                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                         )
CASSANDRA M. MENOKEN,                    )
                                         )
                      Plaintiff.         )
                                         )
       v.                                )  Civil Action No. 16-0083 (ABJ)
                                         )
MARGARET WEICHERT                        )
Acting Director, United States Office of )
Personnel Management, et al.,            )
                                         )
                      Defendants.        )
____________________________________)

                                  MEMORANDUM OPINION

        Pro se plaintiff Cassandra M. Menoken filed this lawsuit against the United States Office

of Personnel Management (“OPM”) and the United States Department of Health and Human

Services (“HHS”), alleging that they discriminated and retaliated against her in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) when she was not

selected to be an Administrative Law Judge (“ALJ”) in 2005. Am. Compl. [Dkt. # 8]. Plaintiff

challenges OPM’s use of four “location-specific” certificates, listing eligible candidates for vacant

ALJ positions, instead of one omnibus list that would have included a greater total number of

candidates. She alleges that this practice had a disparate impact on African American candidates

in general, and that OPM intentionally used this method to discriminate and retaliate against her

in particular.

        Pending before the Court is defendants’ motion for summary judgment. Defs.’ Mot. for

Summ. J. [Dkt. # 37] (“Defs.’ Mot.”). Defendants argue that plaintiff has failed to come forward

with any evidence of discrimination or retaliation. Mem. of P. & A. in Supp. of Defs.’ Mot. [Dkt.

# 37-1] (“Defs.’ Mem.”). Plaintiff opposes the motion, contending that defendants’ evidence is



                                                 1
unreliable and that there are still factual issues in dispute. Pl.’s Mem. in Opp. to Defs.’ Mot. [Dkt.

# 41] (“Pl.’s Opp.”).

       As the Court cautioned in its ruling on the motion to dismiss in this case, “mere conclusory

allegations . . . will not be enough to sustain a claim at the summary judgment stage.” Menoken v.

McGettigan, 273 F. Supp. 3d 188, 202 (D.D.C. 2017). Now we are at that stage, and after

discovery, plaintiff has not mustered the evidence needed to support her claims. Thus, the Court

will grant defendants’ motion for summary judgment.

                                         BACKGROUND

  I.   Factual Background

       To become an ALJ, applicants undergo a competitive examination process administered

by OPM. See 5 C.F.R. § 930.201; Defs.’ Statement of Undisputed Material Facts [Dkt. # 37-2]

(“Defs.’ SUMF”) ¶ 1. 1 In an initial screening, applicants must demonstrate that they satisfy a set

of minimum professional qualifications, such as at least seven years of experience as an attorney

engaged in administrative law matters and at least two years of experience at a senior level.

Qualification Standard for Administrative Law Judge Position, U.S. Office of Personnel

Management,      https://www.opm.gov/policy-data-oversight/classification-qualifications/general-

schedule-qualification-standards/specialty-areas/administrative-law-judge-positions/ (hereinafter

“ALJ Qualification Standard”). Those applicants who pass the initial screening must take an




1       Plaintiff has objected to every one of defendants’ undisputed material facts. See Pl.’s Resp.
& Objections to Defs.’ SUMF [Dkt. # 41-1] (“Pl.’s Objs. to Defs.’ SUMF”). The Court notes that
these objections are largely technical – plaintiff has objected to the form of the statement and the
declarations that they rely on. For certain facts, plaintiff has admitted that she does not dispute its
substance. Thus, the Court will cite the defendants’ SUMF for those facts that are undisputed in
substance in this section, and it will discuss plaintiff’s concerns regarding defendants’ evidence in
the analysis section below.


                                                  2
examination, “the purpose of which is to evaluate the competencies/knowledge, skills, and abilities

(KSAs) essential to performing the work of an Administrative Law Judge.” Id.

       After applicants complete the examination, OPM ranks them by score in an electronic

database called the ALJ Register. 5 C.F.R. § 332.311, 332.401. The register also stores applicants’

geographic preferences. Id.

       When an agency seeks to hire ALJs, it submits a request to OPM. Using the ALJ Register,

OPM identifies candidates whose geographical preferences match the agency’s needs, and it then

sends the agency “certificates of eligibles” listing the top-scoring candidates. Defs.’ SUMF ¶ 4; 5

C.F.R. § 332.402. OPM generally provides at least three candidates from the register per vacancy.

§ 332.402. When selecting candidates from certificates, an agency must follow the “rule of three,”

which requires the agency to fill each vacancy from the three highest-scoring candidates on the

certificate who have yet to be selected. 5 C.F.R. § 332.404. As a result, the agency cannot simply

select any candidate who appears on a certificate, but it must generally proceed in score order.

       In 1993, plaintiff took the ALJ examination. Pl.’s Opp. at 1, citing Am. Compl. [Dkt. # 8]

¶ 4. Her examination results, along with her identified geographic preferences, were maintained

in the “1993 ALJ Register.” Defs.’ SUMF ¶ 3. This register was used to fill ALJ positions until

it was retired in October 2007. Id. ¶ 5. In 2005, HHS sought to hire approximately forty-nine

ALJs to staff the new Office of Medicare Hearings and Appeals in four different locations:

Arlington, Virginia; Cleveland, Ohio; Miami, Florida; and Irvine, California. Id. ¶¶ 6–7. OPM

responded by issuing four location-specific certificates of eligibles from the 1993 ALJ Register.

