Jeffries v. Garland
| Decision Date | 27 July 2022 |
| Docket Number | Civil Action 15-cv-1007 (BAH) |
| Parties | TIMOTHY JEFFRIES, Plaintiff, v. MERRICK GARLAND, ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Timothy Jeffries claims that his employer, the Bureau of Justice Assistance (“BJA”), within the Office of Justice Programs (“OJP”) of the U.S. Department of Justice (“DOJ”), did not select him for seven GS-14 positions between 2011 and 2014 due to intentional discrimination-based on his being an African-American man-and in retaliation against him for his former complaints to the Equal Employment Opportunity Division (“EEOC”) in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. See Compl. & Demand Jury Trial (“Compl”) ¶¶ 4-42, 44, 47, ECF No. 1.[1] In 2016, this Court granted summary judgment on all counts for defendant, but the D.C Circuit remanded for further discovery regarding only the first of the seven challenged non-selections, namely plaintiff's unsuccessful 2011 application for a GS-14 Supervisory Grants Program Manager (“SGP”) position in the BJA. Jeffries v. Lynch, 217 F.Supp.3d 214, 249 (D.D.C. 2016), aff'd in part rev'd in part sub nom. Jeffries v. Barr, 965 F.3d 843, 848-49 (D.C. Cir. 2020). Following additional discovery on remand, defendant again seeks summary judgment, pursuant to Federal Rule of Civil Procedure 56(a). Def.'s Mot. J. Pleadings or, Alternatively, Summ. J. (“Def.'s Mot.”), ECF No. 43. For the reasons explained below, defendant's motion is, again, GRANTED.
The factual background underlying the instant motion falls into four categories:
(1) plaintiff's previous Equal Employment Opportunity (“EEO”) activity resulting in issuance to him of a priority consideration letter; (2) plaintiff's unsuccessful application and interview for the 2011 SGP position, which is the only remaining issue in this litigation; (3) the selection of E.W. and N.F. for that 2011 position; and (4) the procedural history of this litigation. These topics are addressed seriatim. The facts that follow are undisputed except as noted.[2]
Plaintiff, at all times relevant to this case a GS-13 Policy Advisor in the BJA, has been an OJP employee since 2000 and a BJA employee since 2002. Def.'s Statement of Material Facts (“Def.'s SMF”) ¶¶ 1-2, ECF No. 43-2.[3] He was promoted to a GS-14 position in 2016, during the pendency of this litigation. Def.'s SMF at 1 n.1; Def.'s Mem. Supp. Mot. J. Pleadings or Summ. J. (“Def.'s Mem.”) Def.'s Mem. at 1 n.1, ECF No. 43-1; Pl.'s Opp'n Def.'s Mot. J. Pleadings or, Alternatively, Summ. J. (“Pl.'s Opp'n”) at 4, ECF No. 44. During his tenure, plaintiff has received mostly satisfactory reviews for his performance and has won various awards for his work. Compl. ¶ 13. Despite plaintiff's generally positive history at the BJA, since 2011 he has applied for eight GS-14 positions but, at the time of the Complaint filing, had not been selected for any. Def.'s SMF ¶ 3; Compl. ¶ 14. In the course of evaluating these various applications, “[o]ver a dozen Department staff members, of various backgrounds and from both inside and outside of the Bureau, served on various panels” interviewing him and “[n]one recommended [him] as the most qualified candidate.” Def.'s Mem. at 4 n.6 (emphasis in original).
A. Plaintiff's Previous EEO Activity and Priority Consideration Letter
Plaintiff “previously filed three cases against [DOJ] alleging discrimination on the basis of race and sex and retaliation in connection with several [other] non-selections, which were consolidated and settled in 2008.” Compl. ¶ 7. Plaintiff listed Jonathan Faley and Ed Aponte as “responsible management officials” in this EEO activity, with their involvement dated back to 2006, about five years before the non-selection at issue in this case. Def.'s SMF ¶ 23; Decl. of Timothy E. Jeffries (“Pl.'s Decl.”), Pl.'s Ex. 1 ¶ 13, ECF No. 9-3; Def.'s Mem. at 22; Def.'s Reply Pl.'s Opp'n Def.'s Mot. J. Pleadings or, Alternatively, Summ. J. (“Def.'s Reply”) at 11, ECF No. 47; Def.'s Ex. 78 at 5, ECF No. 43-10. Aponte thereafter gave plaintiff a favorable performance review in 2007 and signed off on a within-grade increase in 2008. Def.'s Ex. 88, ECF No. 47-1; Def.'s Ex. 89, ECF No. 47-1; Def.'s Reply at 11.[4] Separately, in 2007, plaintiff was passed over for a GS-14 Program Analyst position in the BJA for which he had applied. Def.'s SMF ¶ 5; Compl. ¶ 15; Pl.'s Decl. ¶ 10. Due to a data entry error by plaintiff that went unnoticed by defendant, plaintiff was not considered. Def.'s SMF ¶ 6. Acknowledging that plaintiff had mistakenly not been interviewed for the position, on July 30, 2007, the DOJ gave plaintiff a one-time “priority consideration letter” to be used “for the next open position similar and in the same geographical area to the one which proper consideration was missed,” specifically, a Program Analyst position in the Substance Abuse and Mental Health Division. Def.'s SMF ¶ 12; Compl. ¶¶ 15, 18. The letter further indicated that plaintiff would be considered for any such position before the issuance of public notice of the vacancy and that he would be notified in writing when he had received priority consideration for a position. Compl. ¶ 18.
