                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                                  )
JOSHUA NESBITT                                    )
                                                  )
               Plaintiff,                         )
                                                  )
        v.                                        )   Civil No. 12-717 (RCL)
                                                  )
ERIC H. HOLDER, JR.,                              )
ATTORNEY GENERAL,                                 )
U.S. DEPARTMENT OF JUSTICE                        )
                                                  )
              Defendant.                          )
                                                  )


                                  MEMORANDUM OPINION

        Joshua Nesbitt filed suit against his employer, the United States Department of Justice,

alleging one count of race discrimination in violation of Title VII of the Civil Rights Act of

1964. Upon consideration of the government’s Motion for Summary Judgment [20], Mr.

Nesbitt’s Opposition [21] & [24] thereto, and the government’s Reply [25], the Court hereby

DENIES the government’s motion for summary judgment.

   I.        BACKGROUND

   Plaintiff Joshua Nesbitt, an African-American man, has served as an attorney for various

components of the Department of Justice (“the Department”) for more than twenty years. Pl.’s

Statement of Undisputed Material Facts ¶ 1, ECF No. 21 [hereinafter Pl.’s SMF]. In the spring

of 2010, Mr. Nesbit was an attorney in the Litigation Section of the Office of Intelligence (“the

Office”), a branch of the Department’s National Security Division. Id. ¶ 2, 3. On April 22,

2010, Nancy Newcomb, Chief of the Litigation Section and a white woman, sent an office-wide
e-mail inviting applications for a newly-created Deputy Chief position. Id. ¶ 2, 8. The vacancy

was publicly advertised on April 26, 2010. Id. ¶ 9. The position description, qualifications, and

application requirements stated in the vacancy announcement were developed by Ms. Newcomb,

in consultation with the Office’s Chief of Human Resources, Joyce Klitenic, also a white

woman. See Pl.’s Opp’n to Def.’s Mot. Summ. J., Ex. E (EEO Interrog. of Joyce Klitenic, Feb.

10, 2011), at 2–3 [hereinafter Klitenic Interrog.].

        According to the vacancy announcement, the Deputy Chief would be responsible for

“assisting the Section Chief in coordinating and overseeing criminal and civil litigation related to

[the Foreign Intelligence Surveillance Act (“FISA”)].” Pl.’s Opp’n, Ex. G (Vacancy

Announcement, Apr. 26, 2010), at 1 [hereinafter Vacancy Ann.]. Ms. Newcomb desired a

candidate “who could assist . . . in managing the increasing work load in the Litigation Section

and fulfill the Chief’s duties” in her absence. Pl.’s Opp’n, Ex. B (EEO Interrog. Of Nancy

Newcomb, Feb. 11, 2011), at 6 [hereinafter Newcomb Interrog.]. The Deputy Chief would serve

as both a first-line supervisor of the six attorneys in the Litigation Section and as a representative

of the Office at “high-level meetings relating to national security matters with . . . members of

the Intelligence Community.” Id. at 7. Relative to the sophisticated responsibilities of the

position, the required qualifications were general and sparse—applicants needed only

membership in any state bar and three years of post-law school legal experience. Vacancy Ann.

1. All applicants, whether internal or external, were directed to submit a cover letter, résumé,

writing sample, law school transcript, and current performance appraisal to Ms. Klitenic’s office.

Id. at 2.

        Mr. Nesbitt immediately expressed his interest in the position. Within hours of the

release of the public announcement on April 26, Mr. Nesbitt e-mailed Ms. Klitenic to inquire



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whether he needed to submit a law school transcript and writing sample given his status as an

internal candidate. 1 Pl.’s Opp’n, Ex. H (E-mail between Joshua Nesbitt and Joyce Klitenic, Apr.

26, 2010) [hereinafter Klitenic E-mail]. Ms. Klitenic responded that Mr. Nesbitt should submit

“everything that is requested in the vacancy announcement.” Id. Mr. Nesbitt then contacted a

human resources employee to request a copy of his transcript from his personnel file. Pl.’s

Opp’n, Ex. I (E-mail from Joshua Nesbitt to Tammy Green, Human Resources Employee,

National Security Division, Apr. 26, 2010). He received no response. Pl.’s SMF ¶ 13, 14.

Separately, Mr. Nesbitt informed Ms. Newcomb that although he planned to apply, he could not

complete his application until he received a copy of his transcript. Id. ¶ 18.

