MULRAIN v. DONOVAN

Filing 43

MEMORANDUM AND OPINION. Signed by Judge Ellen S. Huvelle on October 29, 2012. (AG)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
LISA V. MULRAIN,
)
)
Plaintiff,
)
)
v.
)
)
SHAUN DONOVAN,
)
Secretary of Housing and Urban Development )
)
Defendant.
)
__________________________________________)

Civil Action No. 10-1601 (ESH)

MEMORANDUM OPINION
Plaintiff Lisa Mulrain has sued Shaun Donovan, the Secretary of Housing and Urban
Development (“HUD”), under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et
seq. She alleges that she was not selected for the position of Deputy Assistant General Counsel
in the HUD Office of General Counsel’s Finance Division because she is African-American.
Before the Court is defendant’s Motion for Summary Judgment (Mar. 30, 2012 [ECF No. 25]
(“Def.’s Mot.”)). For the reasons stated below, defendant’s motion for summary judgment will
be granted.
BACKGROUND
I.

FACTS
The Government National Mortgage Association (“GNMA”) is a wholly-owned

government corporation that guarantees mortgage-backed securities issued in the secondary
mortgage market. (Defendant’s Statement of Material Facts Not in Genuine Dispute, Mar. 30,
2012 [ECF No. 25] (“Def.’s Statement”) ¶ 1; Plaintiff’s Opposition to Defendant’s Motion for

Summary Judgment, July 11, 2012 [ECF No. 29-1] (“Pl.’s Opp’n”) at 10.) GNMA receives legal
advice and representation from the Finance Division within HUD’s Office of General Counsel
(“OGC”). (Def.’s Statement ¶ 6; Pl.’s Opp’n at 12.) The Finance Division is headed by
Assistant General Counsel Katherine Davies. (Def.’s Statement ¶ 7; Pl.’s Opp’n at 3.) Ms.
Mulrain has served as an Attorney-Advisor in the Finance Division since August 2000. (Pl.’s
Opp’n at 1; Mulrain Decl. ¶ 1.)
The Finance Division is overseen by the Office of Finance and Administrative Law.
(Def.’s Statement ¶ 14; Plaintiff’s Statement of Genuine Issues, June 29, 2012 [ECF No. 28-57]
(“Pl.’s Statement”) ¶ 14.) Beginning in 2005, the Office of Finance and Administrative Law was
run by Associate General Counsel John Opitz. (Def.’s Statement ¶ 14; Pl.’s Opp'n at 3.) Mr.
Opitz believed that there was a need for a Deputy Assistant General Counsel (“DAGC”) position
within the Finance Division. (Def.’s Statement ¶ 16.) In May 2006, a formal Position
Description was created for the new DAGC position, and it was graded at the GS-15 level.
(Def.’s Ex. 7; Pl.’s Statement ¶ 21.) Mr. Opitz received authorization to fill that position in
November 2007. (Def.’s Ex. 6; Pl.’s Statement ¶ 20.) A Vacancy Announcement for the DAGC
position was posted on December 13, 2007, and remained open until January 14, 2008. (Def.’s
Ex. 8; Pl.’s Opp’n at 2; Pl.’s Statement ¶ 23.)
Ms. Mulrain applied for the DAGC position, along with nineteen other applicants. (Pl.’s
Ex. 32, Gerber Report at 3.) The twenty applications were reviewed and seven “best qualified
candidates” were identified. (Def.’s Ex. 10; Pl.’s Ex. 32 at 3.) Of those seven, two—including
Ms. Mulrain—were African-American, one was Asian, and four were Caucasian. (Def.’s Ex. 11;
Pl.’s Statement ¶ 28.) Mr. Opitz and Ms. Davies interviewed the seven “best qualified

