UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ORA TABRON, )
)
Plaintiff, )
)
v. ) Civil Case No. 12-1252 (RJL)
)
JEH JoHNsoN, secrerary,l ) § § L E D
Department of Homeland Security, ) ,
) MAR 05 2014
Defendant. ) . , tc
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MEMORANDUM OPINION

(February Z-Q, 2014) [Dkt. #19]

Plaintiff Ora Tabron ("Tabron" or "plaintiff") brings this action against her
employer, Jeh Johnson, Secretary of the United States Department of Homeland Security
("DHS" or "defendant"), alleging discrimination on the basis of her race and color in
violation of Title VII of the Civil Rights Act of 1964. See Compl. [Dkt. #l]. Now before
the Court is defendant’s Motion for Summary Judgment ("Def.’s Mot.") [Dkt. #19].
Upon consideration of the parties’ pleadings, relevant law, and the entire record in this
case, the defendant’s Motion for Summary Judgment is GRANTED.

BACKGROUND
This case involves a challenge to defendant’s non-selection of Tabron_an

African-American woman of dark complexion-for promotion to the position of Director

1 On December 23, 2013, Mr. Johnson succeeded Acting Secretary, Rand Beers as the United
States Secretary of the Department of Homeland Security. Accordingly, pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, his substitution here is appropriate

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of Operations, Regulatory Audit, Office of International Trade ("Director of Operations"
or "position in question"). See Compl at 111 6, l2. Plaintiff alleges that the defendant
passed her over for promotion due to her race and color, in favor of a less qualified
candidate who is not African-American. See ia’. at w 18-22.

Tabron began working for Customs and Border Protection ("CBP")-a component
of DHS-and U.S. Customs Service before that, in approximately 1985 and rejoined the
agency in approximatelyl996, following a period of work in the private sector. See
Def.’s Mot. at jl 2; Pl.’s Opp’n at W l-2 [Dkt. #21]. Throughout her career, plaintiff
always worked in Washington, D.C. See Ex. 2 to Def.’s Mot. at 15:10 [Dkt. #19-1].
From September, 2003 to July, 2010, plaintiff held the supervisory position of Director,
Quality Assurance Division. See Compl. at 111 6-7; Def.’s Mot. at ll 1. In April, 2010,
CBP created the Director of Operations position when it combined the responsibilities of
two previous positions, Field Oversight East and Field Oversight West. See Def.’s Mot.
at 1] 5; Pl.’s Opp’n at w 7-8. In July 2010, CBP temporarily detailed plaintiff to serve in
the Director of Operations position. See Compl. at jl 7.

Desiring to fill the position on a permanent basis, CBP issued a Vacancy
Announcement for the Director of Operations position ("Announcement") on or about
July 22, 20l0. See Def.’s Mot. at jl 6. The Announcement listed the "Major Duties" of
the position as including, inter alz`a, directing the office "responsible for providing
oversight guidance over the daily operational and administrative activities of all the
Regulatory Audit Field Offices." See EX. 6 to Def.’s Mot. at 223 [Dkt. #19-2]. The

Announcement period was scheduled to remain open from July 22 through August 4,

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2010. See Def.’s Mot. at ll 6. Plaintiff submitted her completed application for
permanent placement in the position prior to the August 4, 2010 deadline. See Compl. at
llll 8-9; Def.’s Mot. at ll 2. However, due to the failure of otherwise qualified candidates
to submit all required documentation, CBP human resources extended the deadline,
informing all applicants on September 10, 2010 that they were free to supplement their
applications with any additional documentation on or before September 17, 2010. See
Compl. at ll 11; Def.’s Mot. at llll 7-9.

