UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) FELIX J. ESQUIBEL, ) ) Plaintiff, ) ) v. ) Civil Action No. 06-1485 (PLF) ) RAY LAHOOD, Secretary, United ) States Department of Transportation, ) ) Defendant.1 ) ____________________________________)

OPINION

This employment discrimination matter is before the Court on the parties’ cross

motions for summary judgment. After careful consideration of the parties’ papers, the attached

exhibits, the relevant case law, and the entire record in the case, the Court will deny plaintiff’s

motion for summary judgment and will grant defendant’s motion for summary judgment.2

I. BACKGROUND

On February 23, 2004, the Federal Aviation Administration (“FAA”) posted a

vacancy announcement for a Quality Management Systems & Standards Specialist. See Mot.,

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court substitutes as the defendant the current Secretary of the Department of Transportation, Ray LaHood, for the former Secretary, Maria Cino. 2 The papers submitted in connection with these motions include: Plaintiff’s Complaint (“Compl.”); Defendant’s Motion for Summary Judgment (“Mot.”); Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment and Plaintiff’s Cross Motion for Summary Judgment (“Opp.”); Defendant’s Reply to Plaintiff’s Opposition and Opposition to Plaintiff’s Cross-Motion for Summary Judgment (“Def.’s Rep.”); and Plaintiff’s Reply Brief in Support of Motion for Summary Judgment (“Pl.’s Rep.”). Ex. 1 (“Vacancy Announcement”) at 1.3 The position required, among other skills, knowledge of

a particular quality management system (the ISO 9000), and skills in guiding an organization’s

transition to the ISO 9000 standard. See id. As with other vacancies, the FAA Office of Human

Resources Management initially reviewed the applications to determine whether the applicants

met the minimum qualification requirements. See Def.’s Rep., Ex. B (Declaration of Norma C.

Bonewitz) ¶ 4. That Office then reviewed the knowledge, skills, and abilities (“KSAs”) of the

applicants who met the minimum qualification requirements and ranked the best qualified

candidates. See id. The top candidates then were placed on the “competitive selection list” and

their names were forwarded to management. See id. Juanita Young, then a manager of quality

assurance at the FAA, organized an interview panel of herself and two other FAA managers to

review the applications forwarded from Human Resources. See Mot., Deposition of Juanita

Young (“Young Dep.”) at 4, 7-9.

Plaintiff Felix J. Esquibel has worked as an FAA Area Supervisor since 1994.

See Opp., Ex. 2 (Deposition of Felix J. Esquibel (“Esquibel Dep.”)) at 15-17. Plaintiff submitted

an application for the vacant position to the FAA. See Esquibel Dep. at 38-39. Plaintiff’s name

was one of eleven names submitted by the Office of Human Resources Management to the

interview panel, but he was not invited to interview for the position. See Mot., Ex. 2 (Merit

Selection Certificate) at 1. The interview panel did invite two other applicants to interview for

the position and ultimately selected Michael J. Lightbown. See id. at 1-2. Plaintiff is Hispanic.

3 Though neither party defined “quality management systems” in their pleadings, it appears that the term refers generally to a set of management methodologies, the purpose of which is to achieve and maintain a standard level of quality in a particular field. See Mot., Ex. 1 at 1.

2 See Esquibel Dep. at 46-47. Mr. Lightbown is not. See Mot., Ex. 5 (Answers to Requests for

Admissions) ¶ 7. Plaintiff now brings suit with respect to his non-selection under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging that the FAA unlawfully

discriminated against him based on his race and national origin.

II. STANDARD OF REVIEW

Summary judgment may be granted only 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.,

, 247–48, (1986);

Holcomb v. Powell,

(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,

(quoting Anderson v. Liberty Lobby, Inc.,

).

An issue is “genuine” if the evidence is such that a reasonable jury could return a

verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc.,

;

Holcomb v Powell,

. When a motion for summary judgment is under

consideration, “the evidence of the non-movant is to be believed, and all justifiable inferences are

to be drawn in his favor.” Anderson v. Liberty Lobby, Inc.,

; see also Mastro v.

Potomac Elec. Power Co.,

(D.C. Cir. 2006); Aka v. Washington Hosp.

Ctr.,

(D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep’t of

Health and Human Servs.,

(D.C. Cir. 1989). On a motion for summary

3 judgment, the Court must “eschew making credibility determinations or weighing the evidence.”

Czekalski v. Peters,

(D.C. Cir. 2007).

The non-moving 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)(2); Celotex Corp. v. Catrett,

(1986). The non-moving

party is “required to provide evidence that would permit a reasonable jury to find” in his favor.

Laningham v. U.S. Navy,

(D.C. Cir. 1987). If the evidence is “merely

colorable” or “not significantly probative,” summary judgment may be granted. Anderson v.

Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris,

(2007) (“Where

the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,

there is no ‘genuine issue for trial.’”) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986)). To defeat summary judgment, a plaintiff must produce more than “a

scintilla of evidence to support his claims.” Freedman v. MCI Telecomms. Corp.,

(D.C. Cir. 2001).

III. ANALYSIS

A. Summary Judgment Under Title VII

Plaintiff asserts that the FAA violated Title VII by not hiring him because of his

race and national origin.4 Absent direct evidence of discrimination, his disparate treatment claim

4 Title VII provides, in pertinent part, that “[a]ll personnel actions affecting employees or applicants for employment . . . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e- 16(a).

4 must be analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green,

(1973). See Barnette v. Chertoff,

(D.C. Cir. 2006).

Traditionally, within that framework, plaintiff must first establish a prima facie case of

discrimination. See Teneyck v. Omni Shoreham Hotel,

(D.C. Cir. 2004).

Doing so creates a rebuttable presumption of discrimination and “triggers the employer’s burden

to produce admissible evidence that, if believed, would establish that the employer’s action was

motivated by a legitimate, nondiscriminatory reason.”

. If the employer meets this

burden, all presumptions drop away and the Court must address the ultimate question: “whether

intentional discrimination may be inferred from all the evidence before the trier of fact,”

including any evidence that the employer’s asserted reasons are pretextual.

The United States Court of Appeals for the District of Columbia Circuit recently

made clear that a “district court need not — and should not — decide whether the plaintiff

actually made out a prima facie case under McDonnell Douglas” at the summary judgment stage

if the plaintiff “has suffered an adverse employment action, and [the defendant] has asserted a

legitimate, non-discriminatory reason for the decision.” Brady v. Office of the Sergeant at Arms,

(D.C. Cir. 2008) (emphasis in original). The Court continued:

Rather, . . . in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted non- discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of [any statutorily prohibited factors, such as race or national origin]?

In this case, plaintiff suffered an adverse employment action when he was not selected, and

defendant has asserted a legitimate non-discriminatory reason for not selecting plaintiff for the

5 vacant position. Accordingly, the Court will consider the parties’ arguments about the proffered

reason.5

B. Defendant’s Proffered Legitimate Non-Discriminatory Reason

Juanita Young, one of the members of defendant’s interview panel explains that

the panel was “looking for someone with hands-on experience in the Quality Management

System and also a person who had detailed auditing experience.” See Def.’s Reply, Ex. A

(Declaration of Juanita Young (“Young Decl.”)) ¶¶ 2-3. The interview panel selected certain

persons to be interviewed because they “had the skills we were looking for,” — namely, “[t]hey

had quality management, established quality management systems, overseen quality management

systems, audited quality management systems and contractors, their process and procedures and

specifications. . . as well as detailed auditing.” Young Dep. at 17, 19. Ms. Young stated that

plaintiff was not selected for an interview because “he did not have the necessary hands-on

experience in setting up a quality management system or the detailed experience in auditing that

we were looking for.” Young Decl. ¶ 3.

Defendant has proffered evidence to show that it had a legitimate non-

discriminatory reason for plaintiff’s non-selection — that the plaintiff did not possess two of the

desired job skills: hands-on experience in quality management systems and detailed experience in

auditing. Plaintiff argues that this reason is pretextual because defendant also hired an outside

5 The Court notes defendant’s assertion that at least one member of the interview panel did not know of plaintiff’s race or national origin at the time that she reviewed his application. See Mot., Statement of Material Facts Not in Dispute ¶ 5. Plaintiff has not filed a statement admitting or denying defendant’s asserted facts. Accordingly, the Court may take this fact as conceded, see L. CIV . R. 7(h), thereby creating substantial doubt about plaintiff’s ability to establish a prima facie case of discrimination.

6 contractor who had hands on experience in quality management systems to assist the selectee.

Plaintiff also argues that his qualifications were so superior to the selectee’s that only

discriminatory intent could explain his non-selection. The question before the Court is whether,

drawing all reasonable inferences in his favor, plaintiff has produced sufficient evidence for a

reasonable jury to find that defendant’s asserted non-discriminatory reason was not the actual

reason, and that the FAA discriminated against plaintiff on the basis of his race and national

origin. See Brady v. Office of the Sergeant at Arms,

.

C. Plaintiff’s Attempt to Show Pretext

1. The Outside Contractor

Plaintiff argues that a reasonable jury could conclude that the FAA’s asserted

reason for not hiring him is pretextual because, while the FAA claims that the hands-on

experience requirement was important, after making its selection for the vacant position the FAA

also hired an outside contractor to set up the new quality management system. See Opp. at

15–16; Young Dep. at 72. According to plaintiff, by hiring the contractor, the defendant

eliminated the need for its selected candidate to have hands-on experience in quality management

systems. While plaintiff is entitled to have all reasonable inferences drawn in his favor, the

Court finds that the record evidence does not support plaintiff’s conclusion.