2

candidates” in February 2008, including Ms. Mulrain, who was interviewed on February 15,
2008. (Def.’s Statement ¶ 34; Pl.’s Statement ¶ 34.)
Roughly two weeks earlier, on January 31, 2008, Maura Malone, a HUD attorney serving
as the DAGC in the Administrative Proceedings Division, informed senior OGC officials that
she had accepted a job with the Department of the Army. (Def.’s Statement ¶ 39; Def.’s Ex. 18;
Pl.’s Opp’n at 4.) Ms. Malone’s supervisor, John Herold, emailed other top OGC management
officials to inform them of Ms. Malone’s impending departure, calling it a “big loss for HUD.”
(Def.’s Statement ¶ 40; Def.’s Ex. 18; Pl.’s Statement ¶ 40.) Linda Cruciani, the career Deputy
General Counsel at HUD, encouraged Ms. Malone to reconsider her departure and to explore
other positions within HUD. (Def.’s Statement ¶ 41; Def.’s Ex. 19; Pl.’s Opp’n at 5.) As a result
of that conversation, Ms. Malone agreed to consider other opportunities. (Def.’s Statement
¶ 41.)
At some point in February 2008, Ms. Malone spoke with Mr. Opitz about an available
position in the Office of Procurement and learned about the Finance Division DAGC opening.
(Def.’s Statement ¶¶ 46-49; Pl.’s Statement ¶¶ 46-49.) She later met with Ms. Davies to discuss
the DAGC position. (Def.’s Statement ¶ 51.) After that meeting, Mr. Opitz informed Ms.
Cruciani that if she “wanted to reassign” Ms. Malone to the Finance Division, he and Ms. Davies
would “be happy with that.” (Def.’s Statement ¶ 55; Pl.’s Opp’n at 8, quoting Pl.’s Ex. 52, Opitz
EEOC Dep. 133:12-16.)
On March 6, 2008, the Vacancy Announcement for the Finance Division DAGC position
was cancelled, and on March 17, 2008, OGC announced that Ms. Malone would be filling the
position. (Def.’s Exs. 23, 24; Def.’s Statement ¶¶ 58-59; Pl.’s Statement, ¶¶ 58-59.)

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Ms. Mulrain then filed a formal EEO complaint alleging race discrimination based on the
cancellation of the Vacancy Announcement and the selection of Ms. Malone to fill the DAGC
position. (First Amended Complaint, Sept. 12, 2011 [ECF No. 20] ¶ 31.) Thereafter, on
September 21, 2010, Ms. Mulrain filed the instant action. (Complaint, Sept. 21, 2010 [ECF No.
1].)
ANALYSIS
I.

STANDARD OF REVIEW
A.

Summary Judgment

A motion for summary judgment is appropriate when the pleadings, the discovery and
disclosure materials on file, and any affidavits show 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 (1986). There is a genuine dispute
as to a material fact if a “reasonable jury could return a verdict for the nonmoving party.” Galvin
v. Eli Lilly & Co., 488 F.3d 1026, 1031 (D.C. Cir. 2007) (quoting Anderson, 477 U.S. at 248). A
moving party is thus entitled to summary judgment against “a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Waterhouse v. Dist. of Columbia, 298 F.3d 989, 992
(D.C. Cir. 2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
When considering a motion for summary judgment, “[t]he evidence of the non-movant is
to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at
255. However, the non-moving party “may not rely merely on allegations or denials in its own
pleading,” see Fed. R. Civ. P. 56(c), but instead must offer specific facts showing that genuine

4

issues exist for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986).
While summary judgment “must be approached with special caution in discrimination
cases, a plaintiff is not relieved of her obligation to support her allegations by affidavits or other
competent evidence showing that there is a genuine issue for trial.” Bolden v. Winter, 602 F.
Supp. 2d 130, 136 (D.D.C. 2009) (internal quotation marks omitted).
B.

Title VII

Under Title VII, it is unlawful for an employer to “fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, condition, or privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). There are two essential
elements of a discrimination claim under Title VII: “that (i) the plaintiff suffered an adverse
employment action (ii) because of the plaintiff’s race . . . .” Baloch v. Kempthorne, 550 F.3d
1191, 1196 (D.C. Cir. 2008).
Traditionally, courts have examined Title VII discrimination claims under the three-step
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
However, once an employer has proffered a legitimate, non-discriminatory reason for the adverse
employment action, the McDonnell Douglas burden-shifting framework no longer applies, and
the court must simply determine whether the plaintiff has 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 on the basis of
race . . . .” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).

5

Plaintiff argues that defendant discriminated against her on the basis of her race by not
selecting her to fill the DAGC position in the Finance Division. Defendant contends that there
were legitimate, non-discriminatory reasons for terminating the Vacancy Announcement and
selecting Ms. Malone as the DAGC, and that plaintiff has failed to produce sufficient evidence to
raise an inference that it’s reason for hiring Ms. Malone was pretextual. As explained herein, the
Court agrees, and will grant summary judgment.
II.

