MOORE v. JOHNSON

Filing 36

OPINION. Signed by Judge Renee Marie Bumb on 12/22/2016. (tf, )

[Dkt. No. 27]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
SHERRY R. MOORE,
Plaintiff,
v.

Civil No. 14-4171 (RMB/AMD)
OPINION

JEH CHARLES JOHNSON,
Defendant.

APPEARANCES:
William B. Hildebrand, Esq.
Law Offices of William B. Hildebrand, LLC
36 Tanner St., Suite 300
Haddonfield, N.J. 08033
Attorney for Plaintiff
Anne B. Taylor, Esq.
Office of the U.S. Attorney
District of New Jersey
401 Market St., 4th Fl.
P.O. Box 2098
Camden, N.J. 08101
Attorneys for Defendant
BUMB, UNITED STATES DISTRICT JUDGE:
THIS MATTER comes before the Court upon the filing of a
motion for summary judgment by Defendant Jeh Charles Johnson,
the Secretary of the United States Department of Homeland
Security (the “Defendant”).

(Mot. Summ. J. [Dkt. No. 27]).

the reasons set forth below, Defendant’s motion for summary
judgment is GRANTED.

For

I.

BACKGROUND
A. The Promotion Process
Plaintiff Sherry Moore (the “Plaintiff”) joined the

Immigration and Naturalization Service (“INS”) in 1997 and
transitioned into Immigration and Customs Enforcement (“ICE”)
when INS merged with the Department of Homeland Security.
(Def.’s Rule 56.1 St. of Facts & Pl.’s Resps. (“Def.’s St. &
Pl.’s Resps.”) ¶ 3 [Dkt. Nos. 27-1, 32-2]).

During Spring 2012,

Plaintiff, while serving as an Immigration Enforcement Agent,
applied for a promotion to the position of Deportation Officer
(“DO”).

(Id. ¶¶ 2-4, 7).

Plaintiff learned of the position

through a friend and submitted a resume and responses to
questions about her knowledge, skills and abilities through the
USA Jobs website.

(Id. ¶ 7).

Pursuant to the listing, the position for which Plaintiff
applied was open to “Current U.S. Immigration and Customs
Enforcement[], Enforcement and Removal Operations (ERO)
employees in the competitive service who are serving on a career
or career-conditional appointment, within the ERO Newark Field
Office Directorate.”

(Id. ¶ 19).

Applicants’ materials, like

those submitted by Plaintiff, were initially assessed by ICE
Human Resources personnel in Laguna Niguel, California.
21).

(Id. ¶

After this initial review, a list of those applicants who

were deemed to have the minimum qualifications – including
2

Plaintiff – was given to the Newark Field Office for further
consideration.

(Id. ¶¶ 22-23).

The list given to the field

office also included approximately 90 other candidates for
promotion.

(Id. ¶ 27).

After the list was given to the Newark Office, employees
there began designing and implementing the assessment process.
(Id. ¶ 29).

Defendant contends that John Tsoukaris, the Field

Office Director, coordinated this hiring effort in conjunction
with Gregory Kendrick, the Deputy Field Office Coordinator. (Id.
¶¶ 29-30).

Plaintiff, on the other hand, contends that it was

Kendrick who took the lead because Tsoukaris was on assignment
in Washington D.C., although Plaintiff does not contest the fact
that Tsoukaris was at least generally involved.
35).

(Id. ¶¶ 29-32,

Regardless of the exact employee in charge, it is not

disputed that given the volume of applications, a two-step
evaluation process was put in place to first assess candidates.
(Id. ¶ 30).

This process involved a first phase where

supervisors rated resumes pursuant to a rubric that had
historically been used, and then a second phase where
sufficiently high-scoring individuals from the resume phase took
a writing assessment.

(Id. ¶ 31).

Though a writing sample had

not historically been taken in assessing promotions to DO
positions, it was thought that it would help identify the best

3

qualified candidates.

(Id. ¶¶ 40, 42).1

It is not disputed that

since this specific round of hiring, Newark has continued to use
writing samples.

(Taylor Supp. Dec. Ex. V (“Vogler Dep.”) at

19:6-13 [Dkt. No. 34-2] (“I believe ever since 2012 we [have]
used a writing sample for all DO positions.”).2
Although the parties dispute whether Tsoukaris or Kendrick
oversaw the hiring process, it is undisputed that the Assistant
Field Office Director Mark Vogler was in charge of operations
support and he coordinated the assessment process.
& Pl.’s Resps. ¶ 43).

(Def.’s St.

Tsoukaris and Kendrick retained the

responsibility to create a panel of supervisors to review
applicants and make recommendations for selection, which they
did.

(Id. ¶ 45.)
The first-phase resume evaluation was conducted by three

supervisors.

(Id. ¶¶ 53-54).

