                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          )
ADA GONZALES,                             )
                                          )
               Plaintiff,                 )
                                          )
       v.                                 )                    Civil Action No. 07-0676 (PLF)
                                          )
ERIC H. HOLDER, JR., Attorney General,    )
                                    1
United States Department of Justice,      )
                                          )
               Defendant.                 )
__________________________________________)


                                             OPINION

               This matter is before the Court on defendant’s motion for summary judgment

(“Mot.”), plaintiff’s opposition thereto (“Opp.”), and defendant’s reply (“Reply”). Plaintiff, Ada

Gonzales, brought suit against her employer, the United States Department of Justice, alleging

retaliation for engaging in protected activity in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. §§ 2000e et seq. Ms. Gonzales alleges that DOJ retaliated against

her when it failed to select her for promotion. DOJ maintains that it is entitled to summary

judgment on this claim because it has asserted legitimate, non-retaliatory reasons for not

selecting Ms. Gonzales, and because Ms. Gonzales has failed to produce evidence that these

reasons are a pretext for retaliation. Upon consideration of the motion, plaintiff’s opposition,




       1
                The complaint named Alberto Gonzales, former Attorney General, as the
defendant in this case. The Court previously substituted Michael Mukasey, Mr. Gonzales’
successor, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. The Court now
substitutes Eric H. Holder, Jr., Mr. Mukasey’s successor, pursuant to the same Rule.
defendant’s reply, and the entire record in the case, the Court grants defendant’s motion for

summary judgment.


                                       I. BACKGROUND

               Plaintiff Ada Gonzales, a Hispanic female, has worked in the DOJ Office of

Justice Programs (“OJP”) since June 1995. See Opp. at 1. Starting as a financial analyst at the

GS-12 level, Ms. Gonzales was promoted to a GS-13 position and then a GS-14 position with

increasing supervisory responsibilities. Id. In March 2000, Ms. Gonzales was named a branch

manager in the Training and Policy Division (“TPD”) of OJP’s Office of the Comptroller.

Defendant’s Statement of Material Facts Not in Dispute (“Def.’s Statement”) ¶ 1.

               On February 27, 2002, while still a branch manager in TPD, Ms. Gonzales

contacted her employer’s Equal Employment Opportunity Office, alleging that her direct

supervisor, then-TPD director Travis McCrory, had discriminated against her and subjected her

to a hostile work environment because of her national origin, gender and age in violation of

federal law. See Def.’s Statement ¶ 3; Opp., Ex. 11 at 2-3. The director of the Office of the

Comptroller, Cynthia Schwimer, became aware of Ms. Gonzales’ EEO complaint on April 16,

2002, when she was copied on an email notifying Mr. McCrory of Ms. Gonzales’ EEO activity.

Def.’s Statement ¶ 4. Ms. Gonzales filed a formal complaint against Mr. McCrory with the EEO

Office in June 2002. See Opp., Ex. 11 at 2.

               On June 4, 2002, OJP’s Office of Personnel announced an opening for the TPD

director position, which became vacant when Mr. McCrory accepted a position in another federal




                                                 2
agency. Def.’s Statement ¶¶ 6-7. Ms. Schwimer was the selecting official for the position, for

which Ms. Gonzales submitted a timely application. Id. ¶¶ 11-12.

               Ms. Schwimer received a promotion candidate list that identified four eligible GS-

14 OJP employees who were qualified for the position, including Ms. Gonzales and the candidate

eventually selected for the promotion, Joanna Suttington, an African American female. Def.’s

Statement ¶ 13. At that time, Ms. Suttington was a GS-14 manager of the Financial Services

Branch of the Financial Management Division in OJP. See Mot., Ex. 11 at 4. Ms. Schwimer

“had known each of the four candidates professionally for at least ten years.” See Def.’s

Statement ¶ 14. In July 2002, Ms. Schwimer officially selected Ms. Suttington for the open

position. Id. ¶ 15. Ms. Gonzales subsequently amended her pending EEO complaint to include a

claim of retaliation by Ms. Schwimer. See Mot. at 2.