LEGITIMATE NON-DISCRIMINATORY REASON
The adverse employment action suffered by the plaintiff in this case was the cancellation

of the DAGC Vacancy Announcement. See Chappell-Johnson v. Powell, 440 F.3d 484, 488
(D.C. Cir. 2006) (finding that plaintiff suffered an adverse employment action when she was
“denied” the “opportunity to compete for a vacant position”). However, the mere fact of
cancelling a Vacancy Announcement does not give rise to an inference of discrimination; it is
“[t]he motivation behind the vacancy cancellation [that] determines whether the [employer’s]
action violates Title VII.” Terry v. Gallegos, 926 F. Supp. 679, 710 (W.D. Tenn. 1996) (cited in
Lewis v. Dist. of Columbia, 653 F. Supp. 2d 64, 74 (D.D.C. 2009)). Thus, as with other adverse
employment actions, if defendant can show that it in fact cancelled the vacancy announcement
for a legitimate, nondiscriminatory reason, summary judgment is appropriate. Brookens v. Solis,
616 F. Supp. 2d 81, 93 n. 13 (D.D.C. 2009).
Defendant claims that it cancelled the Vacancy Announcement and hired Ms. Malone as
DAGC because it wanted to retain Ms. Malone’s skills within the agency. It is undisputed that
prior to Ms. Mulrain’s interview for the DAGC position, Ms. Malone received and accepted a
job offer from the Department of the Army for a senior attorney position. (Def.’s Statement ¶¶

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38-39; Pl.’s Statement ¶¶ 38-39.) In order to try and retain Ms. Malone’s services within HUD,
Ms. Cruciani contacted Ms. Malone and suggested that she explore other options within HUD
OGC. (Def.’s Statement ¶¶ 41-42; Pl.’s Statement ¶¶ 41-42.) Defendant contends that while
Ms. Malone was meeting with Mr. Opitz to discuss a position in the Office of Procurement, she
also asked about any other openings in divisions under his supervision and was told about the
Finance Division DAGC position. (Def.’s Statement ¶ 47.) Mr. Opitz has stated that he knew
that other OGC attorneys had spoken highly of Ms. Malone and so he suggested that she speak to
Ms. Davies about the DAGC position. (Id. ¶ 48.) Defendant further contends that Ms. Davies
had previously worked with Ms. Malone and thought highly of her abilities, so she agreed to
meet with Ms. Malone regarding the DAGC position. (Id. ¶ 50.)
After Ms. Davies’ meeting with Ms. Malone, Mr. Opitz informed Ms. Cruciani that he
and Ms. Davies would be happy to have Ms. Malone in the Finance Division as the DAGC. (Id.
¶ 55; Pl.’s Opp’n at 8.) Ms. Cruciani considered the reassignment doubly beneficial, as it would
not only fill the Finance Division DAGC position but also retain Ms. Malone’s skills within the
agency. (Def.’s Statement ¶ 56.)
Thus, defendant has offered a legitimate, non-discriminatory reason—supported by
internal agency documents and declarations—for the selection of Ms. Malone. Accordingly, the
burden shifts back to plaintiff and the question becomes whether her evidence creates a material
dispute on the ultimate issue of discrimination. See McGrath v. Clinton, 666 F.3d 1377, 1380 n.
3 (D.C. Cir. 2012).

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III.

PRETEXT
To establish pretext, the employee must offer evidence showing that the employer’s

explanation is “false, that it is a lie, or that the employer’s real motivation was discriminatory.”
Aka v. Washington Hosp. Cent., 156 F.3d 1284, 1289 n. 3 (D.C. Cir. 1998).
A.