Plaintiff later interviewed with J ames Madden and R. Keith Richard-the
interview panel for the Director of Operations position-after which they considered her
to be one of the top two candidates for the job. See Def.’s Mot. at ll ll. Nevertheless, on
December 8, 2010, Cindy Covell ("Covell")-the recommending official for the
position_recommended Caridad Reyes ("Reyes"),z a Filipino woman, for the Director of
Operations position to the selecting official, Daniel Baldwin ("Baldwin").?‘ See Def.’s
Mot. at ll 15; Compl. at ll 12. Reyes previously served in CBP’s Long Beach, California
field office as a Senior Auditor and Team Leader from August 2004 to March 2007, and
as an Assistant Field Director from March 2007 to December 2008. See Ex. 16 to Def.’s

Mot. at 366-67 [Dkt. #19-4]. Baldwin selected Reyes for the position in question on

2 Reyes was one of two candidates for the Director of Operations position whose applications
were initially ruled incomplete for failure to include required undergraduate transcripts. See
Def.’s Mot. at ll 7. Although she was initially rated as ineligible for the position, Reyes
supplemented her application with the required documents on September 16, 2010, and was thus
able to advance to the interview stage of the application process. See ia'. at llll 7, 9-10.

3 As of July, 2013, Baldwin was the Executive Director, Cargo and Conveyance Security, Office
of Field Operations, CBP, and had been in that position since March, 2011. See Def.’s Mot. at ll
4.

December 14, 2010, and Covell announced the selection three days later. See Def.’s Mot.
at ll 16.
STANDARD OF REVIEW
Defendant moves for summary judgment pursuant to Federal Rule of Civil
Procedure 56. Summary judgment is proper where the pleadings, stipulations, affidavits,
and admissions in a case show that there is no genuine issue as to any material fact. FED.
R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In determining
whether summary judgment for the employer is appropriate in a Title VII case, the court
"considers all relevant evidence presented by the plaintiff and the defendant." Braa'y v.
O/j”zce of Sergeant at Arms, 520 F.?)d 490, 495 (D.C. Cir. 2008). The court must accept as
true the evidence of, and draw "all justifiable inferences" in favor of the party opposing
summary judgment. Anderson v. Liberly Lobby, Inc., 477 U.S. 242, 255 (1986). A
genuine issue exists only where "the evidence is such that a reasonable jury could retum
a verdict for the nonmoving party." Ia’. at 248.
ANALYSIS
Claims of employment discrimination lacking direct evidence of the alleged

discrimination are analyzed under the three-part burden-shifting framework laid out in
M€Donnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See z`d. at 802; see also
Chappell-Johnson v. Powell, 440 F.3d 484, 487 (D.C. Cir. 2006). Under the McDonnell
Doaglas burden-shifting framework, a plaintiff must first establish a prima facie case of
racial discrimination. McDonnell Douglas, 411 U.S. at 802; see also Tex. Dep ’t of Cmly.

Ayj”az'rs v. Burdine, 450 U.S. 248, 252-53 (1981). A plaintiff may establish a prima facie

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case by showing "(i) that [she] belongs to a racial minority; (ii) that [she] applied and was
qualified for a job for which the employer was seeking applicants; (iii) that, despite [her]
qualifications, [she] was rejected; and (iv) that, after [her] rejection, the position
remained open and the employer continued to seek applicants from persons of
complainant’s qualifications." McDonnell Douglas, 411 U.S. at 802; see also Carter v.
George Washz`ngton Univ., 387 F.3d 872, 878 (D.C. Cir. 2004).

If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the
employer to articulate a legitimate non-discriminatory reason for the plaintiffs non-
selection. See McDonnell Douglas, 411 U.S. at 802; Fora' v. Mabus, 629 F.3d 198, 201
(D.C. Cir. 2010). Deference is due to agency personnel decisions, and thus, whether an
employer’s proffered non-discriminatory reason is "legitimate" is a relatively lenient
standard. See Fischbach v. D.C. Dep’t ofCorrectz`ons, 86 F.3d 1180, 1183 (D.C. Cir.
l996) (A court "may not second-guess an employer’s personnel decision absent
demonstrably discriminatory motive.") (quoting Mz`lton v. Wez'nberger, 696 F.2d 94, 100
(D.C. Cir. 1982). lf the employer meets this burden of production, the burden will then
shift to the plaintiff to show that the employer’s proffered reason for the non-selection
was not the actual reason, but that it was, in fact, a pretext for racial discrimination. See
McDonnell Douglas, 411 U.S. at 802; see also Burdine, 450 U.S. at 254 (defendant’s
burden is one of production, not of persuasion).

