                                  UNITED STATES DISTRICT COURT
                                  FOR THE DISTRICT OF COLUMBIA



SHEILA ALFORD,

         Plaintiff,
                    v.                                              Civil Action No. 10-132 (JEB)
PROVIDENCE HOSPITAL,

         Defendant.


                                         MEMORANDUM OPINION

         After failing to obtain a new position with Defendant Providence Hospital, Plaintiff

Sheila Alford, who requires the use of a wheelchair, brought this action alleging that she was

passed over because of her disability. Following discovery, Defendant filed this Motion for

Summary Judgment, arguing that it hired a superior candidate for the position. Because no

reasonable jury could find that Defendant’s hiring decision was a pretext for discrimination, the

Court will grant Defendant’s Motion. 1

I.       Background

         Until recently, Plaintiff worked for Defendant as a Unit Secretary, a position that she held

for 27 years. Plaintiff became disabled in 1991 and has used a wheelchair ever since. In early

2007, Plaintiff twice applied for the position of Discharge Planning Associate (DPA) in the Case

Management Department. Motion, Exh. M (Employment Application of Sheila Alford). This is

an administrative position that assists the social workers, nurse managers, and other department

staff in discharging patients from the hospital. Motion, Exh. C (Deposition of Wanda English) at

29-30.

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             The Court has reviewed Defendant’s Motion, Plaintiff’s Opposition, and Defendant’s Reply.

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         Several other internal applicants submitted applications as well, including Alexis

Sydney-Hunter, the eventual selectee. Motion, Exh. N (Answer to Interrogatory No. 11);

Motion, Exh. O (Employment Application of Alexis Sydney-Hunter). Like Plaintiff, Sydney-

Hunter worked as a Unit Secretary, a position she held since 1994. Both Plaintiff and Sydney-

Hunter interviewed for the DPA position with Wanda English, the Director of the Case

Management Department at that time. English Dep. at 39. In addition to the interviews, English

reviewed both candidates’ performance evaluations, consulted with the candidates’ supervisors

and other hospital employees, and observed the candidates herself. Id. at 11-13, 39, 43, 45.

       At the end of this process, English selected Sydney-Hunter for the DPA position. English

testified that she chose Sydney-Hunter because she thought she was a “better match for the

department.” Id. at 52. English believed that both Plaintiff and Sydney-Hunter were qualified,

but she felt that Sydney-Hunter had the appropriate personality for the position. Id. at 51-53.

During her observations, English said that Plaintiff was “aggressive,” “abrupt,” and “not always

helpful.” Id. at 73-74. In addition, English stated that other staff members had complained to

her about Plaintiff’s demeanor. Id. at 13, 16, 78-79. In comparison, English explained that she

had never received any negative feedback about Sydney-Hunter; in fact, she had heard positive

comments from her future co-workers in the Case Management Department. Id. at 53, 94-95.

Ultimately, English wanted to change the image of her department and believed that Sydney-

Hunter was the better fit for the position. Id. at 71. English testified that the fact that Alford had

paraplegia did not affect her decision at all. Id. at 95-96.

       Following her non-selection, Alford filed a claim with the Equal Employment

Opportunity Commission in 2007, alleging discrimination on the basis of her disability. The

matter was transferred to the District of Columbia Office of Human Rights for investigation, and



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eventually the EEOC issued a Notice of Right to Sue to Plaintiff in August 2009. A Complaint

was filed in the Superior Court of the District of Columbia on November 16, 2009, and the case

was removed to this Court in January 2010. After discovery, Defendant filed this Motion for

Summary Judgment.

II.    Legal Standard

       Summary judgment may be granted 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); 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 party asserting that a fact cannot be or is

genuinely disputed must support the assertion by citing to particular parts of materials in the

record.” FED. R. CIV. P. 56(c)(1)(A). “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, 433 F.3d at 895 (quoting 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); Liberty Lobby, Inc., 477 U.S. at 248; Holcomb, 433 F.3d at 895. The party seeking

summary judgment “bears the heavy burden of establishing that the merits of his case are so

clear that expedited action is justified.” Taxpayers Watchdog, Inc., v. Stanley, 819 F.2d 294,

297 (D.C. Cir. 1987). “Until a movant has met its burden, the opponent of a summary judgment

motion is under no obligation to present any evidence.” Gray v. Greyhound Lines, East, 545

F.2d 169, 174 (D.C. Cir. 1976). When a motion for summary judgment is under consideration,

“the evidence of the non-movant[s] is to be believed, and all justifiable inferences are to be

drawn in [her] favor.” Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Electric



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Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d

1284, 1288 (D.C. Cir. 1998) (en banc). On a motion for summary judgment, 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.