Comparative Qualifications

In a non-selection case, a plaintiff can satisfy her burden of persuasion by showing that “a
reasonable employer would have found the plaintiff to be significantly better qualified for the
job.” Calhoun v. Johnson, 632 F.3d 1259, 1263 (D.C. Cir. 2011). To do so, she must present
evidence of “stark superiority of credentials over those of the successful candidates.” Stewart v.
Ashcroft, 352 F.3d 422, 429 (D.C. Cir. 2003).
In order to accomplish this “formidable task,” Nyunt v. Tomlinson, 543 F. Supp. 2d 25,
39 (D.D.C. 2008), plaintiff relies on the argument that since the position required specialized
knowledge of GNMA issues (see Plaintiff’s Sur-Reply, Sept. 18, 2012 [ECF No. 40-1] at 1), and
since plaintiff was the only applicant to possess such experience, by definition, she should have
been hired over Ms. Malone, as well as the six other “best qualified candidates.” To buttress this
argument, she relies principally on the report of her expert, Mr. Arnold Gerber, who has opined
that not only was Ms. Mulrain significantly more qualified for the DAGC position than Ms.
Malone, but that because the position required specialized knowledge of GNMA issues, Ms.
Malone did not even meet the minimum job requirements. (Pl.’s Opp’n at 33.)
Mr. Gerber examined the Position Description and the Vacancy Announcement for the
DAGC position and concluded that the supervisory duties described therein were insufficient to
justify its classification at the GS-15 level; thus, the only basis on which the position could be

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supported at GS-15 is if the selectee were a GNMA subject matter expert. (Pl.’s Ex. 32, Gerber
Report at 2-3.) Specifically, he relies on the fact that the Vacancy Announcement did not require
formal supervisory experience, but did require “specialized legal experience” at or above the GS14 level in the area of “federal law and practices related to the secondary mortgage market,
banking, structured finance,” and “mortgage backed securities.” (Pl.’s Opp’n at 4; Def.’s Ex. 8
at 2.) Plaintiff then asserts that the only place in HUD where an applicant could acquire this
requisite “specialized legal experience” is within the Finance Division, because “GNMA is the
only entity in HUD that operates [mortgage backed securities] and multiclass securities programs
and engages in all of these activities.” (Pl.’s Opp’n at 4.)
Because Ms. Malone had never worked in the Finance Division, Mr. Gerber concluded
that she was not qualified for the DAGC position. (Id. at 6.) In fact, plaintiff argues that none of
the others on the “best qualified” list were in fact qualified for the job because none of them had
worked in the Finance Division. (Id. at 19.) Ms. Mulrain, on the other hand, having worked in
the Finance Division on GNMA matters for eight years, satisfied the requirements for the
position as Mr. Gerber has defined them. (Id. at 19.) Thus, by redefining the requirements of the
DAGC job, plaintiff has effectively created a pool of only one qualified applicant—plaintiff
herself.
Plaintiff’s premise about the prerequisites for the job cannot withstand scrutiny. As is
clear from the record, the position was designed to be supervisory in nature and, while some
experience in HUD-related financial matters was required, that experience did not need to be
specific to GNMA or the Finance Division. (See Defendant’s Reply, Aug. 17, 2012, [ECF No.
34] (“Def.’s Reply”) at 2.) Prior to her reassignment to the Finance Division, Ms. Malone had

9

been a DAGC in the Administrative Proceedings Division for nearly 10 years, and she therefore
had far more supervisory experience than Ms. Mulrain. (Id. at 2.) She had also worked
extensively on matters involving FHA-insured mortgages and proceedings before the Mortgagee
Review Board, and had previously worked with GNMA and Finance Division staff. (Def.’s
Statement ¶ 35.) Thus, according to defendant, Ms. Malone more than satisfied the job
requirements.
Despite this argument, plaintiff attempts to use her expert’s opinion to create “a genuine
issue of material fact about whether Ms. Malone met a fundamental and objective requirement
for the job, which demands that summary judgment be denied.” (Pl.’s Opp’n at 7.) This does
not work.
The opinions of plaintiff’s expert Mr. Gerber, even if correct, do not create any triable
issues of fact in this case. See, e.g., Beyah v. Dodaro, 666 F. Supp. 2d 24, 35 (D.D.C. 2009)
(citing cases) (“Because [the expert’s] opinion about the quality of plaintiff’s written work
merely second-guesses the subjective judgments of plaintiff’s supervisors, it cannot be relied
upon to create any triable issues of fact.”). The relevant question in a Title VII case is not the
correctness of the employer’s proffered reason for its action, but rather “whether the employer
honestly believes in the reasons it offers.” Fischbach v. Dist. of Columbia Dep’t of Corrections,
86 F.3d 1180, 1183 (D.C. Cir. 1996). As explained below, the evidence is clear that plaintiff’s
supervisors viewed the position as one that was managerial in nature that did not require GNMA
subject matter expertise. Thus, even if Mr. Gerber were correct that, given the employers’
understanding of the job requirements, the DAGC position should not have been approved at the
GS-15 level, that would simply show that the position had been mis-classified. It would not,

