KILBY-ROBB v. DUNCAN
MEMORANDUM OPINION granting Defendant's motion for summary judgment 24 . Signed by Judge Randolph D. Moss on 3/30/2017. (lcrdm3, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 13-718 (RDM)
ELISABETH DEVOS, Secretary, U.S.
Department of Education,
Plaintiff Patricia Kilby-Robb was passed over for a promotion at the Department of
Education in 2011. She then sued the Department, alleging unlawful discrimination on the
bases of age, race, and color, as well as unlawful retaliation, all in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act of 1967
(“ADEA”). The parties have since completed discovery. Because Kilby-Robb has adduced no
competent evidence that her nonselection occurred for discriminatory or retaliatory reasons, the
Court will GRANT the Department’s motion for summary judgment.
Kilby-Robb’s Employment at the Department Prior to 2011
Kilby-Robb, who is African-American, has worked as an Education Program Specialist at
the Department of Education since June 2000. Dkt. 24 at 3 (Def.’s Statement of Undisputed
Material Facts (“SUMF”) ¶ 2). She was fifty-two years old when she began. See Dkt. 27 at 3.
Between 2000 and 2002, she worked in the Department’s Office of Elementary and Secondary
Education, after which she was transferred to the Office of Innovation and Improvement (“OII”).
Dkt. 24 at 3 (Def.’s SUMF ¶ 2). The OII is charged with administering certain discretionary
educational grant programs, including the Parental Information Resource Centers (“PIRC”)
program and the Charter Schools Program (“CSP”). Id. (Def.’s SUMF ¶¶ 1, 2). Kilby-Robb
worked in the PIRC program between 2002 and 2009, and the CSP from 2009 through the
relevant events in 2011. Id. (Def.’s SUMF ¶ 2). She retained the same job title (Education
Program Specialist) and the same pay grade (GS-13, step 10) throughout her time at the
Department. Dkt. 27-2 at 3 (Kilby-Robb Decl. ¶ 2).
Between 2002 and August 2010, Kilby-Robb filed five equal employment opportunity
(“EEO”) complaints against the Department, generating substantial litigation. Dkt. 27-2 at 25;
see Kilby-Robb v. DeVos, No. 14-cv-2200 (TSC) (D.D.C. Mar. 30, 2017) (slip op.) (granting
summary judgment for the Department on all claims); Kilby-Robb v. Duncan, --- F. Supp. 3d ---,
2016 WL 5415616 (D.D.C. Sept. 28, 2016) (granting summary judgment for the Department on
all claims); Kilby-Robb v. Duncan, 77 F. Supp. 3d 164 (D.D.C. 2015) (granting summary
judgment for the Department on race and age discrimination nonselection claims and denying
summary judgment on retaliation claims); Kilby-Robb v. Spellings, 522 F. Supp. 2d 148 (D.D.C.
2007) (granting summary judgment for the Department on all claims), aff’d, 309 Fed. App’x 422
(D.C. Cir. 2009). The factual bases for those complaints, however, are not present in the record.
What is in the record is Kilby-Robb’s sworn testimony (in the form of verified
interrogatory responses and a declaration), in which she says that she was “plainly targeted” by
the Associate Assistant Deputy Secretary for OII, Margo Anderson. Dkt. 27-2 at 16 (KilbyRobb Resp. to Interr. No. 5); see also Dkt. 27-2 at 2–6 (Kilby-Robb Decl.). Anderson, who is a
Caucasian woman above the age of forty, served as Kilby-Robb’s second-line supervisor (i.e.,
the supervisor of Kilby-Robb’s supervisor), Dkt. 24 at 4 (Def.’s SUMF ¶ 4), and “was the
authorizing authority for which positions are advertised to hire or promote an employee” in OII.
Dkt. 27-2 at 3 (Kilby-Robb Decl. ¶ 6).
According to Kilby-Robb, Anderson “consistently” passed over her for promotions “in
favor of younger, Caucasian employees” whom Kilby-Robb views as less qualified than herself.
Dkt. 27-2 at 14 (Kilby-Robb Resp. to Interr. No. 5). Kilby-Robb lists four such employees as
examples, see id. at 14–15, but does not elaborate on their relative qualifications. Kilby-Robb
does say, however, that four of her first-line supervisors told her at various points between 2003
and 2011 that Anderson “said she would never promote [Kilby-Robb]” and that, during a
meeting to discuss her 2007–2008 performance evaluation, Kilby-Robb’s first-line manager said
that Anderson “hates” her. Dkt. 27-2 at 4 (Kilby-Robb Decl. ¶ 8).
Kilby-Robb argues in her brief that Anderson and her “subordinates” made “several
statements demonstrating their discriminatory biases.” Dkt. 27 at 5. In Kilby-Robb’s declaration
and interrogatory responses, she recounts the following incidents, which she asserts provide
relevant background for her current claims:
(1) In 2002, Anderson told the union steward, Shelton Allen, that “certain AfricanAmericans should not have been promoted, particularly a certain African-American male
who[m] [Anderson] did not like.” Dkt. 27-2 at 15–16 (Kilby-Robb Resp. to Interr. No.
5). In response, Allen “became agitated and called . . . Anderson racist.” Id. Kilby-Robb
does not explain how she has personal knowledge of this incident. See id.
(2) On another unspecified occasion, several African-American men whom Anderson had
passed over for promotion confronted Anderson, and Anderson “stated that there were
African-American males that did not deserve to be promoted.” Dkt. 27-2 at 15 (Kilby-
Robb Resp. to Interr. No. 5). Kilby-Robb does not explain how she has personal
knowledge of this incident, either. See id.
(3) During a meeting in 2004, Kilby-Robb heard one of Anderson’s subordinates state that
the subordinate “would hire African-American males if [the subordinate] could find any
who were competent.” Dkt. 27-2 at 4 (Kilby-Robb Decl. ¶ 7). Anderson said nothing to
refute the statement. Id.
(4) In December 2004, Nina Rees, an Associate Deputy Secretary, told Kilby-Robb that
Kilby-Robb “should have been ‘fired’ for filing an EEO complaint.” 1 Dkt. 27-2 at 4
(Kilby-Robb Decl. ¶ 9).
(5) Also in December 2004, Kilby-Robb’s then-first-line supervisor, John Fiegel, told her
that he “want[ed] [her] out of [his] program.” Dkt. 27-2 at 4 (Kilby-Robb Decl. ¶ 9).
Kilby-Robb does not state why she believes this statement had a discriminatory or
retaliatory motive. See id.
(6) On an unspecified date, Fiegel told Kilby-Robb that “he had previously planned to submit
a request for payment on [her] behalf for [her] service as an ‘acting team leader,’” but
that “he was no longer going to submit this request because [she] had filed an EEO case.”
Dkt. 27-2 at 4 (Kilby-Robb Decl. ¶ 9).
