Stoe v. Sessions

• Citation: 324 F.Supp.3d 176
• Decision Date: 28 August 2018
• Docket Number: Civil Action No. 16-1618 (JDB)
• Parties: Debra STOE, Plaintiff, v. Jefferson B. SESSIONS III, in his official capacity as Attorney General of the United States, Defendant.
• Court: U.S. District Court — District of Columbia

324 F.Supp.3d 176

Debra STOE, Plaintiff,
v.
Jefferson B. SESSIONS III, in his official capacity as Attorney General of the United States, Defendant.¹

Civil Action No. 16-1618 (JDB)

United States District Court, District of Columbia.

Signed August 28, 2018

324 F.Supp.3d 181

Julia Theresa Quinn, Heller, Huron, Chertkof & Salzman, PLLC, Susan E. Huhta, Outten & Golden, LLP, Washington, DC, for Plaintiff.

Daniel Patrick Schaefer, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

324 F.Supp.3d 182

Plaintiff Debra Stoe, a scientist in the Department of Justice's ("DOJ") Office of Science and Technology ("OST"), was denied a promotion in 2014. Mark Greene, a younger man with less experience in the office, received the job instead. Thereafter, Stoe brought this lawsuit against the Attorney General in his official capacity as her employer (hereinafter "the government" or "OST"). Stoe alleges that OST's failure to promote her resulted from gender and age discrimination, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age Discrimination in Employment Act ("ADEA"). After a period of discovery, the government now moves for summary judgment, asserting that Stoe's failure to receive a promotion was due, not to discrimination, but simply to Greene being a better candidate for the position. The Court has reviewed the record evidence and, for the reasons explained below, will grant the government's motion.

BACKGROUND ²

Stoe has worked in DOJ's Office of Justice Programs ("OJP") since 1998. Pl.'s Ex. 16 [ECF No. 18-2] at 627–28.³ In 2004, she received a position in OST, an office within the National Institute of Justice ("NIJ") in OJP. Def.'s Statement of Material Facts Not in Genuine Dispute ("Def.'s SMF") [ECF No. 16-2] ¶ 1. The position was graded at GS-14.⁴ She has remained at the GS-14 level since, id. ¶ 3, and has been the only female scientist working in OST since 2010, see Pl.'s Ex. 8 ("Stoe Decl.") at 514 ¶ 4.

George "Chris" Tillery has been the GS-15⁵ Director of OST since 2010. Def.'s SMF ¶ 6. That year, there was an opening for the GS-15 Operational Technology Division Director position, which supervises Stoe's GS-14 role. Pl.'s Ex. 35 at 784. Stoe was one of two finalists, but Tillery ultimately selected Davis Hart, a male candidate. Id. at 785, 789. In a memorandum to the director of NIJ, Tillery recommended Hart for the position over Stoe because Hart had more supervisory experience and hands-on experience relating to compliance testing and standards development. Id. at 788–89. However, Tillery noted that Stoe

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had a "more detailed and in-depth understanding of ... managing NIJ's standards development and compliance-testing programs." Id. at 788. Tillery informed Stoe that he had not selected her for the Division Director position because she lacked supervisory experience; Ms. Stoe subsequently underwent formal supervisory training. Stoe Decl. at 514–15 ¶ 6.

Shortly after her rejection from the Division Director position, Stoe informed Tillery that she believed she was performing GS-15-level work in her GS-14 Physical Scientist role. Id. at 515 ¶ 7. After Tillery agreed but did not take action to rectify the pay grade discrepancy, Stoe raised the issue with Hart (then her first-line supervisor) in January 2011. Id. He agreed that she was performing GS-15-level work, and Stoe, Tillery, and Hart assembled a "desk audit" package to advocate for a re-classification of Stoe's position to GS-15. Id. ¶¶ 7–8. The desk audit explained that Stoe had "received 'exceeds expectations' " on her last two annual evaluations "as a GS-14 doing GS-15 work." Pl.'s Ex. 9–11 ("Desk Audit Request") at 531. Tillery recalled that, after the official submission of the desk audit in May 2012, then-NIJ director Dr. John Laub decided not to proceed with the audit because he believed that NIJ already had too many non-supervisory GS-15 employees. Def.'s SMF ¶ 11.⁶ In 2013 or 2014, Tillery discussed the desk audit request with Laub's successor, Dr. Gregory Ridgeway. Id. ¶ 12. In connection with the request, Tillery spoke to the Human Resources Division, which gave him three options for Stoe's position: (1) create a new GS-15 position and place Stoe into it non-competitively; (2) create a new GS-15 position and allow Stoe and others to compete for it; or (3) remove the GS-15 duties from Stoe. Id. ¶ 13. Because Ridgeway also did not want to add non-supervisory GS-15 employees, he directed Tillery to take the third option and remove the GS-15 duties from Stoe's workload. Id. ¶ 15.

