                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

 RONALD R. GLASGOW,

                         Plaintiff,

                         v.                           Case No. 18-cv-136 (CRC)

 UNITED STATES DEPARTMENT OF
 DEFENSE,

                         Defendant.

                                      MEMORANDUM OPINION

        Ronald Glasgow applied for a series of jobs with the Defense Intelligence Agency

(“DIA”), a component of defendant Department of Defense (“DOD”), in 2010. When he was not

hired, he filed a complaint with the DIA’s Equal Opportunity & Diversity Office. He alleged

that the DIA rejected his application due to his race (white), sex (male), age (54), and disability

(a spinal injury), and retaliated against him for attempting to assert his rights, all in violation of

various federal antidiscrimination statutes. His complaint made its way to the Equal

Employment Opportunity Commission (“EEOC”), which granted summary judgment in favor of

the DIA and affirmed that decision on appeal. Glasgow, proceeding pro se, now brings the same

grievances in federal court. But because Glasgow cannot show that the agency’s proffered

legitimate, non-discriminatory explanation of its hiring process is pretextual, and because there is

no evidence of retaliation, the Court reaches the same conclusion that the EEOC did. Glasgow is

not entitled to any relief, and the Court will grant DOD’s motion for summary judgment.
  I.    Background

        Before setting out the relevant facts of this case, the Court should explain why it

construes this motion as one for summary judgment—since that affects what facts and evidence

the Court can consider at this stage in the litigation.

        The DOD has moved either to dismiss the case or for summary judgment. The critical

difference is that a motion to dismiss, in the usual case, concerns exclusively the plaintiff’s

complaint. All the Court must consider is whether, taking plaintiff’s factual allegations in the

complaint as true, he has alleged sufficient facts to give rise to a colorable legal claim. A motion

for summary judgment, by contrast, ordinarily comes after the parties have developed an

evidentiary record through discovery. The Court then must consider whether, on the basis of that

record, either party is entitled to judgment as a matter of law.

        The Court concludes this motion is best construed as one for summary judgment. The

EEOC permits a complainant who requests a hearing to conduct discovery. Here, Glasgow was

given 75 days to conduct discovery, see Def’s Motion to Dismiss (“MTD”), Ex. A (“EEOC

Decision”) at 3-4, ECF No. 35-3, and he took that opportunity, including by deposing multiple

DOD employees and one of the women the agency hired instead of him, see Pl’s Opp., Exs. H-K

at 63-83.1 That explains why the administrative judge’s decision in the EEOC proceeding was

styled as a summary judgment decision—one based on a developed evidentiary record—and not

a dismissal. EEOC Decision at 23. Moreover, the parties’ arguments here go well beyond the

face of the complaint and rely extensively on the record developed in the EEOC proceeding.




        1
         The “EEOC Decision” refers to the summary judgment decision by EEOC
administrative judge Mason Barrett. That decision can be found in the record at ECF No. 35-3,
beginning at “Enclosure 1” (on page 8 of the ECF document). All cited page numbers refer to
the page numbers of the EEOC decision itself, not to the entire ECF entry.

                                                   2
Though Glasgow would still be entitled to additional discovery if he showed that he is unable to

“present facts essential to justify [his] opposition,” he must establish that through “affidavit or

declaration.” Fed. R. Civ. P. 56(d). He has not done so. In light of all this, the Court will

construe the DOD’s motion as one for summary judgment, based on the evidentiary record

developed in the EEOC proceeding. Now, to the facts as they were developed in that

proceeding.

       In early 2010, the DIA solicited applications on USA Jobs, the public-facing website of

the U.S. Office of Personnel Management, for several vacancies. EEOC Decision at 5.

Thousands applied, including Mr. Glasgow, who submitted applications for various positions,

including Drug Program Specialist, Nuclear Physicist, Intelligence Officer, and Security Guard.

Id. at 6. At the time of his application, Glasgow, a white male, was 54 years old and suffering

from a spinal cord injury. Glasgow attempted to apprise the agency of these facts by sending

letters that communicated as much to the DIA’s human resources department and to its equal

employment opportunity office after he applied. See Pl’s Opp., Exs. A-B at 18-22.

