholson previously used issued rating for the DBP position. the position again. The for General Law), Susan Tracy criteria The rating panel selection process was made up of Elizabeth Buchanan Chief Counsel Due to for (Deputy (Chief Administrative Plaintiff did not file an EEO complaint for this selection, and therefore this particular selection is not the subject of this action. Because employees three years, for the three can serve Merritt was full years. kept on an "acting" basis for up to in the position on an acting basis Officer), and Richard Gunderson Acquisitions), evidence (Assistant Administrator for all of whom are white and were shows that at least two of from the TSA. the panelists knew the plaintiff's race and were aware of her previous panel awarded the plaintiff rated Merritt at 36 five-person BQL. Nicholson, interviewed all Merritt's out of 32 36. out of 36 EEO activity. possible As a result, The points and both were put on the along with Gunderson and Buchanan, five candidates. selection was The They unanimously chose Merritt. approved by the Executive Resource Council and she was permanently placed in the job on April 1, 2007. Plaintiff contacted her EEO Counselor on April filed a formal complaint on August 15, 2007, 20, 2007 and alleging retaliation and discrimination in her non-selection for the DBP position. was represented attorney. in On July that 28, administrative 2008, the agency process by her issued a final current decision finding no probable cause for retaliation or discrimination. decision was Federal pursuant (1) This 2009 by the Office of Operations. On May and one sustained on February 12, She 5, 2009, the to Title VII, count of (3) timely which included one retaliation for each of the abolition of demotion, plaintiff filed her complaint count of discrimination five discrete events: the Deputy CFO position, (2) her alleged her first non-selection for the DBP position, her third non-selection for the DBP position, and (5) (4) her non- receipt of a performance bonus.10 The defendant Dismiss that was heard on September 18, all claims based on the second, third, and first 2009. filed a Motion to The Court dismissed and last events, but not on the fourth events. II. Discussion A Title VII plaintiff can show that she has been the victim of discrimination or retaliation either through direct evidence or through the burden-shifting calculus Douglas Corp. v. Green, 411 Lockheed Martin Logistics Cir. 2004)(en bane); F.2d 355, to present direct The the (1973). Inc., indirect 277, establish four elements discrimination 285 v. (4th Corp., 759 as This she does not or retaliation. a plaintiff must a prima. facie showing of discrimination under McDonnell Douglas: she scheme, required that to make Hill the burden-shifting scheme evidence either of Fourth Circuit has (2) F.3d also abrogated on other grounds. evidence protected class,- 354 See Communications Satellite 1985)(applying retaliation claims), plaintiff must use 792 Mgmt., Ross v. 365(4th Cir. U.S. established in McDonnell "(1) she is a member of a suffered adverse employment action; she was performing her job duties at a level that met employer's legitimate expectations at the time of (3) her the adverse 10 Plaintiff's claims based on her January 2008 non-receipt of a performance bonus were dismissed by the Court in September 2009 because the plaintiff had not actually applied for a bonus and because she never received a final ESO decision on her complaint related to this bonus, and therefore had not exhausted her administrative remedies. employment action; and (4) the position remained open or was filled by similarly qualified applicants class." Hill, 354 F.3d at Application of failure requires establishing that: for a job for which framework has been claim being alleged under Title VII. the plaintiff alleges (2) the protected 285. the McDonnell Douglas tailored to the type of protected class; outside to promote, (1) her prima facie case the plaintiff belongs the employer was position either remained open or was seeking applicants; Trustees of of unlawful Montgomery discrimination. Comm. College. 1991)(internal citations omitted). case given to for a Title VII 928 F.2d the to elements: engaged in a protected activity; action. 118, retaliation claim, employee causal (4) not the the a to Board of 121 (4ch Cir. To establish a prima facie a plaintiff employment (3) giving rise Alvarado v. requires an adverse and someone the protected group under circumstances an inference to a the plaintiff applied for and was qualified plaintiff was rejected despite her qualifications; member of When establish three action against the Fourth Circuit (2) (1) the the employer employee; and (3) took a connection between the protected activity and the asserted See Carter v. Ball, 1994)(citing Williams v. 33 F.3d 450, Cerberonics, 460 Inc. (4th Cir. 871 F.2d 452 (4ch Cir. 1989) ) . Under the McDonnell Douglas makes her prima facie case, framework, once the burden shifts 10 to the plaintiff the defendant to show it had a