Etokie v. Duncan

202 F.Supp.3d 139

Ephraim ETOKIE, Plaintiff

v.Arne DUNCAN, Secretary of the United States Department of Education, Defendant

Civil Action No. 15-602 (CKK)

United States District Court, District of Columbia.

Signed July 29, 2016

Ephraim Etokie, Columbia, SC, pro se.

John Cuong Truong, Michael Steven Taylor, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

Plaintiff Ephraim Etokie claims that he was the victim of discrimination when he was not hired for an Equal Employment Opportunity Specialist position at the United States Department of Education in March, 2009. Plaintiff is a Nigerian-American man born in 1951 who has a hearing disability, deafness. In this case, he claims that Defendant discriminated against him on the basis of disability, age, national origin, and gender, bringing claims under the Rehabilitation Act, the Age Discrimination in Employment Act, and Title VII of the Civil Rights Act of 1964, as amended.¹ In addition, he brings claims in tort for intentional infliction of emotional distress and for tortious interference with prospective advantage. Before the Court are Plaintiff's [14] Motion for Summary Judgment, and Defendant's [19] Cross Motion to Dismiss and for Summary Judgment. Plaintiff moves for summary judgment on all claims in this action on the basis of the record as it currently is constituted. In turn, Defendant seeks dismissal of the tort claims under Federal Rule of Civil Procedure 12(b)(1) for want of subject matter jurisdiction and seeks summary judgment on each of the discrimination claims. Upon consideration of the pleadings,² the relevant legal authorities, and the record for purposes of this motion, the Court DENIES Plaintiff's [15] Motion for Summary Judgment and GRANTS Defendant's [19] Motion to Dismiss and for Summary Judgment. The Court dismisses the tort claims under Rule 12(b)(1) because of Plaintiff's failure to exhaust his administrative remedies. With respect to the discrimination claims, the Court concludes that Plaintiff has not presented evidence from which a reasonable jury could infer discrimination, let alone undisputed facts that would merit granting summary judgment to Plaintiff on this record. Therefore, the Court grants summary judgment to Defendant on each of the discrimination claims. This case is dismissed in its entirety.

I. BACKGROUND

On approximately January 14, 2009, the Department of Education posted an announcement for a single Equal Employment Opportunity ("EEO") Specialist position, labeled as GS-260-11/12. Def.'s Mot., Ex. 3 (VA 0024), at Record of Investigation ("ROI") 74; id. , Ex.4 (VA 0028), at ROI 184. The position was posted under two separate vacancy announcements: OM-2009-0024, known as VA 0024, and OM-2009-0028, known as VA 0028. Id. VA 0024 was open to all United States citizens through the federal government's competitive hiring process. VA 0024, at ROI 74. VA 0028 was open only to then-current federal employees and others who were exempted from the competitive hiring process. VA 0028, at 184. Each of the two vacancy announcements was open to applications at the GS-11 level and at the GS-12 level. See VA 0024, at ROI 84-85; VA 0028, at ROI 196. Applications for this position were submitted through the federal government's Internet hiring portal, USAJOBS.gov. VA 0024, at ROI 77; VA 0028, at ROI 187. The application consisted of questions chosen by the selecting official for the position from a "library" of questions maintained in the Department of Education's hiring system, ED HIRES. Def.'s Mot., Ex. 6, EEOC Hearing Transcript—Testimony of Nichelle Bowman ("Bowman Test."), 60:15-61:16. After an applicant submits an application, the ED HIRES system automatically scores the application based on the answers included in the application. Id. , 64:18-65:5, 80:18-81:19; see also Pl.'s Mot., Ex. E ("Pl.'s Applicant Data Report) (showing application data with scores associated with responses to individual questions), at ROI 244-62. The highest score possible, before any veteran's preferences are applied, is 100. Bowman Test. at 82:5-83:10. Following the automated scoring process, a human resources specialist reviewed each applicant's resume to ensure that it matched the responses to the vacancy announcement and to determine whether or not the applicant was qualified for the position in question. Bowman Test., 65:5-13. For the announcements labeled VA 0024 and VA 0028, human resources specialist Nichelle Bowman completed these tasks. Def.'s Mot., Ex. 5 ("Bowman Aff."), at 2.

The next step in the process is that certificates are prepared under each vacancy announcement with the names and identifying information of one or more candidates, and that information is forwarded to the selecting official for review. See Bowman Test. at 66:3-68:9. Any person that is on one of the certificates is eligible to receive an interview. Id. at 68:20-69:8. However, the process of preparing the certificates differs for the two vacancy announcements—VA 0024, which is open to all applicants under the agency's competitive process, and VA 0028, which is open only to then-current federal employees and to people exempted from the competitive hiring process.

