Oviedo v. Wash. Metro. Area Transit Auth.

948 F.3d 386

Henry OVIEDO, Appellant

v.WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellee

No. 18-7037

United States Court of Appeals, District of Columbia Circuit.

Argued September 10, 2019

Decided January 28, 2020

Joseph Scarborough, Student Counsel, argued the cause as amicus curiae in support of appellant. On the briefs were Thomas Burch, appointed by the court, and David Boyer and Megan Cambre, Student Counsel.

Henry Oviedo, pro se, filed the briefs for appellant.

M. Richard Coel argued the cause and filed the brief for appellee. Michael K. Guss and Gerard J. Stief entered appearances.

Before: Rogers and Wilkins, Circuit Judges, and Randolph, Senior Circuit Judge.

Opinion concurring in part and concurring in the judgment filed by Circuit Judge Rogers.

Concurring Opinion filed by Senior Circuit Judge RANDOLPH.

Wilkins, Circuit Judge:

In this Title VII and Age Discrimination in Employment Act ("ADEA") case, Henry Oviedo appeals the District Court’s grant of summary judgment for his former employer, Washington Metropolitan Area Transit Authority ("WMATA"). Oviedo alleges that during his sixteen-year tenure, WMATA failed to promote him on the basis of age and national origin and later retaliated against him for complaining of such discrimination by continuing to deny him promotions. Because the record at summary judgment fails to support Oviedo’s arguments on appeal, we affirm the judgment of the District Court on all claims.

I.

Oviedo is a white male of Chilean national origin with a self-described "strong Hispanic accent." J.A. 8. According to his resume, attached to his amended complaint, Oviedo has twenty-five years of engineering experience, a bachelor’s degree in electrical engineering (BSEE), a master’s degree in electrical engineering (MSEE), and a master’s degree in business administration (MBA). Prior to his employment with WMATA, Oviedo worked as a program manager for Siemens Transportation Partnership-Puerto Rico, Dallas Area Rapid Transit, and the Southeastern Pennsylvania Transportation Authority.

WMATA hired Oviedo in 1999 as a Project Manager. Oviedo began applying for promotions within WMATA around 2003, submitting numerous applications for various positions with no success. Beginning in 2007, Oviedo sent complaints to WMATA about his lack of promotions. Two years later, in 2009, Oviedo filed his first charge of discrimination with EEOC. Although EEOC issued Oviedo a right-to-sue letter in 2011, Oviedo did not file suit until 2016, which is the instant lawsuit.

The denied promotions continued along with several alleged demotions. In the fall of 2013, Oviedo applied for a different Project Manager position. Although WMATA’s human resources passed his resume on for consideration, John Thomas, the sole decisionmaker and the Director of Office of Major Capital Projects, denied him an interview. Thomas wrote in a memorandum dated January 31, 2014, that he did not select Oviedo for an interview in Fall 2013 for the Project Manager position because he was looking for a candidate familiar with "WMATA’s business policies, procedures and practices," and Oviedo’s experience was "focused on the technical aspects of the electrical power systems for the operation of the rail system." J.A. 20. Rather, "[t]he Project Manager position requires more than just technical knowledge of WMATA but, as noted above, knowledge of the business aspects of WMATA’s policies, procedures and practices." Id.

On January 8, 2014, Oviedo filed his second charge of discrimination with EEOC. In his 2014 EEOC charge, Oviedo alleges discrimination – based on his race (White), national origin (Chilean), and age (78) – and retaliation for prior complaints about discrimination. The 2014 EEOC charge states, "[o]n November 18, 2013, I was denied an interview for the position of Project Manager. I believe I have more experience than most, if not all, of the persons who were selected for the positions." J.A. 93. Oviedo does not describe any other event in his 2014 EEOC charge. In 2015, Oviedo retired from WMATA at age 80.

After receiving his right-to-sue letter from EEOC on July 14, 2016, with respect to the 2014 charge, Oviedo filed a pro se complaint, and later a pro se amended complaint, against WMATA, alleging numerous violations of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17, and ADEA, 29 U.S.C. §§ 621 - 34.

