UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LEONARD E. DUNNING
Plaintiff,

Civil ease No. 13-959 (RJL)

FILED

NANCY M. WARE, Director
Court Services and Offender

Supervision Agency, MAY 2 2 2017
M U.S. D|lirlct & hamm
Defendant. cm '°f file D|strlctotco|umb|¢
MEMORANDUM OPINION

 

(Mayl, 2017) [# 36]

Plaintiff, Leonard E. Dunning (“Dunning” or “plaintiff”), filed the instant action
alleging that defendant, Nancy M. Ware (“Ware” or “defendant”), in her capacity as
director of the Court Services and Offender Supervision Agency (“CSOSA” or “the
Agency”) for the District of Columbia, discriminated against him in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and Title Vll of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., respectively.
Specif`ically, plaintiff alleges that CSOSA discriminated against him on the basis of his
age When he was not selected for the position of Supervisory Offender Processing
Specialist. This matter is now before the Court on Defendant’S Motion for Summary

Judgment [Dkt. # 36]. Upon consideration of the parties’ submissions and the entire

record herein, defendant’s motion is GRANTED and plaintiffs case will be DISMISSED
with prejudice
BACKGROUND
Dunning has been employed by the CSOSA since 1996, and at all times relevant
to the Complaint was over forty years of age. See Pl.’s Dep. at l7:9-2l; Compl. 11 ll.
Generally, plaintiff alleges that he applied, but was not selected, for a position as
Supervisory Offender Processing Specialist because of his age. See Compl. il l9-2l. He

brings this action under Title Vll and the ADEA. Id. 1] l.

ln May 2009, CSOSA posted a vacancy announcement for a GS-OlOl-lZ
Supervisory Offender Processing Specialist position. Ia’. at 1l 9; Pl.’s Resp. in Opp. to
Mot. for Summ. J. (“Pl.’s Resp.”), Ex. 2 (Job Announcement). Plaintiff submitted an
application for the position. See Compl. 11 10. Plaintiff and six other candidates were
selected for interviews for this position. See Compl., Ex. 7, Aff`idavit of William Thomas
Ashe (“Ashe Affidavit”) at 20. All seven candidates were given a series of interview
questions and were rated by a three-person interview panel. See Compl., Ex. 10,
Aff`idavit of Aprille Cole (“Cole Affidavit”) at 31. The candidates’ responses were
graded on a preselected scale, with a numerical score for each question, and a maximum
score of 60. See Compl., EX. 9, Affidavit of Elizabeth Powell (“Powell Affidavit”) at 26;

Ashe Affidavit at 21.

The candidate who attained the highest score on the interview questions was

Neville Campbell-Adams (“Campbell-Adams”), with a score of 40 out of 60. See Ashe

Affidavit at 2l. The second highest scoring candidate was Roselyn Brown (“Brown”),
who scored 39 out of 60. Ia’. Plaintiff scored 19 out of 60, which placed him as the sixth
highest scoring candidate out of seven applicants Id. at 20. Defendant ultimately
selected Campbell-Adams, the highest scoring candidate, for the vacant position. See

Cole Affidavit at 3 l; Pl.’s Resp., Ex. l (Job Offer Contirmation Letter).

ln June of 20 l3, Dunning filed a complaint against Ware, alleging age
discrimination and retaliation for protected employment actions in violation of Title VII
and the ADEA. Specifically, plaintiff alleged that his non-promotion was motivated by
either age discrimination, or by a desire to retaliate against him for filing two prior
discrimination complaints against his employer in 2001 and 2003. Compl. M 19-21. He
also alleged that defendant engaged in preselection of Campbell-Adams, before he ever
applied for the vacant position, in a direct attempt to discriminate against plaintiff based
on his age. See ia’. Defendant moved to dismiss plaintiffs retaliation claims on the
ground that plaintiff did not exhaust his administrative remedies. See Def.’s Partial Mot.
to Dismiss [Dkt. # 9]; Mem. of P. & A. in Supp. of Def.’s Partial Mot. to Dismiss
(“Def.’s Mem.”) [Dkt. # 9-1]. On February 7, 2014, this Court granted defendant’s
motion and dismissed plaintiffs retaliation claims for failure to exhaust. See Mem.
Order [Dkt. # 12]. Presently before the Court is Defendant’s Motion for Summary

Judgment on plaintiffs remaining claims [Dkt. # 36].