Id. ¶ 8. Plaintiff had indicated that she was available for all four of the locations, but her name did

not appear on any of the certificates, and she was not selected for an ALJ position. Am. Compl.

¶¶ 38, 49; Defs.’ Mot. at 6 (indicating that plaintiff’s score was lower than the lowest score




                                                  3
selected); Pl.’s Opp. at 1 (indicating that the parties agree that plaintiff was not considered for the

ALJ vacancies in 2005).

 II.   Related Cases

       There is a long history of prior litigation arising out of plaintiff’s attempts to become an

ALJ. Because the previous cases were described in detail in the Court’s decision granting and

denying in part defendants’ motion to dismiss, McGettigan, 273 F. Supp. 3d at 193–95, the Court

will describe them only briefly here.

           A. Menoken v. OPM, EEOC No. 100–95–7644X (“EEOC Action”)

       In 1994, plaintiff filed a formal charge with the EEOC against OPM for discriminating

against African American and female applicants in its scoring of several components of the 1993

exam that she had taken. Ex. 1 to Defs.’ Mot. to Dismiss [Dkt. # 10-2] (“EEOC Order”) at 3–4,

51. She also alleged that OPM retaliated against her for pursuing the discrimination claim. Id. at

4. In 2000, the EEOC administrative judge ruled in plaintiff’s favor on one of her discrimination

claims, which concerned the “partner benchmark” in the “supplemental qualifications statement”

(“SQS”) portion of the ALJ examination. 2 Id. at 63. The benchmark awarded points to applicants

who had been partners at large law firms. Id. The judge found that the benchmark “impermissibly

create[d] disparate impact on grounds of race” and ordered OPM to “cease use of that benchmark

until its use has been properly validated . . . or until the disparate impact disappears.” Id.




2       An applicant’s final score is determined by combining the scores from the individual
components of the exam, which are: (1) the “Supplemental Qualifications Statement,” where the
applicant describes her qualification and accomplishments; (2) the “Written Demonstration,”
where the applicant is given a hypothetical case and asked to prepare a memorandum; (3) the
“Personal Reference Inquiry,” where the applicant identifies references who are asked to grade the
applicants knowledge, skills, and abilities; and (4) the “Panel Interview,” where the applicant is
interviewed by a three-member panel. EEOC Order at 6–7.


                                                  4
       However, the judge rejected plaintiff’s claim that the benchmark’s usage had deprived her

of an ALJ position, since the “record clearly and convincingly established that, even after taking

into account the effects of the improper use by OPM of the discriminatory benchmark, the

Complainant would not have been selected for an ALJ vacancy.” Ex. 2 to Defs.’ Mot. to Dismiss

[Dkt. # 10-3] (“Relief Order”) at 29–30. The judge rejected the remainder of plaintiff’s claims.

EEOC Order at 63.

       In 2001, plaintiff appealed this administrative determination within the EEOC, alleging

that OPM had failed to comply with the order to cease use of the partner benchmark and

challenging the administrative judge’s decision about her other claims. Ex. 3 to Defs.’ Mot. to

Dismiss [Dkt. # 10-4] (“EEOC Appeal”). In May 2003, the EEOC rejected her compliance

challenge and affirmed the administrative judge’s decision. Id. at 9. Plaintiff then sought

reconsideration of the decision within the EEOC, Menoken v. James, EEOC Decision No.

05A30918, 2005 WL 38762, at *2 (Jan. 3, 2005), and she filed a related civil action in this court.

See Menoken v. Whipple, 605 F. Supp. 2d 148 (D.D.C. 2009) (“Menoken I”). Because of the

pending civil action, the EEOC denied the request for reconsideration. James, 2005 WL 38762 at

*4.

           B. Menoken v. Whipple, 605 F. Supp. 2d 148 (D.D.C. 2009) (“Menoken I”)

       In the civil case arising out of the conclusion of the EEOC action, plaintiff alleged that

OPM had not complied with the EEOC Order, and that several components of the ALJ selection

process, including the Personal Reference Inquiry (“PRI”) and SQS portions of the exam,

unlawfully discriminated against African American and female applicants, in violation of Title

VII. Menoken I, 605 F. Supp. 2d at 151. In 2009, the court granted summary judgment for OPM

on all counts:   it found that OPM had complied with the EEOC Order and corrected the




                                                5
discrimination caused by the partner benchmark, and that plaintiff’s evidence of disparate

discrimination was insufficient to create a triable issue of fact. Id. at 152–55. Specifically, the

court found that OPM “(1) ceas[ed] use of or reliance upon the partner benchmark when scoring

completed but unscored ALJ applications; (2) review[ed] the scores of applicants on the 1993 ALJ

Register; and (3) confirm[ed] that no applicants received five points on the basis of the . . . partner

benchmark.” Id. at 151–52.

