UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SEDERIS FIELDS,

Plaintiff,

v. Civil Action 06-00538 (HHK)

TOM VILSACK, Secretary, United States Department of Agriculture,

Defendant.

MEMORANDUM OPINION

Sederis Fields brings this action against Tom Vilsack, Secretary of the United States

Departure of Agriculture (“USDA” or “agency”), claiming that the agency discriminated against

her on the basis of her race and gender in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. 2000e et seq. (“Title VII”). Presently before the Court is the USDA’s motion for

judgment as a matter of law under Federal Rule of Civil Procedure 50 [#60]. Upon consideration

of the motion, Fields’ response thereto, and the entire record of the case, the Court concludes that

the motion should be granted.

I. BACKGROUND

Since 1999, Fields, who is Black and female, has been employed at the GS-13 level in the

office of Douglas Frago, the Deputy Administrator for Field Operations (“DAFO”) in the Farm

Services Agency (“FSA”) of the USDA. In 2003, the USDA posted three GS-14 vacancies: two

Administrative Management Services (“AMS”) positions and one Agricultural Program

Specialist (“APS”) position. Fields applied for the AMS positions, as did USDA employees Ken

Nagel and Pat Spalding, who are both White and male. Nagel also applied for the APS vacancy,

but Fields did not. The applications for all three positions were sent to Human Resources. Carolyn Taylor, a

Human Resources personnel staffing specialist, determined whether each applicant met the

minimum qualifications of each position for which he or she applied and developed a “best

qualified” list of thirteen applicants based on their answers to questions submitted through a

computer program. Taylor then sent the list to Frago, who was the selecting official.

Although Frago was permitted under agency rules to select two applicants from the best

qualified list for the AMS positions without holding any interviews, he chose to hold two rounds

of interviews for the AMS position. During the first round, each of the applicants on the best

qualified list had a panel interview,1 conducted by Frago; Frago’s assistant, John Chott; USDA

employee Salomon Ramirez, a Hispanic male; and EEO representative Sean Clayton, a Black

male. Fields’ first interview was held on July 8, 2003.

The five applicants who earned rankings of “High” as a result of the first interview,

including Fields, had a second interview. When Chott asked Taylor if an EEO observer was

needed for the second interview, Taylor told him that “[t]he EEO representative is required only

for ‘panel interview’ process. If you are doing a second interview, which is usually with the

selecting official or representative, you do not need EEO present.” Joint Exhibit (“JX”) 22

(7/11/03 Email from Taylor to Chott). Fields’ second interview was conducted by Frago, Chott,

and Linda Treese, a new employee who would be supervising the employees selected for the

AMS positions. No EEO representative was present for Field’s second interview. On the same

1 Under agency rules, panel interviews are required only for supervisory positions, but, whenever held, must meet certain conditions. One of these conditions is that an Equal Employment Opportunity representative must observe the interview. See infra section III.A.3.

2 day as her second interview, Fields learned that she had not been selected for either AMS

position. Chott announced the next day that Frago had selected Nagel and Spalding for the AMS

vacancies.

Fields alleges that she was not selected for the AMS position due to unlawful

discrimination on the basis of her race and gender. The USDA moved for summary judgment,

contending that Nagel and Spalding were selected instead of Fields because they were more

qualified. The Court denied the USDA’s motion for summary judgment, concluding that there

was “enough evidence to raise a genuine issue of material fact as to whether the USDA’s

explanation [for not selecting Fields] is pretextual.” Fields v. Johanns,

(D.D.C. 2008). The Court found “no evidence that Fields was significantly more qualified than

Nagel and Spalding for the AMS position,” and “substantial evidence that shows that Nagel and

Spalding were just as qualified for the position — and perhaps even more qualified — as Fields.”

. However, the Court held that a factual dispute existed as to whether Nagel was

preselected, and as to which set of regulations regarding interview procedures applied at the time

of Fields’ application.

. Because preselection and the failure of an agency to follow its

own procedures could be evidence of pretext, the Court held that it could not grant summary

judgment for the USDA.

