Dunning v. Quander (468 F. Supp. 2d 23, 2006)

MEMORANDUM OPINION

LEON, District Judge.

Plaintiff Leonard Dunning filed the instant action alleging that defendant Paul A. Quander, in his capacity as director of the Court Services and Offender Supervision Agency (“CSOSA” or “the Agency”) for the District of Columbia, discriminated and retaliated against him in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., respectively. Specifically, plaintiff alleges that CSOSA discriminated against him on the basis of his age when he was not selected for the positions of Community Supervision Officer (“CSO”) and Lead Drug Testing Technician (“Lead DTT”). Additionally, plaintiff alleges that he was suspended for a ten-day period and again not selected for the position of Lead DTT in retaliation for the filing of an age discrimination complaint with the Director of the Office of Equal Employment Opportunity Diversity Special Programs (“EEO”). This matter is now before the Court on defendant’s Motion for Summary Judgment. Upon consideration of the parties’ submissions and the entire record herein, the defendant’s motion is GRANTED.

BACKGROUND

Plaintiff Leonard E. Dunning was born on August 8, 1955 and thus, was over forty years of age for the entire time period relevant to his complaint. (Am.Compl.1I 3.) Plaintiff has been employed by CSOSA as a drug testing technician since 1997. (Id. ¶ 5.) In December 2000, plaintiff applied for the position of CSO — a law enforcement position — under Vacancy Announcement (“VA”) No.2000-89. (Id. ¶ 7.) Plaintiff was forty-five years of age when he applied for the position and did not possess the required law enforcement experience that, when subtracted from his age, would put him below the thirty-seven year age restriction detailed in the Notice of Vacancy. (Jackson Aff. at 4 (attached to Mot. for Summ. J. as Ex. 7).) Although plaintiff was aware of the age restriction, he believed that it did not apply to him because — in his estimation — he was not a first-time law enforcement appointee. (Dunning Aff. at 4 (attached to Mot. for Summ. J. as Ex. 1).)

Somewhere between January 12 and March 22, 2001, plaintiff was notified that he had not been selected to fill the CSO position. (Am. Compl. ¶ 9; Mot. for Summ. J. at 4.) On March 29, 2001, plaintiff filed an EEO complaint, alleging that CSOSA discriminated against him on the basis of his age. (Am.Compl.1112.) The complaint was eventually denied (id.), and the Equal Employment Opportunity Commission’s (“EEOC”) Office of Federal Operations affirmed the Agency’s final decision on appeal “because the preponderance of the evidence of record does not establish that discrimination occurred” (EEOC Appeal No. 01A23244 (Jun. 25, 2003) (attached to Mot. for Summ. J. as Ex. 9)).

Later in 2001, plaintiff and a fellow coworker came under suspicion for the alleged repeated falsification of their Time and Attendance Sign-in/Sign-out Sheets (“TASS”) by claiming to have worked more hours than those authorized by then-supervisor. (Mot. for Summ. J. at 5 (citing Spencer Aff. at 2-3 (attached as Ex. 10)).) The supervisor’s suspicions were forwarded up the chain of command to the Office of Professional Responsibility (OPR). (Id. at 6.) OPR investigated the matter and received an admission from plaintiffs coworker that the two men had in fact falsified their TASS. (Mot. for Summ. J. at 7.) Plaintiff, however, continued to insist that his TASS were accurate. (Id.) Based on all of the evidence amassed by OPR and management’s view that plaintiff refused to accept responsibility for his actions, Mr. James Morris, Interim Deputy Associate Director for CSOSA Community Supervision Services (“CSS”), charged plaintiff with fraudulent activity and lack of candor during an official OPR investigation. (Id. at 7-8.) On August 26, 2002, Mr. Morris proposed that plaintiff be removed from his position. (Id. at 8.)

After plaintiff protested his removal, CSS’s associate director, Mr. Thomas Williams, decided to give plaintiff “th[e] opportunity to demonstrate that [he was] capable of rehabilitation.” (T. Williams Mem. to L. Dunning (Dec. 6, 2002) at 5 (attached to Mot. for Summ. J. as Ex. 14).) Instead of removing plaintiff altogether from his position at CSOSA, Mr. Williams suspended plaintiff without pay for ten calendar days beginning December 9, 2002. (Mot. for Summ. J. at 8.)

Also in 2002, plaintiff applied and interviewed for the position of Lead DTT, under VA No.2002-20. (Am.ComplA 14.) Among the “critical competencies” required by the position was the ability to “encourage[] and facilitate[] cooperation, pride, trust, and group identity.” (CSOSA Notice of Vacancy, Announcement No. 2002-20 (attached as Ex. 15 to Mot. for Summ. J.) (emphasis added).) Although plaintiff was recommended by a panel of interviewers to fill one of the two vacancies available under VA No.2002-20, sometime after December 19, 2002 — following his suspension — plaintiff learned that he had not been selected for this Lead DTT position. (Am.CompLIHI 16, 18.) Mr. Williams, who made the hiring determinations with respect to Lead DTT, asserts that his decision was based on concerns with plaintiffs “honesty and veracity,” plaintiffs less than “stellar” work history, and the fact that the applicants selected for the position for which plaintiff applied were judged to be “more qualified” than he. (Williams Aff. at 4-5 (attached to Mot for Summ. J. as Ex. 16).) Plaintiff alleges that his non-selection “was a direct result of [his] prior EEO activity.” (Am. Comply 19.)