           C. Menoken v. Cobert, et al., No. 1:16-cv-0084 (D.D.C. 2016) (“Menoken II”)
       On January 15, 2016, plaintiff filed another complaint in this court against OPM and the

Social Security Administration (“SSA”), this time alleging retaliation under Title VII. Compl.

[No. 1:16–cv–0084, Dkt. # 1]. She claimed that in a 2001 selection of ALJs for the SSA, OPM

and SSA used the discriminatory partner benchmark, “manipulat[ing] the ALJ selection process to

deny plaintiff consideration for an ALJ position because she was a party in the 1994 EEOC

Action.” McGettigan, 273 F. Supp. 3d at 194. On August 11, 2017, in a decision covering both

Menoken II and the instant case, the Court dismissed the claims in Menoken II. Id. at 192. It found

that the claims were “precluded under the doctrines of res judicata and issue preclusion,” id., since

Menoken I had already decided that the discriminatory benchmark did not enter into OPM’s

selection process. Id. at 196, 198.

           D. Menoken v. Weichert, et al., No. 1:16-cv-0083 (D.D.C. 2016) (the instant case)

       On the same date that plaintiff filed Menoken II, she filed a second complaint against OPM

and HHS alleging Title VII discrimination and retaliation in the course of the 2005 selection of

HHS ALJs. Compl. [Dkt. # 1]. On August 23, 2016, she amended her complaint. Am. Compl.

[Dkt. # 8]. Plaintiff alleged that OPM’s use of four location-specific certificates, as opposed to a

single certificate spanning all four locations, discriminated against African American applicants,




                                                  6
including herself, and OPM retaliated against her for the 1994 EEOC Action when they did not

select her to be an ALJ in 2005. Id. ¶¶ 38–52.

       On October 11, 2016, defendants filed a consolidated motion to dismiss the claims in this

case and Menoken II. Defs.’ Mot. to Dismiss [No. 1:16–cv–0084, Dkt. # 11]; Mem. of P. & A. in

Supp. of Defs.’ Mot. to Dismiss [No. 1:16–cv–0084, Dkt. # 11-1]; Defs.’ Mot. to Dismiss [Dkt.

# 10]; Defs.’ Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss [Dkt. # 10-1]. On August 11,

2017, the Court granted the motion in part. McGettigan, 273 F. Supp. 3d at 203. It found that

plaintiff stated a disparate impact claim of discrimination against OPM and HHS, but it dismissed

the retaliation claim against HHS because plaintiff “failed to plead any facts” that would permit

the Court to reasonably infer that HHS had retaliated against her. Id.

       The retaliation claim against OPM narrowly survived the motion: “Although plaintiff

could have done a better job of articulating a causal connection [between her EEOC Action and

her denial from an ALJ position] – indeed, she does not even allege that any OPM decision maker

involved with the HHS vacancies knew about her protected activity – she has done just enough to

survive a motion to dismiss given the existing case law in this district and the fact that she is

proceeding pro se.” Id. at 202. Similarly, the Court deemed plaintiff’s discrimination claims to

be “somewhat conclusory, but at [the motion to dismiss] stage, they [were] barely sufficient to

create an inference of causation,” and therefore survived the motion. Id. at 199.

                                  STANDARD OF REVIEW

       Summary judgment is appropriate “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). The party seeking summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,




                                                 7
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary

judgment, the non-moving party must “designate specific facts showing that there is a genuine

issue for trial.” Id. at 324 (internal quotation marks omitted).

       The mere existence of a factual dispute is insufficient to preclude summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a

reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable

of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236,

1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw

reasonable inferences ‘in the light most favorable to the party opposing the summary judgment

motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States

v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).

                                            ANALYSIS

I.     Plaintiff’s technical objections to defendants’ evidence are unavailing.
       Plaintiff starts her opposition by critiquing the evidence that defendants have proffered in

support of their motion. Pl.’s Opp. at 4–5. For the following reasons, the Court will not deny

defendants’ motion for summary judgment on this basis.

       First, plaintiff objects to the declaration of Diane Hobbs because Hobbs did not work at

OPM during the 2005 ALJ selection process, and so plaintiff argues that her testimony does not

reflect her personal knowledge, as required by Federal Rule of Civil Procedure 56. Id. at 4; see

also Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must

be made on personal knowledge.”). But Hobbs does not contend that she personally witnessed

any of the events in 2005. See Hobbs Decl. in Supp. of Defs.’ Mot. [Dkt. # 37-3] (“Hobbs Decl.”);


                                                  8
Defs.’ Reply in Supp. of Defs’ Mot. [Dkt. #44] at 3 (“Defs.’ Reply”). Rather, Hobbs reviewed

OPM records, and based on her personal knowledge of those records, she relays what those records

show. See Hobbs Decl. Testimony based on “personal knowledge and on . . . records . . . with

which [an employee’s] duties required [her] to be familiar” is appropriate for consideration at

summary judgment. Continental Cas. Co. v. American Sec. Corp., 443 F.2d 649, 651 (D.C. Cir.