A jury trial was held. At the close of all the evidence, the USDA moved under Federal

Rule of Civil Procedure 50 for judgment as a matter of law, which the Court took under

advisement. When the jury was unable to reach a unanimous verdict, the Court declared a

mistrial. Presently before the Court is the USDA’s renewed motion for judgment as a matter of

law.

3 II. LEGAL STANDARDS

A. Judgment as a Matter of Law Under Federal Rule of Civil Procedure Rule 50(a)

Under Federal Rule of Civil Procedure 50(a), a court may render judgment as a matter of

law after a jury trial if “the court finds that a reasonable jury would not have a legally sufficient

evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a). When deciding a Rule

50 motion, “the court should review all of the evidence in the record.”2 Reeves v. Sanderson

Plumbing Prods.,

(2000). “In doing so, however, the court must draw all

reasonable inferences in favor of the nonmoving party, and it may not make credibility

determinations or weigh the evidence.”

“Judgment as a matter of law is appropriate only if

the evidence and all reasonable inferences that can be drawn therefrom are so one-sided that

reasonable men and women could not have reached a verdict in plaintiff's favor.” McGill v.

Munoz,

(D.C. Cir. 2000) (internal quotation omitted).

B. Title VII

Title VII of the Civil Rights Act makes it “an unlawful employment practice for an

employer . . . to discriminate against any individual with respect to his compensation, terms,

2 With its Rule 50 motion, defendant filed a statement of material facts not in genuine dispute. Plaintiff submitted a response, which defendant then moved to strike [#69] on the ground that it violates Local Civil Rules 7(h) and 56.1 because Fields’ response contains argument even as to facts Fields admits, her dispute of some facts is contrary to the trial testimony, and other disputes are not supported by citations to the record. The Court finds that it would not be appropriate to strike plaintiff’s response to defendant’s statement of material facts. See Hickey v. Scott,

(D.D.C. 2010) (“‘A motion to strike is considered an exceptional remedy and is generally disfavored, and the proponent of such motion must shoulder a formidable burden.’”) (quoting United States ex rel. K & R Ltd. P’ship v. Mass. Hous. Fin. Agency,

(D.D.C. 2006)). Instead, the Court will grant defendant’s alternative request to accept its motion to strike as a reply to Fields’ opposition to its statement of material facts.

4 conditions, or privileges of employment, because of such individual’s race, color, religion, sex,

or national origin.” 42 U.S.C. § 2000e-2(a)(1). In the absence of direct evidence of

discrimination, courts analyze Title VII discrimination claims under the procedural framework

established in McDonnell Douglas Corp. v. Green,

(1973). See Holcomb

v. Powell,

(D.C. Cir. 2006). Under this framework, a plaintiff must first

establish a prima facie case of discrimination; the defendant must then offer a legitimate non-

discriminatory reason for its actions; if the defendant does so, the plaintiff bears the burden of

establishing that the asserted reason is a pretext for unlawful discrimination.

In the context of a motion for judgment as a matter of law, the Court will grant the

USDA’s motion if the Court finds that a reasonable jury would not have a legally sufficient

evidentiary basis to find that the USDA’s asserted non-discriminatory reason was not the actual

reason for Fields’ non-selection and that the agency intentionally discriminated against Fields on

a prohibited basis.

III. ANALYSIS

The USDA argues that it is entitled to judgment as a matter of law because the evidence

presented at trial fails to establish that Fields was not selected for the AMS position on the basis

of her race or sex. The USDA contends that the evidence fails to refute its legitimate, non-

discriminatory reason for not selecting Fields, specifically that she was less qualified than the

selectees and did not perform as well during the interview process. Fields asserts that the

USDA’s profferred reason is pretextual and that discrimination is the actual reason for her non-

selection. For the reasons explained below, the Court concludes that the USDA’s arguments

have merit and finds that it is entitled to judgment as a matter of law.

