                                 UNITED STATES DISTRICT COURT
                                 FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
MARCUS C. GASKINS,                        )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )                           Case No. 18-cv-00997 (APM)
                                          )
KEVIN J. MCINTYRE, Chairman of the        )
Federal Energy Regulatory Commission,     )
                                          )
      Defendant.                          )
_________________________________________ )

                                        MEMORANDUM OPINION

           Plaintiff Marcus Gaskins is a former engineering student intern at Defendant Federal

Energy Regulatory Commission (FERC or Commission). 1 Def.’s Stmt. of Undisputed Material

Facts, ECF 24-1 [hereinafter Def.’s Facts], ¶ 1.                 Plaintiff contends that the Commission

discriminated against him on the basis of race (African-American) when it decided not to hire him

following the end of his internship. Compl., ECF 1 [hereinafter Compl.], at 4, 10.2 He also

contends that the Commission retaliated against him for reporting his concerns to the

Commission’s Equal Employment Office. Compl. at 4. He seeks over $21 million in relief for

these alleged violations. Id. at 6. The Commission responds that it was under no obligation to

hire Plaintiff, that there was no open position for which he was qualified, and that in any event

Plaintiff’s poor performance justified not extending him a full-time position. Def.’s Mot. for

Summ. J., ECF 24 [hereinafter Def.’s Mot.] at 3–6.



1
 The sole remaining defendant in this case is actually Kevin McIntyre in his official capacity as chairman of FERC.
See Order, ECF No. 21. However, for ease of reference, the court simply refers to the agency as the defendant.

2
    The court uses CM/ECF-generated pagination when citing to the Complaint.
       The court accepts as true all facts asserted by the Commission, as Plaintiff did not file a

statement of genuine issues of fact in opposition to the Commission’s motion. See Fed. R. Civ. P.

56(e)(2); LCvR 7(h)(1); see also Winston & Strawn, LLP v. McLean, 843 F.3d 503, 508 (D.C. Cir.

2016). See also Fox Neal Order, ECF. No. 25 (explaining that the Commission’s facts would be

taken as true unless Plaintiff disputed them). For the reasons that follow, the court grants summary

judgment in favor of the Commission as to all claims.

                                                  I.

       The court first addresses Plaintiff’s contention that his supervisors at the Commission

discriminated against him by declining to “convert” him from intern to permanent employee.

See generally Compl. The record is undisputed that, although Plaintiff was eligible to be hired full

time when his internship ended, the Commission was under no obligation to do so. Def.’s Facts

¶ 5 (“Plaintiff’s [internship] agreement . . . specif[ies] that ‘eligibility for conversion does not

guarantee the Agency will opt for conversion.’”). The Commission thus argues that, because

Plaintiff was not entitled to a permanent position at FERC following his internship, it took no

“adverse action” against him. Def.’s Mot. at 3–4. That argument, however, construes Plaintiff’s

claim too narrowly. Properly understood, his claim is for failure to hire, see Compl. at 4, and non-

selection clearly constitutes an adverse action. The court therefore views Plaintiff’s claim through

that legal framework.

       To make out a prima facie case for failure to hire under Title VII, Plaintiff must show that

(1) he belongs to a protected class, (2) he applied to and was qualified for an available position,

(3) he was rejected despite his qualifications, and (4) after his rejection, the position remained open

and the employer continued to seek applications. See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1993); accord Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1149–50 (D.C.



                                                  2
Cir. 2004). At summary judgment, however, where an employer provides a non-discriminatory

reason for its decision, “the question whether the employee actually made out a prima facie case

is ‘no longer relevant[.]’” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008).

Instead, the court must ask “whether the employee produced sufficient evidence . . . to find that

the employer’s asserted nondiscriminatory . . . reason was not the actual reason.” Walker v.

Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015) (internal quotation marks omitted). Here, the

Commission provides two primary justifications for not hiring Plaintiff: (1) there were no available

positions for engineers in Plaintiff’s Branch, and (2) Plaintiff’s poor performance record

disqualified him had there been open positions. Because Plaintiff does not offer any evidence to

contradict the first reason, the court need not reach the second. 3

         The Commission offers unrebutted evidence that there were no available engineering

positions within Plaintiff’s Branch at the time his internship expired, and that his supervisor

informed Plaintiff of this fact. Def.’s Facts ¶¶ 14, 15; Def.’s Mot., Ex. 6, ECF No. 24-7. Moreover,

the record shows that the Commission did not convert any interns to full-time positions within

Plaintiff’s office. Def.’s Facts ¶ 18; Def.’s Reply, ECF No. 36 [hereinafter Def.’s Reply] at 5.

Plaintiff offers no evidence in response. His Complaint alludes to another intern, Ryan Stertz, who

is white, and alleges that he was “converted” to a full-time position, see Compl. at 21–22, but mere

allegations will not suffice to defeat summary judgment. 4




3
  The court notes that, although the Commission now criticizes Plaintiff’s performance, the letter Plaintiff received
advising him of his non-conversion makes no mention of unsatisfactory work. See Def.’s Ex. 6. To the contrary, the
letter notes that Plaintiff “received satisfactory performance ratings during [his] internship.” Id.
4
  In his Complaint, Plaintiff also claims that Edward Gingold, an EEO counselor, “referred to [him] as a Negro.”
Compl. at 28. But Plaintiff offers no evidence to support this allegation. And, in any event, Plaintiff does not assert
that the EEO counselor had anything to do with the decision not to convert him to a full-time position. Accordingly,
such evidence, even if true, would not be material.

                                                          3
         Accordingly, because Plaintiff has come forward with no evidence that would rebut the

Commission’s non-discriminatory reason for not converting him to a full-time position, judgment

is entered in the Commission’s favor on Plaintiff’s disparate treatment claim.

                                                         II.

         Next, the court turns to Plaintiff’s claim of retaliation. See, e.g. Compl. at 4, 12. Once

more, the Commission is entitled to summary judgment, as Plaintiff offers no evidence to rebut

the agency’s non-discriminatory reason for not converting him to a full-time position. Nor is

timing on Plaintiff’s side. Plaintiff filed his EEO complaint on August 12, 2013. Def.’s Facts

¶ 19. His supervisor informed him that he would not be converted to a full-time position on April

25, 2014. See Def.’s Ex. 6. Thus, over nine months passed between Plaintiff’s protected activity

and the claimed adverse action. This is simply too long a period to provide a reasonable inference

of discrimination. Cf. Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir. 2007) (“Temporal

proximity can indeed support an inference of causation, but only where the two events are ‘very

close’ in time.”) (internal citations omitted); Singletary v. District of Columbia, 351 F.3d 519, 525

(D.C. Cir. 2003) (whether causal connection existed where one month separated adverse action

and the filing of plaintiff’s appeal for employment discrimination was question for finder of fact). 5




5
  Portions of Plaintiff’s Complaint could be read to advance a claim of hostile work environment, but there is nothing
in the record to suggest he raised such a claim administratively. See generally Compl., Exs., ECF No. 1-4 at 20–26
(EEO counselor report), 27–30 (EEO acknowledgment letter); 75–78 (EEO letter announcing investigation); ECF No.
1-5 at 1–15 (EEO report of investigation). Therefore, the court does not consider a hostile work environment claim.

                                                          4
                                            III.

      For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted as to all

claims. A separate final order accompanies this Memorandum Opinion.




Dated: February 5, 2019                            Amit P. Mehta
                                                   United States District Judge




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