1970). As the Lead Human Resources Specialist at OPM’s Administrative Law Judge Program

Office, one of Hobbs’s functions is to maintain the ALJ register and ensure proper issuing and

auditing of the ALJ certificates. Hobbs Decl. ¶¶ 2, 3. Thus, Hobbs may review records regarding

prior ALJ selections and testify as to what those records show.

       Second, plaintiff disputes the validity of the affidavits of Gene Carter, Aff. of Gene Carter

[Dkt. # 37-4] (“Carter Aff.”), Judge Perry Rhew, Aff. of Judge Perry Rhew [Dkt. # 37-5] (“Rhew

Aff.”), and Nancy Ward, Aff. of Nancy Ward [Dkt. # 37-6] (“Ward Aff.”), because she claims that

they violate 28 U.S.C. § 1746, which sets forth circumstances in which unsworn declarations may

be treated as sworn testimony. Pl.’s Opp. at 5. But, each of these affidavits was made under oath,

and thus, they constitute sworn statements, and § 1746 does not apply. Carter Aff. at 1; Rhew Aff.

at 1; Ward Aff. at 1. But even if the statements were unsworn so as to fall within the purview of

the statute, defendants have not violated it. Section 1746 states that an unsworn declaration can

be treated like a sworn declaration if the witness states, “in substantially the following form”: “I

declare . . . under penalty of perjury that the foregoing is true and correct.” § 1746. In Cobell v.

Norton, the D.C. Circuit held that a declaration that includes the disclaimer “to the best of [the

declarant’s] knowledge, information or belief” is sufficient under the statute. 391 F.3d 251, 260

(D.C. Cir. 2004). The statements at issue contain such a disclaimer. All of them state: “I solemnly

affirm that the statement which follows is true and complete to the best of my knowledge and




                                                 9
belief.” Carter Aff. at 1, 4; Rhew Aff. at 1, 5; Ward Aff. at 1, 4. Therefore, the affidavits are valid

and may be relied upon in support of defendants’ motion for summary judgment.

       Finally, plaintiffs argue that defendants violated the Court’s scheduling order because they

“improperly set forth multiple statements of purported fact” within one paragraph, Pl.’s Opp. at 4

n.2, when the Scheduling Order required that each fact be numbered individually. Order [Dkt.

# 19] at 3, ¶ 3. While this may have inconvenienced plaintiff and the Court, plaintiff provides no

authority that such a technical deficiency is grounds for denial of the defendants’ motion for

summary judgment. Thus, plaintiff’s objections to defendants’ evidence are unavailing, and the

Court may review defendants’ evidence to make its determination.

II.    Plaintiff’s discrimination claims against OPM and HHS

           A. Because plaintiff has not presented any statistical evidence of causation, her
              disparate impact claim fails.

       Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any

individual . . . because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Plaintiffs may

establish racial discrimination in two ways, “by proving either that the employer acted with a

discriminatory motive (a ‘disparate treatment’ claim), or that its action was the result of a process

that, while apparently ‘fair in form,’ was ‘discriminatory in operation’ (a ‘disparate impact’

claim).” Davis v. District of Columbia, 925 F.3d 1240, 1248 (D.C. Cir. 2019), quoting Griggs v.

Duke Power Co., 401 U.S. 424, 431 (1971).

       To prove disparate impact, a plaintiff “need not demonstrate illicit motive.” Figueroa v.

Pompeo, 923 F.3d 1078, 1085 (D.C. Cir. 2019). Rather, plaintiff’s “initial burden is to identify

the specific employment practice allegedly causing a disparate effect . . . and to make ‘a threshold

showing’ of a ‘significant statistical disparity’ caused by that practice.” Id., quoting Ricci v.

DeStefano, 557 U.S. 557, 587 (2009). Such a showing requires “statistical evidence of a kind and



                                                  10
degree sufficient to show that the practice in question has caused the exclusion of applicants for

jobs or promotions because of their membership in a protected group.” Watson v. Fort Worth

Bank & Trust, 487 U.S. 977, 994 (1988).

       Where a plaintiff has not put forth the statistical evidence necessary to show causation, a

disparate impact claim cannot survive summary judgment. See Figueroa, 923 F.3d at 1086

(affirming summary judgment in favor of the defendant on a disparate impact claim where plaintiff

pointed to “non-statistical evidence” in his attempt to prove causation); Latson v. Sessions, 239 F.

Supp. 3d 163, 178 (D.D.C. 2017) (granting summary judgment in favor of the defendant on a

disparate impact claim because the plaintiff “failed to introduce statistical evidence”); Martin v.

District of Columbia, 78 F. Supp. 3d 279, 314 (D.D.C. 2015) (granting summary judgment in favor

of the defendant on a disparate impact claim because the plaintiff “failed to introduce statistical

evidence demonstrating causation”).

       In this case, plaintiff alleged that the use of location-specific certificates, rather than one

omnibus certificate, disparately impacted African American applicants by disproportionately

disqualifying them from consideration for ALJ positions. Am. Compl. ¶¶ 44–48. She contends

that African American candidates tended to score lower on the examination, so the use of location-

specific certificates meant that fewer names – and thus fewer African American names – would

appear on any individual list for selection. Id. ¶¶ 34–35. But now that we have reached the

summary judgment stage when evidence must be adduced, she has come forward with no statistical

evidence demonstrating that African American candidates tended to score lower, or that African

Americans were disproportionately underrepresented on location-specific certificates when they

would have been included on omnibus certificates.




