UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________ ) WILLIAM HOPKINS, ) ) Plaintiff, ) ) v. ) Civil Action No. 04-1591 (RWR) ) KATHIE A. WHIPPLE, ) Director, Office of ) Personnel Management1 ) ) Defendant. ) ____________________________ )

MEMORANDUM OPINION

Plaintiff William Hopkins filed this lawsuit against the

Director of the Office of Personnel Management (“OPM”) alleging

that OPM discriminated against him based on his national origin

in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., and based on his age in violation of the

Age Discrimination in Employment Act (“ADEA”),

et

seq., by not scoring Hopkins as high as he believed he should

have been scored on the certificate of eligibles that accompanied

Hopkins’ application for a position of Russian interpreter with

the United States Department of State. Hopkins also claims that

defendant’s selection process has a disparate impact upon people

of advanced age and people who share his national origin. OPM

moves for summary judgment on the claims of national origin and

1 Kathie A. Whipple is substituted as the defendant under Fed. R. Civ. P. 29(d). - 2 -

age discrimination in scoring because the State Department

withdrew the vacancy announcement and did not hire anyone to fill

the position Hopkins sought, and moves to dismiss the disparate

impact claim arguing that Hopkins failed to exhaust his

administrative remedies. Because Hopkins neither presents a

prima facie case of discrimination nor rebuts as pretextual OPM’s

neutral rationale for not manually adjusting Hopkins’ score, and

because Hopkins did not satisfy administrative prerequisites with

respect to his disparate impact claim, the defendant’s motion to

dismiss and for summary judgment will be granted.

BACKGROUND

Hopkins, a U.S. native, was a resident of the District of

Columbia who was approximately 60 years of age when the events at

issue occurred. (Compl. at ¶¶ 5, 6.) As of July 2002, Hopkins

had interpreted Russian for nine years in consecutive and

simultaneous nodes for Presidents and Secretaries of State. In

addition, for 20 years before that, Hopkins interpreted Russian

for various United States arms negotiators, and he was the

personal interpreter of the United States ambassador in Moscow

for two years. (Compl. at ¶ 6.)

In July 2002, the State Department asked OPM to refer

eligible applications for four Interpreter positions in languages

including French, German, Russian, and Spanish. (Def.’s Stmt. of

Material Facts Not in Dispute (“Def.’s Stmt.”) at ¶ 1.) Hopkins - 3 -

received an e-mail from an employee of the State Department’s

Office of Language Services stating that the Office of Language

Services was recruiting a staff Russian interpreter, and inviting

Hopkins to apply for the position. (Compl. at ¶ 9.) Hopkins

replied to the e-mail, and shortly thereafter received an

official announcement via fax. (Compl. at ¶ 10.) The

announcement included a questionnaire containing 17 questions.

Hopkins applied for the position at both the grade GS-13 and

grade GS-14 levels, and OPM confirmed that it had received

Hopkins’ application. OPM’s automated staffing system evaluated

applicants’ questionnaire responses and generated a numeric

rating for the applicants. (Def.’s Stmt. at ¶ 3.) OPM staff

examined the top scoring applicants’ application materials and

compared them to objective benchmarks to ensure the accuracy of

the automated staffing systems’ rankings, and to ensure that the

applicants’ self-assessments about their ability to interpret

Russian were substantiated. (See Def.’s Mem. of P. & A. in Supp.

of its Mot. to Dismiss and for Summ. J. at 10-11.) Later, OPM

informed Hopkins that his application would be considered under

open competition examining procedures, and that he had been found

to be qualified for the position he sought based upon OPM’s

review of his application. (Compl. at ¶ 13.)

Hopkins was one of 29 applicants to apply for the Russian

Interpreter position (Def.’s Stmt. at ¶ 5), and one of - 4 -

11 candidates whose application materials OPM forwarded to the

State Department. His score was 92 out of 100, which fell in the

category of well-qualified. (Def.’s Stmt. at ¶ 7.) However,

Hopkins was not interviewed for the position because the State

Department decided to interview only the top four scoring

candidates applying for the position at the GS-13 grade, and his

name was not listed as one of the top four scoring candidates.

