UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) KEVIN HAIRSTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1531 (RWR) ) WILLIAM J. BOARDMAN, ) ) Defendant. ) )

MEMORANDUM OPINION

Plaintiff Kevin Hairston has sued the Public Printer1 of the

United States Government Printing Office (“GPO”), under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a),

alleging that the GPO failed to promote him because of his race,

and denied him training because of his race and as retaliation

for prior EEO activity. The GPO has moved for summary judgment.

Because Hairston has neither rebutted all of the non-

discriminatory reasons the GPO proffered for not promoting him or

sending him to training, nor shown that not sending him to

training was an actionable adverse employment action, the

defendant’s motion for summary judgment will be granted.

BACKGROUND

Hairston is a black employee of the GPO who applied in

August 2006 for a promotion to a Second Offset Pressperson

1 Public Printer William Boardman is substituted as the defendant under Federal Rule of Civil Procedure 29(d). -2-

position advertised in vacancy announcement (“VA”) 06-476. The

position was open to GPO employees only. (Am. Compl. ¶¶ 1, 4,

11-13; Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. for Summ. J

(“Def.’s Mem.”), Def.’s Stmt. of Mat. Facts (“Def.’s Stmt.”)

¶¶ 1, 7, 9.) A Second Offset Pressperson is responsible for

operating and maintaining five-color and six-color printing

presses to produce “postal cards, passports, and other security

and quality work[.]” (Def.’s Mem. at 11; Def.’s Stmt. ¶ 8 &

Ex. 3.)

Hairston was the only one of the two applicants for the

position deemed “qualified” by the selecting official, Earl

Hayward, who believed that Hairston could learn the duties of the

position with training. (Def.’s Stmt. ¶ 10.) The concurring

official, George Domarsky, agreed with Hayward’s assessment, and

Hayward told Hairston that he was selected for the position.

(Pl.’s Mem. of P. & A. in Opp’n to Def.’s Mot. for Summ. J.

(“Pl.’s Opp’n”), Ex. 5 (“Hairston Decl.”) ¶ 42.) However,

Domarsky’s supervisor, Jeff Bernazzoli, determined that the

Second Offset Pressperson position was not a training position.

(Def.’s Notice of Errata, Ex. 2 (“Bernazzoli Dep. Excerpt 3”) at

36). Bernazzoli sought someone who could immediately operate the

equipment, and Domarsky said Hairston could not do so. (Id. at

35, 38.) Bernazzoli consulted with Marvin Verter who had

supervised Hairston. (Def.’s Mem., Ex. 4 (“Bernazzoli Dep. -3-

Excerpt 1") at 35; Pl.’s Opp’n, Ex. 26 (“Verter Dep. Excerpt 2")

at 30.)2 Verter said that Hairston did not have the experience

or training to operate the equipment that the Second Offset

Person Pressperson had to operate. (Bernazzoli Dep. Excerpt 1 at

35-36; Verter Dep. Excerpt 2 at 30.) Thereafter, Bernazzoli had

the vacancy posting cancelled. (Def.’s Stmt. ¶ 14.)

At Domarsky’s request, the GPO’s human resources department

re-advertised the Second Offset Pressperson position in VA 06-

554. It sought applicants familiar with multicolor printing

presses, and was open to applicants who were not GPO employees.

(Def.’s Stmt. ¶¶ 14, 17.) The GPO interviewed candidates, asking

each the same set of questions related to working on multicolor

presses, and scoring the answers. Hairston failed to answer some

of the questions asked during the interview. (Id. ¶¶ 18-19.) Of

the seven applicants who were interviewed, Hairston’s score, 57

out of a possible 105 points, was the lowest. The interviewee

with the highest score, a white candidate named Douglas Davis who

had 10 years of experience working with multicolor presses,

scored 101. (Id. ¶ 20.) Davis was eventually selected for the

Second Offset Pressperson position, and was hired effective in

2007. (Id. ¶ 22.)

2 Bernazzoli said Verter had been Hairston’s immediate supervisor, but Verter said he had supervised Hairston indirectly. Cf. Bernazzoli Dep. Excerpt 1 at 35 with Verter Dep. Excerpt 2 at 19. -4-

After Hairston discovered that the position advertised in

VA 06-554 had been filled by a white candidate, he informally and

formally complained to the GPO EEO office that the GPO had

engaged in race discrimination by not promoting him and instead

hiring a white candidate. (Am. Compl. ¶¶ 34, 39, 44; Def.’s

Stmt. ¶ 23; Def.’s Mem., Ex. 20 at 2.) Hairston alleges that

following his contact with the EEO office, he was subjected to

retaliatory conduct by his supervisor, assistant foreman

David Eigenbrode. (Am. Compl. ¶¶ 2, 42.) Hairston further

asserts that even though he was not promoted to the Second Offset

Pressperson position, the GPO asked him to temporarily fill that

position for nearly two months in October and November 2007, and

did not compensate him for the additional workload and

responsibility. (Id. ¶¶ 37-38.) In January 2009, Hairston filed

his second formal complaint with the GPO EEO office alleging both

the original discriminatory non-promotion and retaliation. (Id.