(7) On another unspecified date, an Assistant Associate Deputy Secretary for OII, Michael
Petrilli, called Kilby-Robb to his office for a meeting and “stated, in reference to [her]
EEO complaint, ‘You have been a manager, and you know what is happening to you,
In one of Kilby-Robb’s prior lawsuits, Rees’s statement was held competent circumstantial
evidence from which a reasonable jury could find that Kilby-Robb’s 2005 nonselection to
another position in the PIRC office was motivated by retaliatory animus. See Kilby-Robb, 77
Fed. Supp. 3d at 176. The trial resulted in a verdict for the defense. See Kilby-Robb v. Duncan,
No. 12-cv-1718 (CRC), ECF No. 82 (D.D.C. Sept. 25, 2015).
don’t you?’” Dkt. 27-2 at 4 (Kilby-Robb Decl. ¶ 9). Kilby-Robb adds that Petrilli “told
[her] that [she] had to do what Macie Brown, Stacy Kreppel, and Courtney Phillips told
[her] to do,” id., but Kilby-Robb does not specify who those individuals are or what they
“told her to do.”
In 2009, Kilby-Robb was transferred to the CSP office, where her first-line supervisor
was initially Dean Kern. Dkt. 27-2 at 14 (Kilby-Robb Resp. to Interr. No. 5). Kern had
previously been one of Kilby-Robb’s peers, but had been promoted over her to the position of
Director of the CSP. Id. Kilby-Robb states that she “was the only person assigned to be
supervised by” Kern, that Kern “immediately removed all of [her] higher level duties,” and that
Kern “worked closely with . . . Anderson to attempt to get rid of [her].” Id. Kilby-Robb declares
“on information and belief” that Kern and his successor, Scott Pearson, “refused to assign
[Kilby-Robb] CSP grants to prevent [her] from receiving a promotion in the CSP.” Dkt. 27-2 at
4–5 (Kilby-Robb Decl. ¶ 10).
The 2011 SMPA Vacancy Announcement
In June 2011, Stefan Huh, an Asian/Caucasian man over forty, became a Supervisory
Management and Program Analyst (“SMPA”) in the CSP office. Dkt. 24 at 4 (Def.’s SUMF
¶ 3). Shortly thereafter, Huh decided to create a new SMPA position, whose occupant would
share his responsibilities. Dkt. 24 at 4 (Def.’s SUMF ¶ 8); Dkt. 24-1 at 47–49 (Hsu Aff. ¶¶ 18,
28, 30). Because Huh was relatively new to the agency, the OII’s Executive Officer, Pat Knight,
“discuss[ed] with him the selection process and the possible forms he could use.” Dkt. 24-2 at
11 (Knight Aff. ¶ 10). Knight did not, however, “discuss the selection [itself] or [any]
applicants.” Id. Huh attests that neither Anderson nor Knight “influenced . . . or contacted” him
regarding the position; rather, they merely “reinforced the need and expectation that there would
be an appropriate and fair interview process.” Dkt. 24-1 at 47 (Huh Aff. ¶ 18); accord Dkt. 24-2
at 3 (Anderson Aff. ¶¶ 9–14) (“I was not involved in any way with the selection for this
position.”); id. at 11 (Knight Aff. ¶¶ 9–13) (“I did not try to influence the selection for this
position in any way.”); see also id. at 20 (Araujo Aff. ¶¶ 14–15); id. at 31 (Ceja Aff. ¶¶ 14–15).
According to Huh, “[p]osting and designing the position was all at [his] discretion and under
[his] control.” Dkt. 24-1 at 47 (Huh Aff. ¶ 18).
The new SMPA position was listed in a public vacancy announcement from September 9,
2011, to September 16, 2011. Dkt. 24 at 5 (Def.’s SUMF ¶ 11); see Dkt. 24-3 at 2–4. It carried
a GS-14 pay grade. Dkt. 24-3 at 2. According to the announcement, the position was
established to help “oversee key grant programs and contracts,” “supervise employees,” and
analyze both the effectiveness and efficiency of general CSP programs and management. Id.
The announcement emphasized that the hiree would oversee the grant programs for “state
education agencies” (“SEAs”), 2 non-SEAs, and Charter School Management Organizations
(“CMOs”). Id. The hiree would also “oversee and implement” the “National Charter Schools
Resource contract.” Id. In service of this last requirement, the hiree would have to be certified
as a “contracting officer representative,” or “COR.” Id.
The official job description listed specific “unique position requirements”:
1. Oversee the following Charter School grant programs . . . : SEA, Non-SEA,
CMO. This involves the following . . . :
A “[s]tate educational agency” is a term of art in the field meaning “the agency primarily
responsible for the State supervision of public elementary schools and secondary schools.” 20
U.S.C.A. § 7801(49).
a. Direct and oversee all activities for the program grant competitions and
awarding of grants including: drafting federal register notices; creating
application packages; drafting technical review plans; overseeing
competition management and panel facilitation; completing internal review;
analyzing applicant budgets and determining any budget modifications;
drafting a slate memo for Departmental clearance; processing awards; and
communicating with approved and disapproved applicants.
b. Direct and oversee the monitoring of grants, including interacting with
current prospective grantees and responding to their concerns and
questions; conducting post-award calls; conducting quarterly monitoring
updates; updating G5 accounts and spreadsheets; consulting with OGC as
questions arise; and tracking grantee responsiveness to our monitoring visits
c. Direct and oversee the process to award the noncompetitive grant
continuation awards including reviewing budgets and grant drawdowns and
preparing continuation recommendations;
2. Supervise and manage at least three employees, taking responsibility for
assisting them achieve their professional objectives; providing oversight,
coaching, feedback, and assistance on a regular basis; setting REACH critical
elements and performance standards; providing interim and year-end
evaluations, and addressing any conduct or performance issues.
3. [O]versee implementation of the National Charter Schools Resource Center
contract including developing the contract's annual modifications, providing
weekly guidance to the contractor on the execution of the contract; overseeing
implementation of the major elements of the contract; reviewing budgets and
expenditures to ensure efficient use of federal funds. A certified COR is
4. Represent the program to stakeholders and outside constituencies, including
leading project director's meetings, providing first- or second-level responses
to grantees, communicating with outside parties, and representing the
Department before stakeholder groups.
Dkt. 24-4 at 8–9 (emphases added). Kilby-Robb states in her declaration that the vacancy
announcement “did not use the standard elements for ‘Grants Management’ and ‘COR’ duties
and responsibilities, which are typically used for [SMPA] positions.” Dkt. 27-2 at 5 (KilbyRobb Decl. ¶ 11).
The Human Resources department identified two employees whom it “deemed to be
qualified”: (1) Kilby-Robb, who was then sixty-three years old, and (2) Erin Pfeltz, a thirty-twoyear-old Caucasian woman with no prior EEO activity. Dkt. 24-1 at 45 (Huh Aff. ¶ 10); accord
Dkt. 24 at 6 (Def.’s SUMF ¶¶ 17, 18). Both candidates were selected for interviews.
Kilby-Robb holds two degrees from Howard University: a Bachelor’s in psychology,
education, and mathematics she earned in 1970, and a Master’s in developmental psychology
and education she earned in 1974. Dkt. 24-1 at 34 (Kilby-Robb Resume). She has also pursued
other educational opportunities, including participating in two Ph.D. programs. Id. Before
starting her career at the Department, she spent “[m]ore than twenty-five years” as an educator in
the District of Columbia public school system. Id. at 31, 34. Between 1968 and 1999, she
worked in local public schools in various capacities including teacher, counselor, and ultimately,
principal. Id. at 36–37. In the mid-1990s, she led a “two-year quest” for her school’s elementary
school accreditation, which the school received in 1997. Id. at 37. She was at one point selected
the “Principal of the Year.” Id. at 36. In addition, between October 1999 and June 2000, she
worked as an “education consultant,” where she implemented educational reforms to “turn
around low-performing schools” across the country. Id. at 36.