legitimate, non-discriminatory or non-retaliatory reason for action. burden shifts back to of the employment the evidence, that If the plaintiff the to prove, the employer's The plaintiff alleges three employer Special Assistant position; position in the for in which she was the A. in the first element of dispute the prima that non-selection vigorously that dispute government argues the plaintiff facie case African-American. any that adverse she was in that action only forms can show that effect." James v. 2004) the reassignment had some Booz-Allen was taken claim Goldin, F.3d 253, 178 the significant 368 F.3d case plaintiff detrimental 371, 256 376 job opportunity for promotion." title, Id. level Moreover, 11 (4ch (4th Cir. Significant detrimental effects under Title VII are in compensation, her only assigned if & Hamilton, (quoting Boone v. against "A reassignment a valid Title VII the the parties not demoted but to her original permanent position. the basis of satisfies she is a member of However, back decrease (3) third application process. a protected class, 1999)). and Discrimination The parties do not Cir. demotion to Demotion i. The (1) non-selection for the DBF first application process; the DBP position the stated reason is pretextual incidents (2) so, by a preponderance victim of both discrimination and retaliation: the does "any or responsibility, a reassignment does or not constitute a demotion simply because the employee or her new duties is less appealing, but rather requires some substantial detrimental effect finds his that there on the employee's "opportunities for promotion or professional development." When the plaintiff was not selected for the first DBP opening and the Deputy CFO position was eliminated, returned to her title grade salary. or original still duties part of returned to maintains several as Special Assistant, Plaintiff as a that title as those establishes led the Aviation Security budget, the audit guidance, even the amorphous, she was demoted. Plaintiff initially supervised the Civil and spending, and Inspector General PL's at 15-16. TSA's management", that it was of Opp. budget, As Acting participated in the and procedures, advised the provided agency-wide policy rulemaking and security directives. were was supervised certain staff members, contends TSA when given after at executive meetings on a regular basis, Defendant comparing her the she in pay the Office budgetary policies "upper echelon of she with no change monitored progress liaison to she managed development of that she was formulation and execution of and General Accounting Office. Deputy CFO, she was Special Assistant employees, served as that Special Assistant at the DOT to the argues Id. represented the CFO and participated in PL's Opp. plaintiff's duties as at 16-17. Acting Deputy CFO depended entirely on assignments 12 from the CFO, and had no It supervisory is component.11 hotly disputed whether, Assistant position, plaintiff's for advancement diminished. that the plaintiff she may have had. when returned responsibilities and opportunity Gardner admitted in his Def. Mot. in a position previously held. very at Ex. 1, p. 113-14. being Mark Kerski, wrote as She lower than that which no that might Although it inferences demoted. In does unquestionably a in the plaintiff's She isolated. not therefore response, the PL's hold other series and titles." is the plaintiff Opp. at Staff Officer to whom plaintiff "Special Assistant some a Band-K-level had has had had no agency-wide responsibilities, increasingly the Chief In addition, longer attended executive meetings, few responsibilities, and reports deposition lost line authority and any supervisory role plaintiff began reporting to Barbara Atherton, employee to the Special close favor made defendant out the PI. call, same Opp. at drawing 17-18. reported, recognition Ex. 30. all the Court finds that her prima facie case. offers a reasonable she was explanation "Plaintiff's supervisory duties are disputed. Plaintiff admits that CFO and not Harrison, the senior directors tended to report directly to the to her, although the Director of Finance, Judy often came to her for reports and advice. Def. Mot. for Summ. J., Ex. 3; Davis Dep. at 49-51. However, an organizational chart indicates that the plaintiff was the direct superior of the three financial directors. PL's Mot. Ex. 35. As such, plaintiff originally expected the directors to report to her because she was directly above them in the chain of command, but this never materialized. Davis Dep. at 49. 