                                                 11
       In fact, plaintiff has not put forward any evidence relevant to her disparate impact theory.

The exhibits she submitted to the Court include a letter from OPM responding to a document

request, see Oct. 23, 2001 Letter, Ex. A to Pl.’s Opp. [Dkt. # 41-2] (“Doc. Request Ltr.”); her own

deposition in this case, Dep. of Cassandra M. Menoken (Mar. 5, 2018), Ex. B to Pl.’s Opp. [Dkt.

#41-3] (“Pl.’s Dep.”); and a decision from the EEOC affirming the agency’s dismissal of her

complaints. Menoken v. Astrue, Appeal No. 120054405 (July 26, 2007), Ex. C to Pl.’s Opp. [Dkt.

# 41-4] (“EEOC Appeal”). 3 None of these exhibits lend support to her claim of disparate impact

discrimination.

       In plaintiff’s deposition, she stated that the basis for her allegation that African American

candidates tended to cluster at the lower ranks of the register due to lower examination scores was

the “evidence in the record – in the Menoken I record.” Pl.’s Dep. at 22:1–16. She testified that

exhibits in the Menoken I matter would corroborate “[a] number of the assertions that [she has]

made in this complaint.” Pl.’s Dep. at 25:25–26:2. But, in response to the motion for summary

judgment, she has not pointed the Court to any specific exhibits or records unearthed in the

Menoken I case.

       Throughout the discovery process, the Court emphasized that plaintiff was entitled to seek

discovery of the list of ALJ candidates as it existed on the register in January 2005; the candidates’

scores; and the race of the candidates if that information was in the agency’s possession, custody,

or control. See Status Conf. Tr. [Dkt. # 20] (Sept. 18, 2017) at 8:6–16, 11:9–12:4, 18:6–10; Status

Conf. Tr. [Dkt. # 28] (Mar. 8, 2018) at 5:12–17, 9:3–6. Defendants informed the Court that race




3      This EEOC decision was issued in response to a complaint plaintiff filed against the Social
Security Administration regarding the 2001 ALJ Selections at the SSA. EEOC Appeal. The judge
dismissed the complaint because the 1994 EEOC action precluded them. The Order attached here
affirms that dismissal. Id.


                                                 12
information was unavailable, and that the agency did not keep such information, although plaintiff

maintained that federal regulations required the agency to collect it. Mar. 8 Tr. at 9:19–10:1,

12:21–14:25. And so, on March 8, 2018, the Court advised plaintiff:

                The claim survived because you articulated a basis for a disparate impact
                claim. But then the onus falls to you to prove it. If [defendants] don’t
                maintain the statistics that you’re asking for, you may not be able to prove
                it. If they’re supposed to maintain the statistics that you’re asking for, then
                that’s a different question as to who’s at fault for the failure of that
                information to exist.
Id. at 15:4–10. Plaintiff has neither provided the Court with any statistics in support of her claim,

nor has she made any argument or pointed to any regulation that OPM was obligated to maintain

such statistics but failed to do so.

        Since plaintiff has not presented any evidence of a statistical disparity to support causation

in her disparate impact discrimination claim, no reasonable juror could find for plaintiff, and

defendants are entitled to summary judgment on this count.

            B. Plaintiff’s disparate treatment claim fails because she does not submit
               evidence showing that she was qualified for the position.
        Under a disparate treatment theory, an employee “seeks to prove that an employer

intentionally ‘treats some people less favorably than others because of their race, color, religion,

sex, or national origin.’” Segar v. Smith, 738 F.2d 1249, 1265 (D.C. Cir. 1984), quoting Int’l Bhd.

of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). “‘Proof of illicit motive is essential,’

and the employee ‘at all times’ has the burden of proving ‘that the defendant intentionally

discriminated against’ her.” Figueroa, 923 F.3d at 1086. “[I]llicit motive may be inferred from a

sufficient showing of disparity between members of the plaintiff class and comparably qualified

members of the majority group.” Segar, 738 F.2d at 1265–66 (observing that both a disparate

impact and disparate treatment analysis may be applied to a set of facts because a “pattern or




                                                  13
practice disparate treatment challenge” may implicate a disparate impact analysis). Plaintiff’s

showing on this issue falls short in several respects.

       First, plaintiff puts forward little evidence of discriminatory intent. In her deposition, she

testified that OPM intended to discriminate against her and other African Americans:

               This is an intentional discrimination case. So it was no accident that, when
               OPM made this decision to depart, they knew – OPM knew that African
               Americans were on the register at that time whose scores had never been
               changed. The discriminatory aspect of the scoring that – that impacted me
               and other African Americans continued to impact me and other African
               Americans. There’s no way OPM didn’t know that when those certificates
               were issued to – to HHS the way they were. So no – I'm not alleging
               anybody sat down and said, “I hate black people.” That’s – that is not my
               theory. It’s intentional discrimination. You knew what the effect would be
               when you departed from the normal procedure because OPM knew. Maybe
               HHS knew. I don’t know. I know OPM knew that the scores on that register
               had never been corrected. There had never been an attempt to correct the
               scores. So those scores of African Americans were still discriminatory. And
               OPM used those scores to fill those vacancies at HHS.