In 2000, Kilby-Robb began working at the Department in the Office of Elementary and
Secondary Education, where she worked until 2002. Some of her responsibilities involved
“grants management.” Id. at 35. Between 2002 and 2009, she worked in the OII’s PIRC office.
Id. In that capacity, she again served as a grant review competition manger in 2002, 2003, and
2006, and served as the COR for the National PIRC Coordination Center, which, according to
her resume, required her to “[r]eview and approve performance and evaluation electronic
system[s] to collect, compile, summarize, and analyze qualitative and quantitative performance
data.” Id. Finally, in 2009, she began work at the CSP office, where she “was not given any
grants in the Charter Schools program.” Dkt. 24-3 at 47 (Kilby Robb. Resp. to Interr. 11 in
another of her lawsuits); see also Dkt. 29-1 at 2–3 (Kilby-Robb Dep. 27–28). Instead, she
worked primarily on “funds in education” grants, which she characterizes as “low level” work
“generally reserved for career interns and employees below a GS-12 level.” Dkt. 24-3 at 47–48.
Pfeltz received a Bachelor’s degree in Economics from St. Mary’s College of Maryland
in 2001, and a Master’s degree in International Affairs from George Washington University in
2003. Dkt. 24-3 at 36 (Pfeltz Resume). As Kilby-Robb emphasizes, Margo Anderson (i.e.,
Kilby-Robb’s second-line supervisor), was the sister of Pfeltz’s aunt, and encouraged Pfeltz to
apply to the Department after graduation. Dkt. 27 at 9 (citing Dkt. 28-1 at 101 (Pfeltz Dep.
Pfeltz did apply, and in 2004 she began her career in the CSP office, Dkt. 24-3 at 35,
where she progressed quickly through the ranks. Her initial role was as a GS-7 Management and
Program Analyst “for the non-SEA grantee portfolio.” Dkt. 28-1 at 11 (Pfeltz Dep. 10).
Thirteen months later, she was promoted to GS-9, and took on responsibility for “a larger
portfolio of [non-SEA] grantees.” Id. at 14–15 (Pfeltz Dep. 13–14). Many of her responsibilities
were among those specifically listed in the new position’s description, including: “drafting the
[federal register] notices for the grant competition,” id. at 15–16 (Pfeltz Dep. 14–15), “putting
together the technical review plan[s],” id. at 16, 20 (Pfeltz Dep. 15, 19); “participating in
competition as a panel monitor,” id. at 11 (Pfeltz Dep. 10), “completing budget reviews” and
making funding recommendations, id. at 67 (Pfeltz Dep. 66); “developing slate memos,” id.;
“communication with the grantees,” id. at 11 (Pfetlz Dep. 10); “review of performance reports
and data submitted by grantees [to] determine whether or not grantees in the grant program
w[ere] performing well,” id. at 54–55 (Pfeltz Dep. 53–54); providing technical assistance to
grantees, id. at 24 (Pfeltz Dep. 23); “conducting monitoring and site visits for grantees,” id. at 22
(Pfeltz Dep. 21); and “developing the peer reviewer training and setting up the peer reviewer
system in [the] G5 [software],” id. at 20 (Pfeltz Dep. 19). After another twelve months, she was
promoted again to a GS-11 Management and Program Analyst. Id. at 20–21 (Pfeltz Dep. 19–
20). Her responsibilities at this level remained largely the same but at “a more autonomous
level.” Id. at 22 (Pfeltz Dep. 21).
In September 2009, Pfeltz received a promotion to a GS-13 Management and Program
Analyst, the highest possible grade for that position. Id. at 28 (Pfeltz Dep. 27). Her duties
continued to involve “grant competitions and management and monitoring of grantees and grant
programs,” id. at 29 (Pfeltz Dep. 28), but her promotion also carried two new responsibilities.
First, she “began to take over responsibility for a new grant program”: the competition for
Charter School Management Organizations. Id. at 32 (Pfeltz Dep. 31). Because the CMO
program “was a new competition that hadn’t been run before,” Pfeltz had to “[work] from
scratch” to develop criteria by which CMOs would be solicited and evaluated. Id. at 32–33
(Pfeltz Dep. 31–32). Second, starting in fall 2009, Pfeltz served as “the primary COR” for the
National Charter Schools Resource Center contract. Id. at 60–61 (Pfeltz Dep. 59–60); accord id.
at 40 (Pfeltz Dep. 39). Her role as COR required her to “represent [the Department] to
stakeholders and constituencies,” including at the National Charter School Conference and “the
occasional” State Charter School Conference. Id. at 62–63 (Pfeltz Dep. 61–62). On August 20,
2010, Pfeltz’s supervisor nominated her for a “Special Act Award,” praising her for “stepp[ing]
up to essentially oversee the CMO competition on her own,” while simultaneously “overs[eeing]
[the] relationship with Learning Point and the National Charter Resource Center.” Dkt. 24-4 at
Pfeltz agrees, however, that by the time the contested SMPA position became available in
2011, she had only “a little” experience with the SEA program (as opposed to the non-SEA
program, with which she was well-versed), Dkt. 28-1 at 39 (Pfeltz Dep. 38), and that she “had no
responsibility for supervising employees,” id. at 54 (Pfeltz Dep. 53).
The Interview and Selection Process
Huh was the “selecting official” for the new GS-14 SMPA position, Dkt. 24-1 at 45 (Huh
Aff. ¶ 10), but the interview and evaluation was conducted by a panel of three people: (1) Liza
Araujo, an African-American woman over forty; (2) Beatriz Ceja, a Hispanic woman over forty;
and (3) Huh himself, Dkt. 24 at 7–8 (Def.’s SUMF ¶¶ 21, 30). The panel interviewed both
Kilby-Robb and Pfeltz, using the same set of interview questions. Id. (Def.’s SUMF ¶ 22). The
candidates were given equal time to respond to each question. Id. Araujo’s notes documented
the candidates’ answers. See Dkt. 24-4 at 13–17, 19–23. Each panel member scored each
applicant individually. Dkt. 24 at 7 (Def.’s SUMF ¶ 23). The scores from the panel members
were then combined “for a group consensus” at a meeting. Id. Kilby-Robb received a total score
of 6, whereas Pfeltz received a score of 7.5. Dkt. 24-4 at 2, 4.
The panel agreed that, although Kilby-Robb “ha[d] more supervisory experience,” she
was “not able to demonstrate a full understanding of the technical area.” Dkt. 24-1 at 46 (Huh
Aff. ¶ 12). “In the very general policy area of charter schools,” Huh attested, “Pfeltz was able to
better demonstrate her understanding of factors that impact charter schools.” Id. (Huh Aff. ¶ 14).
