Montgomery v. Gotbaum

• Decision Date: 01 February 2013
• Docket Number: Civil Action No. 10–cv–1223 (RLW).
• Citation: 920 F.Supp.2d 73
• Parties: Delarse MONTGOMERY, Plaintiff, v. Joshua GOTBAUM, Director, Pension Benefit Guaranty Corporation, Defendant.
• Court: U.S. District Court — District of Columbia

920 F.Supp.2d 73

Delarse MONTGOMERY, Plaintiff,

v.Joshua GOTBAUM, Director, Pension Benefit Guaranty Corporation, Defendant.

Civil Action No. 10–cv–1223 (RLW).

United States District Court, District of Columbia.

Feb. 1, 2013.

Ellen K. Renaud, Richard L. Swick, Swick & Shapiro, P.C., Washington, DC, for Plaintiff.

John Gregory Lennon, Laurie J. Weinstein, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROBERT L. WILKINS, District Judge.

Plaintiff DeLarse Montgomery (“Montgomery”) brings this lawsuit against his former employer the Pension Benefit Guaranty Corporation (“PBGC”), proceeding against Joshua Gotbaum, Director of the PBGC, in his official capacity.¹ Montgomery's claims all stem from his non-selection for a GS–510–12/13 Accountant position in the Collection and Compliance Division of PBGC's Financial Operations Department. As set forth in his Complaint, Montgomery asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination of Employment Act (“ADEA”), 29 U.S.C. §§ 633a et seq., arguing that PBGC's failure to select him for the position was discriminatory on the basis of age (58 at the time), gender (male), and race (African American). He also alleges that PBGC unlawfully retaliated against him for engaging in protected activity—lodging prior complaints of discrimination against PBGC with the Equal Employment Opportunity Commission (“EEOC”). This matter is presently before the Court on PBGC's Motion for SummaryJudgment. (Dkt. No. 34). Having carefully considered the parties' briefing and the entire record in this case, the Court concludes that the PBGC's Motion will be GRANTED for the reasons set forth herein.

BACKGROUND

The Pension Benefit Guaranty Corporation is a wholly-owned United States Government corporation established by the Employee Retirement Income Security Act of 1975 (ERISA), 29 U.S.C. § 1302, to administer the pension plan termination insurance program under Title IV of ERISA, 29 U.S.C. §§ 1301–1461. PBGC is funded preliminary through the collection of premiums paid by certain types of pension plans. Id. at §§ 1306–07. (Dkt. No. 43–1, Joint Statement of Material Facts (“Joint Facts”) at ¶ 1).²

On September 14, 2005, PBGC issued vacancy announcement “FODCCD–2005–006,” for a GS–510–12/13 Accountant position within the Collections and Compliance Division of PBGC's Financial Operations Department. ( Id. at ¶ 11). The vacancy announcement was posted on the PBGC Online Automated Referral System (“POLARS”), as well as the Office of Personnel Management's USA JOBS website. ( Id.). The announcement advised that “it [was] strongly recommended that applicants submit a complete online application and electronic resume via [POLARS].” ( Id.).

Plaintiff DeLarse Montgomery began his employment with PBGC in 1986 as a GS–5 secretary in the Financial Operations Division. ( Id. at ¶ 2). He subsequently progressed within PBGC, ultimately becoming a GS–12 Financial Specialist in the Investment Accounting Branch. ( Id. at ¶ 3). On October 5, 2005, Montgomery applied for the GS–510–12/13 Accountant position, submitting a paper copy of his application to PBGC's Human Resources Division. ( Id. at ¶ 14). At the time the vacancy announcement was published, PBGC's Human Resources Department used a program called “QuickHire” to determine whether an applicant met the minimum qualifications for the position. ( Id. at ¶ 15). Based on applicants' responses in the POLARS electronic system, QuickHire automatically “screened out” applicants when the software determined that the minimum qualifications for the position were not met, and it generated a list of the remaining candidates that did meet the position's qualifications. ( Id.). The lists were then reviewed by Human Resources Specialists, who generated a roster of minimally-qualified applications for the Subject Matter Expert (“SME”) to review. ( Id.).

In this case, after QuickHire conducted an initial screening of the candidates, the list of eligible applicants was forwarded to Kenneth Kofsky, the SME for the vacancy, in early November 2005. ( Id. at ¶ 16). Mr. Kofsky rated the applicants and they were then placed on “Certificates of Eligibles,” which were forwarded to the sole decisionmaker for the position, Robert Callahan, the Financial Program Manager for the Collections and Compliance Division. ( Id. at ¶¶ 16, 18). Because Montgomery did not submit his application electronically, it appears that the QuickHire system failed to include his application on the original list of eligible applicants, which meant that his application was not initially provided to Mr. Kofsky for rating, or to Mr. Callahan for consideration. ( Id. at ¶¶ 16–17). Based on the listing he did receive, Mr. Callahan proceeded to interview the candidates and initially selected Kathryn Gillis for the position, but Ms. Gillis declined the offer.³ ( Id. at ¶ 18).