In her deposition, Ms. Young stated that while the outside contractor was

responsible for setting up the quality management system, the selectee’s experience was

necessary because the contractor did not have specific knowledge about the FAA office, and the

two individuals needed to work together to accomplish the transition to the ISO 9000 system.

7 See Young Dep. at 72-73. She explained that “[t]he contractor doesn’t understand our system.

He doesn’t understand our Office.” Id. at 73. Moreover, once the system was set up, and the

contractor had finished his or her work, the selectee would be responsible for maintaining the

new system. See id. at 72-73. Ms. Young stated that they had “made a decision [we] were going

to hire a contractor to take care of much of the interfacing with the quality management rep in

setting up the system . . . . [T]he primary goal [for the selectee] is after everything is set up, then

it has to be maintained. . . . [T]he contractor was responsible to set up, but [the selectee] was

assisting. . . [The selectee] was instrumental in the hands on in helping the contractor set up and

organize.” Id. Plaintiff has not proffered any evidence that raises a material issue of fact

regarding this explanation. See Moncada v. Peters,

(D.D.C. 2008) (“A

plaintiff that offers only ‘mere speculation[]’ to refute the employer”s proffered legitimate,

non-discriminatory reason, however, fails to create a genuine issue of material fact to avoid

summary judgment.”) (quoting McKenzie v. Principi, 54 Fed. App’x 1, 3 (D.C. Cir. 2002)).

Thus, the mere fact that the FAA hired an outside contractor to assist Mr. Lightbown would not

permit a reasonable jury to conclude that the FAA harbored discriminatory animus.

In further support of defendant’s argument that the hands-on experience

requirement was not pretextual, Ms. Young stated in her declaration that she did not know that an

outside contractor would be hired when the panel decided who would be interviewed to fill the

vacancy. See Young Decl. ¶ 4.6 Plaintiff argues that Ms. Young’s disavowal of the knowledge

6 In fact, after the panel selected Mr. Lightbown, he was transferred out of Ms. Young’s branch of the FAA and placed under the supervision of Mr. Frank Paskiewicz. See Young Decl ¶ 4. Ms. Young had no involvement in the hiring of the contractor. See

Conversely, Mr. Paskiewicz had no part in reviewing applications and choosing which applicants would be interviewed. See

8 that a contractor would be hired is “patently false” because the FAA’s interrogatory responses

“indicate that the Agency budgeted for, and thus planned to hire an outside contractor to perform

the ‘hands-on’ implementation of the system” before the selection process occurred. Pl.’s Rep. at

13; see also Mot., Ex. 6 ¶ 12. The evidence that the FAA budgeted to hire a contractor does not

raise a genuine issue of material fact as to Ms. Young’s statement that she did not know of this

fact. Cf. Montgomery v. Chao,

(D.D.C. 2007) (granting summary

judgment where argument advanced by plaintiff to show pretext lacked support in the record).

Accordingly, the Court finds that the employment of the contractor does not support a finding

that defendant’s proffered legitimate non-discriminatory reason was pretextual.

2. Comparative Qualifications

Plaintiff also argues that he was more qualified than the selectee and that this

difference shows pretext. As Judge Bates recently noted, however, a “plaintiff asserting that an

employer’s explanation is pretextual based upon comparative qualifications faces a formidable

task.” Nyunt v. Tomlinson,

(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.”

(quoting Jackson v. Gonzales,

(D.C. Cir.

2007)). In this case, any gap between plaintiff’s qualifications and the selectee’s qualifications is

not great enough to be indicative of discrimination. The record shows that plaintiff possesses a

Masters degree and had worked at the FAA since 1988, in addition to his various other

qualifications. See Esquibel Dep. at 13, 22. The record also reveals that Mr. Lightbown

possesses a Bachelors degree, and had worked at the FAA since 1991. See Mot., Ex. 4

9 (Lightbown Application). Having carefully considered the record evidence bearing on plaintiff’s

and Mr. Lightbown’s respective qualifications, the Court concludes that plaintiff is “simply not

discernibly better” than Mr. Lightbown, Stewart v. Ashcroft,

(D.C. Cir. 2003),

and “[c]ourts should not second-guess or reexamine hiring decisions involving close choices

between qualified candidates.” Nyunt v. Tomlinson,

. It would be

inappropriate for this Court to act as a “super-personnel department” and substitute its own

evaluation of the candidates’ qualifications for defendant’s. Moncada v. Peters,

; see also Barbour v. Browner,

(D.C. Cir. 1999). The Court finds that

a comparison of Mr. Lightbown’s and the plaintiff’s qualifications does not demonstrate pretext.

IV. CONCLUSION

For the reasons explained above, defendant’s motion for summary judgment is

granted, and plaintiff’s cross motion for summary judgment is denied. An Order consistent with

this Opinion shall issue this same day.

/s/ PAUL L. FRIEDMAN United States District Judge

DATE: March 31, 2009

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