IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ROGER O. PEDERSON ) ) Plaintiff, ) ) v. ) Civil Action No. 06-1418(RCL) ) KAREN G. MILLS,1 Administrator ) Small Business Administration, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION

Upon consideration of defendant’s Motion for Summary Judgment [43], plaintiff’s

Opposition [45], defendants’ Reply [47], the applicable law and the record herein, for the reasons

set forth below, the Motion for Summary Judgment will be DENIED as to all claims pertaining

to the GS-14 position, and GRANTED as to all claims pertaining to the GS-15 position,

articulated in paragraph 10 of the Complaint, for which plaintiff failed to exhaust administrative

remedies.

I. Background

Plaintiff Roger Pederson, then a 52-year-old white male, applied for a GS-14 Examiner

position for which he was qualified in the Investment Division of the Small Business

Administration (“the Position”), and the Position went to Lourdes Gatell, a significantly younger

Hispanic woman of comparable qualifications (“Selectee”). The Position included duties as

acting Director of Examinations—a GS-15 position—in the Director’s absence, and Selectee

later applied for and was promoted to that position permanently. Based on these facts, plaintiff

brings claims of race and sex discrimination under Title VII of the Civil Rights act of 1964, as 1 Karen G. Mills is substituted for Sandy K. Baruah pursuant to Fed. R. Civ. P. 25(d). amended, codified at 42 U.S.C. § 2000e, et seq. (“Title VII”), and age discrimination under the

Age Discrimination in Employment Act of 1967, as amended, codified at

, et

seq. (“ADEA”), in his non-selection for both the Position and the higher GS-15 position.

Plaintiff has produced evidence to establish a prima facie case in the Title VII and ADEA

claims pertaining to the GS-14 position. Defendant has asserted a legitimate, non-discriminatory

basis for the hiring decision (that plaintiff did not get along with co-workers), and now seeks

summary judgment by alleging that plaintiff cannot provide evidence of discriminatory intent or

prove that defendant’s legitimate reason was pretext. Plaintiff has responded by providing

evidence of possibly discriminatory remarks made by the deciding official and two interviewing

officials in his non-selection, and by alleging that defendant’s proffered reason is beyond belief.

II. Legal Standard

a. Summary Judgment

Summary judgment is appropriate upon a showing that “there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). The moving party must point to an absence of material evidence in the record, and

then the burden shifts to the non-movant to show the existence of a dispute for trial. Bias v.

Advantage Intern, Inc.,

, 1561 (D.C. Cir. 1990). In reviewing disputed facts, the

Court must draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty

Lobby, Inc.,

(1986). The non-moving party must, however, provide more than

a “scintilla of evidence,” and summary judgment is appropriate where the evidence could not

persuade a reasonable jury to find for the non-movant.

. Conclusory allegations by the

non-movant are not enough to survive summary judgment. Exxon Corp. v. F.T.C.,

(D.C. Cir. 1980). b. McDonnell Douglas

In the context of employment discrimination claims (under both Title VII and the ADEA)

such as those here, courts apply the burden-shifting framework of McDonnell Douglas Corp. v.

Green,

(1973), to summary judgment evaluations. See Pardo-Kronemann v.

Jackson,

(D.D.C. 2008) (Title VII case); Reeves v. Sanderson

Plumbing Prods., Inc.,

(2000) (ADEA case). In McDonnell Douglas, the

Supreme Court established that, in discrimination cases, the plaintiff must first bring a prima

facie case of discrimination which the employer may then sufficiently rebut by articulating a

legitimate, non-discriminatory reason for its employment decision.

. The plaintiff

must then have an opportunity to present evidence that the employer’s legitimate reason is

pretext and that the real reason for its decision was discriminatory.

.

At the summary judgment stage, the McDonnell Douglas framework dissolves once the

defendant proffers a legitimate reason, and to avoid dismissal “the plaintiff must show that a

reasonable jury could conclude from all of the evidence that the adverse employment decision

was made for a discriminatory reason.” Lathram v. Snow,

, 1088 (D.C. Cir. 2003).

This showing may involve the strength of the plaintiff’s prima facie case2, direct evidence of

2 The Court notes that a court should not decide whether the plaintiff has established a prima facie case at the summary judgment stage. Brady v. Office of Sergeant at Arms,

(D.C. Cir. 2008). The defendant cites Brady for the proposition that we should only ask: “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…?” (Def.’s Mot. 9.) But the quote from Brady continues: “…and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?”

. Thus the question at summary judgment is broader than the defendant proposes, and courts since Brady have used evidence from the prima facie case (without deciding whether there is one or not) as well as evidence of pretext to answer it. See Pardo-Kroneman,

. This court reads Brady as broadening rather than narrowing the summary judgment inquiry, because it allows the plaintiff to build his case from circumstantial evidence of pretext even if he has not initially established a prima facie case of discrimination. The trial court in Brady had dismissed the plaintiff’s claims, because of a lack of a prima facie case, without reviewing plaintiff’s evidence of pretext, so the appellate court considered the plaintiff’s evidence rebutting the proffered legitimate reason before affirming summary judgment.