After Ms. Gillis turned down the position, PBGC proceeded to compile a second round of candidates to be considered for the vacancy. During that timeframe, on December 13, 2005, Montgomery contacted Human Resources to inquire about the status of his application. ( Id. at ¶ 17). Montgomery was initially informed that his application was not considered because he did not apply electronically via POLARS. ( Id.). Nevertheless, Rick Lattimer, a Human Resources Manager, directed Jacqueline Isaac, a Human Resources Specialist, to place Montgomery's name on the second round of certificates to be sent to Mr. Callahan. ( Id. at ¶ 19; Dkt. No. 34–3 at ECF pp. 107–113; Dkt. No. 34–10 at 33).

Thereafter, Mr. Callahan contacted Montgomery to schedule an interview, and because Montgomery was on a scheduled leave of absence at the time, Mr. Callahan offered Montgomery the option of interviewing in person or by telephone. (Joint Facts at ¶ 21.). Montgomery chose to interview by telephone; he was the only candidate who did not interview in person. ( Id.). During the interview, Mr. Callahan recognized that Montgomery met the “minimum” educational requirements for the position, but asked if Montgomery had any intention of pursuing further education that could be beneficial to the position. ( Id.). According to Mr. Callahan, Montgomery replied that he had no interest in pursuing additional education because he “was tired.” ( Id.; Dkt. No. 34–13 at ¶ 3).⁴ In addition, although Mr. Callahan had administered an electronic writing and a Microsoft Excel exercise to the other applicants for the position, he did not ask Montgomery to complete the exercise due to his poor performance during the initial portions of the interview. (Joint Facts at ¶ 21.). According to Mr. Callahan's affidavit:

[He] formulated the opinion, based on [Montgomery's] overall performance in the interview, the qualifications listed on his applications, and his specific posture in exhibiting no interest in professional growth or improvement, that Mr. Montgomery was not the best candidate for the position and in fact, made the least favorable impression among all the candidates.

(Dkt. No. 34–13 at ¶ 4).

Mr. Callahan also interviewed Rhonda Dickerson–Mack for the vacancy. (Joint Facts at ¶ 22). Ms. Mack submitted her application electronically via POLARS, but she initially received a notification that she did not qualify for the position. ( Id.). After she contacted the Human Resources Department, PBGC determined that the QuickHire software erroneously “screened out” Ms. Mack, such that her name was also not included on the initial candidate listings forwarded to Mr. Callahan for consideration. ( Id.). Upon discovering the issue, PBGC forwarded Ms. Mack's application to Mr. Callahan for review and consideration.( Id.). Thus, like Montgomery, Ms. Mack's application was also submitted to Mr. Callahan for review much later in the process than some of the other candidates. Ms. Mack possessed an Associate's Degree in Accounting, was employed by PBGC as an Accountant at the time of her application, and had prior work experience as an Operating Accounting at the GS–510–13 level with the Federal Aviation Administration from 1997 to 2005. ( Id.; Dkt. No. 37–24 at 8–11). During his interview of Ms. Mack, Mr. Callahan administered the writing and Microsoft Excel exercise. ( Id. at ¶ 23). Mr. Callahan ultimately selected Ms. Mack for the position. ( Id.). Ms. Mack, like Montgomery, is African American. (Dkt. No. 37–3 at 11–12).

On January 23, 2006, Montgomery was notified that he was not chosen for the Accountant vacancy because “[a]nother candidate was selected.” (Dkt. No. 37–15). On March 7, 2006, Montgomery filed a formal complaint of discrimination with the EEOC, and he subsequently filed the instant lawsuit on July 20, 2010. (Joint Facts at ¶¶ 25–26). Overall, Montgomery has filed a total of four complaints with the EEOC, including the complaint that preceded the instant lawsuit.⁵ ( Id. at ¶ 7). Montgomery has since retired from PBGC, electing to participate in a voluntary early retirement program effective September 30, 2006. ( Id. at ¶ 3).

ANALYSIS

A. Standard of Review

Summary judgment is appropriate when the moving party demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). To establish a genuine issue of material fact, the nonmoving party must demonstrate—through affidavits or other competent evidence, Fed.R.Civ.P. 56(c)(1)—that the quantum of evidence “is such that a reasonable jury could return a verdict for the nonmoving party.” Steele v. Schafer, 535 F.3d 689, 692 (D.C.Cir.2008) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). While the Court views all facts in the light most favorable to the nonmoving party in reaching that...