Prior to commencing their review

of the resumes, these evaluators were provided with rating
factors to use during their evaluation, along with a chart they

Plaintiff does not genuinely dispute that Tsoukaris and
Kendrick thought a writing sample was a way to assure qualified
candidates, replying only broadly to several paragraphs of
factual statements with the argument that “It was not solely
Tsoukaris’s decision to add the writing sample. Rather, Kendrick
was actively involved in this decision as well.” (Id. ¶ 40).
2 One employee involved in the review process, Nnamdi Aneke, was
involved in hiring DOs for a different office (New York) after
his experience in this case and a writing sample was not used.
(Pl.’s 56.1 St. of Facts & Def.’s Resps. (“Pl.’s St. & Def.’s
Resps.”) ¶ 19 [Dkt. Nos. 32-1, 32-4]).
1

4

were to fill out along the way, which tracked the applicants’
scores.

(Id. ¶ 54).

The rating form, which is designed to

assess education and experiences applicants had, was created by
Kendrick before the hiring process relevant to this case and had
been used for assessing resumes during prior promotion
evaluations.

(Id. ¶¶ 55, 56).

Over several days, the three

supervisors convened in a conference room and reviewed resumes.
(Id. ¶ 57).

Scores were generated based on the applicants’

resumes and a supervisor, whom Plaintiff had consistently gotten
along with, evaluated Plaintiff’s resume.

(Id. ¶¶ 63-65).

According to Plaintiff’s “DO Rating Factors” Score Sheet, she
received 16 out of 22 possible points in the resume phase.
(Taylor Dec. Ex. O [Dkt. No. 27-6]).

While Vogler anticipated

the top thirty-seven candidates would advance to the writingsample stage, fifty-eight candidates were ultimately invited to
take the writing test, including Plaintiff.

(Def.’s St. & Pl.’s

Resps ¶¶ 67-68).
The second-phase writing assessment consisted of providing
the applicant with one of six factual scenarios and a direction
to respond to a particular task.3

(Id. ¶ 69).

It is undisputed

that these scenarios were reviewed by Tsoukaris prior to being

The use of different scenarios was designed by Tsoukaris and
Kendrick to make the process fair for applicants who completed
the writing sample at different times. (Id. ¶ 71).
3

5

used in the process.

(Id. ¶ 70).

The writing assessments were

scheduled, proctored, and anonymized for blind-grading by Noel
Elia.

(Id. ¶ 72).

The anonymous writing samples were then

blind-graded by another employee, Kerry Gill, for clarity,
conciseness, and capacity to extract and present pertinent facts
from the problem that was used as a prompt for the sample.
¶ 33).

(Id.

Tsoukaris and Kendrick selected Gill for this process

because they felt he wrote well and were confident he could
objectively assess writing samples.

(Id. ¶ 50).

In grading the

samples, Gill used a rubric that had been provided to him by
Vogler.

(Id. ¶ 73).

Vogler, in turn, got this rubric by

searching the internet.

(Id. ¶ 75).

After confirming

methodology questions with Vogler and Kendrick, Gill did not
consult with anybody else while grading.

(Id. ¶ 78).

Ultimately, Plaintiff was awarded 6 points out of 10 by
Gill for her writing sample.

(Id. ¶ 82).

While she was awarded

4 out of 4 possible points for content and structure, Plaintiff
was awarded only 2 out of 6 points for style and organizational
development.

(Taylor Dec. Ex. P).

Notes on the scoring page

indicate that issues identified in the writing sample were
“commas,” “subject/verb agreement,” “correct pronoun (I vs.
myself),” and “poor wording.”

(Id.)

These comments appear to

match corresponding comments written directly on Plaintiff’s
writing sample, which was attached to the scoring sheet.
6

(Id.)

Gill, because he was grading the writing samples blindly, did
not know the race, gender, or EEO history of the authors writing
the samples he graded, nor did he have any contact with
applicants in the grading process.

(Def.’s St. & Pl.’s Resps.

¶¶ 84-85).
Plaintiff’s final score, including her resume assessment,
was 22.

(Id. ¶ 90).

The lowest scoring individuals referred

for consideration beyond the resume and writing phases was 23.
(Id. ¶ 91).

As such, Plaintiff did not make it out of the

writing sample round.

Defendant’s Statement of Facts accurately

summarizes the sieving process by which the ninety applicants
were trimmed down:
Of the approximately ninety people whose resumes were
reviewed, fifty-eight people took a writing sample, and
thirty-three individuals made it to the final selection
list (which included some of the names twice, as people
applied for the promotion in both Newark and Marlton).
(Id. ¶ 92).

These results were conveyed in an August 7, 2012

memorandum to Kendrick, who was identified on the memo as the
selecting officer because Tsoukaris was away from the office.
(Id. ¶¶ 93, 96).

In the end, twenty-three individuals were

selected for the promotion.

(Id. ¶ 97).