He added that Pfeltz “demonstrated greater understanding than” did Kilby-Robb regarding
“federal grant programs, designing new programs, conducting grant competitions, and
monitoring grantees at a high level.” Id. Araujo concurred that Pfeltz “demonstrated a clear
understanding of the full scope of the job”; that Pfeltz’s work experiences were “consistent with
the requirements of th[e] position”; and that her “responses were more comprehensive and
thought out,” whereas Kilby-Robb’s answers “were more general and focused more on her work
with other programs.” Dkt. 24-2 at 20 (Araujo Aff. ¶ 13). Ceja also agreed that Pfeltz “was
more comprehensive in her responses” and that, “[b]ecause of her background, [Pfeltz] displayed
a detailed knowledge of the programs for th[e] position.” Id. at 31 (Ceja Aff. ¶ 13). “It was the
joint consensus of the panel that [Pfeltz] was best qualified for the position,” so Huh selected
Pfeltz. Dkt. 24-1 at 45, 47 (Huh Aff. ¶¶ 10, 15).
The Current Litigation
On January 5, 2012, Kilby-Robb filed a formal discrimination complaint with the
Department’s EEO office. Dkt. 1 at 6 (Compl. ¶ 30); see id. at 10. The Department undertook
an investigation, see Dkt. 1 at 15–29 (Investigative Summary), and collected affidavit testimony
from Kilby-Robb, Dkt. 24-1 at 4–25; Huh, id. at 44–53; Anderson, Dkt. 24-2 at 2–5; Knight, id.
at 10–16; Araujo, id. at 18–24; Ceja, id. at 29–33; and an additional witness whose testimony is
not in the record, see Dkt. 1 at 12–13. On February 7, 2013, the Department issued a final
decision finding that no unlawful discrimination occurred. Dkt. 1 at 30–40. Kilby-Robb then
filed a pro se complaint in this Court. See Dkt. 1 at 6 (Compl. ¶¶ 32–34). She later retained
counsel. Dkt. 7. The parties engaged in discovery for almost nine months, see Dkt. 6; Minute
Entry of November 13, 2014, and the Department then moved for summary judgment, Dkt. 24.
II. LEGAL STANDARD
The moving party is entitled to summary judgment under Federal Rule of Civil Procedure
56 if it can “show that there is no genuine dispute as to any material fact and [that it] is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When, as here, the plaintiff bears the
ultimate burden of proof, but the defendant has moved for summary judgment, the defendant
“bears the initial responsibility” of “identifying those portions” of the record that “demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A fact is “material” if it could affect the substantive outcome of the litigation. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute 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). In determining whether the nonmoving party has raised a
genuine issue of material dispute, the Court must view the evidence in the light most favorable to
the nonmoving party and must draw all reasonable inferences in that party’s favor. See Talavera
v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).
“Although summary judgment is not the occasion for the court to weigh credibility or
evidence, . . . summary judgment is appropriate if the nonmoving party 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.” Id. (internal citations and quotation marks omitted).
The nonmoving party’s opposition, accordingly, must consist of more than 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. See Fed. R.
Civ. P. 56(c); Celotex, 477 U.S. at 324. That is, once the moving party carries its initial burden
on summary judgment, the nonmoving party must provide evidence that would permit a
reasonable jury to find in its favor. See Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir.
1987). If the nonmoving party's evidence is “merely colorable” or “not significantly probative,”
the Court should grant summary judgment. Liberty Lobby, 477 U.S. at 249–50.
Title VII prohibits the federal government from discriminating against its employees on
the basis of race or color, 42 U.S.C. § 2000e-16, and from retaliating against employees who
participate in Title VII investigations or proceedings, see id. § 2000e-3(a); Walker v. Johnson,
798 F.3d 1085, 1091 (D.C. Cir. 2015) (citing Barnes v. Costle, 561 F.2d 983, 988 (D.C. Cir.
1977)). The ADEA likewise prohibits the federal government from discriminating against its
employees aged forty or older on the basis of age, 29 U.S.C. § 633a(a), and from retaliating
against them for filing age discrimination complaints, Gomez-Perez v. Potter, 553 U.S. 474, 479
When the employee relies on circumstantial evidence to prove her employer’s intent, her
claims are evaluated under the familiar burden-shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). See, e.g., DeJesus v. WP Co. LLC, 841 F.3d 527, 532 (D.C. Cir.
2016) (Title VII and ADEA discrimination); Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir.
2009) (Title VII and ADEA retaliation). “Under this formula, an employee must first make out a
prima facie case of retaliation or discrimination. The employer must then come forward with a
legitimate, nondiscriminatory or non-retaliatory reason for the challenged action.” Morris v.
McCarthy, 825 F.3d 658, 668 (D.C. Cir. 2016) (citations omitted). Once the employer proffers a
legitimate non-discriminatory and non-retaliatory reason, however, the Court “need not—and
should not—decide whether the plaintiff actually made out a prima facie case.” Brady v. Office
of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Instead, the Court should decide only
the ultimate question: “Has the employee produced sufficient evidence for a reasonable jury to
find that the employer’s asserted nondiscriminatory [and non-retaliatory] reason was not the
actual reason and that the employer intentionally discriminated against the employee on the basis
of race, color, [or age], [or retaliated against the employee for engaging in protected activity]?”
Id.; accord Morris v. McCarthy, 825 F.3d at 668; Allen v. Johnson, 795 F.3d 34, 39 & n.4 (D.C.
Cir. 2015). On this question, “[t]he ultimate burden of persua[sion] . . . remains at all times with
the plaintiff.” Jackson v. Gonzales, 496 F.3d 703, 706 (D.C. Cir. 2007) (first alteration in
original) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).
Kilby-Robb contends that her 2011 nonselection for the SMPA position constituted
unlawful discrimination on the basis of race, color, and age, as well as retaliation under Title VII
and the ADEA. 3 Dkt. 1 at 6 (Compl. ¶ 33). And the Department has proffered a legitimate
reason for the nonselection—namely, that “Pfeltz was the stronger candidate.” Dkt. 24 at 15;
see also Dkt. 24-1 at 45–46 (Huh Aff. ¶¶ 10–14). The only question, therefore, is whether a
In addition to the nonselection, Kilby-Robb’s pro se complaint might be read to allege that the
Department discriminated on the basis of age when it planned to allocate employees between the
group supervised by Huh and the group supervised by the newly-hired SMPA. See Dkt. 1 at 5
(Compl. ¶¶ 25–27). Employees age forty or younger were allegedly to be placed in the first
group, while older employees were allegedly to be placed in the second. Id. (Compl. ¶ 25).
The Department’s motion addresses this claim by arguing, among other things, (1) that the
allocations were based not on age but on the characteristics of the employees’ programs; (2) that
one over-forty employee was placed in the “young” group and one under-forty employee was
placed in the “old” group; and (3) that Kilby-Robb’s placement in one supervisory group rather
than another is not an “adverse action” cognizable under the ADEA. Dkt. 24 at 26–27. KilbyRobb’s opposition does not address these issues. See Dkt. 27.