Pl.’s Dep. at 50:24–51:16.

       Plaintiff spends much of her deposition explaining that the basis for her discrimination

claim is her belief that her and other African American candidates’ scores on the 1993 ALJ

Register were “tainted” by OPM’s alleged refusal to correct for the discriminatory impact

identified by the EEOC Administrative Judge in 2000. Pl.’s Dep. at 52:12–53:4, 54:13–55:22.

Furthermore, in her statement of undisputed facts, plaintiff asserts that whether the EEOC failed

to bar OPM’s use of the partner benchmark is still an active issue. See Pl.’s Objs. to Defs.’ SUMF

at 13–14.

       But, as the Court found in its decision granting in part defendants’ motion to dismiss, this

issue is barred by issue preclusion. McGettigan, 273 F. Supp. 3d at 203. Plaintiff already raised

and the court already decided the issue of OPM’s compliance with the EEOC Order in Menoken

I. 605 F. Supp. 2d at 152. In that case, the court granted summary judgment in favor of OPM



                                                 14
because “OPM ha[d] provided abundant admissible evidence substantiating its full compliance”

with the EEOC order. Id. Plaintiff attempts to distinguish the issues by arguing that her relief in

Menoken I pertained only to the “supplemental qualification statement” portion of the examination,

whereas in this case she asserts that the issue is about the “personal reference inquiry” (PRI)

portion of the examination. Pl.’s Opp. at 7. But, the Menoken I court determined that the PRI

portion of the examination was not discriminatory, and so plaintiff cannot relitigate the question.

See Menoken I, 605 F. Supp. 2d at 154 (“Menoken produced no evidence of a disparate impact in

the . . . PRI.”).

        When a plaintiff lacks direct evidence of the employer’s intent, courts often use the three-

step framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Figueroa, 923 F.3d at 1086. Under this framework, after the employee establishes a prima facie

case of discrimination, the burden shifts to the employer to provide a legitimate, nondiscriminatory

reason for its action; if it does so, the burden shifts back to the employee who must prove that the

reason stated was mere pretext and that she suffered intentional discrimination. McDonnell

Douglas, 411 U.S. at 802–04; Figueroa, 923 F.3d at 1086. However, when the employer properly

presents a legitimate, nondiscriminatory reason, the District Court “need not—and should not—

decide whether the plaintiff actually made out a prima facie case,” and should instead expend its

limited resources on analyzing the third prong. Brady v. Office of Sergeant at Arms, 520 F.3d 490,

494 (D.C. Cir. 2008). Particularly at summary judgment, the “general expectation [is] that . . . the

District Court will focus on the third prong.” Figueroa, 923 F.3d at 1086.

        Focus on the third prong of the McDonnell-Douglas analysis, i.e., the evidence of pretext,

is appropriate “only if the parties properly move past the second step.” Id. at 1087. To do that,

“an employer at the second prong must proffer admissible evidence showing a legitimate,




                                                15
nondiscriminatory, clear, and reasonably specific explanation for its actions.” Id. at 1092. The

D.C. Circuit has recently laid out four factors that can be used to determine whether an employer’s

evidentiary proffer is adequate: (1) “the employer must produce evidence that a factfinder may

consider at trial (or a summary judgment proceeding)”; (2) if the factfinder believes the evidence,

it “must reasonably be able to find that the employer’s action was motivated by a

nondiscriminatory reason”; (3) the “nondiscriminatory explanation must be . . . facially credible

in light of the proffered evidence”; and (4) the evidence must present a “clear and reasonably

specific explanation” such that the employee has “a full and fair opportunity to attack the

explanation as pretextual.” Id. at 1087 (citation and quotation marks omitted). By contrast,

“offering a vague reason . . . is the equivalent of offering no reason at all.” Id. at 1092.

       Defendants have offered evidence to satisfy the factors set forth in Figueroa and shift the

responsibility back to plaintiff to prove pretext. They submit that they used location-specific

certificates because “there were four locations where HHS wanted to hire ALJs, and HHS

submitted four [requests].” Defs.’ Mem. at 14. Defendants have provided the sworn declaration

of Diane Hobbs, the Lead Human Resources Specialist in the Administrative law Judges Program

Office at OPM, as well as documents showing that OPM issued location-specific certificates on

other similar occasions when an agency seeking ALJs had submitted location-specific requests.

See Hobbs Decl. ¶ 19; 2003 Location-Specific Certificates Issued to Dep’t of Labor, Exs. 15–16

to Hobbs Decl. [Dkt. # 37-3]; Suppl. Hobbs Decl. ¶¶ 20–22; 2004 & 2006 Location Specific

Certificates Issued to Dep’t of Labor, Sealed Exs. 1–4 to Suppl. Hobbs Decl. [Dkt. # 45-1]. A

factfinder could reasonably find from this evidence that OPM was motivated by a

nondiscriminatory and credible reason, and this explanation is sufficiently clear to put plaintiff on

notice of the explanation she must refute.