¶ 57.)

According to Hairston, in March 2009, he learned that the

GPO was sending presspersons to Kennesaw, Georgia, for training

on two-color and four-color presses. Hairston alleges that he

was not timely informed of this opportunity, and was not invited

to participate. (Am. Compl. ¶¶ 63-64; Pl.’s Opp’n at 8.)

Presspersons interested in the opportunity were chosen on the

basis of information taken from surveys which had been -5-

distributed in 2008 by a union representative named

Carter Daniel, at the direction of Douglas Davis. (Am. Compl.

¶¶ 65-69; Def.’s Mem., Ex. 22.) Hairston alleges that he had

never spoken to Daniel about training, and that Daniel falsified

survey results to reflect a lack of interest by Hairston in the

Georgia training opportunity. (Pl.’s Opp’n at 9.) Hairston does

not dispute, though, that he signed a training survey form on

which he made no request for this training, or that those above

Daniel who decided which employees to send to the training

understood that Hairston had not requested this training.

(Def.’s Stmt. ¶ 27; Pl.’s Resp. to Def.’s Stmt., ¶ 27.)3

Hairston initially filed a two-count complaint in this case.

The GPO moved to dismiss Hairston’s complaint for failure to

exhaust administrative remedies. The motion was granted as to

Hairston’s claim of retaliation by Eigenbrode, and denied as to

Hairston’s claim of discriminatory non-promotion. See Hairston

v. Tapella,

(D.D.C. 2009). Hairston

later filed an amended Title VII complaint, alleging race

discrimination in the first count for the GPO’s failure to

promote him to the position of Second Offset Pressperson; race

3 Hairston sought counseling at the GPO EEO office and filed a formal administrative complaint alleging that he was denied the Georgia training opportunity due to race discrimination and retaliation. (Am. Compl. ¶¶ 74-75; see Def.’s Stmt. ¶ 29.) Hairston does not dispute that half of the employees selected for the training were black. (Def.’s Stmt. ¶ 27; Pl.’s Resp. to Def.’s Stmt. ¶ 27.) -6-

discrimination in the second count based on the GPO denying

Hairston training opportunities; and retaliation in the third

count also based on the GPO denying training opportunities to

Hairston. (Am. Compl. ¶¶ 81-90.)

The GPO has moved for summary judgment on all three counts.

On the first count, it argues that Hairston failed to rebut the

GPO’s legitimate, non-discriminatory justification for not

promoting him, and that Hairston failed to exhaust his

administrative remedies. On the second and third counts, the GPO

argues that Hairston failed to rebut the legitimate,

non-discriminatory justification for not sending him to the

training in Georgia, and that his alleged injury was not an

adverse employment action. Hairston opposes.

DISCUSSION

“‘Summary judgment is appropriately granted when the moving

party demonstrates that there is no genuine issue as to any

material fact and that moving party is entitled to judgment as a

matter of law.’” Fields v. Geithner,

(D.D.C. 2012) (quoting Winston v. Clough,

(D.D.C. 2010) (citing Fed. R. Civ. P. 56(c))). “‘In considering

a motion for summary judgment, [a court is to draw] all

justifiable inferences’ from the evidence . . . in favor of the

nonmovant.’” Fields,

(quoting Winston,

(internal quotation omitted)). “The court -7-

must determine ‘whether there is a need for trial –- whether, in

other words, there are any genuine factual issues that properly

can be resolved only by a finder of fact because they may

reasonably be resolved in favor of either party.’” Fields,

(quoting Winston,

)).

A genuine issue “is present in a case where the ‘evidence is such

that a reasonable jury could return a verdict for the non-moving

party,’ a situation separate and distinct from a case where the

evidence is ‘so one-sided that one party must prevail as a matter

of law.’” Dozier-Nix v. Dist. of Columbia,

(D.D.C. 2012) (quoting Anderson v. Liberty Lobby,

(1986)).