(Pl.’s Resp. to Def.’s Mot. (“Pl.’s Resp.”) Ex. 3, Sprague Aff.

at 1-2, April 15, 2003.) In December 2002, OPM informed Hopkins

that his application “was among those referred to the selecting

official . . . . However, no selection was made from those

referred.” (Compl. at ¶ 16; Def.’s Stmt. at ¶ 12.) According to

Brenda Saunders Sprague, the Director of the Office of Language

Services, the vacancy announcement was withdrawn “due in large

part to a changed workload and resulting lack of work for Russian

interpreters.” (Def.’s Mot. to Dismiss and for Summ. J. (“Def.’s

Mot.”), Ex. 9, Sprague Aff. ¶ 4, October 27, 2005.)

Hopkins alleges that he was the most qualified applicant

based upon objective standards used among language professionals.

However, Hopkins alleges that he was given a lower rating and

ranking on the OPM certificate of eligibles than he should have

been given because the OPM examiner favored applicants whose

national origin suggested that their native language was Russian.

(Compl. at ¶ 17.) Hopkins contends that the extent and quality - 5 -

of his qualifications were superior to that of the other

identified candidates, yet were underrated by the automated

computer ranking and scoring system. According to Hopkins, the

OPM examiner who reviewed his application should have realized

that the computer generated ratings for other applicants were

over-inflated. He also claims that the OPM examiner made

subjective determinations that had a disproportionate impact on

people who were not native Russian speakers because the reviewing

official subjectively over-inflated the scores for native Russian

speakers. As a result, he says, two thirds of the top-ranking

candidates were people who had been educated in the Soviet Union.

(Compl. at ¶¶ 18-19, 22.) According to Hopkins, the OPM examiner

should have changed or adjusted the rankings when he reviewed the

top scoring applicants’ application materials to account for

Hopkins’ superior qualifications, but did not do so. Hopkins

also alleges that he was considerably older than the applicants

that OPM rated as the top three scorers. (Compl. at ¶ 20.)

Plaintiff filed an administrative complaint of

discrimination, and OPM ultimately issued a final order denying

the complaint. (Compl. at ¶ 22.) Hopkins then filed this

action, and OPM moved for summary judgment on the claims of

national origin and age discrimination in scoring in the

complaint’s first and second causes of action, and dismissal of - 6 -

the disparate impact claim in the complaint’s third cause of

action.

DISCUSSION

I. DISCRIMINATORY SCORING

“Summary judgment is appropriate when the pleadings and the

evidence demonstrate that ‘that there is no genuine issue as to

any material fact and that the moving party is entitled to a

judgment as a matter of law.’” Feirson v. Dist. of Columbia,

(D.C. Cir. 2007) (quoting Fed. R. Civ. P. 56(c));

see also Nails v. England,

(D.D.C.

2004). “Not all alleged factual disputes represent genuine

issues of material fact which may only be resolved by a jury.

Material facts are those that might affect the outcome of the

suit under governing law, and a genuine dispute about material

facts exists if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Hines v. Bair,

(D.D.C. 2009) (quoting Nails,

) (internal quotations omitted).

“In deciding whether there is a genuine issue of material

fact, the court must assume the truth of all statements proffered

by the non-movant except for conclusory allegations lacking any

factual basis in the record.” Hines,

(quoting Hussain v. Nicholson,

(D.C. Cir. 2006)

(internal quotations omitted). “Summary judgment may be granted - 7 -

even if the movant has proffered no evidence, so long as the non-

movant ‘fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.’” Dist.

Intown Prop. L.P. v. Dist. of Columbia,

(D.C.