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however, show that plaintiff’s supervisors did not honestly believe Ms. Malone was eminently
qualified for the DAGC position when they reassigned her into that position. Thus, Mr. Gerber’s
opinion “ha[s] no probative value and the Court can give it no weight.” Nance v. Librarian of
Congress, 661 F. Supp. 794, 796 (D.D.C. 1987) (declining to consider expert testimony rating
the comparative qualifications of the plaintiff and the selectees in part because “rating
procedures were not used in the selection process under review at any stage”).1
The evidence clearly demonstrates that both Mr. Opitz and Ms. Davies viewed the
DAGC position as one that was managerial in nature and that did not require specific GNMA
subject matter expertise. For example, e-mails from Mr. Opitz show that, because Ms. Davies
was retirement-eligible, he was concerned about succession planning and believed it would be
“prudent as a matter of succession planning to develop management skills with another attorney
in the Division.” (Def.’s Ex. 4.) In Ms. Davies’ declaration, she too stated that she saw the
DAGC’s role as largely to assist in supervisory activities. (Davies Decl. ¶ 10.) 2 Consistent with
that view, the initial Position Description for the position classified it as a “Supervisory

1

Although Judge Lamberth relied on Mr. Gerber’s opinion in Perry v. Donovan, 733 F. Supp. 2d
114, 117 n.5 (D.D.C. 2010), that case involved an employee’s challenge to a finding as to her
qualifications for a position. See id. at 116-17. This case more closely resembles Lee v. Astrue,
2010 WL 1068129, at *5 (D. Md. Mar. 18, 2010), in which the district court found Mr. Gerber’s
testimony unhelpful because, while Mr. Gerber opined “that the performance standards [used by
the employer in that case] were vague and subjectively applied,” that fact “does not indicate that
they were applied pretextually in [the plaintiff’s] case.” Id. at *5 (emphasis added).

2

Plaintiff points to Ms. Davies’ deposition testimony, in which she admitted that she did not
want a deputy because she had no intention of retiring and did not want to be pressured into
retiring, as support for her view that the job was not intended to be supervisory in nature. (Pl.’s
Opp’n at 35.) But the mere fact that Ms. Davies did not want a deputy has no bearing on the job
requirements for the deputy position that was eventually created. If anything, it confirms that
Ms. Davies understood that a “deputy” would, by definition, share in her supervisory
responsibilities.
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Attorney-Advisor, GS-0905-15” and contained a lengthy description of the supervisory and
managerial authority to be exercised by the selectee. (Def.’s Ex. 7.) And finally, the Vacancy
Announcement itself required that qualified candidates demonstrate that they had successfully
“supervised a staff of professionals.” (Def.’s Ex. 8.) There is simply no question that plaintiff’s
employers considered the DAGC position to be a supervisory one.
Additionally, there is no evidence that plaintiff’s supervisors believed that the DAGC
position had to be filled by someone within the Finance Division. Well before the Vacancy
Announcement was even posted, Mr. Opitz stated that he knew of “several talented attorneys
both inside and outside the division who would be good candidates” for the position. (Def.’s Ex.
4 (emphasis added).) And indeed, of the seven applicants whom the Office of Human Resources
deemed to be the “best qualified” for the position, only Ms. Mulrain had previous experience in
the Finance Division, which plaintiff’s expert now says is the only HUD office in which an
applicant could have acquired the necessary experience to be so “qualified,” whereas the six
other applicants came from a variety of other OGC offices. (See Def.’s Statement ¶ 29; Def.’s
Mot. at 9.)
That breadth of experience among the “best qualified candidates” is unsurprising.
Nothing in the Vacancy Announcement required that the applicants come from within the
Finance Division or have previous experience working with GNMA-related matters. To the
contrary, although it was clear from the Vacancy Announcement that the selected candidate
would be required to work on GNMA program matters, the specialized legal experience required
was defined broadly to include “demonstrated knowledge of federal law and practices related to
the secondary mortgage market, banking, structured finance, mortgage-backed securities,