13 for the demotion: plaintiff. The there law of simply was the Deputy CFO position was case not is The agency could have created what it be a reasonable, When the argue that a shifts back to certain positions, Instead, defendant argues that give her K-Band level responsibility. several the projects This argument attempts interest Nicholson Dep. the to for the demotion. she fails to the department, was pretextual. should have Kerski she subject matter of at 101-115. a appears continued fails because the evidence by Nicholson and in as to and allowed her more in various projects and details that lack of This the plaintiff, that the reorganization of instead for her, the CFO. including the elimination of she but suitable position non-discriminatory explanation provide any evidence but the act of moving her terminated her entirely,12 in the front office of burden the motivated by race-based discrimination. believed was Special Assistant the abolition of and budgetary considerations. the plaintiff cannot to another position was that for the based on discriminatory motive, upon reasonable organizational Therefore, no other job to involve shows the plaintiff turned down because of those Plaintiff explains a assignments. that these opportunities were not within the budget field and would not have 1 At oral argument, plaintiff's counsel was asked whether her client could have been terminated. She did not concede that the government had no right to terminate the plaintiff, but instead described the cumbersome procedural steps been required to take in order to do 14 so. it would have enhanced her career path, and opportunities of but presents no evidence that duties interest to her were available. Moreover, plaintiff offers no evidence that the move was raciallymotivated.13 Most telling, the plaintiff made no claim in her deposition that she believed the demotion was motivated by racebased discrimination. the reasons stated for On this record, there is no evidence the demotion are pretextual, and that therefore summary judgment has been granted to the defendant on this issue. ii. As the Court found supra, employment action against to make out also prove causal Retaliation a prlma that she the defendant did take an adverse the plaintiff of engaged a protected activity and in retaliation, her. facie case connection exists between that The plaintiff in demoting alleges that Gardner's plaintiff However, must that a activity and her demotion. decision to assign her to the Special Assistant position was motivated by retaliation for her comments to him in November 2002, concerning the lack of African-Americans in professional and managerial positions within the agency and unduly attributing attitude problems to African- The plaintiff points to bare statistics that show a lack of African-American representation in TSES positions within the office, but fails to explain how many TSES positions there were or whether other African-Americans even applied for those positions and were turned down. 15 Americans.14 Whether this one conversation with Gardner qualifies as protected activity is disputed by the parties, Fourth Circuit has recognized that a formal the only protected activity and that other activity" 149 F.3d 253, her comments by the the EEO complaint is not "legitimate opposition can qualify as protected activity for purposes of Title VII retaliation claims. Auth., however, Lauqhlin v. 259 (4ch Cir. Metropolitan Wash. 1998). Plaintiff argues to Gardner qualify as opposition activity, Fourth Circuit as "staging Airports informal protests that defined and voicing one's opinion in order to bring attention to an employer's discriminatory activities." *8 (4th Cir. Booth v. 2009) (citing Lauqhlin, Maryland, 149 2009 WL 2158096, F.3d at 259) . It is questionable whether this one observation to Gardner qualifies legitimate opposition activity, the plaintiff there is no indication that followed up on her concern and spoke other than Gardner. commentary as than to The as to anyone statements appear more akin to passing "protests... to bring attention" to discrimination. However, even if these comments satisfied the protected activity prong of a prima facie case, the plaintiff establish any reasonable a causal connection between inference of fails to 1 The plaintiff did not file her first EEO complaint until after she was moved to the Special Assistant position in January 2004 and therefore cannot rely on any formal protected activity. 16 complaint as her the comments and her alleged demotion. made to Gardner, Although the comments were the person who demoted her, proffers no other evidence of a causal the plaintiff connection. Instead, she relies on the Fourth Circuit's holding that a court can infer a causal connection based on a short employer learning of action. if However, length of the protected activity and the adverse the Fourth Circuit has likewise explained that the period of time is too long, it will be insufficient to establish retaliation absent other evidence. Balog, 162 F.3d 795, 803 (4th Cir. month lag between an EEO charge standing alone, District v. the 1998)(holding to establish causation); Breeden, 532 U.S. See, and termination 268, rely on temporal proximity alone of time between the 272 e.g.. Causey v. that a thirteen is long, too Clark County Sch. (2001){holding that to to establish causation, protected activity and adverse action must be the time "very close" in proximity and citing cases that view three or four months as too long). she was Plaintiff's comments were made demoted, a lag in time under the Fourth Circuit case too long law. about 15 months before to establish causation Because the plaintiff has provided no evidence to support a causal connection between the protected activity and the adverse employment action, to make out a prima For these reasons, defendant on this facie case she fails in connection with her demotion. summary judgment claim. 