                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



DAVID J. BUTLER,

       Plaintiff,
               v.                                       Civil Action No. 10-932 (JEB)
KATHLEEN SEBELIUS,

       Defendant.


                                 MEMORANDUM OPINION

       Plaintiff David J. Butler is a black male over the age of forty employed by the United

States Department of Health and Human Services. After failing to obtain a promotion that went

to a white woman, he filed this suit claiming HHS discriminated against him because of his race,

age, and sex. Defendant has now filed a Motion for Summary Judgment. Because no reasonable

jury could find that Defendant’s stated reasons for its employment decision were pretextual, the

Court will grant Defendant’s Motion.

I.     Background

       Plaintiff has been employed as a GS-13 Child Welfare Program Specialist in the

Children’s Bureau (CB) since May 23, 1999. See Mot., Exh. 5 (Pl.’s Aff.), ¶ 2. The Children’s

Bureau is one of two bureaus that make up the Administration for Children, Youth and Families

(ACYF), which is an agency of HHS. Id.

       On June 19, 2006, ACYF issued a vacancy announcement for the newly created position

of Budget Officer of ACYF. Opp. at 3-4; see Mot., Exh. 6 (Budget Officer Position

Description). The main responsibilities of the Budget Officer were to “formulate, prepare,

execute and oversee ACYF’s budget of $9 billion.” Opp. at 3 (citing Opp., Exh. 1 (Depo. of Joan

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Ohl) at 27); see also Budget Officer Position Description (Major duties: “The incumbent serves

as team leader and technical authority responsible for the planning, justification, formulation and

execution of financial operations of ACYF’s program and administrative budgets with

responsibility for making allowances and sub-allowances to ACF central and regional offices for

effective operation of ACYF programs.”). To successfully complete the above responsibilities,

the Budget Officer needed to be familiar with both program and grant budgets. Opp. at 3 (citing

Depo. of Ohl at 27); see also Budget Officer Position Description.

       On June 30, 2006, Plaintiff applied for the Budget Officer position. See Def.’s Stat.

Undis. Mat. Facts (SUMF), ¶ 5. Catherine Wade, a white female over age forty, also applied for

the position. Id., ¶¶ 4, 6; Mot., Exh. 9 (Selectee Application). From 2005 to the time of the

selection, Wade was a GS-14 Senior Financial Management Analyst at HHS. Def.’s SUMF, ¶ 8;

Selectee Application at 7-8.

       Dr. Maiso Bryant, the Acting Deputy Commissioner of ACYF, reviewed all the

applications for the Budget Officer position and recommended Plaintiff, Catherine Wade, and

one other candidate. Mot., Exh. 13 (Decl. of Maiso Bryant), ¶ 4; Def.’s SUMF, ¶ 7. Bryant

thought that all three candidates could have successfully performed the Budget Officer position.

Decl. of Bryant, ¶¶ 3-5; Def.’s SUMF, ¶ 8. Commissioner Joan Ohl, a white female, ultimately

selected Wade. Opp. at 5; Compl., ¶ 8. She explained: “The factors I considered in making my

decision were that we were setting up a new office with new procedures, and that we needed a

person who had leadership skills, good vision, and good communications skills and expertise in

managing and administering funds.” Statement of Ohl, ¶ 10.

       After exhausting his claim through the administrative process, Plaintiff filed the instant

Complaint on June 7, 2010. He claimed that he had been discriminated against on the basis of



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his race, age, and sex. Compl., ¶ 1. On July 5, 2011, Defendant filed the dispositive Motion that

the Court now addresses.

II.    Legal Standard

       Summary judgment may be granted 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at

248. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, Inc.,

477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by citing to particular parts of materials in the

record.” FED. R. CIV. P. 56(c)(1)(A).

       The party seeking summary judgment “bears the heavy burden of establishing that the

merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc., v.

Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). When a motion for summary judgment is under

consideration, “the evidence of the non-movant[s] is to be believed, and all justifiable inferences

are to be drawn in his favor.” Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. PEPCO,

447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288

(D.C. Cir. 1998) (en banc). On a motion for summary judgment, the Court must “eschew

making credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360,

363 (D.C. Cir. 2007).




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       The nonmoving party’s opposition, however, must consist of more than mere

unsupported allegations or denials and must be supported by affidavits, declarations, or other

competent evidence, setting forth specific facts showing that there is a genuine issue for trial.

FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is

required to provide evidence that would permit a reasonable jury to find in its favor. Laningham

v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovant’s evidence is

“merely colorable” or “not significantly probative,” summary judgment may be granted. Liberty

Lobby, Inc., 477 U.S. at 249-50.