               Ms. Gonzales’ discrimination and retaliation claims against the DOJ were

considered by an Administrative Judge for the Equal Employment Opportunity Commission in

2005. The Administrative Judge granted DOJ’s motion for judgment without a hearing on Ms.

Gonzales’s discrimination and hostile work environment claims and, after a hearing, ruled in

favor of DOJ on her retaliation claim. Mot. at 2. The DOJ Complaints Adjudication Office

issued a final agency decision on July 6, 2005, affirming the decision in favor of DOJ, and the

EEOC Office of Federal Operations affirmed that decision again on Ms. Gonzales’ further

appeal. Id. On April 13, 2007, Ms. Gonzales filed a complaint in this Court, alleging that DOJ

had deprived her of the promotion to TPD director in retaliation for her contact with the EEO

Office.




                                                3
                                  II. STANDARD OF REVIEW

               Summary judgment may be granted “if the pleadings, the discovery and disclosure

materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P.

56(c); 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 a dispute over it might affect

the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or

unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d

at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue 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); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb

v. Powell, 433 F.3d at 895.

               On a motion for summary judgment, “the evidence of the non-movant is to be

believed, and all justifiable inferences are to be drawn in [her] favor.” Anderson v. Liberty

Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 849-50

(D.C. Cir. 2006). In considering such a motion, the Court must “eschew making credibility

determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C.

Cir. 2007). 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.

See FED . R. CIV . P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). She is required to


                                                  4
provide evidence that would permit a reasonable jury to find in her 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. Anderson v.

Liberty Lobby, Inc., 477 U.S. at 249-50. To defeat a motion for summary judgment, a plaintiff

must have more than “a scintilla of evidence to support [her] claims.” Freedman v. MCI

Telecomms. Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).


                                    III. LEGAL FRAMEWORK

               Title VII makes it unlawful for an employer to retaliate against an employee for

engaging in protected activity, such as filing a charge of discrimination. See 42 U.S.C. § 2000e-

3(a).2 Absent direct evidence that an employment-related decision was retaliatory, a retaliation

claim must be analyzed under the burden-shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). See Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009). To

establish a prima facie case of retaliation under that framework, the plaintiff must first show

“(1) that [she] engaged in statutorily protected activity; (2) that [she] suffered a materially

adverse action by [her] employer; and (3) that a causal link connects the two.” Jones v.

Bernanke, 557 F.3d at 677; see also Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006).

“Such a showing raises a rebuttable presumption of unlawful [retaliation] and shifts to the

defendant the burden to rebut the presumption by asserting a legitimate, non-discriminatory [or

non-retaliatory] reason for its actions.” Smith v. District of Columbia, 430 F.3d 450, 455 (D.C.



       2
               Federal employees must exhaust their administrative remedies before filing suit
under Title VII. In this case, the parties do not dispute that Ms. Gonzales appropriately
exhausted her administrative remedies. See Compl. ¶ 3; Mot. at 2.

                                                   5
Cir. 2005) (citation and internal quotation marks omitted). Once the defendant has done so, the

burden-shifting framework “disappears,” and the Court “must decide whether a reasonable jury

could infer” illegal retaliation from all available evidence, whether related to the prima facie

showing, plaintiff’s attempts to show that the defendant’s proffered reason is pretextual, or other

aspects of the case. Murray v. Gilmore, 406 F.3d 708, 713 (D.C. Cir. 2005) (citing Waterhouse

v. District of Columbia, 298 F.3d 989, 992-93 (D.C. Cir. 2002)); see also Brady v. Office of the

Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. Cir. 2008).