5 A. There Is Insufficient Evidence That the USDA’s Proffered Reason for Not Selecting Fields Was Pretextual.

Fields contends that because the evidence shows that (1) she was more qualified for the

position than Nagel and Spalding, (2) Nagel was preselected, and (3) the USDA violated its own

regulations governing interviewing procedures, a reasonable jury could conclude that the

USDA’s proffered reasons for failing to promote plaintiff were false and that intentional race and

gender discrimination were the real reason. The USDA maintains that these claims are not

supported by the record. The Court agrees with the USDA and addresses each allegation in turn.

1. The evidence did not establish that Fields was significantly more qualified than the selectees.

Defendant’s proffered explanation for not selecting Fields is that she was not the most

qualified candidate for the AMS position, which required candidates with a broad range of

administrative skills to provide “instruction and policy guidance to State and county FSA offices

related to administrative and management issues” like “budget, workload analysis and reporting,

personnel, fiscal management,” JX 1 (AMS Vacancy Announcement) at 2, nor did she perform

as well as the selectees during the interview process. Plaintiff takes issue with the claim that she

had less administrative experience than Nagel and Spalding, noting that she had been employed

at the GS-13 level longer than them.

It is well-settled in the D.C. Circuit that a “plaintiff can show her employer discriminated

by showing that she was ‘significantly’ or ‘markedly’ more qualified for the job than was the

candidate who actually received it.” Hendricks v. Geithner,

(D.C. Cir.

2009) (quoting Lathram v. Snow,

, 1091-92 (D.C. Cir. 2003)). A jury can infer

discrimination based on such a showing, but “[w]ithout such a decisive showing,” the court

6 “rightfully defer[s] to the business judgment of an employer and ha[s] no cause to infer

discrimination.” Id.; see also Adeyemi v. District of Columbia,

(D.C.

Cir. 2008). As the D.C. Circuit has instructed:

The qualifications gap must be “great enough to be inherently indicative of discrimination.” Jackson v. Gonzales,

(D.C. Cir. 2007) (internal quotation marks omitted). Only then could the fact-finder “legitimately infer that the employer consciously selected a less-qualified candidate-something that employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture.”

(internal quotation marks omitted). In cases where the comparative qualifications are close, a reasonable jury would not usually find discrimination because the jury would “assume that the employer is more capable of assessing the significance of small differences in the qualifications of the candidates, or that the employer simply made a judgment call.” Aka v. Washington Hosp. Ctr.,

(D.C. Cir. 1998) (en banc); see also Jackson,

. We must “respect the employer’s unfettered discretion to choose among qualified candidates.” Fischbach v. D.C. Dep’t of Corr.,

(D.C. Cir. 1996). To conclude otherwise, we have said, “would be to render the judiciary a super-personnel department that reexamines an entity’s business decisions-a role we have repeatedly disclaimed.” Jackson,

(internal quotation marks omitted).

Adeyemi,

.

As an initial matter, the Court finds no basis for a reasonable jury to find that the USDA’s

asserted non-discriminatory reason is false insofar as it relies on Fields’ qualifications compared

to the selectees’. As the Court previously found, “[t]here is substantial evidence that shows that

Nagel and Spalding were just as qualified for the position — and perhaps even more qualified —

as Fields. Both had a broader range of experience than Fields.” Fields,

.

The Court’s holding was supported by the evidence presented at trial, which showed that

Fields did not have a broad range of administrative experience. Unlike Nagel and Spalding,

Fields had never worked in a state or county FSA office. Fields’ experience was also focused in

the area of Equal Employment Opportunity, which was not among the major duties of the AMS

7 position, and she did not establish that she had experience in the major duties of budget,

workload analysis and reporting, or fiscal management — much less that she was significantly or

markedly more qualified than Nagel and Spalding in these areas. The fact that Fields was

employed at the GS-13 level for longer than Nagel and Spalding is inapposite given that her

responsibilities during that time were not relevant to the duties of the AMS position, while those

performed by Nagel and Spalding were. See Francis v. District of Columbia,

(D.D.C. 2010) (“As this Circuit has explained, the applicants’ relative grade levels at the time

of the application are irrelevant, for ‘it says little about the level of relative . . . qualifications to

serve.’”) (quoting Barnette v. Chertoff,

(D.C. Cir. 2006)).