Cir. 1999) (quoting Celotex Corp. v. Catrett,

(1986)). “Although the burden on the nonmoving party is not

great, it is still required to show specific facts, as opposed to

general allegations, that present a genuine issue worthy of

trial.” Palestine Info. Office v. Shultz,

(D.C. Cir. 1988).

In general, a prima facie claim of discrimination requires a

plaintiff to establish that he is a member of a protected class

and that he was subjected to an adverse employment action which

gives rise to an inference of discrimination. See Mastro v.

Potomac Elec. Power Co.,

(D.C. Cir. 2006);

Stella v. Mineta,

(D.C. Cir. 2002); see also

Heasley v. D.C. General Hosp.,

(D.D.C.

2002) (“To establish [a] prima facie case of disability, age, or

race discrimination, plaintiff must establish, inter alia, that

[his] employer took an adverse employment action against [him]

because of [his] protected status.”). To establish a prima facie

case of discrimination in a job referral case, plaintiff must

show that 1) he belongs to a protected class; 2) he was qualified - 8 -

for and requested referral to jobs for which the employer

accepted referrals; 3) he was not referred despite his

qualifications; and 4) after refusing to refer plaintiff, the

referring agency continued to refer individuals to available

positions. See McDonnell Douglas v. Green,

(1973); Mills v. Int’l Brotherhood of Teamsters,

,

285 (5th Cir. 1981); Andrews v. Bechtel Power Corp.,

(1st Cir. 1985); NAACP Labor Comm. v. Laborers’ Int’l

Union of N. Am.,

(W.D. Va. 1995); Sharpe v.

Int’l Brotherhood of Electrical Workers, Civil Action No. 85-2564

(JHP),

, at *28 (D.D.C. April 30,

1990). A plaintiff can establish the necessary inference of

discrimination by showing that a similarly situated person

outside of his protected class requested and received the benefit

he desired, or by showing that an adverse employment action was

“not attributable to ‘the two most common legitimate reasons on

which an employer might rely to reject a job applicant: an

absolute or relative lack of qualifications or the absence of a

vacancy in the job sought.’” George v. Leavitt,

(D.C. Cir. 2005) (quoting Stella,

(internal

quotations omitted)); see also Cones v. Shalala,

(D.C. Cir. 2000).

In deciding summary judgment motions on Title VII and ADEA

claims, courts apply the burden-shifting framework announced in - 9 -

McDonnell Douglas,

. See Barnette v. Chertoff,

(D.C. Cir. 2006); Hall v. Giant Food, Inc.,

(D.C. Cir. 1999) (citing Paquin v. Federal

National Mortgage Ass’n,

(D.C. Cir. 1997)).

Under McDonnell Douglas, if the plaintiff establishes his prima

facie case, then the employer must “produce admissible evidence

that, if believed, would establish that [its] action was

motivated by a legitimate, nondiscriminatory reason.” Royall v.

National Ass’n of Letter Carriers,

(D.C.

Cir. 2008) (quoting Teneyck v. Omni Shoreham Hotel,

(D.C. Cir. 2004)). The defendant’s burden is one of

production, meaning it does not have to “‘persuade the court that

it was actually motivated by the proffered reasons.’” Barnette,

(quoting Tex. Dep’t of Community Affairs v.

Burdine,

(1981)). If the defendant meets this

burden of production, the burden-shifting framework disappears,

and a court deciding a summary judgment motion looks to whether a

reasonable jury could infer intentional discrimination or

retaliation from the evidence presented by the plaintiff.

Hopkins fails to establish a prima facie case of

discrimination against OPM. As an initial matter, OPM did refer

Hopkins’ application to the State Department and assigned it a

score of 92, reflecting that he was well qualified for the

position Hopkins sought. (Def.’s Stmt. ¶¶ 7, 10.) This negates - 10 -

Hopkins’ implication that OPM constructively prevented him from

being referred to the State Department for an interview. (See,

e.g., Pl.’s Stmt. of Genuine Issues, ¶¶ a(7), b(1).) While

Hopkins alleges that he would have been given the position if he

had been granted an interview with the State Department, the

vacancy announcement was withdrawn “due in large part to a

changed workload and resulting lack of work for Russian

interpreters.” (Sprague Aff. ¶ 4, October 27, 2005.) It was the

State Department that chose not to interview all qualified

applicants, cancelled the vacancy announcement, and chose not to

hire anyone for the position Hopkins sought. (See id. ¶ 3.)