       Ultimately, the agency did not select Glasgow for any of the positions he sought, nor did

it invite him to participate at a hiring fair. Shortly after he learned of this, in February 2011,

Glasgow filed a complaint with the DIA Equal Opportunity & Diversity Office. DIA Notice of

Final Agency Action (“DIA Notice of FAA”) at 1. Glasgow complained of seven discrete

instances of discrimination and retaliation. Id. at 1-2. Though it is unclear which of the DOD’s

acts Glasgow believed constituted bare discrimination versus retaliation, the basic premise

underlying each incident was Glasgow’s belief that the agency opted for less qualified—but

younger, female, and disability-free—candidates.




                                                   3
        In October 2011, the DIA dismissed all seven claims. Id. at 2. Glasgow appealed that

decision to the EEOC in December 2011, and the EEOC remanded three of the seven claims to

the agency for further investigation in August 2012. Id. The three remanded claims focused on

Glasgow’s non-selection for the Drug Program Specialist, Nuclear Physicist, and Intelligence

Officer positions, and the fact that he was not invited to participate in a hiring fair for a security

position. Id.; EEOC Decision at 3. In February 2013, the Investigations and Resolutions

Directorate of the Civilian Personnel Management Service provided Glasgow with its report, and

Glasgow quickly requested a hearing before an EEOC administrative judge. Id. In May 2013,

the administrative judge assigned to the case gave the parties 75 days to conduct discovery and

supplement the investigative record. EEOC Decision at 3-4.

        The DOD moved for summary judgment in December 2013, and Glasgow filed his

opposition in January 2014. Id. The DOD contended before the EEOC (as it does here) that its

hiring processes for the positions at issue make Glasgow’s version of events impossible.

According to the agency’s description of that process, once it concluded its collection of

resumes, it put them into a single “talent pool” database; a panel of agency employees sorted

through the resumes by conducting keyword searches that matched resumes with particular job

descriptions; the search terms included only qualifications listed in the agency’s job descriptions

and did not include race, sex, age, or disability; and the panel members then reviewed the

resumes yielded by that search to arrive at a final slate of 10 candidates to refer to the selecting

official. EEOC Decision at 8-10 (citing testimony from the administrative record). The agency

further stated that Glasgow’s resume was not selected and thus was never even reviewed by a

selecting official. Id. at 10. The agency offered a similarly benign explanation for its decision

not to invite Glasgow to the hiring fair. Id. at 14-16 (hiring manager stating that Glasgow’s



                                                   4
application was rejected because his two most recent jobs fit poorly with security work and that

he had no knowledge of Glasgow’s protected characteristics).

       The administrative judge sided with the DOD. EEOC Decision at 23. He found “no

evidence in the record that any Agency employee or member of the Panel considered age, race,

sex, or disability in connection with any resume.” Id. at 9; see also id. at 16 (finding “no

evidence in the record that any person was aware of or considered [Glasgow’s] race, age, sex, or

disability in connection with the job fair”). The administrative judge further concluded that the

individuals the agency did hire were as (if not more) qualified than Glasgow. Id. at 20.

Accordingly, he concluded that the DOD had “articulated[] legitimate, non-discriminatory

reasons for its actions,” and that Glasgow had failed to show those reasons were pretextual. Id.

       After an unsuccessful administrative appeal, Glasgow headed to federal court.2 While

Glasgow’s EEO complaint identified seven discrete instances of discrimination or retaliation, his

complaint in this Court focuses on just three. The first is his non-selection for an entry-level

Drug Program Specialist position on April 30, 2010. Complaint at 2-3, 9-13. The second is the

agency’s decision not to invite Glasgow to participate in a job fair. Id. at 13. And the third is the

agency’s alleged retaliation against him for notifying it of his membership in various protected

classes. Id. at 13-16. Glasgow alleges that these acts variously violate Title VII of the Civil

Rights Act, 42 U.S.C. § 2000e, the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 623, and the Rehabilitation Act, 29 U.S.C. § 791(f). See Complaint at 8-9; Def’s MTD

at 1. The DOD has moved to dismiss the complaint, or, in the alternative, for summary




       2
        Glasgow originally filed suit in the Northern District of Alabama, where he resides.
That court transferred the case here on the government’s motion to dismiss for improper venue,
among other grounds. See ECF No. 27.