WMATA moved for summary judgment on all claims. Congruent with Federal Rule of Civil Procedure 56(c) (" Rule 56") and the District Court’s Local Rule 7(h)(1),¹ WMATA submitted a "Statement of Material Facts Not in Dispute," containing seven facts, each followed by a citation to either Oviedo’s amended complaint or materials that WMATA submitted with its motion for summary judgment. J.A. 61-63. Among those facts, WMATA stated:

In the fall of 2013, Plaintiff applied for two Project Manager positions in another office. Plaintiff was not selected for either of these positions. The hiring manager, John Thomas, who like Plaintiff is a white male, determined that Plaintiff was not the best candidate for either job as his experience at WMATA, as demonstrated by his resume, concentrated primarily on electrical engineering design. By contrast, one of the two Project Manager position[s] being filled dealt with the installation of canopies over escalators, and the primary purpose of the second position was to serve as a financial manager for various office projects. (Thomas Affidavit, ¶[¶] 3-4).

J.A. 62-63.

A few days after WMATA filed its motion for summary judgment, the District Court issued an order advising Oviedo of the rules governing summary judgment procedure, including Rule 56 and Local Rule 7(h)(1). This type of order is commonly referred to as a Fox v. Strickland Order after our decision of the same name, 837 F.2d 507 (D.C. Cir. 1988) (per curiam), and it provides pro se litigants with a detailed explanation of the summary judgment process, including instructions on how to comply with Rule 56 and Local Rule 7(h) and the consequences of a failure to comply.

The District Court’s Order specifically warned Oviedo that "[o]n a motion for summary judgment, ‘any factual assertion in the movant’s affidavits will be accepted as being true unless [the opposing party] submits his own affidavits or other documentary evidence contradicting the assertion.’ " Oviedo v. WMATA , No. 16-cv-1883, dkt. 28, at 2, 2017 WL 11451251 (Aug. 28, 2017) (alternation in original) (quoting Neal v. Kelly , 963 F.2d 453, 456 (D.C. Cir. 1992) ). In addition, the District Court quoted Rule 56(c) ’s mandate:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Id. The District Court advised Oviedo that Local Rule 7(h)(1) enables the District Court to assume a fact "identified by the moving party in its statement of material facts" as admitted unless the fact is controverted in the statement of genuine issues filed in opposition to the motion. Id. at 3. Driving the point home, the District Court warned that "mere statements that the moving party’s affidavits are inaccurate or incorrect are not sufficient." Id.

Oviedo opposed the motion for summary judgment, but he did not file a separate statement disputing any facts asserted in WMATA’s Statement of Material Facts Not in Dispute with any statement of genuine issues, as required by Local Rule 7(h)(1).² But more importantly, Oviedo did not file any affidavits to support any factual assertions made in his opposition to the motion for summary judgment. In his response to the motion for summary judgment, Oviedo presented argument – without record evidence to support his statements – that Thomas "erroneously and arbitrarily decided" that Oviedo’s qualifications were insufficient for the position, without disputing that the position was one focused on finance. J.A. 102. In the accompanying memorandum, Oviedo argued that he was more qualified for both Fall 2013 Project Manager positions than the selected candidates, Diana Levy and Steve Larkin, because Levy and Larkin’s resumes show "very marginal" work experience "in comparison with the Job Posting Requirements and the WMATA Job Code 2854." J.A. 106 (emphasis added).

Oviedo attached to his memorandum in opposition, as relevant to this appeal: (1) a WMATA position description No. 2854 for a Project Manager position, dated September 17, 2010; (2) an applicant resume for Diana Levy; and (3) excerpts from Thomas’s deposition. To be clear, Oviedo did not submit any evidence related to Steve Larkin (the candidate hired as canopy installation Project Manager), any evidence related to any other candidate that applied or interviewed for either of the Fall 2013 Project Manager positions, or any document purporting to be the "Job Posting Requirements" referenced in his memorandum. He attached the Project Manager position description entitled "WMATA Job Code 2854" dated 2010, but there was no declaration or testimony showing what relevance that document had to the 2013 vacancies at issue.

In granting summary judgment for WMATA on all Oviedo’s claims, the District Court concluded that Oviedo’s ADEA claims were barred by sovereign immunity, all Title VII claims except those arising from the Fall 2013 decision were not timely exhausted or not timely filed, and Oviedo failed to show that WMATA’s proffered reasons for the Fall 2013 decision were pretextual, dooming those claims under the final step of the three-step...