Indeed, Fields admits that she, Nagel, and Spalding all “had solid administrative and

interpersonal experience” and “had extensive ‘in the field’ experience.” Plaintiff’s Opposition to

Defendant’s Motion [#65] (“Pl’s Opp’n”) at 19. Fields also concedes that her job focus was in

the area of Equal Employment Opportunity and that she “may have had a lack of complete

knowledge” of some of the position’s major duties, but argues that Nagel and Spalding did as

well. Id. at 20. In sum, Fields has failed to demonstrate that she was “significantly” or

“markedly” more qualified than Nagel and Spalding. See, e.g., Porter v. Shah,

(D.C. Cir. 2010) (finding that plaintiff “plainly lacked the ‘stark superiority of

credentials’ over [the selectee] that can give rise to an inference of pretext”) (quoting Stewart v.

Ashcroft,

(D.C. Cir. 2003)); Francis,

(“Construing the

record in the light most favorable to [plaintiff], no reasonable jury could find [the selectee]

unqualified for the position of Protective Services Manager, nor could it find [plaintiff]

significantly better qualified.”); see also Adeyemi,

(finding that a

8 comparison of plaintiff’s and the selectees’ relative qualifications failed to raise an inference of

discrimination, and indeed the evidence of the selectee’s “superior qualifications tends to

undermine any suggestion of discrimination”).

In addition, there is evidence that Fields did not perform well during her second

interview. While Fields admits that she was nervous during her second interview, she contends

that given Frago’s knowledge of her application and first round interview, the number of years of

experience she had at the GS-13 level, and the confidence she showed on the job, Frago’s

assessment of her alleged nervousness was “disingenuous.” Pl.’s Opp’n at 21. She suggests that

he should have “inquire[d] further into Plaintiff’s nervousness or mitigate[d] it in his own mind,”

particularly if “he was sensitive to the issues of ‘diversity’” and realized that the second round

interview was conducted by interviewers who were White while she was being assessed against

other candidates who were White.

Fields also argues that Frago’s perception of her

performance contrasts with Treese’s, who testified that Fields “did a good job.” 2/26/09

Transcript II at 7. Pointing to Treese’s scores for each of Fields’ questions, Fields suggests that

Treese lowered her ratings to make the difference between Fields’ scores and the selectees’ even

greater, and suggests that Treese might have changed the scores at Frago’s behest.

The Court finds no merit in Fields’ argument regarding her second interview. Fields does

not dispute that she was nervous; she merely tries to explain that her nervousness was based on

the composition of the group that interviewed her and suggests that Frago should have

discounted her nervousness due to her race. Moreover, this argument is contrary to her testimony

at trial, during which she said she did not believe she was nervous during the second round.

2/24/09 Transcript (“Tr.”) I at 41. The Court also rejects the allegation that Treese changed

9 Fields’ scores to make it appear that she performed worse than she did. Treese testified, without

contradiction, that although she lowered the score for one question from “3” to “2,” she also

raised the score for another from “2” to “3.” 2/26/09 Tr. II at 16-17; see also JX 18 (Interview

Sheet for Sederis Fields) at 1; JX 19 (Second Interview Score Tally Sheet). As a result, Treese’s

overall score for Fields’ interview remained the same at 8.5. See JX 18; JX 19.

Because Fields has not demonstrated that she was significantly or markedly more

qualified for the AMS position than the selectees, the Court finds that a reasonable jury would

not have a legally sufficient evidentiary basis to find that the USDA’s explanation was false.

2. The evidence did not establish that Nagel was preselected for the position.

Fields further contends that the USDA’s reason is pretextual because Frago preselected

Nagel for the AMS position and predetermined that Fields would not be selected for the position.

In support of this claim, Fields alleges that Nagel was offered his choice between the AMS and

APS positions; highlights that the selection for the APS position for which Nagel applied was

made before Fields’ second interview; and notes that Fields was informed that she was not

selected for the AMS position on the same day as her second interview — a day before Spalding,

the other selectee, accepted his offer. The USDA responds that Fields’ allegations are not

supported by the evidence. The Court agrees.

