Pitt v. Duke

P
                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


MARY R. PITT,

               Plaintiff,

       v.                                             Civil Action No. 17-2466 (TJK)

ALEJANDRO N. MAYORKAS,1

               Defendant.


                                  MEMORANDUM OPINION

       Plaintiff Mary Pitt challenges the Department of Homeland Security’s decisions not to

promote her to two different positions and to fill a third position in a way that made her ineligible

to apply. She sued to allege discrimination on the basis of her race and sex in violation of Title

VII of the Civil Rights Act. Defendant has moved for summary judgment. ECF No. 17. For the

reasons explained below, the Court will grant the motion.

I.     Background

       Pitt is an African-American woman who worked for the Department of Homeland

Security (DHS) as a Management Program Analyst. ECF No. 17-20 ¶¶ 1–3. In 2015, she

applied for two openings for a Protective Security Advisor (PSA) position: one in Arkansas and

the other in Washington, D.C.

Id. ¶¶ 6, 9.

A PSA works with federal agencies, local agencies,

and private companies on security and enforcement measures to protect critical infrastructure.

ECF No. 18-8 at 2; ECF No. 18-12 at 2. Pitt interviewed for both positions in June 2015, but she

was ultimately not selected for either. ECF No. 17-20 ¶¶ 12–15. Two white men were hired



1
 Under Federal Rule of Civil Procedure 25(d), Alejandro N. Mayorkas is automatically
substituted as Defendant for Elaine C. Duke.
instead.

Id. ¶ 15.

Later that summer, Defendant sought to fill two vacant PSA positions in

Atlanta, Georgia, as internal, lateral reassignment opportunities, rather than through competitive

selection processes, and as such, the positions were available only to GS-14 and GS-15 level

employees.

Id. ¶ 21;

ECF No. 17-16 at 5. Pitt, at the GS-13 level, was thus ineligible. ECF No.

17-20 ¶ 22. An African-American man and Indian-American man were ultimately selected.

ECF No. 17-18 at 6.

          Pitt then filed an Equal Employment Opportunity (EEO) complaint alleging Defendant

discriminated against her on account of her race and sex when she was not selected for the PSA

positions in Arkansas and Washington, D.C. ECF No. 1 ¶ 14. She later amended that complaint

to allege that the discrimination also extended to Defendant’s decision to exclude her from

applying for the PSA position in Atlanta.

Id. After receiving a

right-to-sue letter, she filed this

suit alleging race and sex discrimination in violation of Title VII of the Civil Rights Act.

Id. ¶¶ 1–2. II.

      Legal Standard

          Under Federal Rule of Civil Procedure 56, a court must grant summary judgment “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Summary judgment is appropriately

granted when, viewing the evidence in the light most favorable to the non-movants and drawing

all reasonable inferences accordingly, no reasonable jury could reach a verdict in their favor.”

Lopez v. Council on Am.-Islamic Relations Action Network, Inc., 

826 F.3d 492

, 496 (D.C. Cir.

2016). To survive summary judgment, a plaintiff must “go beyond the pleadings and by her own

affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate




                                                  2
specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 

477 U.S. 317

, 324 (1986) (internal quotation omitted). Courts “are not to make credibility determinations

or weigh the evidence.” 

Lopez, 826 F.3d at 496

(quoting Holcomb v. Powell, 

433 F.3d 889

, 895

(D.C. Cir. 2006)). But the “mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the requirement

is that there be no genuine issue of material fact.”

Id. (quoting Anderson v.

Liberty Lobby, Inc.,

477 U.S. 242

, 247–48 (1986)). If the evidence “is merely colorable, or is not significantly

probative, summary judgment may be granted.” 

Anderson, 477 U.S. at 249

–50 (citations

omitted).

       “The movant bears the initial burden of demonstrating that there is no genuine issue of

material fact.” Montgomery v. Risen, 

875 F.3d 709

, 713 (D.C. Cir. 2017). “In response, the non-

movant must identify specific facts in the record to demonstrate the existence of a genuine

issue.”

Id. And for claims

where the non-movant bears the burden of proof at trial, as here, she

must make an evidentiary showing “sufficient to establish the existence of [each] essential

element to [her] case.” 

