UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FELECIA A. REDDING,

Plaintiff,

v. Civil Action No. 16-2149 (TJK)

LLOYD AUSTIN,1

Defendant.

MEMORANDUM OPINION

Felecia Redding is an African-American woman who works in human resources at the

Defense Intelligence Agency (“DIA”), a component of the Department of Defense. In 2013, she

interviewed for a role as a senior human resources manager, but the DIA passed on her

application in favor of Aradhana Nayak-Rhodes, a fellow employee who was younger and

Asian-American. Redding filed this action against the Secretary of Defense, claiming age

discrimination in violation of the Age Discrimination in Employment Act as well as racial

discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. Redding

alleges, among other things, that Defendant’s qualifications-based reason for hiring Nayak-

Rhodes over her was pretextual because she was substantially more qualified than Nayak-

Rhodes. This Court previously dismissed Redding’s retaliation claim, ECF No. 19, and

Defendant has now moved for summary judgment on the remaining discrimination claims. For

the reasons explained below, the Court will grant Defendant’s motion and enter summary

judgment in his favor.

1 Defendant Lloyd Austin, who assumed office as Secretary of Defense in January 2021, is automatically substituted for Jim Mattis under Federal Rule of Civil Procedure 25(d). Background

In 2013, a reorganization in the Defense Intelligence Agency (DIA) Office of Human

Resources (OHR) resulted in the creation of an “Employee Mobility” division. See ECF No. 37

at 2 (“Admitted Material Facts”) ¶ 1. Warner Eley, an African-American man about three years

younger than Redding who had been hired as the new Chief of Employee Mobility, was tasked

with “implement[ing] a more strategic approach for utilizing human capital within DIA that

looked at how to move people across the agency in a proactive manner that anticipated need,

identified talent and moved that talent in the most effective manner possible.” Id. ¶¶ 4–5. One

of the first steps in standing up this new function required hiring a Deputy Chief of Employee

Mobility to assist Eley, because his deputy in his prior position, who would have as assumed the

new deputy position, was reassigned within OHR. Id. ¶¶ 6–7.

Deborah Hartman, the Director of OHR, was about a year older than Redding.

According to Hartman and Eley, Hartman “was looking for someone to fill the Deputy Chief of

Employee Mobility position who had strategic management experience consistent with the

mission of the Employee Mobility Division.” Id. ¶ 9.2 Positions in the DIA OHR are classified

by billet. Each series of billet aligns with a set of skills and job expectations. Eley, for example,

was assigned to be the first Chief of Employee Mobility with a GG-301-15 series billet

appropriate for a “Supervisory Human Capital Advisor position.” Id. ¶ 3. Eley’s deputy in his

prior position also held a GG-0301-15 Supervisory Human Capital Advisor billet. Id. ¶ 8. When

2 Redding denies this assertion and several others because they are unsupported by “contemporaneous evidence.” Id. ¶ 9. But there is no requirement for a purported fact to be supported by contemporaneous evidence, as opposed to sworn testimony. Salazar v. Wash. Metro. Transit Auth.,

(D.C. Cir. 2005). And in any event, the Court includes these assertions here merely to reflect Defendant’s stated reasons for filing the position as it did. As explained below, Redding argues, based on other evidence, that this reasoning is pretextual.

2 it came time to hire a Deputy Chief of Employee Mobility, three billets were available to support

the position. Id. ¶ 10. But according to Hartman, none of those billets fully aligned with the

Deputy Chief position. Id. ¶ 11.3 Because “time was of the essence to get the position

advertised, [and] management did not have the time to go through the process of having the billet

reclassified” to more closely align with the position that management envisioned, id. ¶ 12, it used

an existing GG-0201-15 billet, associated with a Supervisory Human Resource Specialist

position, id. ¶ 13. According to Eley, “a GG-0201 series position is one focused more on the

technical aspects of human capital positions rather than on strategic management.” Id. ¶ 14. In

any event, according to Hartman and Eley, “it was management’s intention to change the

position to match the type of work that was being performed once the position was filled.” 4 Id.