The Department’s factual assertions are taken as conceded, see Local Civil Rule 7(h), and the
Department’s legal assertion is correct, see, e.g., Broderick v. Donaldson, 437 F.3d 1226, 1233–
34 (D.C. Cir. 2006) (holding that for an employee to have her work reviewed by one supervisor
rather than another does not by itself constitute an adverse employment action). On these
grounds, the Court will grant summary judgment for the Department on this issue.
reasonable jury could find this stated reason “[to be] a mask” for discrimination or retaliation.
Allen, 795 F.3d at 39.
Race, Color, and Age Discrimination
Although Kilby-Robb does not neatly organize her arguments, see Dkt. 27 at 29–40, the
Court will consider the following categories in turn: (1) arguments from the purported disparity
in qualification between Kilby-Robb and Pfeltz; (2) arguments from Pfeltz’s alleged
“preselection” (i.e., that the new position was designed specifically for Pfeltz); (3) arguments
from alleged procedural deficiencies in the selection process; and (4) arguments from what the
Court can only describe as an alleged conspiracy. 4
None of these arguments is persuasive.
Kilby-Robb argues that her qualifications were so superior to Pfeltz’s that a reasonable
jury could infer that the Department’s proffered reason is pretextual. Dkt. 27 at 30–31, 36–40;
accord Dkt. 1 at 3–4 (Compl. ¶¶ 11–20). Although this Court does not sit as a “super-personnel
department,” Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1114 (D.C. Cir. 2016), a
qualifications gap may provide evidence of pretext if “a reasonable employer would have found
the plaintiff to be significantly better qualified for the job” than the applicant who was selected,
Hamilton v. Geithner, 666 F.3d 1344, 1352 (D.C. Cir. 2012) (emphasis added) (quoting Aka v.
In addition, Kilby-Robb’s complaint correctly observes that pretext may be inferred from the
employer’s “general treatment of minority employees.” Allen, 795 F.3d at 40; see Dkt. 1 at 5
(Compl. ¶ 28). The Department responds with a list of minority and above-forty OII employees
promoted through vacancy announcements between 2008 and 2014. Dkt. 24 at 8 (Def.’s SUMF
¶¶ 30, 31); see Dkt. 24-2 at 38–39. Although Kilby-Robb’s brief quibbles with the list as not
including two individuals Kilby-Robb believes to have been promoted, see Dkt. 27 at 34–35, she
does not meaningfully argue that the list’s contents give rise to an inference of pretext or that the
list otherwise demonstrates a pattern of discriminatory treatment of employees (even with the
modifications that she proffers).
Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998)). It is not enough, however, if a
reasonable juror could find the employer’s decision between the candidates to have been “close.”
Id. To permit an inference of pretext, the “disparity in qualifications” must be “great enough to
be inherently indicative of discrimination.” Id. That is, the plaintiff must be “‘markedly more
qualified,’ ‘substantially more qualified,’ or ‘significantly better qualified’ than the successful
candidate.” Id. (quoting Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006)); see also, e.g.,
Kilby-Robb v. Duncan, 77 F. Supp. 3d at 171–74 (applying this standard to find that Kilby-Robb
was not “significantly better qualified” than the candidate selected for a different position in
Here, the newly created SMPA position carried four “unique position requirements.”
First, the new SMPA’s primary responsibility was to “[o]versee the following Charter School
grant programs . . . : SEA, Non-SEA, [and] CMO.” Dkt. 24-4 at 8. This job would entail
“[d]irect[ing] and oversee[ing] all activities for the program grant competition” and “the
monitoring of grants.” Id. It would also require the SMPA to develop and evaluate new grant
programs and management policies. Dkt. 24-3 at 2. Second, the SMPA would have to
“[s]upervise and manage at least three employees.” Dkt. 24-4 at 8. Third, the SMPA would
have to “oversee implementation of the National Charter Schools Resource Center contract.” Id.
And fourth, the SMPA would have to “[r]epresent the program to stakeholders and outside
constituencies.” Id. The SMPA was also required to be a “certified COR.” Dkt. 24-3 at 2.
Having spent seven years at the CSP office as a Management and Program Analyst,
Pfeltz was indisputably well-qualified for the position of Supervisory Management and Program
Analyst. As Kilby-Robb acknowledges, Pfeltz quickly excelled during her tenure at the
Department: “[S]he received a merit promotion or step increase every single year of her
employment.” Dkt. 27 at 33 (Kilby-Robb’s Opp. Br.). In addition, the undisputed evidence
shows that Pfeltz brought a wealth of highly relevant experience. In terms of the first unique
position requirement, Pfeltz had spent seven years managing an expanding proportion of the nonSEA grant program and competition. That role required her regularly to perform more than ten
of the specific job responsibilities listed in the new job’s description. See supra Part I.C.2.
Pfeltz had also spent two years running the fledgling CMO program, requiring her to develop
and apply entirely new criteria for analyzing the effectiveness of program competitions and
grants, and for which she received a “Special Act Award” nomination. In terms of the third and
fourth unique position requirements, moreover, Pfeltz had been the primary certified COR on the
National Charter Schools Resource Contract—the specific contract over which the new SMPA
would have oversight. This role had required Pfeltz to “represent [the Department] to
stakeholders and constituencies.” So tight was the nexus between Pfeltz’s experience and the
new job’s description, in fact, Kilby-Robb herself alleges that the position had been designed
specifically for Pfeltz. See infra Part III.A.2. “Given that [Pfeltz] was clearly qualified for the
position, Kilby-Robb has a high bar to meet in order to show that she was so much more
qualified that a jury could reasonably conclude that [the Department] selected [Pfeltz] for
discriminatory reasons.” Kilby-Robb, 77 F. Supp. 3d at 173.
In response, Kilby-Robb primarily emphasizes the disparity between the two candidates’
experiences supervising employees. See Dkt. 27 at 36–37. As Kilby-Robb stresses, Pfeltz
testified that she had “had no supervisory experience,” whereas Kilby-Robb spent more than
twenty-five years in the education field in various capacities, including as a principal. Id. But
Kilby-Robb’s longer supervisory track record does not amount to a qualifications gap “great
enough to be inherently indicative of discrimination.” Jackson, 496 F.3d at 707.
First, although Kilby-Robb did have many years of supervisory experience, she
“accumulated nearly all of [it] . . . outside [the CSP office].” Pearsall v. Holder, 610 F. Supp. 2d
87, 101 (D.D.C. 2009). At the time of the selection, Kilby-Robb had spent scarcely two years at
CSP, and the time she had spent there was dedicated to—in Kilby-Robb’s own words—“low
level” work “generally reserved for career interns and employees below a GS-12 level.” Dkt.
24-3 at 48. Pfeltz, by contrast, had worked at CSP for seven years, had taken significant
responsibility for two of three programs the new SMPA would oversee, and managed the
specific contract with which the new SMPA would be charged. Thus, as in Kilby-Robb’s
previous nonselection lawsuit, “Kilby-Robb’s qualifications” were simply “less closely aligned
to the position’s requirements than were [the ultimate selectee’s].” Kilby-Robb, 77 F. Supp. 3d
Second, while the interviewing panel recognized that Kilby-Robb "ha[d] more
supervisory experience,” Dkt. 24-1 at 46 (Huh Aff. ¶ 12), they uniformly found that Pfeltz had a
deeper understanding of the relevant policy area and job responsibilities, and gave more
thorough and specific answers about what the job entailed, see id. (Huh Aff. ¶¶ 12, 14); Dkt.