        On April 27—while Mr. Nesbit was awaiting a copy of his transcript to complete his

application—a white attorney in the Office, Paul Ridge, submitted only his résumé via e-mail to

Ms. Newcomb and Ms. Klitenic. Pl.’s Opp’n, Ex. J (E-mail from Paul Ridge to Nancy

Newcomb & Joyce Klitenic, Apr. 27, 2010) [hereinafter Ridge E-mail]. Mr. Ridge’s e-mail

stated that his transcript “should be on file somewhere within the Department” and that he did

not have a writing sample because he did not “get paid to write.” Id. Despite the lack of a

transcript, writing sample, or performance appraisal, Mr. Ridge’s e-mail was treated as a

complete application.

        On May 14, after obtaining a copy of his transcript from his law school, Mr. Nesbitt

delivered a hard copy of his application to Ms. Klitenic’s office. Pl.’s SMF ¶ 18, 19. In

accordance with the announcement requirements, Mr. Nesbitt’s application included a cover

letter, résumé, law school transcript, writing sample, and performance appraisal. Pl.’s Opp’n,

Ex. L (Application of Joshua Nesbitt, May 14, 2010) [hereinafter Nesbitt Application].

1
  Having met Mr. Nesbitt at the outset of his tenure with the Office, Klitenic Interrog. 2, Ms. Klitenic was
presumably already aware of Mr. Nesbitt’s internal status.

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          Ms. Klitenic received 34 applications for the Deputy Chief position, all of which were

forwarded to Ms. Newcomb for review. Pl.’s Opp’n, Ex. O (Memorandum from Janice Kaye,

National Security Division to Leisa Bush-Yillah, EEO Specialist, Sept. 2, 2010), at 3 [hereinafter

EEO Resp. Mem.]. Ms. Newcomb selected three internal candidates for interviews: Mr. Nesbitt,

Mr. Ridge, and a white female attorney. 2 Id. On May 28, 2010, after interviewing all three

candidates, Ms. Newcomb selected Mr. Ridge as the new Deputy Chief. Pl.’s Opp’n, Ex. N (E-

mail from Nancy Newcomb to Employees of the Office of Intelligence, May 28, 2010).

    Mr. Nesbitt filed a timely complaint with the Department’s Equal Employment Opportunity

Office (“EEO”), and after exhausting his remedies with the EEO, Mr. Nesbit filed suit in this

Court, alleging one count of race discrimination in violation of Title VII of the Civil Rights Act

of 1964. Compl. ¶ 33. Specifically, Mr. Nesbitt alleges that the Department “intentionally

discriminated against Plaintiff in violation of Title VII by not selecting him for the Deputy Chief

position on the basis of his race and color.” Id. Following discovery and a failed mediation

attempt, the government moved for summary judgment.

    II.      LEGAL STANDARD

          A. Summary Judgment

          “[T]he central purpose of the summary judgment device . . . is to weed out those cases

insufficiently meritorious to warrant the expense of a jury trial.” Greene v. Dalton, 164 F.3d

671, 675 (D.C. Cir. 1999). Summary judgment is appropriate when “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 (1986). A fact is material if it could affect the outcome of the case. Anderson, 477 U.S. at
2
  Of the three internal candidates, the white female applicant had the least legal experience and the shortest tenure
with the Department. EEO Resp. Mem. 3. She submitted a complete application. Pl.’s Opp’n, Ex. X (Application
of Unnamed Female Applicant, May 13, 2010) [hereinafter Unnamed Application].

                                                         4
248. A dispute is genuine if the “evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Id. The “evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.” Id. at 255.

        “Credibility determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge,” on a motion for summary

judgment. Id. The sole issue presented by a motion for summary judgment is whether there is a

genuine issue for trial.

        B. Title VII

        Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for

an employer . . . to fail or refuse to hire . . . or otherwise to discriminate against any individual . .

. because of such individual's . . . race” 42 U.S.C. § 2000e-2(a)(1). Section 2000e-16(a) makes

Title VII applicable to federal agencies, and although the language of that provision differs

slightly from §§ 2000e-2(a) and e-3(a), the D.C. Circuit has held that Title VII “places the same

restrictions on federal . . . agencies as it does on private employers” and that courts may

“construe the latter provision in terms of the former.” Singletary v. Dist. of Columbia, 351 F.3d

519, 524 (D.C. Cir. 2003); see also Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009).

        With respect to discrete discrimination claims, plaintiffs must plead two elements: “(i)

the plaintiff suffered an adverse employment action (ii) because of the [his] . . . race . . . .” Brady

v. Office of Sergeant of Arms, 520 F.3d 490, 493 (D.C. Cir. 2008). Although discrimination

based on circumstantial evidence has traditionally been analyzed under the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973), 3 the



3
 The McDonnell Douglas framework requires that the plaintiff first establish a prima facie case of discrimination by
a preponderance of the evidence; second, the employer must present a legitimate, nondiscriminatory reason for its
actions; and third, the plaintiff must establish that the employer’s nondiscriminatory reason is a pretext to mask

                                                         5
D.C. Circuit in Brady simplified the approach district courts should take in analyzing these

claims. In Brady, the Circuit explained:

           [W]here 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—and should not—decide whether the plaintiff actually
           made out a prima facie case under McDonnell Douglas. Rather, in considering an
           employer’s motion for summary judgment . . . 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, color, religion, sex, or national origin?