I. FAILURE TO PROMOTE

In his first count, Hairston alleges that the GPO denied him

promotions to the Second Offset Pressperson position because of

his race. (Am. Compl. ¶¶ 81-83.) The GPO argues that judgment

should be entered against Hairston on this claim because the GPO

had legitimate, non-discriminatory reasons for cancelling VA 06-

476 and for selecting Douglas Davis instead of Hairston for the

Second Offset Pressperson position advertised in VA 06-554, and

because Hairston failed to exhaust his administrative remedies

for his non-selection for the VA 06-554 position. The GPO’s

principal reason proffered for not promoting Hairston to the

VA 06-476 position is that because it faced tight passport -8-

production deadlines from the State Department, Bernazzoli sought

candidates with more experience than Hairston had with multicolor

presses. (Def.’s Mem. at 12-13.) The GPO’s proffered reason for

hiring Davis is that he had superior relevant experience and was

the most highly rated applicant after the applicants were

interviewed. (Def.’s Mem. at 17-18.) Hairston responded that

this action “focuses principally on the discriminatory denial of

a promotion in 2006.” (Pl.’s Opp’n at 1.) Perhaps for that

reason, his opposition does not respond to the GPO’s assertions

that it hired Davis in 2007 due to Davis’ superior

qualifications,4 or that Hairston untimely pursued counseling

regarding his non-promotion in 2007. A party opposing a summary

judgment motion who does not address an argument advanced in the

motion is deemed to have conceded the argument. See Magliore v.

Brooks,

(D.D.C. 2012) (ruling that the

plaintiff conceded an issue “by completely failing to address or

rebut the [defendant’s] arguments”). To the extent Hairston’s

first count asserts a discrete claim of non-promotion in 2007,

then, the GPO is entitled to judgment on that claim.

4 “[A] plaintiff [alleging disparate treatment for a promotion] must present evidence of ‘stark superiority of credentials over those of the successful candidates.’” Fields,

(quoting Hopkins v. Whipple,

(internal quotations omitted)); see also Jackson v. Gonzales,

(D.C. Cir. 2007) (stating that “in order to justify an inference of discrimination, the qualifications gap must be great enough to be inherently indicative of discrimination”); McIntyre v. Peters,

(D.D.C. 2006). -9-

As to the 2006 non-promotion, Hairston counters that the

GPO’s neutral reasons are implausible and that he was qualified

to take the position of Second Offset Pressperson. (Pl.’s Opp’n

at 18-28.) He notes that he had trained on a mulitcolor press

during a six-month apprenticeship that ended in 2004, and that

the GPO had assigned him for two months in 2007 to perform the

very duties that VA 06-476 covered. (Id. at 18-20.)

“Under Title VII, it is an ‘unlawful employment practice’

for employers ‘to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion,

sex, or national origin.’” Downing v. Tapella,

(D.D.C. 2010) (quoting 42 U.S.C. § 2000e-2(a)(1)). A

discriminatory “failure to promote an employee constitutes an

adverse employment action” reached by Title VII. Kelly v.

Lahood,

(D.D.C. 2012) (citing Stella v.

Mineta,

(D.C. Cir. 2002)). Once an employer

has proffered a legitimate, nondiscriminatory reason for the

employment actions at issue, a district court examines “‘whether

the plaintiff produced sufficient evidence for a reasonable jury

to find that the employer’s asserted non-discriminatory reason

[for an adverse action] was not the actual reason and that the

employer intentionally discriminated against the plaintiff on a

prohibited basis.’” Iweala, 634 F. Supp. 2d at 81 (quoting -10-

Adeyemi v. Dist. of Columbia,

(D.C. Cir.

2008)).

Here, the GPO has offered legitimate, nondiscriminatory

reasons why Hairston was not promoted to the Second Offset

Pressperson position in 2006. The GPO explains, among other

things, that when Hairston was denied a promotion because VA 06-

476 was cancelled, Bernazzoli had sought a candidate who was

sufficiently trained for the position already. He believed

Hairston did not meet that qualification, as the concurring

official and Hairston’s former supervisor said that Hairston was

not sufficiently trained. Whether Bernazzoli’s professional

judgment, and that of Domarsky and Verter, was sound is not what

Title VII tests. What Title VII forbids is denying a promotion

because of one’s race. Hairston’s own belief that his training

and experience before and after VA 06-476 was cancelled qualified

him for the position is not enough to show either that Bernazzoli

was wrong or was fabricating, or that Bernazzoli’s real reason

for cancelling the announcement was Hairston’s race. Even if

Hairston has presented evidence that arguably could reach a jury

to show that some of the GPO’s other neutral explanations are

pretextual masks for prohibited discrimination, he has not

produced sufficient evidence for a reasonable jury to find that

Bernazzoli did not believe Hairston to have been adequately

trained. To defeat a Title VII defendant’s summary judgment -11-

motion, a plaintiff must demonstrate pretext as to all of the

defendant’s proffered neutral explanations, not just some of

them. Kirk v. Small, No. 03-5360,

, at *1 (D.C.