. This Court will take the same approach, reviewing all of the evidence (of a prima facie case, pretext, and discrimination) to decide if a jury could infer discriminatory behavior by defendant. discrimination, and circumstantial evidence indicating that the proffered legitimate reason is

pretext. Pardo-Kronemann,

; Waterhouse v. District of Columbia,

(D.C. Cir. 2002).

III. Discussion

a. Discrimination in Non-Selection for the GS-15 Director of Examinations Position

Defendant seeks dismissal of all claims related to the GS-15 Director of Examinations

position, which position plaintiff claims Selectee acquired as a foreseeable result of her

appointment to the GS-14 position at issue in this case. Defendant rightly notes that a plaintiff

must exhaust administrative remedies through the EEOC before bringing a claim to federal court,

Battle v. Rubin,

(D.D.C. 2000), and that each alleged incident of

discrimination “constitutes a separate actionable ‘unlawful employment practice.’” Nat’l R.R.

Passenger Corp. v. Morgan,

(2002).

The non-selection for the GS-15 position could be seen as a separate claim of

employment discrimination by defendant, but plaintiff recognizes that without a year in a GS-14

position he was ineligible to apply for the GS-15 promotion, did not apply for the promotion, and

therefore could not file a separate EEO complaint for non-selection as to that latter position.

(Pl.’s Opp’n 32 n.4.) He instead argues that Selectee’s promotion to the GS-15 position goes to

the issue of damages, since it was a foreseeable result of her selection to the GS-14 position. Id.

at 32. Plaintiff claims he exhausted administrative remedies because he attempted to amend his

EEO complaint to include the GS-15 issue as soon as he learned of Selectee’s receipt of the

promotion. Id. at 33. However, Selectee’s actual promotion to the position would only be

relevant if plaintiff were alleging discrimination in his non-selection for that position as a

separate complaint, which he does not. If Selectee’s promotion to the GS-15 position merely goes to the issue of damages in

plaintiff’s GS-14 claims—because, as plaintiff asserts, the promotion was a foreseeable result of

selection to the GS-14 position—then plaintiff should have timely included the issue in his

original EEO complaint. If the promotion was as foreseeable as plaintiff suggests, then it ought

to have been foreseeable to him when he filed his initial complaint, and not only after Selectee’s

receipt of the GS-15 position. Had plaintiff already pleaded the damages issue, then Selectee’s

promotion would have served as substantial support for plaintiff’s theory, but the manifestation

of the theory was not a prerequisite for pleading it in a timely fashion. Thus, the denial of

plaintiff’s second motion to amend in the EEO proceedings means he did not timely bring forth

the GS-15 promotion issue, and may not assert it for the first time in this court. The Court also

notes that, even had plaintiff brought forth the damages issue in a timely fashion, he has not

shown that the GS-15 promotion was a foreseeable result of acquiring the GS-14 position. The

GS-15 job was “a separate competitive position and not in the career ladder of the [GS-14]

Position.” (Def.’s Reply 16.) Plaintiff has failed to exhaust administrative remedies and all

claims of discrimination or damages related to the GS-15 Director of Examinations position must

be dismissed. From this point forward all discussion shall pertain only to the GS-14 Examiner

position.

b. Title VII Race and Gender Discrimination Claims

Plaintiff’s claims of race and sex discrimination hinge on the following facts: that the

head of the Small Business Administration (“SBA”) at the time of plaintiff’s non-selection was

Hispanic, and that the deciding official in the GS-14 hiring decision indicated to an interviewer

that the Selectee, a Hispanic female, “helps our numbers.” (Pl.’s Opp’n 17.) The evidence produced by plaintiff as to these facts suffices to create a genuine issue of material fact about

race and sex discrimination.

Evidence of racial remarks—even unrelated to the particular employment decision—by a

decision-maker may be probative of pretext and discriminatory intent. Kolstad v. Am. Dental

Ass’n,

(D.C. Cir. 1997); see also Price Waterhouse v. Hopkins,

(1989). Discriminatory statements by a decision-maker in the context of the decisional

process are direct evidence of discrimination, and relieve the plaintiff of adherence to the

McDonnell Douglas framework. See, e.g., Thomas v. Nat’l Football League Players Ass’n,

(D.C. Cir. 1997); Luciana v. Monfort, Inc.,

(8th Cir. 2001)

(“To be entitled to a direct evidence analysis, the plaintiff must present evidence of conduct or

statements by persons involved in the decision-making process that may be viewed as directly

reflecting the alleged discriminatory attitude sufficient to permit the factfinder to infer that that

attitude was more likely than not a motivating factor in the employer’s decision.”)