520 F.3d at 494. At all times, the burden of persuasion remains with the plaintiff; only the

production burden shifts. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000).


    III.      ANALYSIS

    It is undisputed that Mr. Nesbitt suffered an adverse employment action—namely, rejection

for the Deputy Chief position. The Department of Justice asserts that this rejection occurred, not

on account of Mr. Nesbitt’s race, but because Mr. Ridge was the best and most qualified

candidate. All that remains, then, is the “central question” whether Mr. Nesbitt has produced

sufficient evidence for a reasonable jury to conclude that this qualifications-based explanation is

mere pretext for intentional discrimination. Brady, 520 F.3d at 494. “Viewing the evidence as

favorably to [Mr. Nesbitt] as reason will permit,” Aka v. Washington Hosp. Ctr., 156 F.3d 1284,

1295 (D.C. Cir. 1998), this Court concludes that the plaintiff has met his burden.

    Even assuming, as the government asserts, that Mr. Ridge was supremely qualified to

supervise the Litigation Section, that is not dispositive of this case. Although in some cases, a

plaintiff may prove pretext by establishing that a reasonable employer would have found him



unlawful discrimination. 411 U.S. at 802–04; see also Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–
53 (1981); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

                                                       6
“significantly better qualified for the job,” a plaintiff is not required “to establish this disparity in

order to survive a motion for summary judgment.” Holcomb v. Powell, 433 F.3d 889, 897 (D.C.

Cir. 2006). Indeed, the Circuit has “emphasized that a plaintiff attacking a qualifications-based

explanation is expressly not limited to comparing her qualifications against those of a successful

applicant,” and may defeat summary judgment by “expos[ing] other flaws in the employer’s

explanation.” Id. Here, Mr. Nesbitt has identified at least three such flaws.

    First, Mr. Nesbitt alleges that the Office inconsistently applied the application requirements

of a writing sample and transcript. Such a “failure to follow established procedures or criteria” is

sufficient to support a reasonable inference of intentional discrimination. Brady, 520 F.3d at 495

n.3. The vacancy announcement developed by Ms. Newcomb and Ms. Klitenic required delivery

of an application package, including a writing sample, transcript, and performance review, to Ms.

Klitenic. See Vacancy Ann. 2. Being familiar with Mr. Nesbitt’s tenure with the Office, and

having been explicitly reminded that Mr. Nesbitt was an internal candidate, Ms. Klitenic

confirmed that Mr. Nesbitt was required to submit a writing sample and transcript. See Klitenic

E-mail. Also knowing that Mr. Nesbitt was an internal candidate, Ms. Newcomb gave no

response at all after being informed that Mr. Nesbitt was delaying his application in order to

obtain a transcript. Pl.’s SMF ¶ 18. But these same officials accepted only an e-mailed résumé

from Mr. Ridge as a complete application. See Ridge E-mail. The government has offered no

explanation for the strict adherence to the application requirements for Mr. Nesbitt, while

abandoning those same requirements for Mr. Ridge. This contravention of the publicized

application requirements to the benefit of a white applicant permits a reasonable inference that

the qualifications-based rationale is pretext.




                                                    7
   Second, Mr. Nesbitt points to the inconsistent justifications offered for the selective

enforcement of the application requirements. Certainly, “shifting and inconsistent justifications

are probative of pretext.” Geleta v. Gray, 645 F.3d 408, 413 (D.C. Cir. 2011). Ms. Newcomb

and Ms. Klitenic developed the vacancy announcements that set forth identical requirements for

internal and external applicants. See Vacancy Ann. 2; Newcomb Interrog. 3–4; Klitenic Interrog.

3. Ms. Klitenic instructed Mr. Nesbitt, despite his internal status, to comply with all of the

requirements. See Klitenic E-mail. But in the written response to Mr. Nesbitt’s EEO complaint,

composed based upon information provided by Ms. Klitenic and Ms. Newcomb, the Department

asserted that “[a]lthough the posting did not differentiate between internal and external

candidates, internal candidates did not have to submit a law school transcript, current

performance review or writing sample[.]” EEO Resp. Mem. 3. The existence of this unwritten

and previously undisclosed policy is unconvincing given the government’s inability to explain

how it came to be. When interviewed by EEO investigators, Ms. Newcomb responded “I do not

know” when asked who determined the application requirements for internal candidates,

Newcomb Interrog. 4, while Ms. Klitenic claimed that her office had determined the policy in

consultation with Ms. Newcomb, Klitenic Interrog. 3.