Cir. June 7, 2004); Hicks v. Gotbaum,

(D.D.C. 2011); Stover v. Safeway, Civil Action No. 04-490 (RCL),

, at *5 (D.D.C. April 25, 2005). Hairston has not

done so here. “If 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.

Office of Sergeant at Arms,

(D.C. Cir. 2008);

see also Fischbach v. D.C. Dep’t of Corr.,

(D.C. Cir. 1996) (stating that an employer prevails if it

“honestly believes in the reasons it offers”). The GPO’s motion

for judgment on the first count will be granted.

II. DENIAL OF TRAINING

In his second count, Hairston alleges that the GPO

discriminated against him based on his race by denying him the

training opportunity in Georgia. (Am. Compl. ¶¶ 84-87.) In his

third count, Hairston alleges that the GPO retaliated against him

for complaining about the GPO’s alleged discrimination by denying

him the opportunity to go to Georgia for training. (Am. Compl.

¶¶ 88-90.) The GPO argues that denying this particular training

was not an adverse employment action because Hairston had already -12-

been trained on the two-color press and on presses similar to and

with even more units than four-color presses. (Def.’s Mem. at

20-22.) The GPO also argues that it had a legitimate, non-

discriminatory reason to not provide the Georgia training to

Hairston - - that Hairston did not respond on his training survey

form that he wanted that training. (Def.’s Mem. at 22-23.)5

Hairston disagrees, arguing that he did want to receive the

training and that Daniel harbored animus toward him. (Pl.’s

Opp’n at 29-43.)

“The elements of a claim of retaliation are that the

plaintiff engaged in a statutorily protected activity, the

employer treated the plaintiff adversely, and a causal connection

existed between the two.” Winston,

(citing

Wiley v. Glassman,

(D.C. Cir. 2007) and Rochon

v. Gonzales,

, 1216–20 (D.C. Cir. 2006)). Filing an

EEO complaint is a statutorily protected activity under

Title VII. See Pierce v. Mansfield,

(D.D.C. 2008). Denying training opportunities can, in certain

circumstances, rise to the level of an adverse employment action.

Freedman v. MCI Telecommunications Corp.,

(D.C.

Cir. 2001) (citing 42 U.S.C. § 2000e-2(d)). However, “denial of

training opportunities is [actionable only] if there is a

5 The GPO seeks to deflect from itself any blame for Daniel’s conduct by claiming that he conducted the training survey acting in his capacity as a Union representative. -13-

resultant ‘material change in . . . employment conditions,

status, or benefits.’” Dorns v. Geithner,

(D.D.C. 2010) (quoting Lester v. Natsios,

(D.D.C. 2003)). A claim of discriminatory denial of training

opportunities based on “‘marginal distinctions with uncertain

consequences’” does not constitute an adverse employment action.

Freedman,

.

Here, assuming that Daniel conducted the survey at the

behest of GPO management and that Daniel maintained a negative

opinion of Hairston (see Pl.'s Opp’n, Ex. 32 at 2), Hairston has

not demonstrated that the denial of this particular training

opportunity was an adverse employment action. Hairston admitted

in his deposition that before the Georgia training was offered he

had already received two-color press training and training on

presses similar to the four-color press. (See Def.’s Mem., Ex.

1, at 104-108.) Nor has Hairston shown that between April 2009

when the first session of the Georgia training began, and

October 2009 when he was next surveyed about training

opportunities he wanted, positions were advertised for two-color

or four-color presspersons in the Press Division or for Second

Offset Presspersons that he would have been qualified for only if

he had received the training in Georgia. Moreover, in

October 2009, Hairston signed a second training survey in which

he expressed no interest in training on two-color and four-color -14-

presses. (Def.’s Mem., Ex. 23.) Hairston has presented no facts

that rebut that the GPO thought Hairston did not ask for the

training which it selected other employees to attend. Since

Hairston has neither shown that he suffered an actionable adverse

employment action nor rebutted the GPO’s non-discriminatory

reason for not sending him to the training in Georgia, judgment

will be entered against Hairston on his second and third counts.

CONCLUSION

Hairston has raised no genuine material issue to rebut the

GPO’s legitimate, non-discriminatory reasons discussed above for

its decision not to promote him or send him to training. Nor has

Hairston shown that denying him the training opportunity in

Georgia constituted an adverse employment action. GPO is

entitled to judgment as a matter of law, and judgment will be

entered for the GPO. An appropriate order accompanies this

memorandum opinion.

SIGNED this 16th day of January, 2013.

/s/ RICHARD W. ROBERTS United States District Judge