The next year, in 2003, plaintiff learned of another Lead DTT position opening. (Id. ¶ 20.) In September or October of that year, plaintiff was one of two people who interviewed for that position, and in November, he was informed that he would not be hired. (Id.) Although the interview panel had recommended plaintiff for the position, Mr. Williams — who again was ultimately in charge of the hiring decision— determined that the panel’s recommendation was based on faulty reasoning. (Williams Aff. at 4.) Plaintiff did not in fact receive the highest rating by the interview panel, but instead was recommended by default because the other candidate appeared to be overqualified for the position. (Id.) Plaintiff alleges that he was not selected “based on his age ... and his prior EEO activity.” (Am.Compl^ 23.) CSO-SA, on the other hand, maintains that plaintiff was not selected for the later Lead DTT position for essentially the same reasons that he was not selected for the earlier Lead DTT position. (Williams Aff. at 4-5.)

On September 24, 2003, plaintiff filed a complaint with this Court, alleging that he had been discriminated against on the basis of his age when he was not selected for the position of CSO, under VA No.2000-89. After receiving notice of his right to file suit in regards to his additional claims from the EEOC in December 2004 (Am. Comply 23), plaintiff moved for leave to file an amended complaint on March 18, 2005. Plaintiffs motion was granted, and his amended complaint was filed on June 1, 2005. In that complaint, plaintiff alleges two separate causes of action: (1) age discrimination in violation of the ADEA (Am.Compl.lffi 24-28) and (2) retaliation in violation of the Title VII (id. ¶¶ 29-33).

Currently before the Court is defendant’s motion for summary judgment. In his motion, defendant argues—drawing upon twenty-six supporting affidavits and exhibits—that there are no material issues in dispute; CSOSA’s actions in regards to plaintiff were “reasonable, legitimate, and nondiscriminatory.” (Mot. for Summ. J. at 2.)

For the reasons stated below, this Court finds that plaintiff has failed as a matter of law to meet his burden of establishing that there is a genuine issue as to any material fact in this case. Accordingly, defendant’s Motion for Summary Judgment must be granted.

DISCUSSION

I. Standard of Review

Defendant moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. Under Rule 56, summary judgment shall be granted when the record demonstrates “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In deciding whether there is a disputed issue of material fact, the Court must draw all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where the court finds that facts material to the outcome of the case are at issue, a case may not be disposed of by summary judgment. Id. at 248, 106 S.Ct. 2505. If the facts in dispute are “merely colorable, or ... not significantly probative, summary judgment may be granted.” Id. at 249-50, 106 S.Ct. 2505. A party opposing a motion for summary judgment “may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Id. at 248, 106 S.Ct. 2505; see also Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C.Cir.1996). “[T]he determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. If there is insufficient evidence indicating that a jury could return a favorable verdict for the nonmoving party, then summary judgment is proper. See Nat’l Geographic Soc’y v. Int’l Media Associates, Inc., 732 F.Supp. 4, 4 (D.D.C.1990).

II. Age Discrimination Claims

A. Legal Standard

Age discrimination claims brought pursuant to Title VII and/or the ADEA are resolved under the burden-shifting standard set forth in McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1155 (D.C.Cir.2004) (ADEA). Under this scheme, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. Once the plaintiff makes such a showing, the burden shifts to the defendant employer to specify “some legitimate, nondiscriminatory reason” for the adverse employment action. Id. “Assuming ... that the employer has met its burden of producing a nondiscriminatory reason for its actions, the focus of proceedings at ... summary judgment ... will be on whether the jury could infer discrimination from the combination of (1) the plaintiffs prima facie case; (2) any evidence the plaintiff presents to attack the employer’s proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer) or any contrary evidence that may be available to the employer (such as evidence of a strong track record in equal opportunity employment).” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir.1998).

To establish a prima facie case of age discrimination, the plaintiff must “demonstrate facts sufficient to create a reasonable inference that age discrimination was ‘a determining factor’ in the employment decision.” Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C.Cir.1982). Such an inference is created if the plaintiff shows that (1) he is a member of the protected class (i.e., 40 to 70 years of age); (2) he was qualified for the position for which he applied; (3) he was not hired; and (4) he was disadvantaged in favor of a younger person. Id. at 857. For the following reasons, plaintiff fails to establish such an inference.

B. Vacancy Announcement for CSO Position

Plaintiff alleges that he was discriminated on the basis of his age when he was not selected for the position of CSO, under Vacancy Announcement (