¶ 33.

In April 2013, Eley provided a staffing checklist to Human Resources to help identify

staffing requirements. In answering the question “What knowledge, skills, and/or abilities are

required to perform the duties of this position?,” Eley wrote: “Responsible for organizing,

planning, supervising and directing work through subordinate supervisors of human resources

specialists responsible for execution of highly complex DIA human capital programs. Exercises

broad responsibility and authority for planning and managing the overall efficiency and

effectiveness of assigned operations and communicating the strategic plan, mission, vision and

values to employees within the directorate(s). - Oversees through subordinate experts/supervisors

3 Redding also denies this assertion and says it is unsupported by “contemporaneous evidence.” Id. ¶ 11. 4 Again, Redding denies this assertion as unsupported by “contemporaneous documentary evidence.” Id. ¶ 33.

3 various special projects to meet unique customer and headquarters requirements.” Id. Eley also

answered the question “What knowledge, skills, and/or abilities would distinguish candidates

with superior qualifications from those who meet only basic qualifications?” as follows:

“Candidates MUST possess senior level staffing experience, and has [sic] previously served in a

variety of complex HR assignments, additionally, exercises technical and administrative

supervision over human resources professionals with a thorough knowledge of a wide

range of concepts, principles and practices to advise or independently accomplish the

establishment and implementation of practices, polices [sic] and procedures.” ECF No. 37-3 at

2.

On April 17, 2013, the DIA internally advertised the Deputy Chief of Employee Mobility

position, described as a Supervisory Human Resources Specialist, GG-0201-15. Admitted

Material Facts ¶ 15. The Vacancy Announcement listed the following Mandatory Assessment

Factors for the position:

“1. (U) Establishes working relationships with senior leaders within and across other

agencies and private organizations in order to advance corporate and community goals

2. (U) Develops change strategies, including recommending innovative solutions to

human capital issues while minimizing unintended consequences

3. (U) Knowledge of the DIA Strategic Plan, to include its goals and objectives

4. (U) Senior level staffing experience exercising technical and administrative

supervision over human resources professionals with a thorough knowledge of a wide range of

concepts, principles and practices, policies and procedures.” ECF No. 33-2 at 15.

According to Hartman, the position was not advertised as she had intended because all

human resources employees were not on the email distribution list, and the announcement did

4 not indicate that it was open to GG-0300 series employees. Id. ¶ 16. On May 1, 2013, Hartman

directed that the distribution list be updated to include all human resources employees and the

position be “advertise[d] [to] HR [employees] only as both 201 or 301.” Id. ¶ 17. On May 2,

2013, the original vacancy announcement was re-issued to all human resources employees, but

the announcement still failed to indicate that it was open to GG-0300 series employees. Id. ¶ 18.

At the time of the announcement, 52-year-old Felecia Redding worked as a supervisory

Human Resources Specialist. ECF No. 37 at 16 (“Pl. Additional Facts”) ¶ 9. As she explains,

she had “7 years of senior level staffing experience and 9 years of experience supervising

civilian employees with 17 years of experience supervising military personnel.” Id. At that

same time, Aradhana Nayak-Rhodes, a younger Asian-American woman, was serving as Deputy

Staff Director within OHR. ECF No. 33-2 at 30. In that capacity, she served “as a second-level

supervisor and senior administrative advisor on matters pertaining to the day-to-day operations

or management of administrative support functions” within OHR. Id. She had prior experience

as Chief, Strategic Initiatives, within the Directorate for Human Capital at DIA, and she also had

experience as a Staff Officer. Admitted Material Facts ¶ 27.