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bankruptcy and tax.” (Def.’s Ex. 8.) Similarly, the first Quality Ranking Factor was
“[k]knowledge of federal law and practices related to the program and mission of HUD.” (Id.)
The Vacancy Announcement specified that such knowledge “could include any of” several
experiences, of which GNMA experience was only one. (Id.)
Thus, there is simply no evidence from which a jury could reasonably find that—given
their understanding of the job requirements—her employers did not “honestly believe” Ms.
Malone was qualified for the DAGC position when they reassigned her into that position.
Anderson, 477 U.S. at 252. That they may have been inaccurate (which they were not) in
believing her to be qualified is irrelevant. See Tolson v. James, 315 F. Supp. 2d 110, 116 n. 5
(D.D.C. 2004) (noting that the accuracy of the determination that the applicant was minimally
qualified for the position “has no bearing” on the employer’s honest belief that the applicant had
the most relevant experience for the position).3
Because both Ms. Mulrain and Ms. Malone met the objective requirements for the DAGC
position as their employers understood them, the Court must defer to the government’s decision
to select Ms. Malone—and thereby retain her services within the agency—over Ms. Mulrain.
The selection of a well-respected employee with significant supervisory experience but no
3

Plaintiff also relies on declarations from two former OGC employees, James Fagerberg and
Sam Hutchinson, who offered their opinions that GNMA issues are so highly specialized that
only an attorney with experience in the Finance Division would be qualified to address them;
even attorneys with seemingly related experience in other HUD Divisions—like Ms. Malone—
would not be qualified. (See, e.g., Pl.’s Opp’n at 12-13 & n.5.) However, neither Mr. Fagerberg
nor Mr. Hutchinson was actually employed at HUD at the time the DAGC position was being
filled (and Mr. Hutchinson was never employed in the Finance Division), and thus neither was
involved in the creation of the DAGC position or in filling it. Thus, their opinions of the
necessary qualifications for the job have no bearing on what Ms. Mulrain’s supervisors
legitimately believed the job requirements to be. It is well established that “[i]t is the perception
of the decisionmaker which is relevant.” Waterhouse, 124 F. Supp. 2d at 7. Their opinions
therefore are not sufficient to defeat summary judgment.
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GNMA-specific expertise over one with significant GNMA expertise but far less supervisory
experience is precisely the type of business decision that courts are not to second-guess. See
Jackson v. Gonzales, 496 F.3d 703, 708 (D.C. Cir. 2007). Courts must not act as “superpersonnel department[s] that reexamine[] an entity’s business decision[s].” Stewart v. Ashcroft,
352 F.3d 422, 429 (D.C. Cir. 2003) (internal quotation marks omitted). Instead, faced with such
a decision, courts must “‘defer to the [employer’s] decision of what nondiscriminatory qualities
it will seek’ in filling s position.” Jackson, 496 F.3d at 708 (quoting Stewart, 352 F.3d at 429).
B.

Lack of Documentation of Ms. Malone’s Qualifications

As further support for her assertion that defendant’s proffered reason for hiring Ms.
Malone is pretextual, plaintiff argues—again relying on her expert—that defendant “could not
just laterally reassign Ms. Malone into the Deputy Assistant GC position without a specific,
recorded determination that she met all of the objective experiential requirements specified by
HUD.” (Pl.’s Opp’n at 34.) According to plaintiff, since her expert did not find evidence that
HUD in fact made such a formal determination, defendant’s motion should be denied. (Id.)
As an initial matter, it is unclear what authority, if any, plaintiff relies on to support her
expert’s view that such a determination is required. Additionally, the signature on the internal
document prepared for Ms. Malone’s reassignment into the DAGC position verified that “the
proposed action was in compliance with statutory and regulatory requirements.” (Def.’s Ex. 24.)
Neither plaintiff nor her expert has provided an explanation as to why that statement is
insufficient to meet the supposed documentation requirement. But regardless, violation of hiring
protocol is not, by itself, sufficient to justify an inference of discriminatory intent; instead, it
“‘may’ be probative of the employer’s ‘true motivation’ if (1) the violation is suspicious, in and

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of itself, (2) the agency ‘inexplicably departed’ from its normal procedures, or (3) the violation
inherently raises credibility questions.” Perry v. Shinseki, 783 F. Supp. 2d 125, 138-39 (D.D.C.
2011) (internal citations omitted). But here, there is no evidence that defendant’s actions in this
case were inconsistent with its normal procedures, nor do plaintiff’s conclusory allegations of
discriminatory intent suffice to render defendant’s actions suspicious or lacking in credibility.
To the contrary, it is clear from the undisputed evidence that Mr. Opitz, Ms. Davies, and
Ms. Cruciani were all familiar with Ms. Malone’s excellent reputation within the agency (see
Def.’s Statement ¶¶ 41, 48, 50, 53), and they believed that she in fact possessed the qualifications
that they thought were necessary for the job.
C.