Celotex, 477 U.S. at 322

. “[A] complete failure of proof concerning an

essential element of the nonmoving party’s case necessarily renders all other facts immaterial”

and therefore entitles the moving party to “judgment as a matter of law.”

Id. at 323.

“Importantly, while summary judgment must be approached with specific caution in

discrimination cases, a plaintiff is not relieved of his obligation to support his allegations by

affidavits or other competent evidence showing that there is a genuine issue for trial.” Pollard v.

Quest Diagnostics, 

610 F. Supp. 2d 1

, 17 (D.D.C. 2009) (cleaned up).




                                                  3
III.    Analysis

        “Title VII requires that ‘[a]ll personnel actions affecting employees or applicants for

employment . . . in executive agencies . . . be made free from any discrimination based on race.’”

Barnette v. Chertoff, 

453 F.3d 513

, 515 (D.C. Cir. 2006) (quoting 42 U.S.C. § 2000e-16(a)).

When, as here, a plaintiff offers no direct evidence of discrimination, the claim is analyzed under

the McDonnell Douglas burden-shifting framework.

Id. Under that framework,

Plaintiff bears

the initial burden to establish a prima facie case of discrimination by showing that “(1) she is a

member of a protected class; (2) she suffered an adverse employment action; and (3) the

unfavorable action gives rise to an inference of discrimination.” White v. Vilsack, 

888 F. Supp. 2d

93, 98 (D.D.C. 2012) (quoting Brown v. Brody, 

199 F.3d 446

, 452 (D.C. Cir. 1999)). “Once

she has done that, the burden shifts to the defendant, who must ‘articulate some legitimate,

nondiscriminatory reason’ for the adverse action.” Czekalski v. Peters, 

475 F.3d 360

, 363 (D.C.

Cir. 2007) (quoting McDonnell Douglas Corp. v. Green, 

411 U.S. 792

, 802 (1973)). Then,

“once the employer asserts a legitimate, non-discriminatory reason, the question whether the

employee actually made out a prima facie case is no longer relevant and thus . . . ‘drops out of

the picture.’” Brady v. Office of Sergeant at Arms, 

520 F.3d 490

, 493 (D.C. Cir. 2008) (quoting

St. Mary’s Honor Ctr. v. Hicks, 

509 U.S. 502

, 511 (1993)). In other words, “the district court

must resolve one central question: Has the employee produced sufficient evidence for a

reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual

reason and that the employer intentionally discriminated against the employee on the basis of

race . . .?”

Id. at 494. 4

       A.      PSA Positions in Arkansas and Washington, D.C.

       Defendant asserts that Pitt was not selected for these positions because others were more

qualified, and a “qualifications-based justification constitutes a legitimate, nondiscriminatory

reason” for a personnel action that shifts the burden back to the plaintiff. See Holcomb v.

Powell, 

433 F.3d 889

, 896 (D.C. Cir. 2006). Defendant asserts that the interview panelists did

not recommend Pitt for either job because she did not demonstrate a good understanding of the

PSA role or critical infrastructure, did not display strong communication skills, and scored

significantly lower on her interviews than the selectees. ECF No. 17-3 at 6–7, 9. Defendant also

conducted the interviews for these positions in accordance with standard procedures and a

numerical rating system. See, e.g., Bell v. Donley, 

928 F. Supp. 2d 174

, 179–80 (D.D.C. 2013)

(plaintiff’s argument that she was “significantly better qualified” than selectee had “little

support” where three-member interview panel independently ranked plaintiff among lowest

candidates after asking each applicant the same six questions and rating responses on scale from

one to ten). At the interview stage, the panelists used a standard set of questions for each

applicant to assess their knowledge and experience about critical infrastructure protection,

familiarity with local critical infrastructure, interpersonal and oral communication skills, and

technical acumen. ECF No. 17-4 at 4; see also

id. at 7.

The panel members scored each

applicant’s responses with a score on a scale from one to five, and after all interviews were

complete, the panel reviewed scores and discussed the candidates, then submitted a

recommendation to the hiring authority.

Id. at 4.