17 has been granted to the B. First i. Non-Selection for Promotion Discrimination The plaintiff alleges that her non-selection for the DBP position when she first applied was motivated by race-based discrimination. Under Alvarado, the plaintiff fails to make out her prima facie case for this claim. undisputed that she As discussed supra, is a member of a protected class. it is Although she did apply for the DBP position and a member outside of her protected class, has failed to Mary Ann Hoodson, show that she was was selected, the plaintiff qualified for the position. The evidence unequivocally shows that the plaintiff was initially rated by an impartial panel, selected and diverse, including one African-American female. of the panel members prior complaints were complete, is Sears, Eugenia Crowe, an African-American put together 15 Moreover, within the 939 F.2d the the or her ratings female HR government points as Plaintiff." 1466, Alternative Behavioral 2004). As race None discrimination is highly unlikely where Roebuck and Co., (E.D.Va. the BQL. in the same protected class Williams v. the plaintiff's regarding race.15 After "an inference of actor appropriately to Gardner representative, out, had knowledge of which was 1471 Servs., See Elrod v. (11th Cir. 1991); 2004 WL 3258906, at Crowe made the decision to place only the top two of the three TSA. 18 panelists were not the employed *7 five candidates on the BQL, because those candidates had no ratings below a three on the four-point scale. was the selecting official, Although Gardner he never had an opportunity to choose the plaintiff because her name was not on the BQL. people qualified for ultimate selection were were on the BQL. Therefore, plaintiff has The only those whose names failed to make out a prima facie case of discrimination for her first non-selection. The plaintiff attempts for the panel's scores: to offer an alternative explanation that Caucasian employees placed in management positions on an permanent selection occurred, "acting" more selections. contends discriminatory because up to the position and making in the 16 that this as it gives white employees She points the basis practice them is to for its inherently a consistent leg selection process.16 Plaintiff's because the job. repeatedly citing experience Plaintiff basis before the interviews by enhancing familiar with particular aspects of the government regularly giving those persons an advantage in the rating process and subsequent their experience with respect were theory is the selectee, inapplicable Woodson, was not In support of this contention, to her non-selection the Acting DBP at the time the plaintiff states in her complaint that three other TSES positions within the Office of Finance and Administration were temporarily filled by white employees who were later permanently placed into those positions. She also states that seven other white agency employees who worked on the performing the TSA startup were "acting" put duties of 19 into TSES positions, their jobs beforehand. many of her selection, nor has plaintiff presented evidence Woodson was acting in any other position at selection. Moreover, there is no evidence the that time of in this the record that any of the other candidates on the BQL had been in an acting position before they applied for the DBP position. In addition, plaintiff has made no showing that her rating was lower due to a lack of experience. rating panel gave her high marksthe experience-based placed on the criteria. BQL only if for oral plaintiff threes Gov. Ex.6, two, the contrary, and fours Att. B. which was not and written communication fails for this position - to make out a prima skills. Applicants playing any role in her non-selection summary judgment has for been granted for the of this were three. The for experience, Id. facie case the for both of they had no ratings below a plaintiff had two ratings of but To the Therefore, the discrimination position and defendant on this claim. ii. Retaliation The plaintiff also contends that her non-selection DBP position was retaliation for the comments in November 2002 about race. her prima Plaintiff elements of comments constitute protected activity questionable) facie case, she made as However, 20 first two that her (which remains and because her non-selection for is an adverse employment action. supra, the to Gardner has made out the assuming, for the DBP position she fails to present any evidence of a causal connection between her statements Gardner and her non-selection because there any of the rating panel members or Crowe, is no evidence As although Gardner