In March 2014, Hart left DOJ and the Division Director position re-opened. Def.'s SMF ¶ 16. Tillery updated the position description (now called "GS-15 Supervisory Program Manager") before announcing the vacancy and accepting applications in April 2014. Id. ¶¶ 17–19. The updated description identified four equally-weighted groups of duties: supervisory and/or managerial responsibilities, program planning and management, business process analyses for program planning and management, and program advice and guidance. See Pl.'s Ex. 17 ("Position Description") at 630–33; Def.'s SMF ¶ 18. Tillery testified that some of these duties were GS-15-level work that Stoe had been performing, see Def.'s Ex. 5 [ECF No. 16-8] at 53:1–10; for example, Tillery added that the Division Director must "be one of the two alternate standards executives" on DOJ's Interagency Council on Standards Policy (ICSP), after he determined that it was a duty which had to be removed from Stoe's GS-14 role. Def.'s SMF ¶ 17. The vacancy announcement also identified five knowledge, skills, and abilities ("KSAs") required for the role: "(1) ability to develop and promote a diverse workforce; (2) ability to supervise; (3) ability to analyze organizational and operational problems and develop solutions; (4) knowledge of program management principles; and (5) ability to provide advice and guidance on business and program management issues." Def.'s SMF ¶ 20.

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Tillery, the selecting official for the position, enlisted two other employees, Gordon Gillerman and Maria Swineford, to review applications and interview candidates on a panel with him. Id. ¶ 24. Tillery chose Gillerman, the manager of an organization within the National Institute of Standards and Technology, "because of his experience with standards." Id. ¶ 25. Swineford, the Deputy Director of the Grants Management Division of the OJP Office of Audit Assessment and Management, was asked to provide a "business processes perspective." Id. ¶ 26.

After reviewing all applications for the position, the Human Resources Division ("HR") sent Tillery four lists of "best qualified" candidates; none of the three finalists for the position (Stoe, Greene, and Kathleen Higgins) appeared on the lists. Id. ¶¶ 28–32; Pl.'s Ex. 14 at 546. Tillery replied to HR expressing disappointment with the lists of candidates. Def.'s SMF ¶ 33. He specifically complained that many of the listed candidates had little or no experience in "conformity assessment (standards and testing)," which he wrote "bodes ill for their ability to replace [Stoe] as [DOJ's] alternate Standard's Executive." Def.'s Ex. 21 [ECF No. 16-24] at 1. In response to his concerns, HR generated an expanded list of "best qualified" applicants that included the three finalists. Def.'s SMF ¶ 36; Pl.'s SMF ¶ 36.

Tillery divided the applications among himself, Gillerman, and Swineford to determine who should be invited to interview. Def.'s SMF ¶ 40. Swineford, who was tasked with reviewing Stoe's application, initially recommended that the panel not interview Stoe. Id. ¶ 44. Swineford stated in her deposition that she did not recommend Stoe because Stoe's application did not demonstrate sufficient supervisory experience. Pl.'s Ex. 4 ("Swineford Dep.") at 36:5–12.⁷ Gillerman reviewed Greene and did not recommend that he be interviewed based on his written application materials and résumé. Def.'s SMF ¶ 43; Pl.'s Ex. 1 ("Gillerman Dep.") at 110:16–111:3. After the panelists conferred, Plaintiff was selected for an interview despite Swineford's recommendation because her work "leading the standards activities within NIJ ... justified or supported her leadership skills." Def.'s SMF ¶ 46 (citation omitted). Greene was also selected for an interview at that time because of a policy requiring that if one OJP employee is granted an interview all other OJP employees on the same HR list must be interviewed. Id. ¶ 47.

The panel interviewed finalists on July 11 and July 16, 2014. Id. ¶ 49. All candidates answered the same five questions, with some variations in follow-up. Id. Each panelist assigned scores—calculated based on a score between one and five for each of the five questions—and shared them with the other panelists by email. Id. ¶¶ 50–52, 54, 56. Tillery scored Greene and Higgins highest, Swineford scored Greene highest, and Gillerman scored Stoe and Greene highest. Id. ¶ 59. After combining and averaging each candidate's scores, Greene finished with a final score of 21.33, Stoe with 19.00, and Higgins with 18.67. Id. Tillery selected Greene for the position over Stoe. Id. ¶ 60. In an email to Ridgeway on July 21,...