Inconsistencies in Defendant’s Positions

Plaintiff also argues that minor inconsistencies in defendant’s positions over time
demonstrate that defendant’s stated reason for hiring Ms. Malone is pretextual. (Pl.’s Opp’n at
37-40.) Having reviewed these alleged inconsistencies, the Court finds that none of them gives
rise to a genuine dispute of material fact so as to defeat summary judgment.
First, many of the alleged inconsistencies are nothing of the sort. For example, plaintiff
points to the fact that HUD told the EEOC that its only reason for selecting Ms. Malone for the
position was to retain her services within the agency, not because she was objectively more
qualified than Ms. Mulrain, as it now claims in this litigation. (See id. at 5-6, 39.) However,
these positions are not inconsistent; HUD still cites its desire to keep Ms. Malone as an employee
as its primary reason for reassigning her; the mere fact that—when challenged by plaintiff’s
expert—they have also explained how her experience satisfies the necessary job qualifications in
no way supports any argument of pretext. Similarly, plaintiff points to the fact that although Ms.

15

Cruciani said she was motivated to reassign Ms. Malone into the DAGC position because Mr.
Opitz and Ms. Davies were “excited to get her,” Mr. Opitz said he “did not make a
recommendation” to Ms. Cruciani and Ms. Davies said she “was not involved in the final
decision” to reassign Ms. Malone. (Id. at 38-39.) But those are not inconsistent facts. Plaintiff
admits that Mr. Opitz told Ms. Cruciani that he and Ms. Davies would “be happy” with having
Ms. Malone reassigned into the Finance Division; the difference between “excited” and
“pleased” is hardly a sufficient basis for inferring pretext.
Second, many of the alleged inconsistencies are mere gaps in recollection. For example,
plaintiff lists several details of the hiring process that Mr. Opitz failed to recall at his depositions,
including what was said in the candidates’ interviews, whether he discussed the candidates with
Ms. Davies, who directed Ms. Malone to speak with him about the Finance Division opening and
what was said in his meeting with Ms. Malone. (Id. at 40-41.) But “plaintiff must do more than
merely express an intent to challenge the credibility of the defendant’s witnesses on cross
examination. Plaintiff must produce specific facts that raise an inference of discriminatory
motive.” Howell v. Sullivan, 1992 WL 675147, at *5 (D.D.C. 1992) (internal quotation marks
and citations omitted). Minor gaps in Mr. Opitz’s recollection of events that occurred over a
year earlier do not suggest any discriminatory animus on his part.
“[F]actual disputes that are ‘irrelevant or unnecessary’ do not affect the summary
judgment determination.” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting
Anderson, 477 U.S. at 248). None of the disputed facts cited by plaintiff are material to the
outcome of the litigation because they do not give rise to an inference of discrimination. Instead,
“[a]ll of plaintiff’s allegations are ‘merely colorable’ and ‘not significantly probative,’ making

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them inadequate to defeat summary judgment.” Von Muhlenbrock v. Billington, 579 F. Supp. 2d
39, 44 (D.D.C. 2008) (quoting Anderson, 477 U.S. at 249-50). Even if viewed in the light most
favorable to plaintiff, these discrepancies would not allow a reasonable jury to conclude that “the
employer’s asserted non-discriminatory reason was not the actual reason and that the employer
intentionally discriminated against the employee on the basis of race . . . .” Brady, 520 F.3d at
494.
D.