24-2 at 20 (Aruajo Aff. ¶ 13); id. at 31 (Ceja Aff. ¶ 13). Aruajo’s interview notes confirm that
impression. Compare Dkt. 24-4 at 13–17 (Kilby-Robb notes), with id. at 19–23 (Pfeltz notes).
But, even assuming—as the Court must—that Kilby-Robb was more qualified with respect to
one of the four unique position requirements, “‘it is not for the Court to assess which qualities
should weigh more heavily for an employer’ in determining which candidate to select for
promotion.” Bell v. Donley, 928 F. Supp. 2d 174, 180 (D.D.C. 2013) (alterations removed)
(quoting Pendleton v. Holder, 697 F. Supp. 2d 12, 18 (D.D.C. 2010)); see also Jackson, 496 F.3d
at 709 (“[W]e will not second-guess how an employer weighs particular factors in the hiring
decision.”). No reasonable jury could find that the choice to weight relevance and depth of
substantive experience more heavily than experience supervising employees is so irrational as to
raise the specter of discrimination.
The remainder of Kilby-Robb’s arguments amount to the claim that Kilby-Robb could
have done the SMPA job adequately despite her lack of specific relevant experience within the
CSP office. She writes, for example, that “[i]t is disingenuous for [the Department] to assert
that Ms. Kilby-Robb’s grant management and contract management experiences were different
than Ms. Pfeltz’s . . . experiences simply because Ms. Kilby-Robb worked with PIRC grants and
contracts and Ms. Pfeltz worked with CSP grants and contracts. . . . [I]t is clear that both PIRC
and CSP grants and contracts utilized the same skill sets.” Dkt. 27 at 30–31; see also id. at 32
(“There was no legitimate reason for [the Department] to specifically identify the National
Charter Schools Resource Center [c]ontract because there were no unique skill-sets associated
with this contract.”); id. at 37–40 (arguing generally that Kilby-Robb’s work in the PIRC office
was analogous to Pfeltz’s work at CSP). Indeed, the record reveals Kilby-Robb’s general
skepticism that the SMPA position required any special skills at all. Asked at deposition whether
Kilby-Robb thought the new position would require “specialized knowledge” of the Charter
Schools Program, she responded:
I’m going to say, “How so?” Because you read the statute, if you know how to
read legislation, you understand the Charter Schools Program. If you know how to
implement the statute, you understand the Charter Schools Program.
Dkt. 24-3 at 42 (Kilby-Robb Dep. 57).
These arguments, however, are “grounded in [Kilby-Robb’s] own ‘subjective
assessments of [her] own credentials,’ which are ‘largely irrelevant’ for purposes of establishing
discriminatory motive.” Bell, 928 F. Supp. 2d at 180 (second alteration in original) (quoting
Washington v. Chao, 577 F. Supp. 2d 27, 44 (D.D.C. 2008)). Instead, the relevant question is
whether the decisionmakers’ understanding of the two candidates’ qualifications rendered KilbyRobb “significantly better qualified for the job.” Holcomb, 433 F.3d at 897. At best, KilbyRobb’s arguments show that a reasonable jury could find that, notwithstanding Pfeltz’s
substantially more on-point experience, Kilby-Robb could have performed the job just as well.
That may be so. But “[t]hat is not enough . . . to demonstrate that the [Department’s] reliance on
comparative qualifications was a pretext for discrimination.” Jackson, 496 F.3d at 708. “This
Court will not reexamine governmental promotion decisions where it appears the Government
was faced with a difficult decision between two qualified candidates, particularly when there is
no other evidence that race played a part in the decision.” Id. (quoting Stewart v. Ashcroft, 352
F.3d 422, 430 (D.C. Cir. 2003)). And the undisputed evidence shows that Kilby-Robb “‘was
simply not discernibly better’ than the candidate promoted.” Id. The qualifications gap,
accordingly, does not support an inference that Kilby-Robb’s nonselection was motivated by
unlawful discrimination or retaliation.
Kilby-Robb also argues that a reasonable jury could find that Pfeltz had been
“preselected” for the SMPA position, in the sense that the new position had been “written
specifically for” Pfeltz. Dkt. 27 at 32; accord Dkt. 1 at 4–5 (Compl. ¶¶ 21–24). In support, she
points to the vacancy announcement’s statement that the hiree would be responsible for “the
National Charter Schools Resource Center contract”—a contract that Pfeltz was already
managing. Dkt. 27 at 32. She also points to her own testimony that the vacancy announcement
“did not use the standard elements” to describe the “Grants Management” and “‘COR’ duties and
responsibilities,” id. (citing Dkt. 27-2 at 5 (Kilby-Robb Decl. ¶ 11)), and that “it was common
knowledge” that Pfeltz “had been identified as the selectee before any announcement was made,”
id. at 30 (citing Dkt. 27-2 at 5 (Kilby-Robb Decl. ¶ 14)). From this, Kilby-Robb says, the jury
could infer that the Department’s proffered justification is pretextual. See Dkt. 27 at 31–35.
The problem with this argument, however, is that “[p]reselecting a candidate for a
position based upon his or her qualifications is not per se improper.” Kilby-Robb, 77 Fed. Supp.
3d at 169–70 (citing Nyunt v. Tomlinson, 543 F. Supp. 2d 25, 39 (D.D.C. 2008)). Indeed, “where
the selection is to be made from among a narrow band of current employees well known to the
selectors, it is hard to see how there could not be a substantial degree of pre-selection.” Kolstad
v. Am. Dental Ass’n, 139 F.3d 958, 969 (D.C. Cir. 1998) (emphasis added), vacated on other
grounds, 527 U.S. 526 (1999). As such, “[f]or preselection to raise an inference of
discrimination, evidence must demonstrate that the employer preselected a candidate out of a
discriminatory motive or that the employer broadly uses preselection as a method of disguising
discrimination and did so in this particular case.” Kilby-Robb, 77 Fed. Supp. 3d at 170 (citing
Glass v. Lahood, 786 F. Supp. 2d 189, 224–25 (D.D.C. 2011), and Talavera v. Fore, 648 F.
Supp. 2d 118, 135–36 (D.D.C. 2009)). Thus, the possibility of preselection itself—i.e., the
possibility that the vacancy announcement was written with Pfeltz in mind—does not further
Kilby-Robb’s case absent some additional evidence of discriminatory (or retaliatory) motive.
Alleged Procedural Deficiencies
Kilby-Robb also argues that pretext may be inferred from the allegation in her brief that
“the Agency violated its own competitive selection procedures.” Dkt. 27 at 32–33. As far as the
Court can tell, this amounts to three arguments. First, Kilby-Robb argues that the Department
failed in its obligation to “fill vacant positions on the basis of merit and fitness” because Pfeltz
was initially hired to the Department by Anderson, Pfeltz’s aunt’s sister, whom she had known
“for twenty-four years.” Id. at 33. But it goes without saying that “[f]avoritism based on criteria
other than [race, color, age, or other protected characteristics] . . . does not violate the federal
anti-discrimination laws and does not raise an inference of discrimination.” Housley v. Boeing
Co., 177 F. Supp. 2d 1209, 1217 (D. Kan. 2001). And, “[e]ven if a plaintiff ‘was victimized by
poor selection procedures,’ [the Court still] may not ‘second-guess an employer's personnel
decision absent demonstrably discriminatory motive.’” Hairston v. Vance-Cooks, 773 F.3d 266,
272 (D.C. Cir. 2014) (quoting Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir.