                Once an employer has asserted a legitimate, non-retaliatory reason for the adverse

action taken against the plaintiff, the Court “need not — and should not — decide whether the

plaintiff has actually made out a prima facie case” under the burden-shifting framework

described above. Brady v. Office of Sergeant at Arms, 520 F.3d at 494. The Court must instead

“proceed to the question of retaliation vel non.” Taylor v. Solis, 571 F.3d 1313, 1320 n.4 (D.C.

Cir. 2009). In resolving that question on summary judgment, the Court may find for a defendant

if the plaintiff has failed either (1) to rebut the legitimate, non-retaliatory reason offered by the

employer for the employment action at issue, or (2) to adduce evidence supporting a necessary

element of her case, such as her employer’s commission of a materially adverse act against her.

Id. “[T]he 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-retaliatory] reason was

not the actual reason and that the employer intentionally [retaliated] against the employee on the

basis” of her protected activity? Brady v. Office of Sergeant at Arms, 520 F.3d at 492.




                                                   6
                                         IV. DISCUSSION

               While the DOJ acknowledges that plaintiff engaged in protected EEO activity and

that her non-selection constitutes a legally cognizable injury, it nevertheless argues that Ms.

Gonzales has failed to establish a prima facie case of retaliation because she has not

demonstrated a causal connection between the protected activity and the injury. Opp. at 5. For

the reasons explained above, however, the existence of a prima facie case “almost always”

becomes “irrelevant” once a defendant has asserted a non-retaliatory justification for an adverse

employment action. Brady v. Office of Sergeant at Arms, 520 F.3d at 494. Here, the DOJ has

offered a legitimate, non-retaliatory reason for Ms. Suttington’s promotion over Ms. Gonzales,

explaining that, in the estimation of Ms. Schwimer, Ms. Suttington possessed stronger

“supervisory skills” and was “more responsive to the needs of the office, a better team player,

more accountable for the work completed by her office, a better problem solver . . . , and more

flexible” than the plaintiff. Mot. at 8 (citing Mot., Ex. 6 at 22, 24, 47-48). As a result, Ms.

Gonzales can survive summary judgment only by pointing to evidence in the record sufficient to

convince a reasonable jury that the reasons proffered by DOJ are pretextual, and that Ms.

Schwimer’s choice was actually motivated by retaliatory intent. See Jones v. Bernanke, 557 F.3d

at 678; Brady v. Office of the Sergeant at Arms, 520 F.3d at 494. The Court therefore will

proceed directly to consideration of that issue.

               Plaintiff’s arguments can be reduced to four assertions intended to show pretext

and retaliatory intent: (1) Ms. Gonzales was in fact better qualified than Ms. Suttington but was

passed over anyway; (2) DOJ’s proffered justification for the selection of Ms. Suttington over

Ms. Gonzales rests on criteria that are “highly subjective” and hence not credible; (3) Ms.


                                                   7
Schwimer “preselected” Ms. Suttington for the post of TPD director; and (4) Ms. Schwimer lied

about various aspects of the hiring process. The Court will address each of these contentions in

turn and explain why they do not establish a genuine issue of material fact that would qualify this

case for trial.


                          A. Comparative Qualifications of the Candidates

                  Plaintiff insists that, as compared to Ms. Suttington, the woman who was

eventually chosen to fill the position of TPD director, Ms. Gonzales “was the significantly better

qualified candidate and as such the Defendant’s reason was mere pretext for retaliation.” Opp. at

9 (internal quotation marks omitted). It is true that, when an employer asserts that a plaintiff was

not promoted because she was less qualified than another candidate, a factfinder may deem the

employer’s explanation pretextual if “a reasonable employer would have found the plaintiff to be

significantly better qualified for the job.” Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1294

(D.C. Cir. 1998) (en banc). Nevertheless, because courts do not serve as “super-personnel

department[s] that reexamine[ ] an entity's business decisions,” Holcomb v. Powell, 433 F.3d at