STANDARD OF REVIEW

Defendant moves for summary judgment pursuant to F ederal Rule of Civil
Procedure 56. Under Rule 56, summary judgment shall be granted when the record
demonstrates “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 Celotex Corp. v.
Caz‘rett, 477 U.S. 317, 322 (1986). In deciding Whether there is a disputed issue of
material fact, the Court must draw all reasonable inferences in favor of the non-moving
party. See Anderson v. Lz`berly Lobby, Inc., 477 U.S. 242, 255 (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 Ia'. at 248. lf`, however, the facts in dispute are
“merely colorable, or . . . not significantly probative, summary judgment may be
granted.” Id. at 249-50 (internal citations omitted). 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.”l Id. at

 

' Plaintiff moves separately for an extension of time to conduct additional discovery. See Plaintiffs
Motion for Extension of Time to Complete Discovery [Dkt. # 42]. He also submits a Federal Rule of
Civil Procedure 56(d) affidavit in conjunction with his Opposition, requesting discovery so that he may
adequately respond to Defendant’s Motion for Summary Judgment. See Dunning Rule 56(d) Affidavit at
l-3. Rule 56(d) states: “If a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order.” Our Circuit has held that the party seeking discovery bears the burden of` identifying
the facts to be discovered that would create a triable issue and the reasons why the party cannot produce
those facts in opposition to the pending motion for summary judgment See Byra’ v. Envtl. Prot. Agency,
174 F.3d 239, 248 n.8 (D.C. Cir. 1999). The party must also establish a “reasonable basis” to suggest that
the requested discovery will reveal triable issues of fact. Carpenter v. Fed. Nat’l Mortgage Ass ’n, 174
F.3d 23 l, 237 (D.C. Cir. 1999). Put simply, plaintiff has not satisfied this burden.

Plaintiff s Rule 56(d) affidavit alleges that he “do[es] not have all of the facts necessary to oppose
the motion for summary judgment.” Dunning Rule 56(d) Affidavit at 2. ln particular, he seeks to depose
Carlos Perkins, who plaintiff contends issued a letter to Campbell-Adams congratulating him on his new
position before it was posted. Ia’. He also seeks to depose other unidentified witnesses who he believes

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248; see also Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d

145, 150 (D.C. Cir. 1996).

ANALYSIS

At the summary judgment stage, where “an employee has suffered an adverse
employment action and an employer has asserted a legitimate, non-discriminatory reason
for the decision, the district court need not~ana’ should not~decide whether the plaintiff
actually made out a prima facie case under McDonnell Douglas.” Braa’y v. O]j‘l`ce of
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Rather, the 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, color, religion, sex, or national origin?” Ia’. The same approach applies in
the context of age discrimination See Bornett v. PA Consultz`ng Group, Inc., 715 F.3d
354, 358 (D.C. Cir. 2013) (“We consider [plaintiffs] age and sex discrimination claims

in the same way we analyze Title VII claims.”).

 

have knowledge supporting his age discrimination claim. Id. But plaintiff has offered no valid
justification for his failure to take these depositions during the discovery period in this case. Indeed, this
is not a case where the defendant moved for summary judgment prematurely; plaintiff had nearly fourteen
months to conduct discovery, and defendant moved for summary judgment nearly sixteen months after
the deadline to complete discovery expired. See Scheduling Order, Dkt. No. 19; Minute Order, August
24, 2015; Def.’s Mot. for Summ. J., Dkt. No. 36. Furthermore, plaintiff does not even attempt to explain
why he cannot, absent discovery, present by affidavit the facts he deems essential to justify his
opposition This Court therefore “act[s] within the bounds of its discretion in not granting a continuance
for [plaintiff] to conduct discovery.” Strang v. U.S. Arms Control & Disarmament Agency, 864 F.Zd 859,
861 (D.C. Cir. 1989)

Defendant’s burden on the issue of pretext is only one of production; defendant
“need not persuade the court that [she] was actually motivated by the proffered reasons.”
Texas Dep ’l‘ omely. A]j”airs v. Burdine, 450 U.S. 248, 254 (1981). Plaintiff, however,
“retains the burden of persuasion. . . . to demonstrate that the proffered reason was not the
true reason for the employment decision.” Id. at 256. Plaintiff may establish pretext
either “directly by persuading the court that a discriminatory reason more likely
motivated the employer[,] or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.” Ia’.