Redding, Nayak-Rhodes, and seven other individuals applied for the Deputy Chief

position. Belinda Payne and Veronica Mason, human resources staffing specialists, screened the

applications and referred only six applicants to Eley. Id. ¶ 19. The referred candidates,

including Redding, were all working in series GG-0201 positions. Id. ¶ 20. The staffing

specialists screened out Nayak-Rhodes and two other candidates in GG-300 series positions, on

the basis that their resumes did not reflect “staffing/operational experience.” Id. ¶ 21.

According to Eley, the selecting official for the vacancy, “the human resources staffing

consultants who screened the applications erroneously determined that GG-0201 series staffing

5 experience was a requirement for the position,” id. at 23, and he directed the specialists to

provide him with all the received resumes, id. at 25. Ultimately an interview panel composed of

Eley, Melissa Hawkes, and Steven Rush, interviewed all nine applicants. Id. ¶ 29. Each panel

member independently gave Nayak-Rhodes their highest rating and ranked Redding and Kenneth

Chalk, in that order, as the next two highest-rated candidates. Id. ¶ 30. Redding does not

contend that Hawkes or Rush acted with discriminatory animus towards her in connection with

the selection process. Id. ¶ 31. The interview panel selected Nayak-Rhodes for the Deputy

Chief Employee Mobility role, under the formal title of Supervisory Human Resource Specialist,

GG-15-201. Id. ¶ 34.5 Within two months, her position was converted to a Supervisory Human

Capital Advisor GG-15-301 position similar to the position held by Eley and his prior deputy.

Id.

On June 12, 2013, Redding contacted an EEO counselor to initiate a discrimination

complaint related to her non-selection. And on October 26, 2016, Redding filed this suit against

the Secretary of Defense. Her operative complaint brings two counts against Defendant, each

alleging a different type of unlawful conduct: Count I alleges unlawful race and age

discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et

seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”),

et seq.

and Count II alleges Retaliation in violation of both Title VII and ADEA ECF No. 11. In 2018,

this Court dismissed Count II without prejudice. ECF No. 19. And last year, the Defendant

5 Redding suggests that there are factual disputes about Hartman’s exact role in the final stage of the hiring process. She points to testimony about Hartman’s role as “approving the selection made by the interview panel” as contradicting Eley’s testimony that he “recommended to Ms. Hartman that she select Nayak-Rhodes.” Pl. Opp. at 13. The Court finds no material factual dispute on this point.

6 moved for summary judgment on the remaining age and race discrimination claims contained in

Count I.

Legal Standard

Under Federal Rule of Civil Procedure 56, a court must grant summary judgment “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” “Summary judgment is appropriately granted when, viewing

the evidence in the light most favorable to the non-movants and drawing all reasonable

inferences accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council

on Am.-Islamic Rels. Action Network, Inc.,

(D.C. Cir. 2016). To survive

summary judgment, a plaintiff must “go beyond the pleadings and by her own affidavits, or by

the depositions, answers to interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett,

(1986) (internal quotation omitted). Courts “are not to make credibility determinations or weigh

the evidence.” Lopez,

(quoting Holcomb v. Powell,

(D.C. Cir.

2006)). But the “mere existence of some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Lopez,

(emphasis omitted) (quoting

Anderson v. Liberty Lobby, Inc.,

, 247–48 (1986)). If the evidence “is merely

colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477

U.S. at 249–50 (citations omitted).

Analysis

Under Title VII of the Civil Rights Act, all “personnel actions affecting employees or

applicants for employment” in executive agencies “shall be made free from any discrimination

based on race.” 42 U.S.C. § 2000e-16(a). Likewise, the Age Discrimination in Employment Act