1996)). Nothing about this alleged and unsubstantiated nepotism furthers Kilby-Robb’s case.
Second, Kilby-Robb argues that Pfeltz received “preferential treatment” at the
Department. Dkt. 27 at 33. By this, Kilby-Robb apparently means that Pfeltz received frequent
promotions, whereas Kilby-Robb did not. She writes in her brief:
After Ms. Pfeltz was hired [as a Management and Program Analyst], she received
a merit promotion or step increase every single year of her employment. She
consistently was allowed to jump two grades at a time, and received six grade
promotions and two quality step increase[s] in her first seven years at the Agency.
Moreover, in 2011, she was promoted to the Supervisory Management and Program
Analyst position . . . .
[Meanwhile,] Ms. Kilby-Robb was repeatedly denied promotions in favor of
younger Caucasian employees, and despite her extensive credentials and
experiences, remains at the same grade and step that she was hired at in 2000. . . .
Whatever process the Agency followed here did not comply with the Merit plan.
Id. at 33–34 (citation omitted). But, again, nothing about this story raises the inference of
unlawful discrimination. Kilby-Robb’s description of the facts is consistent with—and, indeed,
provides further support for—the Department’s proffered justification that Pfeltz was simply the
more qualified candidate.
Third, Kilby-Robb asserts that “the vacancy announcement did not use the standard
elements for ‘Grant Management’ and ‘COR’ duties and responsibilities, which are typically
used for Supervisory Management and Program Analyst positions.” Dkt. 27-2 at 5 (Kilby-Robb
Decl. ¶ 11). To the extent that this contention is premised on the notion that plaintiffs can, at
times, rely on an “employer’s failure to follow established procedures or criteria” to establish
pretext, Brady, 520 F.3d at 495 n.3, she may have a point. But “[a]n employer's failure to follow
its own regulations and procedures, alone, may not be sufficient to support the conclusion that its
explanation for the challenged employment action is pretextual.” Fischbach, 86 F.3d at 1183
(emphasis added) (citation and quotation marks omitted). Here, Kilby-Robb offers nothing more
than her own conclusory assertion that the vacancy announcement “did not use the standard
elements,” Dkt. 27 at 32, and she offers no evidence suggesting that the announcement was
prepared with the discriminatory or retaliatory motive of disfavoring her. To the contrary, she
asserts that one of the “major duties” listed in the announcement did favor her, given her greater
management experience. See Dkt. 24-3 at 2 (vacancy announcement) (describing “manag[ing]
and supervis[ing] staff as a “major duty”). Nor could a reasonable jury find that the other major
duties or “unique position requirements” were unmoored from the actual job or crafted to
achieve an impermissible result.
None of these purported procedural defects can give rise to an inference of
Lastly, Kilby-Robb argues that Pfeltz was “preselected” in a more conspiratorial sense.
According to Kilby-Robb’s brief, Pfeltz’s “preselection” to the 2011 SMPA position “was
orchestrated by senior officials at the [a]gency.” Dkt. 27 at 29. The preselection began eight
years earlier in 2003, she says, when Anderson started “t[elling] each of [Kilby-Robb’s]
supervisors that she would never permit her to be promoted and that she hated [her].” Id. (citing
Dkt. 27-2 at 4 (Kilby-Robb Decl. ¶ 8). “Then, in 2009,” Kilby-Robb writes, “[her] supervisors
[in the PIRC office] decided they wanted to promote a younger, Caucasian employee to the
supervisory position.” Id. (citing Dkt. 27-2 at 4 (Kilby-Robb Decl. ¶ 10)). To that end, KilbyRobb says, they “transferred her to the [CSP] program and then refused to assign her any CSP
grants or [allow her to] perform substantive CSP duties in an attempt to bar her from any future
promotions.” Id. at 29–30 (citing Dkt. 27-2 at 4 (Kilby-Robb Decl. ¶ 10)). As part of this effort
to deny Kilby-Robb promotion opportunities, Kilby-Robb says, Anderson and other managers
“posted a vacancy announcement . . . [using] selective screening factors” intentionally designed
“to eliminate all others except the young, Caucasian female they wanted to promote [i.e.,
Pfeltz].” Id. at 30. Anderson and the other managers then “instructed” Huh, who “had been in
his position for only three months,” on how to write the vacancy announcement and select that
candidate. Id. (citing Dkt. 27-2 at 5–6 (Kilby-Robb ¶ 15). In short, Kilby-Robb’s theory appears
to be that Anderson and others intentionally deprived Kilby-Robb of the substantive skills she
would need to be competitive for the SMPA position, such that “it is impossible to make a
credible comparison of the applicants,” and the Department should be liable for discrimination
on the grounds that a campaign “orchestrated by senior officials” was designed to prevent KilbyRobb from becoming qualified for the job for which she was passed over. 5 Id. at 29, 35.
This theory suffers from several fatal defects. First, it contradicts Kilby-Robb’s earlier
contention that she was not only qualified, but was so much better qualified than Pfeltz that the
gap could give rise to an inference of discriminatory bias. See supra Part III.A.1. Second, the
theory depends on the unsupported claim of conspiracy, derived only from Kilby-Robb’s
speculation regarding the intentions of third parties of which she has no personal knowledge.
To the extent that Kilby-Robb means merely to argue for a “cat’s paw” theory of
discrimination, that effort must also fail, as the Court explains below. See infra Part III.B.2.
See Fed. R. Civ. P. 56(c)(4) (requiring that declaration used to oppose motions for summary
judgment “be made on personal knowledge”). Beyond Kilby-Robb’s unsupported declaration,
there is no evidence in the record to suggest that Anderson or anyone else had any influence over
the SMPA selection panel. To the contrary, all of the evidence offered on personal knowledge
supports the conclusion that Anderson played no role in Pfeltz’s selection. See Dkt. 24-1 at 47
(Huh Aff. ¶¶ 17–19); Dkt. 24-2 at 3 (Anderson Aff. ¶¶ 9–14); id. at 11 (Knight Aff. ¶¶ 9–13); id.
at 20 (Araujo Aff. ¶¶ 14–15); id. at 31 (Ceja Aff. ¶¶ 14–15). Third, this theory, even if credited,
does nothing to establish that the “senior officials” who “orchestrated” Kilby-Robb’s
nonselection did so because of her race, age, or color.
In sum, Kilby-Robb has not even alleged—let alone adduced evidence to show—that all
three panelists conspired with Anderson or anyone else to deny Kilby-Robb a promotion because
of her age, race, or color. Her unsubstantiated allegations are insufficient to allow a reasonable
jury to disbelieve the Department’s stated rationale for Kilby-Robb’s nonselection—namely, that
Pfeltz was a better fit for the position.