Defendant here submits that the interview panel simply selected the highest
scoring candidate for the vacant position, and that this justification satisfies her burden of
asserting a non-discriminatory reason for the Agency’s hiring decision. See Def.’s Mem.
at 7. In particular, she identifies Campbell-Adams’ supervisory experience as one of the
reasons why he scored the highest in his interview. See id. at 8; Ashe Af`fidavit at 21
(“The panel members agreed that Mr. Campbell-Adams[’] interview was more
impressive to the panel because he elaborated on more than just his job duties and work
experience and this enhanced his competitiveness for a supervisory position.”). Dunning,
on the other hand, had no supervisory experience in his position as an offender
processing specialist. See Dunning Dep. at 29:5-29:14.

Unfortunately for plaintiff, he provides no evidence to refute defendant’s
argument To the contrary, in his deposition, Dunning conceded that he was not present
for the other candidates’ interviews and could not attest to the other candidates’

performance See Dunning Dep. at 54:5-54:21. Additionally, he acknowledged that he
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had no supervisory experience in his role as an offender processing specialist See id. at
29:5-29:14. And he also conceded that the Agency was permitted to make its hiring
decision based on the candidates’ interview performances See id. at 56:21-57:4.

As such, Dunning merely relies on speculation that because a younger candidate
was selected for the position, the hiring decision must have been based upon age
discrimination See icl. at 74:10-74:23 (“I’m an older person; he’s a younger person. On
the outside, it look like age discrimination.”). That, of course, is not good enough.
Plaintiffs allegations must rise above a speculative level. To say the least, subjective
assertions by a plaintiff that he was the best candidate for the j ob, without any evidence
to support them, are insufficient per se to survive summary judgment See Short v.
Chertojf 555 F. Supp. 2d 166, 171 (D.D.C. 2008).

Finally, Dunning’s claim is further undercut by his failure to allege, let alone
establish, that any member of the interview panel was ever aware of his age. See
Dunning Dep. at 63:15-63;17 (“Q: Are you alleging that Mr. Ashe knew your age? A:
No, l’m not alleging that.”); id. at 64:17-64:19 (Q: Are you alleging that Ms. Cole knew
your age? A: No, sir, I’m not alleging that.”); id. at 65:8-65:10 (Q: Are you alleging
that l\/Is. Powell knew your age? A: No, sir.”).2 lndeed, each panel member provided
sworn testimony that they were unaware of plaintiffs age at the time of their hiring

decision. See Ashe Affidavit at 21; Powell Affidavit at 27 ; Cole Affidavit at 32. The law

 

2 Dunning similarly fails to allege that defendant was aware of his age. And defendant, as director of the
Agency_and thus the person ultimately responsible for agency hiring-relied on the interview panel’s
ranking system in making the decision to hire Campbell-Adams. See Ashe Affidavit at 20.

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is clear that an employer’s knowledge of the impermissible factor upon which a
discrimination claim is based is a necessary element of a discrimination claim. See, e.g.,
Washington v. Chao, 577 F. Supp. 2d 27, 40 (D.D.C. 2008) (“It is axiomatic that a
defendant cannot be found to have discriminated against a plaintiff on the basis of race
where the defendant had no knowledge of the plaintiffs race.”); Pollard v. Quest
Diagnosz‘z'cs, 610 F. Supp. 2d 1, 22 (D.D.C. 2009) (“Under D.C. Circuit law, there can be
no reasonable inference of racial discrimination where an individual just happens to be a
member of a protected class~actionable discrimination only occurs when any employer
acts ‘because of the plaintiffs status as a member of a protected class.”). As such, the
record is clear that none of the panelists were aware of plaintiffs age at the time of their
hiring decision.

Because plaintiff has failed to refute the legitimate non-discriminatory reasons for
CSOSA’s decision, or even establish defendant’s awareness of plaintiffs age, this Court
can only conclude that no reasonable jury could find that defendant intentionally

discriminated against Dunning on the basis of his age. Defendant’s motion for summary

73

RICHA J. LEON
United States District Judge

judgment must therefore be GRANTED.
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