With respect to VA 0024, a Delegated Examining Unit ("DEU") certificate is prepared for each of the grade levels applicable to the vacancy announcement, here GS-11 and GS-12. See Def.'s Mot., Ex. 7, at ROI 182. For each grade level, the qualified applicants, as determined by a human resources specialist as described above, were ranked according to the sum of the automated ED HIRES scores plus any qualifying veteran's preference points. Id. at 4. Specifically, ten points are added to an applicant's ED HIRES score for a veteran's preference. Bowman Test., 74:8-14. At that time, it was the Department's practice under the "Rule of Three" to put the top three scoring candidates for each grade—adjusted for the veteran's preference—on a DEU certificate, ranked by the preference-adjusted score. Id. , 65:14-67-18; see also 5 C.F.R. § 332.404 ("An appointing officer, with sole regard to merit and fitness, shall select an eligible ... from the highest three eligibles on the certificate who are available for appointment"). For VA 0024, the GS-11 DEU listed three candidates, in the following order:

• Darrell Davis, with an adjusted score of 108.61;

• Nanese Loza, with an adjusted score of 102.92; and

• Plaintiff Ephraim Etokie, with an adjusted score of 100.

Def.'s MSJ, Ex. 7, at ROI 182. Of those candidates, Davis and Loza received a veteran's preference, and Plaintiff did not. See Bowman Test. at 67:22-68:2. For VA 0024, the GS-12 DEU also listed three candidates, in the following order:

• Darrell Davis, with an adjusted score of 108.61;

• Jennifer Myers, with an adjusted score of 105; and

• Dawn Pierce, with an adjusted score of 104.65.

Def.'s MSJ, Ex. 8, at ROI 181A. Each of these three candidates received a veteran's preference. See id. (listing veteran's preference indicator "CPS" or "TP" next to all candidates); Bowman Test. (explaining veteran's preference indicators); see also Office of Personnel Management, Veterans Employment Initiative: Vet Guide, available at https://www.opm.gov/policy-data-oversight/veterans-employment-initiative/vet-guide/ (last visited July 22, 2016) (explaining veteran's preferences and the indicators "TP" and "CPS"). Under the Rule of Three, if a selection was made from a DEU certificate, the selecting official was required to select a candidate from among the top three candidates and was prohibited from choosing a non-veteran over a veteran with a higher score. See Bowman Test. at 67:11-18; 5 U.S.C. § 3318 ; 5 C.F.R. § 332.402 -406.

Under VA 0028, Bowman prepared three types of certificates for both GS-11 and GS-12: a merit promotion certificate; a noncompetitive certificate; and a Schedule A certificate. See Def.'s Mot., Exs. 9-14, ROI 397-402. Individuals are eligible for listing on a Schedule A certificate if they have a certified mental or physical disability or satisfy other eligibility criteria. See Bowman Aff., at ROI 55; see also 5 C.F.R. § 213.3101 (regulatory authorization for Schedule A hiring). All qualifying applicants who received at least an ED HIRES scores of 85 were listed on each of these certificates. See Bowman Test. at 65:14-19; see also, e.g. , Def.'s Mot., Ex. 12, at ROI 401 (listing five candidates on VA 0028 noncompetitive certificate for GS-12). The individuals on each of those certificates are listed in alphabetical order, by last name, and their ED HIRES scores are not printed on those certificates. Bowman Aff., at ROI 55; see also Def.'s Mot., Exs. 9-14, ROI 397-402. Plaintiff was one of two candidates listed on the Schedule A certificates for both GS-11 and GS-12. See Def.'s Mot., Ex. 13, at ROI 399; id. , Ex. 14, at ROI 402. Plaintiff was not listed on any of the other VA 0028 certificates. See id. , Exs. 9-12, ROI 397-98, 400-01. According to the agency's practice, listing on one of the certificates means that the candidate was eligible to be interviewed, but not that the candidate necessarily would be invited to interview or necessarily would be offered a job. Bowman Test. at 68:10-69:17, 99:16-100:1.

Altogether the eight certificates prepared for the two vacancy announcements were forwarded to the selecting official, Dr. Larry Ross, director of the agency's Equal Employment Opportunity Services office, via the Department's Office of Management. See Bowman Test. at 66:12-20; Def.'s Mot., Ex. 15 ("Ross Aff."), at ROI 47. Dr. Ross delegated the responsibility for setting up the interview panel and for recommending a candidate to Chandra Vickers, the branch chief of the agency's Equal Employment Opportunity Services office. Ross Aff. at ROI 47; Def.'s Mot., Ex. 16, EEOC Hearing Transcript—Testimony of Chandra Vickers ("Vickers Test."), at 165:20-22. Vickers reviewed all eight certificates that were...