“When a government agency cancels a vacancy announcement and no

one outside the protected class is hired to fill the position,

the plaintiff cannot establish her prima facie case.” Bowie v.

Ashcroft,

(D.D.C. 2003) (citing Morgan v.

Federal Home Loan Mortgage Corp.,

(D.D.C. 2001) (holding that no adverse employment action exists

if, when the plaintiff applied, there was no vacancy, or the

position was never filled)). Therefore, Hopkins fails to show

that his failure to obtain a position with the State Department

was attributable to OPM’s decision not to manually adjust his

evaluation score. That is, plaintiff has not shown that OPM

caused the State Department not to interview or hire him. See

Teneyck,

(finding judgment as a matter of law - 11 -

proper where the plaintiff offered no evidence indicating that

the position for which she applied remained open); Hayslett v.

Perry,

(D.D.C. 2004) (finding that the

plaintiff could not establish a prima facie case of employment

discrimination based on non-promotion where the plaintiff lacked

evidence of an available position).

Even if OPM’s failure to beneficially adjust Hopkins’ score

could be viewed as the cause of his not being hired

notwithstanding the vacancy cancellation, OPM presents a neutral

explanation for its evaluation process and its failure to adjust

Hopkins’ score upward which Hopkins does not counter with

evidence permitting any reasonable inference of discrimination.

“Because courts are not superpersonnel departments that reexamine

an entity’s business decisions,” a plaintiff must present

evidence of “stark superiority of credentials over those of the

successful candidates.” Stewart v. Ashcroft,

, 429-

30 (D.C. Cir. 2003) (internal quotations omitted); Jackson v.

Gonzales,

(D.C. Cir. 2007) (“in order to

justify an inference of discrimination, the qualifications gap

must be great enough to be inherently indicative of

discrimination.). “This Court will not reexamine governmental

promotion decisions where it appears the Government was faced

with a difficult decision between two qualified candidates.”

Jackson,

. “[T]he Court will not second-guess an - 12 -

employer’s personnel decision unless the disparities in

qualifications ‘are so apparent as to virtually jump off the page

and slap [it] in the face.’” Hammond v. Chao,

(D.D.C. 2005) (granting government summary judgment

although plaintiff alleged that she had more experience than the

other candidates applying for the position) (quoting Choates v.

Powell,

(D.D.C. 2003)). “Even if a court

suspects that a job applicant was ‘victimized by [] poor

selection procedures’ it may not ‘second-guess an employer’s

personnel decision absent demonstrably discriminatory motive.’”

Fischbach v. Dist. of Columbia Dept. of Corrections,

(D.C. Cir. 1996) (quoting Milton v. Weinberger,

(D.C. Cir. 1982)).

OPM acknowledged that the top scorers and Hopkins were

experienced and well qualified. For the court to be asked to

judge whether Hopkins’ credentials were starkly superior to those

of the other well-qualified candidates who received higher scores

would likely thrust the court into a role disfavored by Jackson.