The evidence shows that Nagel applied and was interviewed for both the AMS and APS

positions and was never offered a choice between the two positions. During Frago’s deposition,

he stated that Nagel would be offered the choice, but at trial he testified that he did not recall

doing so, 2/24/29 Tr. II at 20, and, most significantly, Nagel testified that he was never offered

the choice, 2/26/09 Tr. II at 30, 34-35. Although the selectee for the APS position — for which

10 Nagel applied but Fields did not — was announced prior to Fields’ second interview, there is no

evidence that Nagel was offered the AMS position before Fields’ second interview. While Fields

highlights that Frago changed his testimony regarding whether he made the decisions as to all

three positions at the same time or until after Plaintiff’s interview, there is no dispute that no

offers for the AMS positions were made until after Fields’ second interview. The fact that Fields

was informed that she was not selected even before Spalding accepted does not necessarily show

that her non-selection was predetermined, as both Spalding and Bruce Peters appear to have

received higher total scores for the second interview than Fields. See JX 19. Fields’ preselection

argument is further undermined by the fact that Frago was permitted to fill the AMS positions

solely from the “best qualified” list prepared by Taylor, yet chose to evaluate the selectees in two

rounds of interviews along with all of the other candidates.

Preselection is “‘undeniably relevant to the question of discriminatory intent’ and may

allow a factfinder to reasonably reject the employer's asserted non-discriminatory justification,”

Smith v. Napolitano,

(D.D.C. 2009) (quoting Krodel v. Young,

(D.C. Cir. 1984)), but “‘[p]reselection . . . does not violate Title VII when such

preselection is based on the qualifications of the party and not on some basis prohibited by Title

VII.’” Oliver-Simon v. Nicholson,

(D.D.C. 2005) (quoting Goostree v.

Tennessee,

(6th Cir. 1986)). As the Court has held, Nagel was at least as

qualified for the position as Fields and had a broader range of experience. Fields,

. In light of the record, Fields’ claim of preselection fails to raise any inference of

pretext. See, e.g., Gonzales v. Holder,

(D.D.C. 2009) (rejecting

plaintiff’s attempt to show pretext on the basis of preselection where plaintiff “adduced no

11 evidence tending to show that, even if [selecting official] did preselect [selectee], she did so out

of an intent to retaliate, rather than a desire to hire the most qualified candidate”).

3. The evidence did not establish that the USDA violated its own regulations.

Fields argues that Frago chose to conduct a second interview because he was not pleased

that she was rated “High” after her first round interview and wanted to conduct a second

interview to disadvantage her. By holding a panel interview in the second round without an EEO

observer, Fields contends that the USDA violated the regulations by failing to include an EEO

observer and intentionally put her at a disadvantage “by excluding the voice of racial diversity on

the panel where it had been present on the first panel.” Pl.’s Opp’n at 25. Defendant responds

that Frago decided to conduct a second round to allow Linda Treese to participate because Treese

would be supervising the selectees, that Human Resources advised Chott that no EEO observer

was required because the second round was not a “panel interview,” and that, even if it were a

panel, the second round interviewers were not in fact less diverse than those in the first round.

The Court finds that the USDA did not violate interview procedures, but that, even if did, any

violation was not motivated by an unlawful intent to discriminate.

Plaintiff asserts that Taylor’s advice that no EEO observer was needed for the second

interview was misinformed because, at the time she sent the email informing Chott that no EEO

observer was needed for the second round interview, she did not know how many interviewers

would be present. Taylor testified, however, that when responding to Chott, the number of

people who would conduct the interview was of no importance to her. 2/26/09 Tr. III at 68.

According to Taylor, there is no requirement as to what has to happen during the second round of

interviews after a first round panel interview, including no requirement that an EEO observer be

12 present during the second round of interviews. Id. at 66-67. This is so, because according to

Taylor’s testimony, a second interview is under no circumstances a “panel interview.” Id. at 72.