                                                 5
judgment. Glasgow has opposed the motion, and the matter is now ripe for the Court’s

resolution.

  II.   Legal Standard

        “The court shall grant summary judgment 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 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A party

moving for summary judgment must “show[] that the materials cited do not establish the . . .

presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

support the fact.” Fed R. Civ. P. 56(c). A fact is material if it “might affect the outcome of the

suit under the governing law,” and a factual dispute is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In

determining whether a genuine dispute of material fact exists, the Court must accept as true the

evidentiary submissions of the party opposing summary judgment and must also draw “all

justifiable inferences” in their favor. Id. at 255.

  III. Analysis

        A. Discrimination Claims

        Glasgow’s essential grievance is that the DOD cast his application aside because he is an

older, white, disabled man. The Court takes a different view, and for the reasons that follow,

will grant summary judgment to the DOD.

        In cases where the plaintiff can adduce no direct evidence of discrimination, as is true

here, the Court applies the burden-shifting framework set forth in McDonnell Douglas

Corporation v. Green, 411 U.S. 792 (1973). Clipper v. Billington, 414 F. Supp. 2d 16, 21

(D.D.C. 2006). Under the McDonnell Douglas framework, the plaintiff “must first establish, by



                                                      6
a preponderance of the evidence, a prima facie case of discrimination.” Id. (quotation omitted).

If the plaintiff does so, the defendant must then identify a “legitimate, nondiscriminatory reason”

for the challenged action. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142 (2000).

But where the employer has asserted such a reason, the D.C. Circuit has instructed district courts

to skip the prima facie question at step one and instead answer “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[?]” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494

(D.C. Cir. 2008) (deriving rule from U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,

715 (1983)); see also Baloch v. Kempthorne, 550 F.3d 1191, 1196, 1198 n.2 (D.C. Cir. 2008)

(applying Brady to discrimination claims under Title VII, the ADEA, and the Rehabilitation

Act).

        The DOD has offered a legitimate, non-discriminatory explanation for its decision not to

hire Glasgow. It explained that it selected applicants for the positions for which Glasgow

applied using key word searches to match resumes with certain positions; that its personnel only

searched for qualifications listed in the job descriptions and did not filter for race, sex, age, or

disability; that this process yielded several resumes, none of them Glasgow’s; and that no agency

employee ever reviewed any part of Glasgow’s resume. Def’s MSJ, Ex. 2, Statement of Material

Facts To Which There is No Genuine Dispute; EEOC Decision 8-10. The agency’s explanation

for why it did not invite Glasgow to the hiring fair also raises no red flags. EEOC Decision at

14-16 (hiring manager stating that Glasgow’s application was rejected because his two most

recent jobs fit poorly with security work and that he had no knowledge of Glasgow’s protected

characteristics). With these non-discriminatory explanations before it, the Court, following



                                                   7
Brady, goes directly to the critical question: Has Glasgow produced evidence sufficient for a jury

to conclude that the DOD’s explanations are pretextual and that it actually intentionally

discriminated against Glasgow on the basis of some prohibited characteristic? See 520 F.3d at

494. In a word: No.

       The best Glasgow can do is cite testimony that could be taken to suggest that DOD is

wrong about the use of blind keyword searches during the panel process. For instance, Glasgow

references deposition testimony by DIA employee Pedro Chevere that the agency did not use key

word searches in its hiring process. See Pl’s Opp. at 80-83 (“Exhibit J”).3 But it appears that

Mr. Chevere was simply confused by Glasgow’s question, since he quickly clarified that the

agency’s “entry-level panel”—the type of panel that sorted through applications for the positions

for which Glasgow applied—“used to use a keyword search.” Id. at 83. This isolated and

equivocal piece of testimony does not create a genuine dispute of material fact regarding the

agency’s hiring process. The record instead bears out the administrative judge’s conclusion that

the agency used keyword searches to mine the resume database for applications that fit the job

description, EEOC Decision at 9, and that the agency was totally unaware of Glasgow’s “age,

race, sex, or disability” in making its hiring decision, id. at 8. That conclusion was based on

testimony by Noemi Pizarro-Hyman, who managed the team of employees that chose the batch

of resumes to send to the selecting official, id., and on testimony by Curtis Peterson, the selecting

official who made the final hiring decision, id. at 11. Glasgow has offered no good reason to

doubt the accuracy of their testimony. He thus comes up far short of demonstrating, as he must,




       3
         The DOD says Glasgow provided “no evidentiary support for [this claim] at all,” but it
appears instead that Glasgow provided the wrong citation to the docket. His citation is to an
attachment to his complaint, but the Court found the documentary support to which he was
referring as an addendum to his opposition to the DOD’s motion to dismiss.