       For the Arkansas position, Pitt was interviewed first by Steven Nicholas, Kelly Wilson,

and Jamie Richards, and then again by Richards, Nicholas, and Elizabeth Clifton. ECF No. 17-8




                                                  5
at 5. Pitt received the lowest score out of the five interviewees, 20.33 out of 45, ECF No. 17-5 at

8; ECF No. 17-6 at 1, while the selectee scored a nearly perfect 43.35 out of 45, more than 20

points higher, ECF No. 17-7 at 1. According to Clifton, Pitt “was not able to articulate the

impacts of the loss of critical infrastructure and had no understanding of infrastructure in

Arkansas.” Instead, she “only provided broad sweeping generalizations” related to critical

infrastructure during the interview, and her “communication skills—a key element of being a

PSA—did not reflect someone who is comfortable briefing in public.” ECF No. 17-4 at 6, 9.

The other two panelists echoed her comments. ECF No. 17-5 at 6; ECF No. 17-8 at 7.

       For the Washington, D.C., opening, Pitt was interviewed by John Guest, Matthew

Wombacher, and Clifton. ECF No. 17-4 at 5. For this opening, she received the second-lowest

score out of twelve interviewees, 24.66 out of 45, while the selectees received the highest scores,

38.68 and 38.66. ECF No. 17-9; ECF No. 17-10 at 1; ECF No. 17-11 at 1; ECF No. 7-12 at 1.

The panelists viewed her candidacy for this post similarly. Wombacher stated Pitt “did not

sufficiently demonstrate . . . knowledge of the national capitol regions Critical Infrastructure, nor

was there demonstrated understanding as to the role of the Protective Security Advisors” in the

protection of critical infrastructure, ECF No. 17-13 at 6, and the other panelists expressed similar

opinions, ECF No. 17-4 at 6, 9; ECF No. 17-14 at 7–8. And the panelists thought Plaintiff was

“very nervous” and “struggled to clearly articulate her points.” ECF No. 17-13 at 7; ECF No.

17-4 at 9.

       Pitt contends that Defendant’s asserted, nondiscriminatory reason for not hiring her is

pretextual. She argues that (1) Defendant failed to follow the proper hiring procedures in several

ways; (2) the panelists gave implausible and conflicting accounts as to why she was not selected;




                                                  6
(3) she performed well during the interview; and (4) no African-American woman has ever been

selected as a PSA. The Court addresses each of these arguments in turn, finding that none show

pretext.

       First, Pitt argues that the panel “violated well-established merit systems protection law in

passing [her] over in favor of white male selectees who are not veterans” because she qualified

for veterans’ preference. ECF No. 18 at 16–17. But Pitt mischaracterizes veterans’ preference

law. As Defendant explains, although eligible veterans receive a preference in hiring when

entering the competitive service, 5 U.S.C. § 2108a(c), that preference “does not apply . . . to

inservice placement actions such as promotions,” see 5 C.F.R. § 211.102. In other words, it

“only applies to initial employment, not to movement of an incumbent employee from one job to

another within an agency”—i.e., the type of personnel action here. Chavers v. Shinseki, 667 F.

Supp. 2d 116, 131 n. 11 (D.D.C. 2009); see also Brown v. Dep’t of Veterans Affairs, 

247 F.3d 1222

, 1224 (Fed. Cir. 2001). Thus, even though the selectees were not veterans, that fact does

not show that Defendant’s procedures were improper, let alone that the panel acted with any

discriminatory motive.

       Pitt also argues that the procedures were improper because the panel considered the

applicants’ knowledge of local critical infrastructure, even though this specific criterion was not

listed in the vacancy announcements. ECF No. 18 at 7, 18. But “the fact that an employer

‘based its ultimate hiring decision on one or more specific factors encompassed within a broader

and more general job description does not itself raise an inference of discrimination sufficient to

overcome summary judgment.’” Adeyemi v. District of Columbia, 

525 F.3d 1222

, 1228 (D.C.

Cir. 2008) (quoting Jackson v. Gonzales, 

496 F.3d 703

, 709 (D.C. Cir. 2007)); see also Gold v.