Other Evidence of Pretext

Plaintiff makes several other arguments to support her view that defendant was motivated
by discriminatory intent. First, plaintiff asserts that defendant steered Ms. Malone into the
Finance Division DAGC position so as not to have to offer the position to Ms. Mulrain. (See
Pl.’s Opp’n at 4-5, 19-20, 42.) It is undisputed that Ms. Malone was encouraged to consider
several positions, of which the Finance Division was only one. (Def.’s Statement ¶¶ 44-47.) But
even if Ms. Malone had been encouraged to apply for only the DAGC position, that would not
raise an inference of discrimination. See, e.g., Perry, 783 F. Supp. 2d at 143 (finding that
evidence that employer steered the position toward the eventual selectee was “not actionable”
absent some evidence that the decision was based on a discriminatory motive); Downing v.
Tapella, 729 F. Supp. 2d 88, 97 (D.D.C. 2010) (finding that pre-selection “does not bear on
[plaintiff’s] discrimination claim” because plaintiff did not “allege or offer any evidence that a
discriminatory animus factored in the pre-selection”). Because plaintiff has not offered any
credible evidence that defendant was motivated by discriminatory intent in hiring Ms. Malone,
the mere fact that she may have been steered into the DAGC position does not create a genuine

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issue of fact as to whether defendant’s stated reason for hiring her was pretextual. See Tolson,
315 F. Supp. 2d at 118-19.
Plaintiff also alleges that Ms. Cruciani created a GS-15 position specifically for a
Caucasian applicant for the DAGC position and went over her African-American supervisor’s
head to reassign that person into the position. (Pl.’s Opp’n at 42.) Plaintiff asserts that evidence
of better treatment of even one similarly situated employee is evidence of discrimination. (Id. at
42 n. 19.) However, the Court is not persuaded that this action in fact constituted “better
treatment of a similarly situated employee.” There is no evidence that Ms. Mulrain—like the
Caucasian employee in question—contacted Ms. Cruciani about other reassignment possibilities,
nor that she was either interested in or qualified for the position that was eventually filled by that
employee.
Importantly, in addition to plaintiff, several other applicants, including two Caucasians,
were passed over in favor of Ms. Malone. The record also reflects defendant’s long history of
favorable treatment of Ms. Mulrain. For example, it was Ms. Davies herself who initially agreed
to reassign Ms. Mulrain into the Finance Division from another HUD component (despite her
lack of GNMA experience, which plaintiff now contends is required in order to work in the
Division). (See Def.’s Mot. at 8.) Ms. Mulrain had received outstanding performance ratings
from both Ms. Davies and Mr. Opitz, and Ms. Mulrain even admitted that Ms. Davies had said
she was “happy” that Ms. Mulrain had applied for the DAGC position. (See id. at 8-9.)
These are not the actions of an employer who harbors a discriminatory animus. As this
Circuit has often noted, “when the person who made the decision to fire was the same person
who made the decision to hire, it is difficult to impute to [that person] an invidious motivation

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that would be inconsistent with the decision to hire.” Vatel v. Alliance of Auto. Mfrs., 627 F.3d
1245, 1247 (D.C. Cir. 2011) (internal quotation marks omitted) (citing Waterhouse, 298 F.3d at
996. The same is true in a non-selection case; for instance, in Higgins v. Inspector General, U.S.
Dep’t of Housing and Urban Development, 851 F. Supp. 2d 178 (D.D.C. 2012), this Court
declined to impute discriminatory intent to an employer’s non-selection of the plaintiff where the
employer had promoted the plaintiff to his current position and provided him with increasing job
responsibilities and opportunities over his years of employment. Id. at 189.
Thus, given this evidence that Ms. Mulrain’s supervisors had treated her more than
favorably throughout her years in the Finance Division, as well as the lack of any basis for a jury
to infer discriminatory intent on the part of defendant, the Court finds that plaintiff has not
rebutted defendant’s legitimate, nondiscriminatory reason for laterally moving Ms. Malone into
the DAGC position.
IV.

MIXED MOTIVE
Plaintiff also raises a mixed motive theory of relief under which a plaintiff “does not

contest the bona fides of the employer’s justifications but rather argues race was also a factor
motivating the adverse action.” Ginger v. Dist. of Columbia, 527 F.3d 1340, 1345 (D.C. Cir.
2008). As already explained in Section III above, plaintiff has failed to offer any probative
evidence raising a genuine issue of fact as to whether defendant impermissibly considered Ms.
Mulrain’s race in declining to select her for the DAGC position, and therefore she cannot
succeed on a mixed motive approach.

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CONCLUSION
For the foregoing reasons, the Court grants defendant’s motion for summary judgment.
A separate order accompanies this Memorandum Opinion.

/s/___________
ELLEN SEGAL HUVELLE
United States District Judge
DATE: October 29, 2012

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