“For four years after [he] received the priority consideration letter, [plaintiff] was never notified that [his priority consideration letter] had been used.” Pl.'s Decl. ¶ 11; see Def.'s SMF ¶ 8 (). Consequently, in January or February 2011, plaintiff inquired with the Deputy Director of OJP Human Resources (“HR”), Jennifer McCarthy, as to the status of the letter. Def.'s SMF ¶ 9; Pl.'s Decl. ¶ 11. Initially, McCarthy was unable to locate the letter, but in late February 2011, after plaintiff furnished a copy and stated that he would contact his attorney, McCarthy found HR's copy. Pl.'s Decl. ¶ 11. B. Plaintiff's Application and Interview for the SGP Position
In early 2011, DOJ posted a vacancy for a GS-14 Supervisory Grants Program (“SGP”) Manager position within BJA. Def.'s SMF ¶¶ 10-11. The vacancy notice indicated that the selected candidate would be required to “[s]upervise a group of employees performing work at the GS-7 through GS-13 level . . ., [e]valuate [grant] applications before award . . ., and [p]erform duties related to ensuring grantee compliance with the terms and conditions of the grant award or agreement.” Def.'s SMF ¶ 11 (alterations in original); Def.'s Ex. 56, ECF No. 7-4. The parties do not dispute that neither this position, nor any others posted by BJA after it issued the priority consideration letter to plaintiff in 2007, matched the description of the types of positions to which plaintiff was entitled to receive advance notice and the opportunity to apply and be evaluated in a separate process. Def.'s Reply at 7. Applications for the SGP Manager position were accepted during a window beginning on March 22, 2011, and ending on March 31, 2011. Def.'s Ex. 80.
On March 29, 2011, plaintiff requested that his outstanding priority consideration entitlement be used in conjunction with his application for the position, Def.'s SMF ¶ 10, which request McCarthy granted even though the position was not “similar” to the Program Analyst position for which the letter had been intended, id. ¶ 14; Compl. ¶ 19; Def.'s Ex. 3 at 5, ECF No. 7-3. Thus began an ad hoc variant of the normal priority consideration process, in which BJA paused the already-in-motion normal process of considering the applicants who responded to the posting, so as to afford plaintiff the opportunity to receive priority consideration notwithstanding the mismatch in job description and his late entry into the applicant pool.
Plaintiff was interviewed for the position on or about May 11, 2011, by three panelists: Edison Aponte (a Hispanic male), Tammy Reid (an African-American female), and Jonathan Faley (a Caucasian male). Def.'s SMF ¶ 15. Tracey Trautman, the Deputy Director of BJA, was the “selecting official” for the position. Pl.'s Opp'n at 23. Faley and Aponte had been listed as “responsible management officials” in some of plaintiff's prior EEO activity. Def.'s SMF ¶ 23; Pl.'s Decl. ¶ 13. Neither Reid nor Trautman was at the time aware of this prior EEO activity. Def.'s SMF ¶¶ 22, 24; Def.'s Reply at 11.[5] The panelists did not evaluate plaintiff based on the rating and scoring sheet used for the candidates interviewed later in the process, instead evaluating him more qualitatively, taking notes in response to pre-written prompts. Pl.'s Exs. 85-87, ECF Nos. 44-22, 44-23, 44-24; Pl.'s Statement of Material Facts (“Pl.'s SMF”) ¶ 30, ECF No. 44-1.
The panelists “unanimously” concluded that plaintiff either lacked the necessary qualifications or experience or failed adequately to articulate those credentials, and did not recommend him for the position. Def.'s SMF ¶¶ 16-21. As Faley explained, plaintiff “was not suitable for the position because he did not adequately articulate the qualities, skills, and knowledge that would prepare him for the position, such as explaining or demonstrating what experience or skill sets have prepared him for staff supervision and oversight of a grant management team.” Def.'s SMF ¶ 20; Def.'s Ex. 6 ¶ 10, ECF No. 7-3. The panelists also expressed some concerns beyond plaintiff's ineffective portrayal of his experience. First, as panelists understood the situation plaintiff submitted a “writing sample with several obvious errors.” D...
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