897 (internal quotation marks and citation omitted), “[a] plaintiff asserting that an employer's

explanation is pretextual based upon comparative qualifications faces a formidable task,” Nyunt

v. Tomlinson, 543 F. Supp. 2d 25, 39 (D.D.C. 2008). “[I]n order to justify an inference of

discrimination, the qualifications gap 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 and citation omitted). For example, in Aka, the court of appeals found evidence of a

qualifications gap sufficient to raise a genuine question of fact where, inter alia, the plaintiff had



                                                   8
nineteen years of relevant employment experience, while the candidate who was hired had two

months of relevant volunteer work. Aka v. Washington Hosp. Ctr., 156 F.3d at 1296.

               No such stark gap exists here. On the contrary, the qualifications of Ms. Gonzales

and Ms. Suttington are closely matched. Ms. Gonzales argues that she was more qualified than

Ms. Suttington because she was “directly in line” for the position of TPD director, and had

served as Acting Director for several months in 2000. There is, however, no evidence that the

Training and Policy Division of the Office of the Comptroller made lockstep promotions, so that

an employee of particular seniority or with a certain title could be assured of filling the next

open, more senior position. Indeed, the only evidence that Ms. Gonzales was “directly in line” is

her own unsupported assertion. See Opp. at 10; see also Hastie v. Henderson, 121 F. Supp. 2d

72, 81 (D.D.C. 2000) (a plaintiff’s “unsupported, conclusory assertion” regarding her own

performance is “insufficient to defeat a motion for summary judgment”); Waterhouse v. Dist. of

Columbia, 124 F. Supp. 2d at 7 (“Plaintiff cannot establish pretext simply based on her own

subjective assessment of her own performance.”). Nor does Ms. Gonzales’ brief tenure in 2000

as Acting Director distinguish her significantly, since Ms. Suttington had periodically served as

Acting Director of her own division within the Office of the Comptroller. Mot., Ex. 11 at 4.

               Ms. Gonzales claims to have more experience in the relevant fields of financial

management training, but offers no evidence that Ms. Suttington lacks such experience. See Opp.

at 10. In fact, the defendant offers undisputed evidence that Ms. Suttington had extensive

experience in financial management training in the Office of the Comptroller, albeit outside of

TPD. See Reply at 7-9. Similarly, contrary to Ms. Gonzales’ assertion that she has “more

accomplishments” than Ms. Suttington, she cites no qualification of her own that is unmatched


                                                  9
by those of Ms. Suttington: Plaintiff has a Master’s in Business Administration, Opp. at 11; Ms.

Suttington has a Master’s degree in accountancy and is a Certified Public Accountant, Mot., Ex.

11 at 11, two facts that are undisputed. Ms. Gonzales has attended seminars on a “wide-range of

management, leadership and grant management related [sic] fields,” Opp. at 11; Ms. Suttington’s

resume, its contents uncontroverted by the plaintiff, also shows participation in a long list of

professional development activities, Opp., Ex. 19 at 8.

               Finally, while Ms. Gonzales claims “superior management ability,” she has

produced no evidence showing that her ability is superior to Ms. Suttington’s. Instead, she cites

the statements of two supervisees who deem Ms. Gonzales to be a “good” and “positive”

supervisor. Opp. at 11. In isolation, however, these assessments have no significance. Ms.

Gonzales’ task is not to point to evidence that would allow a reasonable jury to conclude that she

is a good supervisor; it is to point to evidence from which a jury could reasonably infer that she is

a better supervisor than Ms. Suttington. Ms. Gonzales has produced no evidence to support that

latter contention. See Opp. at 11.

               In sum, plaintiff’s evidence on this issue amounts largely to conclusory summaries

of Ms. Gonzales’ qualifications with little or no meaningful comparison to relevant qualifications

held by Ms. Suttington. As a result, there is insufficient evidence to permit a reasonable jury to

conclude that Ms. Gonzales was significantly better qualified for the director position than was

Ms. Suttington, and this line of argument therefore does not support plaintiff’s claim of pretext.