                                                 8
“both that the [DOD’s asserted] reason was false, and that discrimination was the real reason.”

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

       Glasgow’s last best hope to salvage his discrimination claims is to argue that the agency’s

hiring practices had a disparate impact on individuals with his characteristics—older white men

with a physical disability. Glasgow contends that the fact that the agency hired or interviewed

four young and apparently disability-free people for the positions he sought establishes a viable

disparate impact claim. See Complaint at 1; Pl’s Opp. at 8. This argument also fails.

       “Disparate impact claims involve employment practices that are ‘facially neutral in their

treatment of different groups but that in fact fall more harshly on one group than another and

cannot be justified by business necessity.’” Breen v. Chao, 253 F. Supp. 3d 244, 264-65 (D.D.C.

2017) (quoting Aliotta v. Bair, 614 F.3d 556, 561 (D.C. Cir. 2010)). While disparate impact

claims relieve plaintiffs of the burden of proving “discriminatory intent or animus,” plaintiffs

still are “responsible for isolating and identifying the specific employment practices that are

allegedly responsible for any observed statistical disparities.” Id. at 265 (quotation omitted).

This Glasgow does not do. Instead, he complains generally about the DOD’s “’blind’

application system” as a whole and the fact that it led to hiring or at least interviewing four

younger candidates instead of him. Pl’s Opp. at 8. Because Glasgow does not identify what

“specific employment practice” led to people with his protected characteristics getting passed

over for jobs, his disparate impact argument fails. Breen, 253 F. Supp. 3d at 266.

       Because Glasgow is unable to show that the DOD’s hiring practices were either

intentionally discriminatory or had a disparate impact on a protected population, his employment

discrimination claims under Title VII, the ADEA, and the Rehabilitation Act fail. Accordingly,

the Court will enter summary judgment in favor of the DOD on those claims.



                                                  9
        B. Retaliation Claim

        Glasgow next contends that the DOD retaliated against him for taking steps to assert his

rights under Title VII. The Court disagrees and will grant summary judgment to the DOD.

        Title VII prohibits retaliation against a job applicant because the applicant has “made a

charge, testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing” under Title VII. 42 U.S.C. § 2000e-3. “To make out a prima facie case of retaliation, a

plaintiff must show that ‘(1) he engaged in protected activity; (2) he was subjected to an adverse

employment action; and (3) there was a causal link between the protected activity and the

adverse action.’” Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012) (quoting

Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir. 2007)).

        Glasgow seems to advance two retaliation theories, but neither works. First, he says he

engaged in protected activity when he filed an EEO complaint. See Pl’s Opp. at 5. While that

indeed constitutes protected activity for which an employer cannot lawfully retaliate, Glasgow

filed his complaint after he suffered the adverse employment action—not getting selected for the

job. Id. (showing that EEO activity postdated hiring decision). That means there is no “causal

link between the protected activity and the adverse action.” Hamilton, 666 F.3d at 1357.

Second, Glasgow suggests that his letters to the DOD, in which he informed DOD that he was

protected under the Americans with Disabilities Act, see Pl’s Opp., Exs. A-B at 18-22,

constituted protected activity. Not so. Title VII prohibits retaliation for making a charge,

testifying, assisting, or participating in an EEO investigation or proceeding, 42. U.S.C. § 2000e-

3; simply informing an employer of your membership in a protected class does not fall within

those activities.




                                                 10
 IV. Conclusion

      For the foregoing reasons, the Court will grant Defendant’s motion for summary

judgment. A separate Order shall accompany this memorandum opinion.




                                                        CHRISTOPHER R. COOPER
                                                        United States District Judge

Date: November 9, 2018




                                            11