7 provides that “[a]ll personnel actions affecting employees . . . shall be made free from any

discrimination based on age.” 29 U.S.C. § 633a. “Where, as here, the plaintiff has no direct

evidence that the adverse employment action[] of which she complains w[as] caused by

prohibited discrimination,” the Court applies the McDonnell Douglas burden-shifting

framework. Lathram v. Snow,

, 1088 (D.C. Cir. 2003) (citing McDonnell Douglas

Corp. v. Green,

, 802–05 (1973)). That framework first requires Redding to show

that: “(1) she is a member of a protected class; (2) she applied for and was qualified for an

available position; (3) despite her qualifications she was rejected; and (4) someone filled the

position.” Lathram, 336 F.3d at 1088 (cleaned up). Defendant does not dispute that Redding

satisfies this minimal burden—she is African-American, she applied and was qualified for the

Deputy Chief position, and she was ultimately rejected when Nayak-Rhodes was selected for the

role. In response, Defendant must “assert[ ] a legitimate, non-discriminatory reason for the

decision” not to hire Redding. Brady v. Off. of Sergeant at Arms,

(D.C. Cir.

2008). And, as Redding concedes, Defendant has done so here by pointing to the assessment of

the interview panel that Nayak-Rhodes was more qualified. Pl. Opp at 6.

The Court must therefore “resolve one central question,” considering “all relevant

evidence presented by” Redding and the government: has Redding “produced sufficient evidence

for a reasonable jury to find that the [defendant’s] asserted non-discriminatory reason was not the

actual reason and that [it] intentionally discriminated against [her] on the basis of race [or age]”?

Brady, 520 F.3d at 494–95. In other words, has Redding shown that Defendant did not “honestly

and reasonably believe[ ]” that Redding was the more qualified candidate?

.

Redding challenges as pretextual Defendant’s qualification-based explanations for

selecting Nayak-Taylor over her. In a non-selection case, a plaintiff can satisfy her burden of

8 demonstrating pretext by showing that “a reasonable employer would have found the plaintiff to

be significantly better qualified for the job.” Aka v. Wash. Hosp. Ctr.,

(D.C. Cir. 1998); see also Ash v. Tyson Foods, Inc.,

(2006) (citing Aka’s

“significantly better qualified” standard). Redding tries to do so in two main ways.

First, Redding argues that Nayak-Rhodes was not even “minimally qualified” for the

Deputy Chief Employee Mobility job. ECF No. 37 at 19 (“Pl. Opp.”) at 6–7. She points to the

job listing, which includes a series of four “mandatory assessment factors.” Focusing on the

fourth factor—“Senior level staffing experience exercising technical and administrative

supervision over human resources professionals with a thorough knowledge of a wide range of

concepts, principles and practices, policies and procedures,” see ECF No. 33-2 at 15—she

contends that Nayak-Rhodes did not have the “senior level staffing experience” required. 6 In her

view, that phrase meant “technical staffing experience,” i.e., direct supervisory experience over

employees engaging in the staffing process. Thus, she says, Nayak-Rhodes did not meet the

minimum requirements for the position, and so by default she was substantially more qualified.

Pl. Opp. at 6–8.

The problem for Redding is that Defendant had a different view of the position it was

filling. And this Court “must not second-guess an employer’s initial choice of appropriate

qualifications; rather the court defers to the employer’s decision of what nondiscriminatory

qualities it will seek in filling a position.” Jackson v. Gonzales,

(D.C. Cir.

6 Redding also notes that Eley used the same phrase—“senior level staffing experience”—in the staffing checklist as a required criterion for the job.

9 2007) (cleaned up).7 According to Hartman and Eley, the job did not require technical staffing

experience, and so Nayak-Rhodes’s higher-level staffing experience also minimally qualified her

under the fourth assessment factor. Thus, the Deputy Chief position listing’s use of the phrase

“senior level staffing experience” included a higher-level managerial understanding of staffing.

See ECF 33-3 at 5 (explaining that the ideal Deputy Chief candidate did not “have to be the

practitioner or the technical tactical person to have knowledge of how that system works”).

According to Eley, this sort of “senior level staffing experience” “can be gained through series

0300 positions that are involved in various human capital issues.” ECF 33-2 at 3.