See Barnette v. Chertoff, 453 F.3d 513, 518 (D.C. Cir. 2006); Stewart v. Ashcroft, 352 F.3d 422,

430 (D.C. Cir. 2003).




                                                 10
                                      B. Subjective Criteria

               According to plaintiff, Ms. Schwimer’s claim that she chose Ms. Suttington rather

than Ms. Gonzales because of the former’s greater supervisory skills and sense of accountability

is based on “highly subjective reasoning that is unsupported by concrete evidence,” which “can

only lead to the conclusion that Defendant’s explanation is pretext for retaliation.” Opp. at 15.

This argument is both legally and factually incorrect. An employer’s use of subjective criteria in

justifying the promotion of one candidate instead of another does not necessarily permit the

inference of pretext. See Aka v. Washington Hosp. Ctr., 156 F.3d at 1298; accord Manning v.

Chevron Chemical Co., LLC, 332 F.3d 874, 882 (5th Cir. 2003) (citing Millbrook v. IBP, Inc.,

280 F.3d 1169, 1176 (7th Cir. 2002)); Denney v. City of Albany, 247 F.3d 1172, 1185 (11th Cir.

2001). “A subjective reason can be legally sufficient, legitimate and nondiscriminatory if the

defendant articulates a clear and reasonably specific factual basis on which it based its subjective

opinion.” Pearsall v. Holder, 610 F. Supp. 2d 87, 102 (D.D.C. 2009) (citing Laboy v. O’Neill,

180 F. Supp. 2d 18, 23 (D.D.C. 2001)) (internal quotation marks omitted).

               Here, the defendant has presented uncontroverted record evidence tending to show

that Ms. Shwimer’s assessment of the relative leadership skills and work performance of Ms.

Gonzales and Ms. Suttington was founded upon a “clear and reasonably specific factual basis.”

For example, Ms. Gonzales’ supervisors received complaints regarding her time management

and leadership skills from at least two DOJ employees. See Mot. at 10 (citing Mot., Ex. 12 at

16-27; Mot., Ex. 13 at 16-17). Ms. Schwimer herself had known the plaintiff in a professional

capacity for over ten years, Mot., Ex. 6 at 16, and observed that Ms. Gonzales had a tendency to

blame her supervisees for her own mistakes, id. at 35. There is no evidence, on the other hand,


                                                 11
of similar problems in Ms. Suttington’s record. Ms. Schwimer’s arguably “subjective” reasons

for choosing Ms. Suttington as the better qualified candidate therefore are supported by specific

facts in the record and would not — merely because they are subjective — lead a reasonable jury

to conclude that they are pretextual.


                                         C. Preselection

               Ms. Gonzales also attempts to rebut the non-retaliatory reasons asserted by the

defendant by contending that Ms. Suttington was “preselected” for the position of TPD director

— that is, selected by Ms. Schwimer to fill the position before Ms. Schwimer had given any real

consideration to the other three qualified candidates. See Opp. at 17. Plaintiff relies for evidence

of this proposition on Ms. Suttington’s statements that she spoke informally with Ms. Schwimer

about the open TPD director position for about three minutes in June 2002, after Ms. Suttington

had submitted an application for the position. See Opp., Ex. 5 at 24-26.3 Ms. Suttington has

referred to this discussion as an “interview,” see id. at 24-25, while Ms. Schwimer has said that

she did not interview any of the candidates for the TPD director position. See Opp., Ex. 16 at 98.

The record suggests that this discrepancy may result from Ms. Suttington’s and Ms. Schwimer’s

differing definitions of the term “interview.” According to Ms. Suttington, she and Ms.