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

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. Liberty Lobby,

Inc., 477 U.S. at 249-50; see Scott, 550 U.S. at 380 (“[W]here the record taken as a whole could

not lead a rational trier of fact to find for the non-moving party, there is ‘no genuine issue for

trial.’”) (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986)).

III.   Analysis

       The Americans with Disabilities Act makes it unlawful for an employer to “discriminate

against a qualified individual with a disability because of the disability of such individual in

regard to job application procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). “[T]he two basic elements of a disability discrimination

claim are that (i) the plaintiff suffered an adverse employment action (ii) because of the

plaintiff’s disability.” Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008).



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There is no dispute that Plaintiff suffered an adverse employment action when she did not obtain

the DPA position. The question to be answered here is whether that adverse employment action

was “because of [Plaintiff’s] disability.” Id.

        In making such a determination, the Court must apply the following streamlined analysis:

               [I]f an employer asserts a legitimate, nondiscriminatory reason for
               an adverse employment action, the district court must conduct one
               central inquiry in consideration of an employer’s motion for
               summary judgment or judgment as a matter of law: whether the
               plaintiff produced sufficient evidence for a reasonable jury to find
               that the employer’s asserted nondiscriminatory reason was not the
               actual reason and that the employer intentionally discriminated
               against the plaintiff on a prohibited basis.

Id. (citing Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493-95 (D.C. Cir. 2008)).

        Defendant has offered a legitimate, nondiscriminatory reason for choosing Sydney-

Hunter over Plaintiff: while both candidates were qualified for the position, Sydney-Hunter was

“a better match for the department.” English Dep. at 52; see, e.g., Benjamin v. Duncan, 694 F.

Supp. 2d 1, 7 (D.D.C. 2010) (finding that, absent viable showing of pretext, the court will defer

to defendant’s “judgment call that [the selectee] would be a better fit for the position than the

plaintiff”).

        This general language, moreover, does not stand unexplained and unsupported; on the

contrary, English testified in some detail about what she meant. She explained in her deposition

that she believed Sydney-Hunter was a better match because she had the “appropriate personality

type.” English Dep. at 51-52. Asked to explain further, she elaborated that several people had

complained to her about Plaintiff’s people skills, while she had heard no similar complaints

about Sydney-Hunter. Id. at 78-79. In fact, English stated that she had received positive

feedback from others in the Case Management Department about Sydney-Hunter. Id. at 94-95.

English, moreover, said that in her own experience, she had found Plaintiff uncooperative with


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nurses. Id. at 74. She thought that Plaintiff could be “aggressive” and would “add controversy

to the already existing [difficult] personalities” in the Case Management Department. Id. at 70.

Because English wanted to “chang[e] the perception of [her] department . . . to reflect a more

cooperative, professional spirit,” she valued this factor over others. Id. at 70-71; Barnette v.

Chertoff, 453 F.3d 513, 517 (D.C. Cir. 2006) (“[C]ourts must defer to the employer’s decision as

to which qualities required by the job . . . it weighs more heavily.”).

        As Defendant has asserted a legitimate, nondiscriminatory reason for choosing Sydney-

Hunter, the Court must now determine whether Plaintiff has “produced sufficient evidence for a

reasonable jury to find [this] reason was not the actual reason and that the employer intentionally

discriminated against the plaintiff on a prohibited basis.” Adeyemi, 525 F.3d at 1226 (citing

Brady, 520 F.3d at 493-95). Plaintiff puts forth two central arguments to undercut the legitimacy

of Defendant’s decision. First, she claims English’s credibility is questionable. Second, she

contends that her better qualifications demonstrate that the decision must have been based on her

disability.

