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Cross v. Ferriero

United States District Court, E.D. Missouri, Eastern Division

July 30, 2015

DAVID S. FERRIERO, Archivist of the United States, National Archives and Records Administration, Defendant.


JOHN M. BODENHAUSEN, Magistrate Judge.

Plaintiff, Rosalind Cross, an employee of the National Archives and Records Administration ("NARA"), brings this action pursuant to 42 U.S.C.§ 2000e, et seq., alleging that Defendant NARA, acting through the National Personnel Records Center ("NPRC") Director, Ronald Hindman, and her supervisor, Chief of Management Systems Staff, Deborah Hilton, discriminated against her on the basis of race and color. Plaintiff alleges seven claims of disparate treatment and retaliation and seeks four million dollars in damages. (ECF No.1, at 37-38)

Now before the Court are Defendant's Motion to Dismiss, or Alternatively, for Summary Judgment (ECF No. 26), and Plaintiff's Motion for Summary Judgment, or Alternatively, a Referral to ADR. (ECF No. 29) The Court has jurisdiction over the matter through the consent of the parties pursuant to 28 U.S.C. §636(c). The motions are fully briefed; and for the reasons set forth below, Defendant's Motion to Dismiss, or Alternatively, for Summary Judgment is granted, and Plaintiff's Motion for Summary Judgment or Alternatively, a Referral to ADR is denied.

I. Procedural History[1]

On November 4, 2008, Plaintiff was notified that she had not been selected for either of two open positions for which she had applied. On November 20, 2008, Plaintiff filed an anonymous complaint with NARA's Equal Employment Opportunity Commission (EEOC) Office alleging several claims of discrimination on the basis of race and color, including the fact that she was not selected for one of the open positions. (Defendant's Statement of Material Uncontroverted Facts ("DSOF") at ¶5, ECF No. 28)[2] Thereafter, at some point in December of 2008, she identified herself as the EEOC Complainant. (ECF No. 27-9 at 40)

On January 2, 2009, Plaintiff received notice of her right to file and filed a formal complaint of discrimination with NARA's EEOC Office.[3](ECF No. 1 at 8 & 70) On February 25, 2009, NARA initiated an investigation of the following issues raised by Plaintiff's complaint: whether Plaintiff was discriminated against on the bases of race (African American) and/or color (dark skin tone) when, (1) on or about November 4, 2008, she was not selected for a GS-12 management analyst position; (2) in November, 2008, NARA denied her request for a desk audit; and (3) NARA retaliated against her for filing EEOC complaints. The investigation also focused on Plaintiff's allegations that her supervisor, Ms. Hilton, retaliated against her for engaging in protected activity by: (1) including inaccurate statements in her performance evaluation for the period covering October 1, 2007, through September 30, 2008; and (2) asking her to perform assignments at the GS-12 level without a compensating her at the corresponding pay grade.[4] (Id. at 8-12); (ECF No. 27-5 at Gov112). On June 29, 2009, NARA issued its Report of EEOC Investigation regarding Plaintiff's allegations. Plaintiff then requested and was granted a hearing before an EEOC administrative judge (AJ).[5] (ECF No.1 at 69-70); (ECF No. 27-4 at Gov1-17).

Following the EEOC hearing, the AJ issued a decision finding that NARA did not discriminate or retaliate against Plaintiff on the basis of race or color. The AJ concluded that Plaintiff had neither established that she actually performed duties corresponding to a higher pay grade nor been harmed by the alleged delay in responding to her requests for a desk audit and corrections to her position description. (ECF No.1 at 80-81) With regard to the claim that Ms. Hilton made inaccurate statements in Plaintiff's performance evaluation in retaliation for Plaintiff's filing of an EEOC complaint, the AJ found that the Ms. Hilton had no knowledge of Plaintiff's EEOC filing at the time that Ms. Hilton completed the performance evaluation. (Id. at 9, 67 & 82) Plaintiff appealed this decision, and on August 23, 2013, the EEOC Office of Federal Operations affirmed the Agency's Final Order implementing the decision of the AJ. (Id. at 8-12)

Plaintiff filed the present lawsuit on November 21, 2013. (Id. at 1) In her complaint Plaintiff sets forth seven counts. Plaintiff alleges discrimination on the basis of race and color arising from the following conduct by NARA: (1) failing to promote Plaintiff to either of the two open GS-12 positions, and selecting white candidates to fill those positions (Counts I and II); (2) assigning Plaintiff "GS-12 projects" but compensating her at the GS-11 pay grade (Count III); (3) failing to give Plaintiff a timely position description review, and/or to reclassify and upgrade her position (Count IV); (4) a "failure to rate fair and honest, " premised upon the delay of her 2007 performance evaluation (Count V); (5) sending only white employees to out-of-town information technology training sessions (Count VI); and (6) assigning fewer and less demanding projects to similarly situated white, GS-11 employees than to Plaintiff (Count VII). (Id. at 4, 14, 16, 26-37). In addition, Plaintiff alleged before the EEOC and apparently asserts here, that Ms. Hilton, in retaliation for Plaintiff's filing of an EEOC complaint, included inaccurate statements in Plaintiff's 2008 performance evaluation.[6] (ECF. No. 27-2 at GOV444-53); (ECF. No. 27-11 at 23-24).