III.   Analysis

       Plaintiff contends that Defendant violated the anti-discrimination provision of Title VII

with respect to his non-promotion. Opp. at 1. Title VII makes it unlawful for an employer “to

discriminate against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a). In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

the Supreme Court established the familiar three-step “burden-shifting approach to employment

discrimination claims in cases where the plaintiff lacks direct evidence of discrimination.”

Chappell-Johnson v. Powell, 440 F.3d 484, 487 (D.C. Cir. 2006). “[W]here an employee has

suffered an adverse employment action and an employer has asserted a legitimate,

nondiscriminatory reason” for its employment decision, however, the Court need not consider

whether Plaintiff has made out a prima facie case under McDonnell Douglas; rather, it deploys a

simpler analysis:

               [I]n considering an employer's motion for summary judgment or
               judgment as a matter of law in those circumstances, the district
               court must resolve one central question: Has the employee
               produced sufficient evidence for a reasonable jury to find that the

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               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, color, religion, sex, or national
               origin?

Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). The Court, therefore,

will follow Brady and its progeny in determining, with regard to the alleged incident of

discrimination, first whether the Brady prerequisites – an adverse employment action and a

nondiscriminatory explanation – have been satisfied, and then, if so, whether Plaintiff has

produced sufficient evidence for a reasonable jury to find that Defendant’s asserted reason was

pretextual and that Defendant in fact discriminated against him.

       Plaintiff’s claim is that Defendant discriminated against him “by denying him a

promotion to the GS-14 position of Budget Officer of the Administration for Children Youth and

Families” and hiring Catherine Wade, a younger white woman, instead. Opp. at 1. No one

doubts that the failure to promote constitutes an adverse employment action. See, e.g., Stella v.

Mineta, 284 F.3d 135, 146 (D.C. Cir 2001) (“no question that failure to promote is an ‘adverse

action’”). It is similarly not disputed that Defendant has offered legitimate, nondiscriminatory

reasons for choosing to promote Wade instead of Plaintiff. First, Wade already held a GS-14

position (which meant that her transfer was a lateral one and that Wade was already performing

at a GS-14 level). Mot. at 2. Second, Wade had stronger experience and superior skills than

Plaintiff, which made her the best match for the position. Mot. at 5; Statement of Ohl, ¶¶ 13-15;

Depo. of Ohl at 33-34, 40-42. The only remaining question, accordingly, is whether Plaintiff has

“produced sufficient evidence for a reasonable jury to find that Defendant’s asserted

nondiscriminatory reason” is mere pretext for unlawful discrimination. Brady, 520 F.3d at 494.

       A. Comparison of Qualifications




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       Plaintiff makes two arguments in support of his contention that Defendant’s proffered

explanation was pretextual. First, Plaintiff briefly argues that his qualifications for the position

were superior to Wade’s. Opp. at 3-5. Evidence that Plaintiff was better qualified, however,

does not suffice to support an inference of discrimination; rather, a jury must be able to find

Plaintiff was “significantly better qualified for the job” than Wade. Holcomb, 433 F.3d at 897

(emphasis added). The difference must be “great enough to be inherently indicative of

discrimination.” Jackson v. Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007) (internal quotation

marks omitted). Only then could a jury “legitimately infer that the employer consciously

selected a less-qualified candidate -- something that employers do not usually do, unless some

other strong consideration, such as discrimination, enters into the picture.” Id. (internal

quotation marks omitted). “In a close case, a reasonable [fact-finder] would usually assume that

the employer is more capable of assessing the significance of small differences in the

qualifications of the candidates, or that the employer simply made a judgment call.” Aka v.

Washington Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998).

       In this case, a reasonable jury could not find that Plaintiff possessed the “stark superiority

of credentials” over Wade that can give rise to an inference of pretext. Stewart, 352 F.3d at 429.

Wade was already a GS-14 employee with HHS, while Plaintiff was a GS-13 employee. Def’s.

SUMF, ¶¶ 1, 6. Wade had successful leadership and management experience, see Selectee

Application (“Team Leader for the Formula Grant team”), while Plaintiff had experience in

neither of these fields. See Depo. of Janet Shafer at 15 (Plaintiff’s supervisor stated, “I haven’t

seen him in that kind of leadership role where he is either a team leader or in a supervisory

role.”). As a Financial Management Specialist from 2001 to 2004, Wade administered six

federal grant programs totaling over $5 billion and provided expert advice on grants management



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issues to headquarters and regional offices. See Selectee Application. She also prepared annual

expenditure tables and charts and reconciled disbursed funds. Id. Beginning in 2005, Wade

served as a Senior Financial Management Specialist at HHS. Id. In that position she continued

to “[m]anage [f]ederal formula/mandatory grant programs” and “provide[d] training and

guidance to three Financial Management Specialist[s] responsible for 15 programs that award

$1.1 billion to States, Territories, and Tribes.” Id.