        In endeavoring to attack English’s credibility, Plaintiff fails to offer any record evidence

that actually impeaches her. For example, she cites statements from Sydney-Hunter that she

liked Plaintiff and had never seen her be aggressive, but Plaintiff has not shown that Sydney-

Hunter’s opinion had any effect on English’s own beliefs or observations. Plaintiff next points to

Sydney-Hunter’s admission that she had communication issues with several doctors or nurses in

her unit, but there is no evidence that English knew about these incidents at the time of her

decision. Finally, Plaintiff attempts to contradict English’s statements about meeting with

Sydney-Hunter’s supervisor, but the record does not support her assertion. See Reply, Exh. T

(Supplemental Declaration of Wanda Daughtry). Plaintiff is left with nothing more than



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conclusory assertions. While her language may be colorful -- e.g., comparing English’s

statements to unsubstantiated allegations from the McCarthy era -- purple prose does not

constitute actual record evidence to challenge Defendant’s submissions.

       In examining Plaintiff’s second argument regarding qualifications, the Court bears in

mind that where, as here, an employer’s legitimate, nondiscriminatory reason “rel[ies] heavily on

subjective considerations,” the Court must treat it with caution. Aka v. Washington Hosp. Ctr.,

156 F.3d 1284, 1298 (D.C. Cir. 1998). Our Circuit has observed that “heavy use of ‘highly

subjective’ criteria, such as ‘interpersonal skills,’ could support an inference of discrimination.”

Id. (citing cases). For a jury to infer discrimination here, it must be able to find Plaintiff was

“significantly better qualified for the job” than Sydney-Hunter. Holcomb v. Powell, 433 F.3d

889, 897 (D.C. Cir. 2006) (emphasis added). The difference 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 omitted). Only then could a jury “legitimately infer that the

employer consciously selected a less-qualified candidate -- something that employers do not

usually do, unless some other strong consideration, such as discrimination, enters into the

picture.” Id. (internal quotation marks omitted). “In a close case, a reasonable [fact-finder]

would usually assume that the employer is more capable of assessing the significance of small

differences in the qualifications of the candidates, or that the employer simply made a judgment

call.” Aka, 156 F.3d at 1294. Deference to the employer is therefore appropriate in close cases

because otherwise the Court would function as “a super-personnel department that reexamines an

entity’s business decisions – a role which [the D.C. Circuit has] repeatedly disclaimed.”

Jackson, 496 F.3d at 707 (internal quotation marks omitted).




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        A jury could not find that such a stark gap in qualifications exists here. Even with the

benefit of all inferences from the evidentiary record, Plaintiff has demonstrated that, at best, she

was only slightly more qualified for the DPA position. “It is well-settled that plaintiff may not

overcome a legitimate exercise of defendant’s nondiscriminatory business judgment regarding an

applicant simply by showing that she may be equally, or slightly more, qualified.” Armstrong v.

Jackson, 2006 WL 2024975 at *8 (D.D.C. July 17, 2006) (citing Holcomb, 433 F.3d at 897).

        Defendant’s internal hiring regulations for all positions provide for consideration of the

following factors: educational requirements for the position, experience requirements for the

position, special skills, review of personnel file, job-related tests, internal recommendations, and

seniority. Motion, Exh. B (Providence Hospital Policy 16.25(II)(K)) at 3. No factor necessarily

carries more weight than any other, and hiring managers are free to consider unlisted criteria.

Motion, Exh. A (Affidavit of Yomi Fabiyi). This particular DPA position required: (1) a high

school education or equivalent; (2) experience in the healthcare field; and (3) knowledge and

skills in medical terminology and basic administrative technologies. Motion, Exh. D (DPA

Position Description) at 1. The “essential functions/performance standards” of the DPA position

were allocated as follows: 20% for job knowledge; 15% for quality of work; 15% efficiency;

20% for human relations/communications; 15% for maturity/responsibility; and 5% for

attendance. Id. at 3-5.

        In evaluating the alleged qualifications gap, the Court must assess the qualifications

necessary for the position at issue, rather than considering the candidates’ qualifications in a

vacuum. Here, both candidates had the required high school education. 2 Opp., Exh. 1


        2
           Plaintiff has received a Bachelor’s degree and is working on a Master’s, but her increased education does
not necessarily make her more qualified for the administrative duties of the DPA position. In fact, English
considered her overqualified from an educational standpoint and was concerned that Plaintiff would become bored
and leave the position after a short time. English Dep. at 45-46.