II. The Facts[7]

Plaintiff, an African American of darker skin tone, has been employed at the NARA facility in St. Louis, Missouri, since 1984 and has been a GS-11 management analyst since approximately 1999. Ms. Hilton, who is white, supervised Plaintiff from 2004 through December, 2010. During the relevant time period only two of the GS-11 management analysts in the St. Louis office were African Americans. The other African American employee, Ms. Wills, has a lighter skin tone than Plaintiff. During that same time period, Ms. Hilton reported to Mr. Hindman, the Director of NPRC. (ECF No. 1, at 70).

A. Failure to Promote to the GS-12 Management Analyst Position (Counts I and II)

On or about May 16, 2008, NARA posted two job openings for GS-12 management analysts. (Id. at 70). The persons hired would report to Ms. Hilton, and she was responsible for the hiring decision. The job description for GS-12 management analyst included the following duties:

a. Plan and conduct studies of and surveys of NARA activities,
b. Develop operating improvements and techniques; and
c. Serve as the functional expert and test agent in the development of new NARA procedures.

(DSOF at ¶25)

Ms. Hilton testified that, in addition to these requirements, she sought individuals with excellent written and oral communication skills and strong problem-solving abilities. She also testified that she sought candidates who exhibited initiative, self-motivation, tact, and diplomacy. Ms. Hilton further explained that analytical skills relevant to all areas of the agency, a broad range of experience with information technology systems, and experience with staffing and billing were also important characteristics for successful performance in the open positions. (DSOF at ¶28; ECF No. 27-2 at Gov536 to Gov537).

Plaintiff was one of six individuals chosen from a larger pool of applicants to be interviewed. (ECF No. 1 at 71) The interviews were conducted by a three-person panel, which consisted of two GS-12 management analysts; Kevin Schumaker, a white male, and Mary Wills, a black female; and Plaintiff's supervisor, Ms. Hilton, a white female.[8] (ECF No. 27-2 at Gov535-36).

Ms. Hilton prepared the questions for the interviewees, and the panel asked the same questions of each candidate.[9] (ECF No. 27-2 at Gov536-538; DSOF ¶30). After interviewing the six candidates, the panel members independently ranked the candidates and then met to discuss their rankings. (ECF No. 27-2 at Gov539 to Gov540). The panel members ranked Plaintiff and the two individuals ultimately selected for the positions, Robert Marsh and Joseph Stewart, as follows:

• No panel member ranked Plaintiff higher than the two successful candidates. (ECF No. 1 at 71)
• All three panel members ranked Mr. Marsh first, and no panel member ranked Plaintiff among the top three candidates. (Id.).
• Ms. Hilton and Mr. Schumaker both ranked Mr. Stewart second and Plaintiff last.
• Ms. Wills ranked Mr. Stewart fourth and Plaintiff fifth. (Id.).

Mr. Marsh, the top-rated candidate for the position, was a retired United States Army Colonel and had previously commanded the Army Human Resources Command with a staff of more than 1, 300 employees and a budget of over $1 billion. Ms. Hilton surmised that, in his prior position, Mr. Marsh may have had more supervisory and financial responsibility than the director of the NPRC. Although Mr. Marsh was not an internal candidate, Ms. Hilton observed that he was already very familiar with NARA because the Army Human Resources Command operated out of the same building as NARA and performed similar work, in particular, the storage and servicing of personnel records. Ms. Hilton characterized Mr. Marsh's written communication skills as "outstanding" and his oral communications skills as "excellent." (DSOF at ¶¶41-44)

The other highly rated candidate, Mr. Stewart, had been employed by NARA for approximately three years at the time of the selection process. Mr. Stewart exhibited "excellent" written and "good" oral communication skills, came to NARA with private sector management experience, and had experience at NARA in both business analysis and project implementation. During his tenure at NARA, Mr. Stewart received "outstanding" performance evaluation ratings. Mr. Stewart had been a management intern with NARA over several years and had rotated through different NARA departments where he had demonstrated an ability to create reports and analyze the reported data, as well as a proficiency in working with Siebel, a software application used by NARA. At the time of the interview, Mr. Stewart was performing extensive analysis for a project in which NARA would move four million boxes from one St. Louis facility to two other facilities. (ECF No. 27-2, Gov541 to Gov545).

It is undisputed that Plaintiff had more years of experience at NARA than either Mr. Marsh or Mr. Stewart. However, Plaintiff's oral and written communication skills were not deemed as strong as those of either Mr. Marsh or Mr. Stewart. In addition, Plaintiff had not interviewed "very well, " and Ms. Hilton testified that it was difficult for the interviewers to determine from Plaintiff's responses whether she had the initiative and risk-taking skills Ms. Hilton thought were important for the job. Finally, Plaintiff's work performance had consistently been rated "highly successful" rather than "fully successful" or "outstanding." (Doc No. 27-2 at Gov545 to Gov547). ...

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