She advised Chott, and Chott and Frago reasonably relied on her advice. Where “the employer's

stated belief about the underlying facts is reasonable in light of the evidence . . . there ordinarily

is no basis for permitting a jury to conclude that the employer is lying about the underlying

facts.” Brady v. Officer of Sergeant at Arms,

(D.C. Cir. 2008). The Court

finds that the USDA’s stated belief is reasonable given that the function of a “panel interview” is

to rank the applicants into grounds of high, medium, and low so that the selecting official can use

that ranking to decide whom to interview during the second round. Essentially, because the

purpose of the second interview is to allow the selecting official to determine the ultimate

selectee for the job, the ranking function of a panel interview is not useful.

In addition, the parties agree that the regulations pertaining to interview procedures that

applied at the time of Fields’ application are contained in Notice PM-2334.3 JX 27 (“Merit

Promotion Process”). The parties also agree that the AMS position was a non-supervisory

position, and that a panel interview was therefore not required. It is also undisputed that Notice

PM-2334 does not contain any provision prohibiting a second round interview nor any provision

under which Fields’ second round interview was a “panel interview” simply because it was

conducted by three people. Fields did not present any evidence to the contrary. Indeed, Fields’

witness, Edith Stovall, could not point to anything in the applicable regulation that an interview

conducted by three people constitutes a panel interview triggering the requirement of an EEO

3 Fields’ copy of Notice PM-2334 is labeled as Joint Exhibit 26 in the exhibits to her opposition.

13 observer. 2/25/09 Tr. at 31. As a result, Fields is unable to establish that the agency violated its

own regulations by holding a second interview and having it conducted by three people and no

EEO observer.

Nonetheless, even if the second round interview violated the regulations by failing to

include an EEO observer, there is no evidence that the interview procedure was motivated by

discriminatory intent or resulted in discriminatory treatment. See, e.g., Oliver-Simon,

(“‘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.’”) (quoting Fischbach v. D.C. Dep’t of Corr.,

(D.C. Cir. 1996) (internal quotation marks and alterations omitted)); Ross v. Runyon,

(D.D.C. 1994) (finding “no evidence in the record that the appointment of

a three-member Review Committee, especially one with two African/American members,

benefitted the other applicants and harmed the Plaintiff in some way that would not have

happened if a sole Selecting Official had made the decision”).

The Court finds no evidence in the record to support Fields’ arguments that the second

round interview was designed to disadvantage her. First, because the second interview was not

required by agency regulations, Frago could have simply selected Nagel and Spalding after the

first interview. Even if Frago did not intend to select Fields, convening a second interview to

“disadvantage” Fields was unnecessary. Second, Frago had no way of knowing or predicting that

Fields would not perform as well during the second interview as she did during the first. Third,

Fields’ complaints about the second interview group being less diverse than the first and

therefore putting her at a “psychological disadvantage to her [White] competitors,” Pl’s Opp’n at

14 21, are misguided. While the second round interviewers — Frago, Chott, and Treese — were all

White, the first round interviewers — Frago, Chott, Ramirez — and the EEO observer, Sean

Clayton, were all male. Although the second round was not racially diverse, it included a female

while the first did not. Notice PM-2334 contains no requirement that a panel be diverse in both

race and gender. See JX 27 at 5-6 (“Interview panels shall: . . . be diverse . . . .”).

Accordingly, the evidence does not support the conclusion that the USDA discriminated

against her by holding a second interview with three White interviewers. See Reeves v.

Sanderson Plumbing Prods.,

(stating that “‘[i]t is not enough . . . to disbelieve

the employer; the factfinder must believe the plaintiff's explanation of intentional

discrimination’”) (quoting St. Mary’s Honor Ctr. v. Hicks,

(1993)).

IV. CONCLUSION

For the foregoing reasons, the Court concludes that the USDA’s motion for judgment as a

matter of law should be granted [#60] and its motion to strike Fields’ response to its statement of

material facts not in dispute [#69] should be denied. A judgment accompanies this memorandum

opinion.

July 19, 2011 Henry H. Kennedy, Jr. United States District Judge

15