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(Deposition of Alexis Sydney-Hunter) at 11. Both candidates had significant experience as Unit

Secretaries -- Plaintiff for 27 years and Sydney-Hunter for 13 years. Sydney-Hunter Dep. at 10.

Although Plaintiff had worked longer, both candidates were in their positions for enough time to

gain comparable experience. Both candidates also received written warnings. Reply, Exhs. X-

Y. Plaintiff’s performance evaluations were slightly better overall, but Sydney-Hunter’s were

still quite good. Compare Opp., Exh. 4 (Sydney-Hunter Evaluation) with Opp., Exh. 5 (Alford

Evaluation). Sydney-Hunter apparently had some attendance issues, but attendance was valued

at only 5% of the position, and any concerns that English had were apparently dispelled by

Sydney-Hunter’s manager, who recommended her to English. Motion, Exh. P (Affidavit of

Wanda Daughtry); see also Daughtry Supp. Aff. Finally, Plaintiff was recommended by a doctor

from her unit, Opp., Exh. 6, while Sydney-Hunter was recommended by several employees from

the Case Management Department. English Dep. at 94-95. On these topics, therefore, a jury

could find Plaintiff slightly better qualified.

        A key qualification here, however, was human relations and communication. Not only

did this make up 20% of the performance standards, see Motion, Exh. D at 3-5, but English

stressed that she valued this trait over others because she wanted to change the perception of the

department. English Dep. at 70-71. While Alford scored slightly higher in her performance

evaluations on this topic than Sydney-Hunter, English also considered her own observations and

the observations of others in evaluating this factor. As discussed above, English personally

observed communication problems with Plaintiff, id. at 73-74, and other employees complained

about Plaintiff’s behavior to her. Id. at 78-79. By contrast, English heard nothing but positive

comments about Sydney-Hunter, who had previous experience working with the Case

Management Department. Id. at 53, 94-95. Even viewing the evidence in the light most



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favorable to Plaintiff, Sydney-Hunter had equal or superior human relations and communication

qualifications.

       Adding this last factor to the balance sheet, no jury could find Plaintiff more than slightly

better qualified than Sydney-Hunter. Indeed, a jury could easily find her less so. Because this

minor edge is not sufficient, Defendant must prevail. See Armstrong, 2006 WL 2024975 at *8

(granting summary judgment in part for employer because, even assuming plaintiff was slightly

more qualified, “no reasonable jury could find that plaintiff is significantly better qualified than

any of the three selectees”). At bottom, the contrast between Plaintiff’s and Sydney-Hunter’s

qualifications for the DPA position was not “great enough to be inherently indicative of

discrimination.” Jackson v. Gonzales, 496 F.3d at 707 (internal quotation marks omitted); see

also Benjamin, 694 F. Supp. 2d at 7 (deferring to employer’s decision where decision-maker

believed selectee’s prior work experience demonstrated his “communicati[on] and people skills”

while decision-maker and other employees believed plaintiff was difficult to work with); cf. Aka,

156 F.3d at 1296 (finding evidence of qualifications gap sufficient to defeat summary judgment

where the plaintiff had 19 years of relevant work experience, while selectee had two months of

volunteer experience).

       Plaintiff “cannot defeat summary judgment simply by pointing to ‘small differences in

the qualifications of the candidates’ or identifying a situation in which the ‘employer simply

made a judgment call.’” Benjamin, 694 F. Supp. 2d at 7 (quoting Barnette, 453 F.3d at 518).

Here, English made a judgment call that Sydney-Hunter was a better fit for the position than

Plaintiff, and the Court “will defer to that decision absent a viable showing of pretext.” Id. As

Plaintiff has failed to make such a showing, the Court concludes that there are no genuine issues

of material fact here that would warrant proceeding to trial.



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IV.   Conclusion

      The Court therefore ORDERS that:

             1. Defendant’s Motion for Summary Judgment is GRANTED; and

             2. The case is DISMISSED.

      SO ORDERED.


                                              /s/ James E. Boasberg
                                              JAMES E. BOASBERG
                                              United States District Judge
Date: June 14, 2011




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