Despite this longstanding framework, our Circuit has been very clear that once an
employer has asserted a legitimate non-discriminatory reason for a non-selection in a

Title VII case, the "district court need not-and should not-decide whether the plaintiff

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actually made out a prima facie case under McDonnell Douglas." Braa’y, 520 F.3d at 494
(emphasis in original); see also U.S. Postal Serv. Ba’. OfGovernors v. Aikens, 460 U.S.
71 1, 715 (1983) ("Where the defendant has done everything that would be required of
him if the plaintiff had properly made out a prima facie case, whether the plaintiff really
did so is no longer relevant. The district court has before it all the evidence it needs to
decide whether the defendant intentionally discriminated against the plaintiff.") (intemal
quotations and citation omitted). Rather, the inquiry should turn to the third step of the
McDonnell Douglas framework to determine whether "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." Braa'y, 520
F.3d at 494 (citations omitted).

Unfortunately for the plaintiff, there is no doubt that defendant has met this
burden. How so? The defendant has asserted a legitimate non-discriminatory reason for
Tabron’s non-selection: Reyes was a "stronger candidate" than plaintiff and a better fit
for the Director of Operations position. Ex. 3 to Def.’s Mot. at 137 [Dkt. #19-1].
Specifically, Reyes was selected because of her "experience conducting field regulatory
audits both as an auditor and a supervisory auditor, her expertise in specific audit subject
matter areas, her ability to get along with others, and her ability to handle stress." Def.’s
Mot. at 5; see also Ex. 4 to Def.’s Mot. at 192:1-193:4 [Dkt. #19-2]. Meanwhile,

regarding the plaintiff, Covell observed that,

Ms. Tabron is not known as a field audit expert on complex audit issues

that would allow her to effectively brief foreign government auditors or

Congressional staffers on complex audit issues. Ms. Tabron does not have

working relationships with the other parts of CBP nor DHS that are vital for

having as the Operations Director. Ms. Tabron does not seek challenging
assignments (on her own initiative) outside of her comfort zone nor does

she volunteer to lead National International Trade efforts. Ms. Tabron does

not demonstrate the ability to handle stressful situations in a tactful and

diplomatic manner, and she does not excel at listening to opposing views

and working out solutions.

Ex. 3 to Def.’s Mot. at 138-39. Put simply, defendant’s proffered reasons for its selection
of Reyes over Tabron for the Director of Operations position are both non-discriminatory
and legitimate.

In response to defendant’s asserted non-discriminatory reasons for her non-
selection, Tabron attempts to show that those reasons are pretext for discrimination by
arguing that Reyes was "pre-selected" for the position in violation of CBP hiring policies.
See Pl.’s Opp’n at llll 15-29; Ex. F to Pl.’s Opp’n [Dkt. #21-2]. However, plaintiff has
failed to produce any actual evidence that Reyes’s "pre-selection" was in any way
motivated by racial discrimination. Indeed, mere departure from established hiring
practices does not equate to evidence of illegal racial discrimination. See Oliver-Simon v.
Nicholson, 384 F. Supp. 2d 298, 312-13 (D.D.C. 2005) ("Even ifa court suspects that a
job applicant was victimized by poor selection procedures it may not second-guess an
employer’s personnel decision absent demonstrably discriminatory motive.") (internal
quotations and citation omitted). Plaintiff’ s argument that defendant’s proffered non-

discriminatory reasons are pretext for racial discrimination are made more implausible

given that Covell_the very individual whom plaintiff claims discriminated against her

on the basis of her race and color in this case-was the one who had recommended the
plaintiff for promotion to the Director of Quality Assurance position in 2003. See Def.’s
Mot. at 2; Pl.’s Opp’n at ll 63.

Thus, plaintiffs claim of race and color-based employment discrimination fails
because she is unable to produce any evidence that would allow a reasonable jury to
conclude that CBP’s asserted non-discriminatory reasons for plaintiffs non-selection
were not the actual reasons, and that Covell and others intentionally discriminated against
her on the basis of her race and color.

CONCLUSION

Accordingly, for all of the foregoing reasons, the Court GRANTS defendant’s
Motion for Summary Judgment. An Order consistent with this decision accompanies this
Memorandum Opinion.

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RICHARD LLEbN
United States District Judge