However, Hopkins’ evidence reflects a demonstrable absence of

discriminatory motive. While OPM staff may have had discretion

to subjectively alter the candidates’ scores when reviewing the

top scoring applicants’ application materials, the questionnaire

that the applicants completed contained no questions seeking the

applicants’ national origin or age, and Hopkins only speculates - 13 -

as to how OPM would deduce that information.2 (See Def.’s Mot.,

Ex. 2; Pl.’s Resp. at 13.) Although the plaintiff asserts that

John T. Mays, the OPM Human Resource Specialist who reviewed the

candidates’ materials, was clearly aware of several imperfect

proxies for the applicants’ national origin, such as where the

applicants were educated or whether the applicants were native

Russian speakers, Mays testified in his deposition that he was

not aware of those proxies, in part because he “didn’t really

look at education,” and instead focused on other factors, such as

work experience. (See Pl.’s Resp. Ex. 8 (“Mays Dep”) at 216-

217.) In addition, Mays measured applicants against external

benchmarks, not against each other, and raised and lowered

applicants’ scores based upon discrepancies between their

application materials and their self-assessed ability to

interpret Russian. (Mays Dep. at 151, 180-182, 191-192.)

Hopkins also argues that he should have been ranked higher than

the top-ranked native Russian-language candidate because of his

2 While the questionnaire asked for the applicants’ citizenship, citizenship and national origin are distinct concepts. “Title VII forbids discrimination on the basis of national origin, not of citizenship.” Nyunt v. Tomlinson,

(D.D.C. 2008) (quoting Fortino v. Quasar Co.,

(7th Cir. 1991)). In addition, while the job announcement informed applicants that they would be required to provide “all biographic information” sought on Form 1203-FX, the biographic data that Form 1203-FX sought was an applicant’s first name, middle initial, last name, street address (including city, state, country, zip code), preferred contact time, and telephone number. The form did not seek national origin or age data. - 14 -

superior experience. However, their scores were close, and two

applicants Hopkins cites nonetheless each possessed a significant

amount of experience interpreting Russian. (Pl.’s Resp. at 10.)

Further, Hopkins acknowledges that a non-native Russian speaker

was the second-highest scoring applicant, receiving a rating of

98.0, placing her in the top three on the certificate of

eligibles and in the State Department’s range of targeted

interviewees. (Pl.’s Resp. at 10-11.) There is no reasonable

factual dispute left, then, for a jury to decide on the claim

that discriminatory scoring deprived Hopkins of a job.

II. DISPARATE IMPACT

OPM moves under Federal Rule of civil Procedure 12(b)(1) to

dismiss Hopkins’ Title VII and ADEA disparate impact claims

contained in the third cause of action in Hopkins’ complaint,

arguing that Hopkins failed to satisfy the jurisdictional

prerequisite of exhausting his administrative remedies. However,

“motions to dismiss for failure to exhaust administrative

remedies are more appropriately analyzed under Rule 12(b)(6)[,]”

which involves failure to state a claim for which relief can be

granted. Marshall v. Honeywell Tech. Solutions, Inc.,

, 64 n.6 (D.D.C. 2008) (quoting Hazel v. Wash. Metro.

Transit Auth., Civil Action No. 02-1375 (RWR),

,

at *3 (D.D.C. Dec. 4, 2006)). “In order to survive a motion to

dismiss under Rule 12(b)(6), the allegations stated in the - 15 -

contested portion of the plaintiff’s complaint ‘must be enough to

raise a right to relief above the speculative level[.]’” Demery

v. Montgomery County,

(D.D.C. 2009)

(quoting Bell Atl. Corp. v. Twombly,

(2007)).

If a plaintiff does not assert sufficient facts to support his

claim, that claim must be dismissed. Demery,

.

A disparate impact claim is distinct from the disparate

treatment claims Hopkins has alleged, and requires distinct

elements of proof. Disparate impact claims arise from employment

practices that are facially neutral in their treatment of

different groups, but that fall more severely on one statutorily

protected group than another in practice, and which a defendant

cannot justify by business necessity. Smith v. City of Jackson,

(2005). If an applicant for federal employment

believes that any practice has discriminated against him on the

basis of national origin or age, he must consult an agency equal

employment opportunity (“EEO”) counselor in an effort to solve

the situation informally. See

(a). This

contact with the EEO counselor must occur within 45 days of the

alleged discriminatory incident. See

(a)(1).