was the selecting official, plaintiff had been weeded out by the time him.17 As such, that who prepared the BQL, knew about the plaintiff's conversation with Gardner. discussed supra, to the the process reached the plaintiff also fails to make out a prima. facie case of retaliation for this non-selection and summary judgment has been granted to the defendant on this claim. C. Third Non-Selection for Promotion i. Discrimination The plaintiff has made out a prima facie case of discrimination for her third non-selection for the DBP position. It is undisputed that she is a member of she applied for and was qualified for1B she was a protected class, the DBP position, rejected despite her qualifications, selected candidate, Marianna Merritt, was that that and that the Caucasian. 17 In addition, the nine month lapse between the comments the plaintiff's non-selection is not sufficiently small to establish a 1H causal connection. The government does not dispute that qualified for the position, on the and BQL during this the plaintiff was particularly because she was placed selection process. In addition, the evidence indicates that the plaintiff had an extensive background in budget preparation and oversight and familiarity with the TSA budget in particular. Moreover, several of her colleagues, including Lynn Osmus, Jon Butterbaugh, and Juerin Tooren, believed that she was more than qualified for the position. Opp. at 23. 21 PL's The burden then shifts to the government discriminatory explanation for its selection. states that Merritt was qualifications, to provide a non- The government selected because of her superb her ratings by the panel, performance while temporarily in the job. her experience, and her Merritt had been in the position for which she was applying for three years before the selection process, competitively, and had been placed in that position beating out the plaintiff for the position during the second DBP selection process. Plaintiff never filed an EEO complaint based on that non-selection and there is no evidence that she believed Merritt's initial position was motivated by race. selection for the DBP Moreover, the only reason that the job opened up in 2007 was because the agency failed to get the necessary paperwork to 0PM on time. These proffered reasons for selecting Merritt are reasonable and non-discriminatory. Not only has the defendant offered legitimate non- discriminatory reasons for selecting Merritt over the plaintiff, the plaintiff has no evidence to rebut to show pretext. for the position, The plaintiff admits although she does the defendant's reasons or that Merritt was qualified dispute the quality of her budget management during the three years position. she temporarily held the The plaintiff did not complain or assert that discrimination had been a factor in Merritt's original selection, and most importantly, the plaintiff admitted in her deposition 22 that she was Nicholson, "not Mr. surprised" Kerski, Merritt was and Ms. selected "[b]ecause Mr. Merritt all came from Coast Guard and had worked together previously." Davis Dep. Familiarity with certain candidates, although often not a wise basis for personnel basis. As such, choices, plaintiff has is at 112. not a racially discriminatory failed to meet her burden and summary judgment has been granted to the defendant on this claim. ii. Retaliation In her final retaliation claim, the plaintiff again fails to establish the required causal connection between the protected activity and her non-selection." In May 2004, filed an EEO claim, this the protected activity forming the basis of retaliation claim. However, her non-selection position did not occur until April 2007, she the plaintiff filed her EEO complaint. for the DBP nearly three years The plaintiff argues after that the continued inquiries and interviews associated with the EEO process kept the making the time complaint lapse fresh in shorter than it appears. potentially a compelling theory, the facts causal of this case. connection, the minds of those involved, Although it is not persuasive in light of Even if plaintiff's theory established a making out a prima facie case of retaliation, Plaintiff has established the first two elements of her prima facie case because she has filed a formal EEO complaint, a protected activity, position, an adverse and she was not employment selected for the DBP action. 23 the evidence discussed rebut, as to supra, why Merritt was overwhelmingly demonstrates legitimate reasons, summary judgment retaliation has not selected that Judgment with this over the has failed to plaintiff the selection was made motivated by retaliation. been granted to the defendant for Therefore, for this claim. Ill. For which plaintiff the reasons [86] has Conclusion stated above, been GRANTED. defendant's An appropriate Motion for Summary order will issue opinion. Entered this Alexandria, / day of April, 2010. Virginia /s/ Leonie M. Brinkema United States District Judge 24
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