       3
                Ms. Gonzales also points to the form, signed by Ms. Schwimer, formally
requesting the appointment of Ms. Suttington to the position of TPD director. See Opp. at 17-18;
Opp., Ex. 6. Ms. Schwimer’s signature on that form is dated June 3, 2002, although Ms.
Suttington was not officially chosen for the position until July 2002. The defendant has
explained this discrepancy through uncontroverted affidavits which show that it was the practice
in the Office of Justice Programs at that time for a supervisor to sign and submit a blank request
form to the Office of Personnel whenever a position became open. The name of the person
eventually chosen to occupy that position would be filled in by an employee of the Office of
Personnel once the hiring process was concluded. See Reply, Ex. 3.

                                                12
Schwimer briefly discussed the nature of the TPD director position at the conclusion of a meeting

about an unrelated work matter. Opp., Ex. 4 at 149-50. The record contains no suggestion that

Ms. Schwimer asked about Ms. Suttington’s qualifications or implied that Ms. Suttington would

receive the job. See id. In light of the conversation’s brevity and informality, its status as an

interview is questionable.

                But even if this discussion between Ms. Suttington and Ms. Schwimer were

assumed to be an interview, and even if it were further assumed to support a claim of

preselection, it provides no support for Ms. Gonzales’ attempt to create an inference of pretext.

“Preselection . . . does not violate Title VII when such preselection is based on the qualifications

of the party and not on some basis prohibited by Title VII.” Nyunt v. Tomlinson, 543 F. Supp.

2d at 39 (citing Goosetree v. Tennessee, 796 F.2d 854, 861 (6th Cir. 1986)); see also Oliver-

Simon v. Nicholson, 384 F. Supp. 2d 298, 310 (D.D.C. 2005) (same). “Title VII does not

prohibit hiring practices that are unrelated to the protected status (e.g., race) of an applicant.”

Washington v. Chao, 577 F. Supp. 2d 27, 46 (D.D.C. 2008). Here, Ms. Gonzales has adduced no

evidence tending to show that, even if Ms. Schwimer did preselect Ms. Suttington, she did so out

of an intent to retaliate, rather than a desire to hire the most qualified candidate. After all, there

were four applicants qualified for the TPD director position, see Def.’s Statement ¶ 13, and Ms.

Schwimer did not single out Ms. Gonzales by interviewing everyone but her; rather, if Ms.

Schwimer interviewed anyone at all, she interviewed none of the four candidates except for Ms.

Suttington.




                                                  13
                                   D. Ms. Schwimer’s Veracity

               Citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993), Ms. Gonzales

declares that “a ‘suspicion of mendacity’ is enough to support a finding of pretext and

discrimination,” and then proceeds to attack several statements of Ms. Schwimer’s as “not

truthful.” Opp. at 12. The context in which “a suspicion of mendacity” was discussed in Hicks,

however, simply is not present here. The “mendacity” to which the Supreme Court alluded was

that of a putative employer who may have manufactured the reasons cited as justifications for an

adverse employment action in order to hide a motivation that was, in fact, discriminatory. See

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 511. A factfinder’s reasonable inference that an

employer may have fabricated a nondiscriminatory rationale — “a suspicion of mendacity” —

could, in combination with “[t]he factfinder’s disbelief of the reasons put forward by the

defendant” and “the elements of the prima facie case, suffice to show intentional discrimination.”

Id. Relevant evidence of dishonesty, then, is that evidence which tends to show that the

employer-defendant has given false reasons for its actions.