                                                  16
        Under McDonnell-Douglass, the burden then shifts back to plaintiff to show that the stated

reason was mere pretext. To do so, plaintiff must “produce[] evidence sufficient for a reasonable

jury to find that the employer’s stated reason was not the actual reason and that the employer

intentionally discriminated against [her] based on [her] race.” Brady, 520 F.3d at 495.

        Plaintiff points to no evidence that the proffered reason was not the actual reason. In her

opposition, plaintiff suggests that defendants may be lying: “[i]t is curious that Defendants are

able to articulate the reason for the decision at issue in this case, but were somehow unable or

unwilling to articulate the name of the person who made the decision, when asked in discovery.”

Pl.’s Opp. at 6 (emphasis omitted). But, plaintiff offers no evidence to support this. If the

employer’s stated belief “about the underlying facts that formed the predicate for the employment

decision . . . is reasonable in light of the evidence . . . there ordinarily is no basis for permitting a

jury to conclude that the employer is lying.” Brady, 520 F.3d at 495 (citations omitted). In light

of the evidence defendants submit, the proffered reason is reasonable, and so there is no basis to

conclude that defendants are lying.

        In her deposition, plaintiff states that she “put examples in the HHS record of the types of

certificates I was familiar with, where there were multiple locations . . . that one certificate would

cover all locations.” Pl.’s Dep. at 30:21–24. But plaintiff does not attach these certificates, nor

does she testify that, when presented with multiple location-specific requests, OPM typically

issued one omnibus certificate. Thus, plaintiff has not carried her burden to show that defendants’

stated reason was pretext for discrimination, and her disparate treatment discrimination claim fails.

        The Court acknowledges, though, that the Hobbs declaration also states:

                At the time, ALJ[ ] [Program Office] had no set policy about whether it
                would issue an omnibus certificate or location specific certificates from the
                ALJ Register. In addition, there were no laws, rules, or regulations
                prohibiting the use of location specific certificates. A review of the types



                                                   17
               of certificates issued by OPM during the 2003-2007 time period shows that
               OPM issued both omnibus and location specific certificates. . . . It appears
               that such certificates were issued depending on the type of request submitted
               by the agency.

Hobbs Decl. ¶ 19. Thus, defendant cannot point to a clear policy establishing rules regarding when

to use each method. By asserting that “[i]t appears that such certificates were issued depending

the type of request submitted by the agency,” defendants’ witness is largely making an assumption

based on past practice and revealing that she lacks personal knowledge as to why location-specific

certificates were issued in this instance. In the event this reliance on inferences drawn from prior

practice is not sufficient to shift the burden to the plaintiff under the Figueroa analysis of the

McDonnell-Douglas framework, the Court would be required to consider the strength of plaintiff’s

prima facie case alone. Given the state of the evidence supplied by the defendant, the Court will

undertake this analysis as well in an abundance of caution, and here too, it finds that plaintiff has

failed to meet her burden.

       In a non-selection case, an employee may establish a prima facie case of racial

discrimination by showing: “(i) that [s]he belongs to a racial minority; (ii) that [s]he applied and

was qualified for a job for which the employer was seeking applicants; (iii) that, despite [her]

qualifications, [s]he 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.

       Here, plaintiff has not established a prima facie case because she has not shown that she

was qualified for the job. Plaintiff offers no evidence of her qualifications and examination score

as compared to others that were selected for the position. Defendants, on the other hand, have

come forward with evidence showing that plaintiff’s score was too low to be considered for an

ALJ position. Plaintiff’s score on the 1993 examination, as it appeared in the 2005 Register, was



                                                 18
88.4. Hobbs Decl. ¶ 11, citing Sealed Ex. 12 to Hobbs Decl. [Dkt. # 39] at 9. Defendants prepared

a mock omnibus certificate to show who would have been certified in January 2005 if OPM had

created the single certificate plaintiff claims was legally required to protect her rights. Hobbs Decl.

¶¶ 12–13, citing Sealed Ex. 13 to Hobbs Decl. [Dkt. # 39] (“Mock Certificate”). The lowest score

on this certificate was 90.4. Id. Thus, plaintiff would not have even appeared on an omnibus

certificate. Indeed, there were 720 candidates with higher scores than plaintiff on the register at

that time, and an omnibus certificate listing three candidates for each of the forty-nine vacancies

would have included the top 147 of those. Hobbs Suppl. Decl., Ex. 1 to Defs.’ Reply [Dkt. # 44-

2] (“Hobbs Suppl. Decl.”) ¶ 17, citing Sealed Ex. 12 to Hobbs Decl. at 1–9. In April 2005, HHS

was unable to fill all of the ALJ vacancies from the location-specific certificates, and it requested

additional names. Hobbs Decl. ¶¶ 7, 8, 16, citing Sealed Exs. 5–7 to Hobbs Decl. [Dkt. # 39]. At

that point, there were still 630 candidates with higher scores than plaintiff, and the cut off score

for the ALJ positions was 89.7. Hobbs Suppl. Decl. ¶¶ 16, 18. Again, plaintiff’s score was too

low to be considered.