Redding, to be sure, disputes all this. But once an employer has articulated a non-

discriminatory explanation for its action, as Defendant has here, the issue is not “the correctness

or desirability of [the] reasons offered . . . [but] whether the employer honestly believes in the

reasons it offers.” Fischbach v. D.C. Dep’t of Corr.,

(D.C. Cir. 1996)

(quoting McCoy v. WGN Cont’l. Broad. Co.,

(7th Cir. 1992)).

Notwithstanding Redding’s own interpretation of the phrase “senior level staffing experience,”

there is no evidence that suggests Hartman and Eley did not honestly believe that the kind of

staffing experience Nayak-Rhodes possessed would fit the bill. In fact, to the contrary, how the

hiring process unfolded overwhelmingly suggests that they believed that from the start,

especially as they focused on strategic management experience as the more important factor for

the Deputy Chief position.8

7 Further, “employers are not rigidly bound by the language in a job description.” Browning v. Dep’t of Army,

, 696–97. [full cite needed] 8 To the extent that Redding argues that the entire process Defendant used to fill the Deputy Chief role creates an inference of discrimination, her argument fails. She has not shown that the procedures here were “so irregular or inconsistent with [Defendant’s] established policies as to

10 To begin with, the parties agree that Eley was tasked with “implement[ing] a more

strategic approach for utilizing human capital within DIA” and that “[o]ne of the first steps in

standing up the employee mobility capability was to hire a deputy to assist Mr. Eley in that

effort.” Admitted Material Facts ¶ 6. Hartman testified that, from the beginning she was looking

for someone “who had strategic management experience consistent with the mission of the

Employee Mobility Division.” Id. ¶ 9. She also represented that because of time pressure, the

plan was to use a billet that did not quite align with the position, but to change the position to

match the work that was being performed once the position was filled. Id. ¶ 33. Consistent with

these representations, she instructed that the position be advertised to not only those employees

holding GG-201 series positions, which are “focused more on the technical aspects of human

capital positions rather than on strategic management,” but to those holding GG-301 series

positions, like Eley and his former deputy. Id. ¶ 14. Eley then overruled the staffing specialists’

assessment of the fourth mandatory assessment factor as requiring “staffing/operational

experience,” and their rejection of the three candidates holding GG-301 series positions; thus, the

panel interviewed all nine candidates.9 The panelists, two of whom Redding does not accuse of

make its hiring explanation unworthy of belief.” Porter v. Shah,

(D.C. Cir. 2010). And 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.” Milton v. Weinberger,

(D.C. Cir. 1982). Finally, to the extent that there are factual disputes as to some aspects of the process, such as whether and how Hartman may have encouraged Nayak-Rhodes to apply for the Deputy Chief role, they do not create an inference of discrimination. See Lopez,

(“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). 9 Redding points to the staffing specialists’ decision to screen out Nayak-Rhodes and two other candidates as evidence that Nayak-Rhodes was not “minimally qualified” for the Deputy Chief role. But that would ignore the “necessary and appropriate realities of hiring processes” that are self-evident here. Jackson,

. Hartman and Eley created the position and its

11 discriminating against her, found that Nayak-Rhodes was far more than minimally qualified for

the job, despite one of them noting her lack of technical staffing experience. ECF No. 33-4 at 7.

Finally, Defendant reclassified the Deputy Chief position from a 201 series billet to a 301 series

billet shortly after Nayak-Rhodes’ selection.10 In sum, none of this suggests that Hartman and

Eley did not honestly believe that the kind of staffing experience Nayak-Rhodes had counted as

“senior level staffing experience,” or otherwise supports an inference of discrimination.

Second, Redding argues, apart from whether Nayak-Rhodes was minimally qualified, the

reason Defendant gave for preferring her—strategic management experience—was pretextual.