       As a Child Welfare Program Specialist, conversely, Plaintiff has been responsible for all

activities regarding the CB’s budget. Pl.’s Aff., ¶ 27; Compl., ¶ 6. Specifically, Plaintiff has

been responsible for programming of funds, committing funds, providing budget and program

data for budget submissions to the Office of Legislative Affairs and Budget and the Office of

Management and Budget, and preparing the Justification of Estimates for Appropriations

Committees. Pl.’s Aff., ¶ 27; Compl., ¶ 6. The CB has a budget of $7.5 billion. Opp. at 1; Opp.,

Exh. 3 (Depo. of Shafer) at 8. From 1992 to 1999, Plaintiff was similarly responsible for all

activities regarding the Family and Youth Service Bureau’s (FYSB) budget. Pl.’s Aff., ¶ 27;

Compl., ¶ 6. The FYSB has a budget of $1.5 billion. Opp. at 1; Depo. of Shafer at 8.

       From 1992 to 2010, Plaintiff’s performance of his budget responsibilities was rated

outstanding, the highest rating possible. Opp. at 4; Opp., Exh. 6 (Performance Ratings) at 4.

Plaintiff’s first-level supervisor at the CB described Plaintiff’s performance as “Excellent,

outstanding” and stated that he is a “great planner” and “anticipates issues and prepares for them,

so there are no surprises.” Pl.’s Aff., ¶ 6; Depo. of Shafer at 14-15. Plaintiff’s supervisor also

testified that Plaintiff had successfully structured complex budgets and facilitated interaction

across his bureau in budget planning. Id. at 16-17; Opp. at 4.




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       Both candidates are thus distinguished in their qualifications. Yet, even with the benefit

of all inferences from the evidentiary record, Plaintiff can demonstrate that, at best, he was only

slightly more qualified for the Budget Officer position. Indeed, a reasonable jury could conclude

that he was less so. There is, at bottom, no question that the contrast between Plaintiff’s and

Wade’s qualifications for the Budget Officer position was not “great enough to be inherently

indicative of discrimination.” Jackson, 496 F.3d at 707 (internal quotation marks omitted); see

also Aka, 156 F.3d at 1296 (finding evidence of qualifications gap sufficient to defeat summary

judgment where the plaintiff had nineteen years of relevant work experience, while selectee had

two months of volunteer experience).

       B. Credibility of Explanation

       Plaintiff next argues that, “[w]hile establishing that an employee is demonstrably more

qualified than the selectee is one way of demonstrating pretext, it is not the only way.” Opp. at

9-10. For example, an employee may demonstrate pretext “by showing that the employer’s

proffered explanation is unworthy of credence.” Texas Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 256 (1981). In support of this position, Plaintiff relies on the recent case of Colbert v.

Tapella, 649 F.3d 756 (D.C. Cir. 2011). The D.C. Circuit there held that a “jury can conclude

that an employer who fabricates a false explanation has something to hide; that ‘something’ may

well be discriminatory intent.” Id. at 759 (quoting Aka, 156 F.3d at 1293.) Yet, this is a highly

selective quotation. Indeed, on the very same page, the court stated,

               A plaintiff cannot always avoid summary judgment by showing the
               employer’s explanation to be false. . . . For instance, an employer
               would be entitled to judgment as a matter of law if the record
               conclusively revealed some other, nondiscriminatory reason for the
               employer’s decision, or if the plaintiff created only a weak issue of
               fact as to whether the employer’s reason was untrue and there was
               abundant and uncontroverted independent evidence that no
               discrimination had occurred.

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Id. (citing Reeves v. Sanderson Plumbing Prods., Inc., 540 U.S. 133, 148 (2000)) (emphasis

added; internal citations omitted).

       The instant case clearly falls under the latter exception since Plaintiff has created only a

weak issue of fact on the truth of the employer’s reason and there is abundant and uncontroverted

independent evidence of a lack of discrimination. The only evidence offered by Plaintiff that

Defendant had “something to hide” is Ohl’s allegedly inconsistent explanations for Butler’s

nonselection. Plaintiff points to three of these. A closer reading of Ohl’s statements, however,

reveals merely one minor inconsistency.