Under the Luciana definition, the statement attributable to decision-maker Jeff Pierson

that the Selectee “helps our numbers” constitutes direct evidence of discrimination and relieves

plaintiff of his McDonnell Douglas burden. See, e.g., McGinest v. GTE Serv. Corp.,

(9th Cir. 2004). Pierson made the remark during discussions with the interviewing

officials about the potential candidates for the job in question, indicating his preference for

Selectee. (Pl.’s Opp’n 17.) Thus, even without a showing that defendant’s proffered legitimate

reason is pretext, plaintiff’s Title VII claims survive summary judgment because of the 1991

amendment to Title VII, which holds an employer liable under the act when “the complaining

party demonstrates that race, color, religion, sex, or national origin was a motivating factor for

any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m) (emphasis added). Even if a legitimate, non-discriminatory motive factored in as

well, direct evidence of discriminatory intent prompts a mixed-motive analysis and creates a

genuine issue, and the Title VII claims must survive summary judgment.

c. Age Discrimination Claim Under the ADEA

Plaintiff does not provide any direct evidence of age discrimination of the same

magnitude as that of race and gender discrimination, so the Court must revert back to the

McDonnell Douglas analysis to determine if the ADEA claim survives summary judgment. The

Court must decide if a reasonable jury could infer discrimination from “(1) the plaintiff's prima

facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanations

for its actions; and (3) any further evidence of discrimination that may be available to the

plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of

the employer).” Teneyck v. Omni Shoreham Hotel,

(D.C. Cir. 2004).

Though the plaintiff has not produced enough evidence to prove that defendant’s

proffered reasons for the decision are pretext,3 the weak evidence he has provided, combined

with other evidence of discriminatory motive, could persuade a reasonable jury to infer

discrimination. To show pretext, plaintiff provides evidence that defendant knew of Selectee’s

difficulties with a former supervisor, that Selectee may have been pre-selected for the Position,

and that plaintiff’s own qualifications were far superior to Selectee’s. (Pl.’s Opp’n 18-23.)

Though these facts do not prove that plaintiff was “significantly” or “markedly” better qualified

than Selectee, as required for a finding of pretext in Hendricks v. Paulson,

,

3 Thus, defendant may be able to establish the “same action” affirmative defense at trial if they can prove that plaintiff still would not have been hired absent any discriminatory motive. See Price Waterhouse v. Hopkins,

(1989); Lewis v. Young Men’s Christian Ass’n,

(11th Cir. 2000) (per curiam) (holding that Price Waterhouse still applies to ADEA cases, though not to Title VII; summary judgment affirmed where defendant proved by a preponderance of the evidence that it would have made the same employment decision absent the alleged discrimination). But defendant has not asserted that defense at this time, probably to avoid the mixed motive analysis that Price Waterhouse compels. 91 (D.D.C. 2007), and other cases cited by defendants, they do lend some support to an overall

inference of discriminatory preference.

Plaintiff’s strongest argument for an inference of age discrimination comes from the

evidence produced concerning interviewers Harry Haskins and Charles Mezger (“the

Interviewers”), who have expressed concern at various times about the old age of many of the

examiners in the Investment Division. (Pl.’s Opp’n 13-16.) Though defendant rightly argues that

“stray remarks,” particularly by non-decision-makers, are not direct evidence of discrimination,

e.g. Beeck v. Fed. Express,

(D.D.C. 2000), most of the cases they cite

involve discriminatory remarks by uninvolved co-workers or remarks that have no bearing on the

employment decision in question. Stray remarks may provide evidence of employment

discrimination if there is “a nexus between the stray remark and the adverse employment

decision.” Kalekiristos v. CTF Hotel Mgmt. Corp.,

(D.D.C. 1997).

The remarks made by the Interviewers did have some nexus to the eventual employment

decision. Rather than arbitrary discriminatory statements made out of spite or in jest, both of the

Interviewers expressed concern about the age of employees in the context of a discussion about

hiring practices. Haskin’s concerns were even made in response to a statement by the then hiring

official that the “Investment Division needed to try to hire younger Examiners.” (Pl.’s Opp’n

13.) Though not directly related to plaintiff’s specific non-selection, discriminatory statements in

discussions about the agency’s hiring practices certainly create a nexus between those statements

and a later hiring decision. It does not matter that the Interviewers were not the deciding officials

in plaintiff’s non-selection, because they certainly had ample opportunity to influence the

decider’s opinion. See Griffin v. Wash. Convention Ctr.,

(D.C. Cir. 1998); Haas v. Advo Sys., Inc.,

(5th Cir. 1999). Plaintiff has shown a genuine issue

of material fact as to age discrimination, and that claim must survive summary judgment.

IV. Conclusion

For the foregoing reasons,

The Motion for Summary Judgment [43] will be GRANTED as to all claims related to

the GS-15 Director of Examinations position,

The Motion for Summary Judgment [43] will be DENIED as to the Title VII and ADEA

claims in plaintiff’s non-selection for the GS-14 position.

A separate order shall issue this date.

Signed by Royce C. Lamberth, United States District Judge, on July 20, 2009.