                                                 7
Gensler, 

840 F. Supp. 2d 58

, 68 (D.D.C. 2012) (“[R]easonable employers ‘do not ordinarily limit

their evaluation of applicants to a mechanistic checkoff of qualifications required by the written

job descriptions.’” (quoting 

Jackson, 496 F.3d at 709

)). Here, knowledge of local critical

infrastructure was “fairly encompassed within the announcement.” 

Adeyemi, 525 F.3d at 1228

.

Clifton explained that knowledge of local infrastructure is implicitly relevant to an applicant’s

“ability to engage” in the role as “the federal point of contact for local infrastructure owners and

operators requiring assistance and protection planning,” ECF No. 22-4 at 64:15–21, which was

one of the duties listed in the job announcement, ECF No. 18-8 at 2. Moreover, the

announcement sought candidates with the “[a]bility to plan and conduct surveys of Critical

Infrastructure,” ECF No. 18-8 at 3, a skill that would be aided by an applicant’s knowledge of

local infrastructure and ability to engage with local stakeholders. And nothing about the factor

itself—local knowledge and experience—hints at pretext.

       Next, Pitt argues that the panelists gave implausible and conflicting accounts as to why

she was not selected. She contends that the panel’s failure to give weight to her law enforcement

and military experience “despite all the evidence that [they] are valued assets for PSAs” is

evidence of pretext. ECF No. 18 at 18. More specifically, she notes that “the job series

designated for PSAs is the law enforcement series, a significant portion of the employees serving

as PSAs have law enforcement and/or military backgrounds, and the ‘primary purpose’ of the job

is to liaise with entities on ‘security compliance/enforcement matters.’” ECF No. 18 at 18

(quoting ECF No. 18-8 at 1). She then cites Nicholas’s deposition, where he stated that he gave

“zero” weight to her law enforcement experience, ECF No. 18-1 at 114:19–22, and argues that

this statement is so “unworthy of credence” that it shows pretext. ECF No. 18 at 18.




                                                  8
        None of this shows pretext. Nicholas provided a reasoned explanation for his

assessment: in his view, his own law enforcement experience did not “relate to what PSAs do”

because PSAs are not involved in enforcement, but only “assist[ing] law enforcement with

planning.” ECF No. 18-1 at 115:5–21. Indeed, even though he had twenty-five years of law

enforcement experience—more than Pitt—he was not selected for multiple PSA positions when

he applied, and the feedback he received was that he should first gain PSA-specific experience as

a security specialist.

Id. He further explained

that he would find law enforcement or military

experience relevant in certain circumstances if that experience provided an applicant with local

relationships and connections. ECF No. 18-1 at 115:22–116:6.

        As Pitt points out, not all the panelists felt the same way, but that also does not show

pretext. Clifton, for example, assessed this experience differently. ECF No. 18 at 8. She

thought the work Pitt had done with law enforcement “aligned to the PSA program,” ECF No.

18-2 at 43:12–18, and stated that Pitt had “experience in both military and law enforcement

relating to critical infrastructure protection.” ECF No. 17-4 at 9. But it is not surprising that

interview panelists might evaluate her experience differently. Indeed, “[o]ne reason for having a

panel interview is to get different points of view. . . . If everyone thought about hiring issues and

viewed candidates in precisely the same way, little could be gained by having a panel interview.”

Hayes v. Sebelius, 

762 F. Supp. 2d 90

, 103 (D.D.C. 2011) (finding that interview panelists

offering different reasons for not hiring plaintiff did not suggest pretext). 2

        Pitt also contends that, in her view, she performed well at her interview, and that the



2
 Pitt does not argue that her experience made her “substantially more qualified,” 

Holcomb, 433 F.3d at 897

, than the other applicants.




                                                   9
panelists gave such conflicting accounts of it that their evaluations are “unworthy of credence.”

ECF No. 18 at 18. As for her bald, subjective assertion that she “performed well” during her

interview, ECF No. 17-19 at 45:6–8; see also ECF No. 18 at 9, her “‘subjective assessments of

[her] own credentials’” are “‘largely irrelevant’ for purposes of establishing discriminatory

motive.” 