       Plaintiff raises concerns about the validity of the mock omnibus certificate, because

defendants generated it using the ALJ Register as it existed on January 11, 2005, one week before

the actual location-specific certificates were issued. 4 Pl.’s Opp. at 5. Because “the ALJ register

changes on a near daily basis as information is updated,” Doc. Request Ltr. at 2, plaintiff contends

that the January 11 mock certificate is not accurate as to who would have appeared on it on January

18. Pl.’s Opp. at 5. But, defendants have submitted sworn testimony stating that there were no

ALJ selections between January 11 and January 18 that would have removed applicants from the



4       Defendants did this because OPM does not have copies of the 1993 ALJ register as it
existed on January 18, 2005. The closest date that they had a copy of the register was January 11,
2005.


                                                  19
register, creating space for plaintiff to move up. Defs.’ Reply at 5–6, citing Hobbs Suppl. Decl.

¶¶ 12, 16–17. Defendants acknowledge that new candidates may have taken the examination and

may have been added to the register between these two dates, but adding new candidates to the

register would not have increased plaintiff’s chance of appearing on the certificate: If the new

candidates scored higher than she did, it would have moved her further down, and if new

candidates scored lower than she did, there would have been no effect. Defs.’ Reply at 6 n.3.

Plaintiff submits no evidence to rebut this.

       Furthermore, defendants have submitted evidence demonstrating that individuals involved

in the ALJ selection process did not know who plaintiff was or know her race. Carter Aff. at 2;

Rhew Aff. at 2; Ward Aff. at 2. “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

plaintiff’s race.” Pollard v. Quest Diagnostics, 610 F. Supp. 2d 1, 21 (D.D.C. 2009); see also

Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 300 (D.C. Cir. 2015) (finding no

discriminatory intent because the supervisors who disciplined the plaintiff did not know his race).

       Thus, defendants’ motion for summary judgment is granted as to plaintiff’s discrimination

claim against OPM and HHS.

III.   Plaintiff has not presented any evidence of causation for her retaliation claim, so that
       claim fails as well.
       Plaintiff’s remaining claim alleges that OPM retaliated against her for her 1994 EEOC

Action when it did not select her to an ALJ position in 2005. Title VII prohibits employers from

“‘discriminat[ing] against’ an employee . . . because that individual ‘opposed any practice’ made

unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a Title VII

proceeding or investigation.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006),

quoting 42 U.S.C. § 2000e-3(a). “Title VII retaliation claims must be proved according to



                                                20
traditional principles of but-for causation . . . . This requires proof that the unlawful retaliation

would not have occurred in the absence of the alleged wrongful action or actions of the employer.”

Univ. of Texas S.W. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).

       Plaintiff maintains that OPM “devised a plan” to exclude her from an ALJ appointment by

issuing location-specific certificates. Am. Compl. ¶ 43. She claims that “OPM was determined . . .

not to allow [her] to benefit from any relief she was awarded” as a result of the discrimination

finding in her favor. Id. ¶ 42. Defendants counter that it issued location-specific certificates to

respond to the location-specific requests submitted by HHS and not out of any retaliatory intent.

Defs.’ Mem. at 14. Defendants further argue that plaintiff cannot show that using the location-

specific certificates caused her non-selection, because she “would not have appeared on an

omnibus certificate any more than she would have been on the location-specific certificates.”

Defs.’ Mem. at 11.

       The Court agrees with defendants. Plaintiff has not pointed to any evidence of a causal

link between the use of location-specific certificates and her EEOC Action. While she testified

that “it would certainly not be outside the realm of possibilities that OPM” would have issued

location-specific certificates just to avoid having her name appear on them, Pl.’s Dep. at 44:16–

22, 33:7–9, she could not articulate a basis for this speculation. Id. at 44:16–22. She does not

point to any evidence that anyone involved with the 2005 selection was aware of her prior protected

activity, and the individuals involved in the process have averred that they did not know who

Menoken was and that she had filed an EEOC claim against OPM and HHS. Carter Aff. at 2;

Rhew Aff. at 2; Ward Aff. at 2. Furthermore, as stated above, defendants have demonstrated that

even if OPM had used the omnibus certificate, plaintiff still would not have been hired because




                                                 21
her score was too low. See Hobbs Decl. ¶¶ 13–14 (“The lowest score on this mock omnibus

certificate . . . was 90.4. Plaintiff was not listed . . . because her score of 88.4 was too low.”).

        Defendants have provided evidence showing no retaliation occurred, while plaintiff has

not submitted any evidence to support her claim. Thus, no reasonable fact finder could find in

plaintiff’s favor. Therefore, defendants’ motion for summary judgment is granted as to plaintiff’s

retaliation claim against OPM.

                                           CONCLUSION

        For the reasons stated above, the Court will grant defendants’ motion for summary

judgment. A separate order will issue.




                                                AMY BERMAN JACKSON
                                                United States District Judge

DATE: September 16, 2019




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