Redding points again to the job posting, which she argues does not reflect this criterion, thereby

suggesting that it was pretextual. But to repeat, this Court “must not second-guess an employer’s

initial choice of appropriate qualifications; rather the courts defer to the [employer’s] decision of

what nondiscriminatory qualities it will seek in filling a position.” Jackson,

(cleaned up).

On this point, this case is quite similar to Jackson. In that case, the plaintiff challenged

his non-selection for a promotion at the Bureau of Prisons. The Bureau’s selection process gave

qualifications. Admitted Material Facts ¶ 9, 24. In contrast, the staffing specialists’ understanding of the position was entirely subordinate to theirs, and the staffing specialists had merely relied on the job posting drafted by Eley, including the billet, to assess the qualifications of the candidates. Id. ¶ 19, 21, 23, 24. Finally, nothing in the record suggests that Eley did not have the authority to overrule the staffing specialists’ screening decision to ensure that all the candidates he believed were minimally qualified were interviewed. 10 Although Redding disputes that the reclassification was planned from the beginning, she offers no evidence to the contrary. Admitted Material Facts ¶ 33. And in addition to sworn statements from Hartman to that effect, Defendant also cites documentary evidence from when the position was first advertised acknowledging that the billet would need to be changed eventually. ECF No. 33-6 at 3. Finally, while Redding argues that the reclassification did not happen until after she contacted an EEO counsellor, the evidence shows otherwise. ECF No. 40-2 at 4.

12 heavy weight to the selectee’s experience with its data management system. Id. at 705. Jackson

argued that because such experience was not expressly referenced in the job description, a

reasonable jury could disbelieve the Bureau’s reliance on it. Id. at 708. But the Circuit held that

“[t]he fact that an employer based its ultimate hiring decision on one or more specific factors

encompassed within a broader and more general job description does not itself raise an inference

of discrimination sufficient to overcome summary judgment.” Id. at 709.

So too here. The posting announced that the job would be “[r]esponsible for organizing,

planning, supervising and directing work through subordinate supervisors . . . responsible for

execution of highly complex DIA human capital programs. Exercises broad responsibility and

authority for planning and managing the overall efficiency and effectiveness of assigned

operations and communicating the strategic plan, mission, vision and values to employees . . .

Exercises a high degree of originality and judgment in accomplishing responsibilities that

contribute significantly in guiding and shaping the future of the Agency.” See ECF No. 33-2 at

14–15. To be sure, it is a general description that does not use the specific phrase “strategic

management.” But it reflects that the job was strategic in nature. “[T]hat an employer based its

ultimate hiring decision on one or more specific factors encompassed within a broader and more

general job description does not itself raise an inference of discrimination sufficient to overcome

summary judgment.” Jackson,

. And for the same reasons described above,

nothing in the record calls into question that this reason was genuinely held, or suggests

pretext.11

11 Redding also suggests that strategic management experience is a subjective criterion and therefore a “ready mechanism for discrimination.” Pl. Opp. at 11. She claims that consideration of that kind of experience could allow the jury to infer that Eley and Hartman “resorted to subjective criteria because they knew that Ms. Redding objectively had more experience . . .”

13 Even if Redding cannot show pretext in either Defendant’s decision to consider Nayak-

Rhodes as minimally qualified under assessment factor four, or to strongly weigh strategic

management experience, as noted above, she could still show pretext by showing that she was

“significantly better qualified” so as to allow a reasonable jury to “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.” Aka,

. But she never tries to do so, at least not without rearguing that

her employer should have substituted her conception of the Deputy Chief of Employee Mobility

position for her employer’s. In any event, the record does not reflect that she was significantly

better qualified than Nayak-Rhodes for the actual position Defendant intended to fill.

Conclusion

For all these reasons, Defendants’ Motion for Summary Judgment, ECF No. 33, will be

GRANTED. A separate order will issue.

/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge

Date: March 10, 2021

But strategic management experience is not particularly subjective. Perhaps reflecting that, Redding does not even attempt to argue that she has more of it than Nayak-Rhodes.

14