       Additionally, throughout this litigation, the Department has argued that Mr. Nesbitt’s

claim is moot because Ms. Newcomb “did not consider documents submitted by the applicants

beyond the résumés.” Def.’s Reply in Supp. of Summ. J., ECF No. 25, at 7 [hereinafter Def.’s

Reply 7]. This is at odds with Ms. Newcomb’s sworn statement that she does not “recall

precisely which materials [she] reviewed for each candidate.” Newcomb Interrog. 5. These

“changes and inconsistencies” in the Department’s explanations are sufficient to “cast doubt on

the [Department’s] proffered reason” for the selection of Mr. Ridge. Brady, 520 F.3d at 495 n.3;



                                                 8
see also Evans v. Sebelius, 716 F.3d 617, 620–621 (2013) (holding that the government’s

“shifting reasons for the non-promotion” of a black employee and inability to determine “who

precisely” cancelled the sought-after position were sufficient to support an inference of

intentional discrimination).

       Finally, Mr. Nesbitt argues that Ms. Newcomb misstated his qualifications in an effort to

justify Mr. Ridge’s selection. The Department has repeatedly underscored the importance of the

Deputy Chief’s ability to represent the Office at high-level meetings. See, e.g., EEO Resp. Mem.

3 (stating that the “ability to participate effectively in high-level meetings was essential”);

Newcomb Interrog. 7 (“The Deputy Chief . . . represents the Section . . . at high-level meetings

relating to national security matters with . . . the FBI and members of the Intelligence

Community.”); Def.’s Reply 9 (same). Moreover, the Department has emphasized Mr. Ridge’s

experience representing the Office at such meetings as a reason for the selection of Mr. Ridge

over Mr. Nesbitt. See, e.g., EEO Resp. Mem. 3–4 (stating that Mr. Ridge has “represented the

Office of Intelligence . . . in high-level meetings with the FBI and other agencies of the

Intelligence Community [ ] and . . . the Attorney General,” while Mr. Nesbitt “lacks experience

dealing with Department leadership and representatives of the Intelligence Community at high-

level meetings”); Newcomb Interrog. 7 (same); Def.’s Reply 9 (noting Ms. Newcomb’s belief

that Mr. Ridge could “vigorously represent the office in various meetings,” while Mr. Nesbitt

would not).

       Despite the weight placed on high-level meetings in the Department’s explanation of Mr.

Ridge’s promotion, that aspect of the Deputy Chief position is absent from the vacancy

announcement, and the Department does not dispute Mr. Nesbitt’s statement that he was never

asked about his experience with such meetings during his interview. See Vacancy Ann.; Pl.’s



                                                  9
Opp’n, Ex. K (Aff. of Joshua W. Nesbitt, Jan. 25, 2011), at 15–16 [hereinafter Nesbitt Aff.].

However, in the absence of any basis for its conclusion, the Department nonetheless determined

that Mr. Nesbit “lacks experience dealing with Department leadership and representatives of the

Intelligence Community at high-level meetings,” EEO Resp. Mem. 4, which contradicts Mr.

Nesbitt’s statement that he personally briefed the Attorney General in 2002 on an organized

crime matter; debriefed and interviewed FBI Director Mueller; and directly participated in other

meetings with Assistant Attorney Generals in the Criminal Division of the Department, Nesbitt

Aff. 12. The Department’s misstatement of Mr. Nesbitt’s qualifications “may suffice to permit a

jury to infer that the employer's explanation is incorrect or fabricated, and thus to infer

discrimination.” Aka, 156 F.3d at 1295.

       Of course, it may be true, and at trial, a jury may well find, that there are innocuous

reasons for all of the Department’s actions and that Mr. Nesbitt simply lost out to a better

candidate. Alternatively, a jury may reasonably credit Mr. Nesbitt’s version of events. And

given (1) the inconsistent enforcement of the application requirements; (2) the inconsistent

explanations offered by the defendant; and (3) the defendant’s misstatements of Mr. Nesbitt’s

qualifications, a jury may reasonably find that the Department’s explanation is “unworthy of

credence” and thus “probative of intentional discrimination.” Reeves, 530 U.S. at 147. It is not

the duty of this Court to resolve this dispute by judicial fiat at summary judgment. See Primas v.

Dist. of Columbia, 719 F.3d 693, 698 (D.C. Cir. 2013) (“Because the record permits either

inference, it is the jury's job . . . to choose between them.”). Accordingly, the Court DENIES the

defendant’s motion for summary judgment.


       A separate Order consistent with this Memorandum Opinion shall issue this date.

       Signed by Royce C. Lamberth, United States District Judge, on September 5, 2013.


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