Alternatively, if the complainant alleges a violation of the

ADEA, the complainant can avoid seeking relief administratively,

and can instead decide to “bring the claim directly to federal - 16 -

court, so long as, within 180 days of the allegedly

discriminatory act, he provides the [Equal Employment Opportunity

Commission] with notice of his intent to sue at least 30 days

before commencing suit.” Hunter v. Rice,

(D.D.C. 2008) (citing 29 U.S.C. § 633a(c) and (d)). A

defendant bears the burden of proving that a plaintiff failed to

exhaust these administrative requirements. See Colbert v.

Potter,

(D.C. Cir. 2006); Armstrong v. Reno,

(D.D.C. 2001) (citing Bowden v. United

States,

(D.C. Cir. 1997) and Brown v. Marsh,

(D.C. Cir. 1985)).

Assuming that a disparate impact claim under the ADEA

against a federal employer is legally cognizable,3 Hopkins did

not comply with the administrative requirements under the ADEA or

Title VII before filing a lawsuit alleging disparate impact.

Hopkins’ administrative complaint of discrimination did not raise

a disparate impact claim against the OPM’s employment policies,

and there was no discussion of a disparate impact claim in the

counselor’s report or the investigative record. Hopkins’

administrative complaint, filed with OPM on December 31, 2002

states:

3 See Aliotta v. Bair,

, 127 n.7 (D.D.C. 2008) (noting that “[m]embers of the D.C. District Court remain divided on the issue” of whether a plaintiff may allege disparate impact under the ADEA against a federal employer.) - 17 -

It is my position that I should have been selected and employed for one of the two positions for which I applied. Because I was discriminated against in the selection process, I contend I should be compensated with back pay and other economic losses I suffered as a result of the discriminatory conduct in the selection process. I also seek compensatory damages for injury to my professional reputation and for psychological and emotional distress I have suffered. In the alternative, I should be ranked and listed among the top 3 candidates on a new referral to the Department of State and compensated with back pay and other economic losses I have suffered as a result of the discriminatory conduct by OPM. Prior to such a determination, I also seek an explanation of and the criteria used for assigning each candidate’s certification ranking, as well as the ranking of the candidates as to the two positions.

(See Def.’s Mot., Ex. 15B.) Specificity in a charge is not a

“mere technicality” and compliance with all administrative

procedures and deadlines is mandatory. Park v. Howard Univ.,

(D.C. Cir. 1995) (finding that a Title VII

plaintiff had not exhausted her administrative remedies because

her administrative complaint did not contain the allegation of

hostile work environment that appeared in the court complaint);

see also Lane v. Hilbert, Civil Action No. 03-5309,

, at *2 (D.C. Cir. May 12, 2004) (affirming

district court’s dismissal of plaintiff’s claim where plaintiff’s

district court complaint alleged disparate treatment on account

of sex, but her administrative complaint did not). The

allegations in an administrative complaint must be sufficiently

specific to give a federal agency the opportunity to handle the

matter internally, and Hopkins’ allegations did not provide a - 18 -

sufficient basis upon which the agency would know that he was

alleging that the ranking process itself resulted in a disparate

impact upon people within certain classes of age and national

origin. Brown,

; Park,

. In

addition, the plaintiff does not present any evidence that he

provided the advance notice of his intent to sue concerning

disparate impact as is required by 29 U.S.C. § 633a(c) and (d).

CONCLUSION

Hopkins does not present a prima facie case that OPM scored

his application discriminatorily or demonstrate that the OPM’s

stated rationale for not manually adjusting Hopkins’ score was

pretext. Hopkins also did not pursue his administrative remedies

with respect to his disparate impact claim. Thus, the

defendant’s motion to dismiss and for summary judgment will be

granted. An appropriate Order accompanies this Memorandum

Opinion.

SIGNED this 30th day of June, 2009.

/s/ RICHARD W. ROBERTS United States District Judge