Bell, 928 F. Supp. 2d at 180

(quoting Washington v. Chao, 

577 F. Supp. 2d 27

, 44

(D.D.C. 2008)). Pitt also conceded in an email to a colleague shortly after the Washington, D.C.,

interview that she did not perform well: “For some reason I got really nervous, don’t know why

because I prepared. I got overly excited, and I fumbled. I’ve done great on these several times

in the past, but today, I did poorly, and I blew it.” ECF No. 22-6 at 11. Pitt also argues that “Mr.

Nicholas testified that Ms. Pitt was confident and interviewed well” and that “Ms. Clifton made

vague, and somewhat conflicting, criticisms of Ms. Pitt’s interview – saying she appeared to

have memorized her answers but also saying she struggled to give any answers at all.” ECF No.

18 at 18. As to Nicholas, however, Pitt cites no such deposition testimony in support

, id., and as to

Clifton, as Defendant points out, it is hardly inconsistent to assert that Pitt seemed to have

memorized answers to certain questions but at other times struggled to answer at all. ECF No.

22 at 6. Thus, this evidence does not suggest that Defendant’s reasons were pretextual.

       Finally, Pitt points out that no African-American woman has ever been a PSA (and only

three African-American men are currently PSAs) as evidence of discrimination. ECF No. 18 at

12–13, 22. But as Defendant notes, this evidence does not, without more, show discriminatory

animus. ECF No. 22 at 23–24. “In determining whether an employee has been the subject of

discrimination, ‘the courts have consistently emphasized that the ultimate issue is the reasons for

the individual plaintiff’s treatment, not the relative treatment of different groups within the




                                                 10
workplace.’” Whitener v. England, 1:04-cv-00273-RWR, 

2006 WL 3755220

, at *6 (D.D.C.

Dec. 19, 2006) (quoting Brown v. Henderson, 

257 F.3d 246

, 252 (2d Cir. 2001)). Thus, although

statistical evidence may be relevant to a disparate treatment claim, it is “less significant” than it

would be to a disparate impact claim, Horvath v. Thompson, 

329 F. Supp. 2d 1

, 10 (D.D.C.

2004), and “merely noting the composition of a workforce, without more, cannot sustain a

discrimination action.” Whitener, 

2006 WL 3755220

, at *7; see also 

Horvath, 329 F. Supp. 2d at 10

(“[E]vidence that merely indicates an underrepresentation . . . does not itself establish

pretext.”). And statistical evidence particularly lacks value when, as here, a plaintiff provides no

information about the demographics of the pool of qualified applicants. Whitener, 

2006 WL 3755220

, at *7 (granting motion for summary judgment where plaintiff “presented no evidence

as to the available pool of applicants . . . e.g., whether sufficient numbers of African Americans

apply for such positions that the statistics are significant”). 3 For these reasons, this evidence

does not raise an issue of material fact as to discrimination.

       Ultimately, the Court finds that Pitt has not produced evidence on which a reasonable

jury could find that Defendant’s proffered nondiscriminatory reason for not selecting Pitt for

these positions was pretextual, and that instead she was the victim of discrimination on the basis

of race or sex.

       B.         PSA Positions in Atlanta

       Shortly after Defendant declined to select Pitt for the PSA jobs in Arkansas and

Washington, D.C., in part because she failed to show knowledge of the local critical


3
 Pitt’s assertion that PSAs are recruited from large cities with high populations of African-
Americans, ECF No. 18 at 12, 21, is speculative and says nothing about the composition of the
pool of qualified applicants.




                                                  11
infrastructure, Defendant sought to fill two PSA positions in Atlanta, Georgia—where Pitt has

worked for many years—as lateral reassignments available only to employees at the GS-14 or

GS-15 level. ECF No. 18 at 9–10. As noted earlier, an African-American man and Indian-

American man were ultimately selected for the positions. ECF No. 17-18 at 6. Pitt alleges that

Defendant deliberately set these job qualifications above her pay grade to exclude her from

consideration because of her race and sex.