               Ms. Gonzales has provided no such evidence here. Instead, she has seized upon

small to nonexistent inconsistencies in Ms. Schwimer’s accounts of nonmaterial events in an

attempt to demonstrate that Ms. Schwimer is an untruthful person who must have lied about her

reasons for selecting Ms. Suttington. For example, Ms. Gonzales points out that Ms. Suttington

has stated that she met briefly with Ms. Schwimer after applying for the TPD director position

and discussed the job’s requirements with her. See Opp., Ex. 5 at 24-26. Ms. Suttington has

termed this meeting an “interview.” Id. at 24-25. Ms. Schwimer, on the other hand, has denied

interviewing Ms. Suttington or any other candidate. Opp., Ex. 16 at 98; see discussion supra, at



                                                14
12-13. There may be a factual question as to whether Ms. Schwimer had a discussion about the

job with Ms. Suttington, even if she would not term that discussion an interview. But there

certainly is insufficient evidence to permit a reasonable factfinder to conclude that Ms. Schwimer

told a lie, rather than misremembered what occurred or differed from Ms. Suttington in what her

conception of an interview is. Regardless, the issue is not material here, because even if Ms.

Schwimer conducted a three-minute job interview with Ms. Suttington, that fact has no bearing

on whether Ms. Schwimer believed Ms. Suttington to be better qualified than Ms. Gonzales.

Any alleged dishonesty on Ms. Schwimer’s part, then, does not relate to the “suspicion of

mendacity” discussed in Hicks, because it does not undermine the defendant’s stated reasons for

promoting Ms. Suttington instead of Ms. Gonzales. See Aka v. Washington Hosp. Ctr., 156 F.3d

at 1293 (explaining Hicks’ “suspicion of mendacity” language in terms of an employer’s

dishonesty regarding the reasons for an adverse employment action); see also Pearsall v. Holder,

610 F. Supp. at 100 (“suspicion of mendacity” may be present where factfinder could reasonably

decide that defendant’s justifications for not hiring plaintiff were “not only inaccurate,” but were

also used by defendant “to cover up discriminatory and retaliatory motives”).

               Ms. Gonzales’ other arguments on the subject of “mendacity” tread similar

ground, focusing on minor, immaterial inconsistencies in Ms. Schwimer’s accounts of the hiring

process. Ms. Schwimer said she never discussed her selection of Ms. Suttington with anyone

before finalizing it, see Opp., Ex. 16 at 98; Ms. Gonzales argues that this statement is “not

truthful” because Ms. Suttington said she was interviewed by Ms. Schwimer, see Opp. at 12.

Ms. Schwimer said, according to a deposition transcript, that Ms. Suttington had an “NBA,” see

Opp., Ex. 12 at 11, rather than a Master’s degree, and later corrected this error on an errata sheet,



                                                 15
see Opp. at 13; Ms. Gonzales interprets this as evidence of Ms. Schwimer’s “utter lack of

credibility.” Id.4 Ms. Schwimer said that she did not know prior to July 16, 2002, who had

applied for the TPD director position, see Opp., Ex. 16 at 96; Ms. Gonzales says this cannot be

true, because Ms. Suttington allegedly interviewed Ms. Suttington in June 2002. Opp. at 12.

               Some of these supposed lies by Ms. Schwimer do not even qualify as

inconsistencies. Discussing a job’s requirements, or even interviewing an applicant, for example,

does not logically qualify as a discussion of the hiring official’s actual selection of a particular

candidate. Furthermore, each of Ms. Gonzales’ contentions focuses, once again, on an issue that

is collateral to the question of pretext or retaliation. None of these statements by Ms. Schwimer

could even give rise to a reasonable inference of dishonesty, and certainly none represents

competent evidence of pretext.


                                         V. CONCLUSION

               For the foregoing reasons, the Court finds that the plaintiff has identified no

genuine issues of material fact, and that defendant is entitled to judgment as a matter of law on

Ms. Gonzales’ retaliation claim.

               An Order consistent with this Opinion will be issued this same day.


                                                               /s/
                                                               PAUL L. FRIEDMAN
                                                               United States District Judge
DATE: September 22, 2009




       4
              The reference to an “NBA” is presumably a typographical error in the transcript.
See Reply at 13. Ms. Gonzales has a Master’s degree in business administration, see Opp. at 11,
while Ms. Suttington has a Master’s degree in accountancy, Mot., Ex. 11 at 11.

                                                  16