       First, Plaintiff argues, “The fact that Ohl found Wade to be ‘articulate and self assured’

simply cannot be a reason for her selection, because Ohl did not speak to Wade until after she

made the selection.” Opp. at 10; Depo. of Ohl at 34 (admitting that she did not interview Wade

and she did not meet her until after the selection). Ohl, however, specifically noted in her

administrative declaration that she had knowledge of Wade’s performance and that she made her

choice based on the candidates’ application materials. See Statement of Ohl, ¶ 7-8 (“had

knowledge of Ms. Wade’s work” and “[based] on my review of the candidates’ application

materials, I chose Catherine Wade for the position”). It is certainly possible to determine that

someone is articulate and self-assured through their presentation on paper, and here Ohl also had

knowledge of Wade’s performance. No contradictions thus exist.

       Second, Plaintiff argues that “[in Ohl’s] sworn statement, she claimed that she rejected

Butler because ‘he does not seem to have the same leadership and communications skills that

[Wade] does.’” Opp. at 11 (quoting Opp., Exh. 11 (Ohl Aff.), ¶ 15). Yet, at her deposition, Ohl

admittedly testified that she did not have an opinion of Butler’s communication skills one way or

the other because she only saw him periodically. Opp. at 11; Depo. of Ohl at 50-51. While there

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may indeed be some change of position here, it is quite minor when considered in the context of

all of her reasons for selecting Wade. See Depo. of Ohl at 41-42 (providing reasons).

          Third, Plaintiff argues that Ohl changed her reasons for hiring Wade instead of Plaintiff

between her administrative declaration and her deposition. Opp. at 5-6. Specifically, Plaintiff

notes that out of the ten reasons listed by Ohl in her deposition, one was that Wade had worked

in “diverse settings.” Opp. at 5-6; Depo. of Ohl at 41. Plaintiff argues that Ohl, in her

declaration, made no mention of this allegedly important reason. Opp. at 6; Statement of Ohl.

By comparing the declaration and the deposition, however, it becomes apparent that Plaintiff is

mistaken. Ohl indeed addressed this reason in her earlier statement. In her sworn statement, Ohl

states:

                 Ms. Wade had grade level 14 experiences, which Complainant did
                 not. She had worked in the Office of Administration with grants
                 and budget. Previously, she had worked overseas and she had
                 academic qualifications.

Statement of Ohl, ¶ 14 (emphasis added).

          During her deposition, her explanation is similar:

                 Q: We sort of went through a lot of different reasons why you were
                 impressed with her. What were the reasons that you selected her
                 over Mr. Butler?
                 A: Well, she had sustained management experience. She had
                 budget experience. She had grant experience. She had supervisory
                 experience. She had worked in diverse settings. She had been
                 promoted within her position, and she had been recognized for her
                 management experience. I saw that as having shown leadership.
                 And I was aware of having – from having seen her or knowing of
                 people, that she had good communication skills, and she trained
                 people.
                 ...
                 Q: Okay. When you say she worked in diverse settings, what do
                 you mean by that?
                 A: She had worked in – she had worked in the Air Force. She had
                 worked out of the country, worked in a foreign country. She had



                                                  10
               both American nationalists as well as German citizens who
               reported to her.

Depo. of Ohl at 41-42 (emphasis added). Since working overseas is described as equivalent to

working in diverse settings, Ohl has been entirely consistent. Even with the benefit of all

inferences from the evidentiary record in favor of Plaintiff, therefore, the existing discrepancies

in Ohl’s statements are so minor that no reasonable jury would be able to infer discrimination

from them.

       A comparison of the facts in Colbert with the facts here further suggests that Defendant’s

Motion for Summary Judgment should be granted. In Colbert, where the D.C. Circuit reversed a

grant of summary judgment to the employer, it noted: “[G]iven [employer’s] lie, his apparent

lack of knowledge about [employee’s] actual experience or training, and other evidence that the

hiring and promotion practices of [employer] were generally inhospitable to minorities,

additional evidence of discrimination was not necessary for [employee] to defeat summary

judgment.” 649 F.3d at 760. Here, there is no evidence of any of these factors. In fact, Acting

Deputy Commissioner Bryant, the individual who had recommended Butler for the Budget

Officer position, herself believed that no discrimination occurred in the selection of Wade. Decl.

of Bryant, ¶ 10-12.

       Ultimately, the Court must defer to an employer’s judgment absent a viable showing of

pretext. As Plaintiff has failed to make such a showing, the Court concludes that there are no

genuine issues of material fact that would warrant proceeding to trial on this claim.

IV.    Conclusion

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

Judgment. A separate Order consistent with this Opinion will be issued this day.




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                          /s/ James E. Boasberg
                          JAMES E. BOASBERG
                          United States District Judge
Date: Feb. 8, 2012




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