Retaliation Under Title VII and the ADEA
Kilby-Robb also alleges that Huh selected Pfeltz over her for the 2011 SMPA position in
retaliation for Kilby-Robb’s substantial prior EEO activity. Dkt. 1 at 1 (Compl. ¶ 1). This claim
requires proof that retaliatory motives were the “but for” cause of Kilby-Robb’s nonselection.
Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). As evidence, Kilby-Robb
points to (1) her “multiple ongoing acts of protected activity” (although the only “protected
activities” she identifies are her five prior EEO complaints, the last of which occurred in August
2010); and (2) what her brief describes as the “continued harassment” to which she had been
subjected, “including statements by . . . Anderson that she hates [Kilby-Robb] and will never
permit her to be promoted[,] and statements by her supervisors and other management officials
that she should have been fired for filing an EEO complaint or that she knows what is
happening to her is in relation to her EEO complaint.” Dkt. 27 at 42; see also supra Part I.A
(listing Kilby-Robb’s allegations regarding her “continued harassment”). None of this evidence
would permit a reasonable jury to find that the Department’s proffered justification is false and
that retaliatory motives were the but for cause of Kilby-Robb’s nonselection.
Kilby-Robb’s argument seems to be that her EEO complaints were sufficiently
temporally proximate to the nonselection to give rise to an inference of retaliation. See Dkt. 27
at 40–42. This argument is twice flawed. First, Kilby-Robb has adduced no evidence that two
of the three decisionmakers—Araujo and Ceja—were even aware of Kilby-Robb’s prior EEO
complaints at the time of her nonselection. See Dkt. 27 at 40–42. To the contrary, both have
attested that they were not. See Dkt. 24-2 at 19 (Araujo Aff. ¶ 8); id. at 30 (Ceja Aff. ¶ 8); cf.
Dkt. 24-1 at 45 (Huh Aff. ¶ 7) (averring that, as of March 2012, Kilby-Robb had informed Huh
about her prior EEO activity). Second, “[o]nce an employer has put forth legitimate, nonretaliatory reasons for a challenged action”—as the Department has done here—“positive
evidence beyond mere proximity is required to defeat the presumption that the proffered
explanations are genuine.” Allen, 795 F.3d at 47 (emphasis added) (citations and internal
quotation marks omitted). Here, it appears that Kilby-Robb was involved, at one level or
another, in protected EEO activity for most—if not all—of the time from 2002 to the present.
See Dkt. 27-2 at 25; supra Part I.A (listing court cases). Although Title VII and the ADEA
protect her from adverse employment action taken because of that activity, they do not give her
an automatic right to go to a jury on any claim of retaliation over the past fifteen years—at least
not without more.
Kilby-Robb suggests that the D.C. Circuit’s decision in Singletary v. District of
Columbia, 351 F.3d 519 (D.C. Cir. 2003), provides just such a right. See Dkt. 27 at 40–42. Her
reliance on that case, however, is misplaced. Singletary concerned only the showing necessary
to make out a prima facie case of retaliation, and held that the district court erred by failing to
consider certain categories of protected activity—namely, two letters the plaintiff’s counsel had
sent regarding the status of the case, and the plaintiff’s “attempt to litigate his claim by filing an
appeal to the D.C. Court of Appeals.” 351 F.3d at 524–25. Here, by contrast, the analysis of any
prima facie case has already “fall[en] away,” Allen, 795 F.3d at 39, so evidence beyond mere
proximity is necessary, id. at 47.
Alleged “Continued Harassment”
Kilby-Robb’s description of her “continued harassment” does not fill this evidentiary
gap. Omitting the portions of Kilby-Robb’s declaration and interrogatory responses that
describe events not within her personal knowledge, and omitting those portions that are not
probative of retaliatory animus, the Court is left with three pieces of evidence:
(1) The statements of Kilby-Robb’s various supervisors between 2003 and 2008 that
Anderson said she “hates” Kilby-Robb and that she “would never promote her.”
(2) The 2004 statement of Kilby-Robb’s then-second-line supervisor, Nina Rees, that KilbyRobb “should have been ‘fired’ for filing an EEO complaint.” (This statement was
litigated to trial in one of Kilby-Robb’s prior lawsuits. See supra note 1.)
(3) The undated statement of Kilby-Robb’s then-first-line supervisor, John Fiegel, that he
had previously planned to submit a request for payment on [her] behalf for [her] service
as an ‘acting team leader,’” but that “he was no longer going to submit this request
because [she] had filed an EEO case.” Although Kilby-Robb does not provide the precise
date for this statement, it appears that Fiegel served as her direct supervisor at most
between 2002 and 2007. 6
Dkt. 27-2 at 4 (Kilby-Robb Decl. ¶¶ 8, 9).
Because none of this evidence concerns the actual nonselection decisionmakers, KilbyRobb seems to be hinting at a “cat’s paw” theory of retaliation (although she provides no such
argument in her brief, and cites none of the relevant cases). Under the “cat’s paw” theory, “an
employer can be liable when a direct supervisor harbors discriminatory [or retaliatory] animus
and influences the ultimate decision maker, even if that decision maker lacks any discriminatory
[or retaliatory] animus.” Noisette v. Lew, --- F. Supp. 3d ---, 2016 WL 5674786, at *16 (D.D.C.
Sept. 30, 2016) (citing Staub v. Proctor Hosp., 562 U.S. 411, 419 (2011)). “To prevail on a
‘cat’s paw’ theory, the plaintiff must show that ‘(1) [the direct] supervisor perform[ed] an act
motivated by discriminatory animus (2) that [was] intended by the [direct] supervisor to cause an
adverse employment action, and . . . (3) that act [was] a proximate cause of the ultimate
employment action.’” Id. (alterations in original) (quoting Morris, 825 F.3d at 668).
Applying this standard, Kilby-Robb’s “cat’s paw” theory must fail. Kilby-Robb has
identified no discriminatory or retaliatory act by Anderson, Rees, or Figel that has any causal
link to her 2011 nonselection. The only evidence in the record, moreover, falls on the other side
of the ledger: Huh, Araujo, and Ceja all attested that neither Anderson, Knight, nor any other
official played any role in the 2011 SMPA selection, nor influenced their decision in any way.
The Court assumes for present purposes that these statements could be presented in a form
admissible at trial.
See Dkt. 24-1 at 47 (Huh Aff. ¶¶ 17–19); Dkt. 24-2 at 20 (Araujo Aff. ¶¶ 14–15); id. at 31 (Ceja
Aff. ¶¶ 14–15). Anderson and Knight also attested that they were not involved. Dkt. 24-2 at 3
(Anderson Aff. ¶¶ 9–14); id. at 11 (Knight Aff. ¶¶ 9–14). Other breaks in the causal chain,
moreover, include the fact that the earlier statements all came from Kilby-Robb’s supervisors in
the PIRC program (not the CSP), and the fact that they predate the nonselection by at least three
years, and in some cases, closer to eight. No reasonable jury could find that a “cat’s paw” theory
The Court will, accordingly, GRANT the Department’s motion for summary judgment
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: March 30, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?