Id. Defendant has put

forth another legitimate, nondiscriminatory reason for the way it

handled these positions: that they were critical vacancies that for several reasons it needed to fill

quickly. ECF No. 22 at 18–21. Defendant asserts speed was important because upcoming

special events required infrastructure protection activity, including the construction of two new

sports arenas; DHS was poised to start a pilot program decentralizing certain duties from

headquarters to the field; a longtime PSA announced his retirement just one month prior to the

pilot program’s launch, while one PSA vacancy was already pending; and a regional disaster

response coordination center is in Atlanta, which is particularly critical during hurricane season,

i.e., June 1 through November 30. ECF No. 22-7 at 2–3. Moreover, Defendant explains that it is

“standard practice” to fill PSA positions through lateral reassignment when there is an immediate

need, as there was previously, for instance, in Houston, Texas, during security planning for a

Super Bowl. ECF No. 17-17 at 4–5.

       Pitt argues that the “generic” and “vague” nature of Defendant’s justification for filling

the position through reassignment is evidence that this reason is pretextual. ECF No. 18 at 19–

20. She contends that of the twenty PSA vacancies at the time, only the Atlanta opening was

filled through reassignment, and Defendant “has failed to offer any factual basis for singling out




                                                 12
the Atlanta position as critical; there are no documents or testimony specifying how long the

Atlanta position had been vacant, any special events happening in Atlanta, or what [sic] the

ongoing IP activity in Atlanta differed from the many other regions in the country with vacant

PSA positions.”

Id. at 19.

But Defendant did provide specificity on these points. Scott Breor,

director of the DHS division that includes PSAs, explained that the immediate need to fill the

Atlanta positions arose out of a confluence of factors: the start of the new pilot program, two

large, ongoing construction projects, and the departure of a longtime PSA, 4 as well as Atlanta’s

special status as the location for a regional disaster coordination center. ECF No. 22-7 at 2–3.

And there is nothing in the record suggesting that a similar set of conditions was at issue with

any other PSA vacancy.

       Pitt additionally contends that “[t]he explanation is also called into question based on

management’s conflicting testimony about who was involved in the decision.” ECF No. 18 at

20. According to Pitt, Breor stated that only he and a DHS assistant secretary, Caitlin

Durkovich, were involved, while Clifton stated she was also involved.

Id. But as Breor

clarified, he asked Clifton for input about how to fill the PSA positions, and he presented her

feedback to Durkovich, who made the final decision. ECF No. 22-7 at 1–2. There is thus no



4 Pitt also argues that Defendant’s explanation is implausible because it knew about the PSA’s
retirement two years before the vacancy announcement. As proof, she cites her own declaration
where she states she “felt confident that . . . for years, there had been conversation that the
current PSA for Atlanta would be retiring in mid 2015.” ECF No. 18-13 at 15. But this evidence
says nothing about when those officials responsible for filling the position knew about the
retirement, only her own impression. According to Defendant, the PSA did not formally
announce his retirement until one month before the pilot program launched and the reassignment
opportunities were advertised. ECF No. 22-7 at 3. In any event, Pitt does not dispute that the
PSA’s departure coincided with the key projects described, which supports Defendant’s claim
that it needed to fill the positions quickly, no matter when officials knew about the retirement.




                                                13
genuine conflict in their testimony. At most, there is some imprecision in their accounts, which

does not support an inference of discrimination. At any rate, Pitt does not dispute that Durkovich

made the final decision, see ECF No. 18 at 20–21; ECF No. 22 at 17 n.9, and so there is no doubt

as to the identity of the decisionmaker. Cf. Evans v. Sibelius, 

716 F.3d 617

, 621 (D.C. Cir.

2013). Rather, Pitt merely accuses Defendant of relying on inconsistent testimony and

“dissembling.” ECF No. 18 at 21. But in the end, she does not explain why the division of labor

between Breor and Clifton in gathering and presenting the information to Durkovich makes any

difference to her claims. See Scott v. Harris, 

550 U.S. 372

, 380 (2007) (“[T]he mere existence of

some alleged factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of material

fact.”).

IV.        Conclusion

           For all the above reasons, the Court will grant Defendant’s Motion for Summary

Judgment, ECF No. 17. A separate order will issue.




                                                             /s/ Timothy J. Kelly
                                                             TIMOTHY J. KELLY
                                                             United States District Judge

Date: March 5, 2021




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