B. Plaintiff’s Interactions with Kendrick
Plaintiff’s factual and legal arguments focus on her
interactions with Kendrick prior to the promotion process.
Dating back to 2007 – several years before the above-described
7

events – Plaintiff asserts that Kendrick denied her two
promotion opportunities.
¶ 12).

(Id. ¶ 105; Pl.’s St. & Def.’s Resps.

However, between 2008 and 2012, Plaintiff had limited

interaction with Kendrick, who was detailed to Rome, only to
return a few months before the promotion application at issue in
the instant case.

(Id. ¶ 107).

Plaintiff contends the previous two promotion denials as
well as the promotion denial in this case arise:
in retaliation for her assistance in getting Marvin
Dargan’s job back. Kendrick fired Dargan to thwart a
civil rights investigation into the placement of a
swastika on his desk. Kendrick warned Plaintiff not to
assist Dargan, and if she did, “there would be
consequences.” Despite the threat, she chose to “do the
right thing” and got him his job back.
(Pl.’s St. & Def.’s Resps. ¶ 10).
II.

LEGAL STANDARD
Summary judgment shall be granted if “the movant shows that

there is no genuine dispute as to any material fact and the
14 Fed. R.

movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

A fact is “material” if it will “affect the

outcome of the suit under the governing law . . . .”
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson

A dispute is

“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”

Id.

When deciding the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
8

reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”

Meyer v. Riegel Prods.

Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).

However, a mere

“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.

Anderson, 477 U.S. at 252.

Further,

a court does not have to adopt the version of facts asserted by
the nonmoving party if those facts are “utterly discredited by
the record [so] that no reasonable jury” could believe them.
Scott v. Harris, 550 U.S. 373, 380 (2007).

In the face of such

evidence, summary judgment is still appropriate “where the
record . . . could not lead a rational trier of fact to find for
the nonmoving party . . . .”

Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”

Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
56(c)).

Then, “when a properly supported motion for summary

judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
trial.’”

Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
9

56(e)).

The non-movant’s burden is rigorous: it “must point to

concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995);
Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228
(3d Cir. 2009)) (“[S]peculation and conjecture may not defeat
summary judgment.”).
III. ANALYSIS
Plaintiff brings three causes of action under the Civil
Rights Act of 1964 (Title VII): (1) race discrimination; (2)
gender discrimination; and (3) retaliation.
[Dkt. No. 1]).

(Compl. ¶¶ 1, 13-29

Title VII prohibits employment discrimination on

the basis of race, color, religion, sex or national origin.
U.S.C. § 2000e-2.

42

Claims of race or gender discrimination, as

well as retaliation, fall under the burden-shifting analysis set
forth in McDonnell Douglas Corp. v. Green, 41 U.S. 792, 803-805
(1973).

Under that framework, “a plaintiff must first establish

a prima facie case” that she was discriminated or retaliated
against.

Thompson v. Bridgeton Bd. of Educ., 9 F. Supp. 3d 446,

454 (D.N.J. 2014), aff'd, 613 F. App'x 105 (3d Cir. 2015)
(citing McDonnell Douglas, 411 U.S. at 802) (race
discrimination); Scheidemantle v. Slippery Rock Univ., 470 F.3d
535, 539 (3d Cir. 2006) (gender discrimination); Tourtellotte v.
10

Eli Lilly and Co., 636 F. App’x 831, 841 (3d Cir. 2016)
(retaliation).

Typically, establishing a prima facie case is a

low bar for a plaintiff to meet.

Scheidemantle, 470 F.3d at

539.
Once the Plaintiff has met the elements of a prima facie
case, “the burden then shifts to the employer to articulate a
legitimate, nonretaliatory or nondiscriminatory reason for its
actions.”

Tourtellote, 636 F. App’x at 842.

If the employer is

able to demonstrate such a reason, “the burden then shifts back
to the plaintiff to prove that the employer’s nonretaliatory or
nondiscriminatory explanation is merely a pretext for the
discrimination or retaliation.”
411 U.S. at 802-04).

Id. (citing McDonnell Douglas,

At the pretext stage in the context of

summary judgment, the plaintiff “must point to some evidence,
direct or circumstantial, from which a factfinder could
reasonably either: (1) disbelieve the employer’s articulated
legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action.”

Id.

(quoting

Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006)
(internal quotation marks omitted).

11

A. Race and Gender Discrimination
i. Prima Facie Case
“The elements of a prima facie case are the same for
discrimination claims on the basis of sex and race.”

Id. at 842

(citing Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240,
249 (3d Cir. 2006)).

To establish a prima facie case of either

gender-based or race-based discrimination, a plaintiff must
demonstrate that: (1) she is a member of a protected class; (2)
she was qualified for the position in question; (3) she suffered
an adverse employment action; and (4) that adverse employment
action gives rise to an inference of unlawful discrimination.
Id.
In this case, for both the race and sex discrimination
claims, Defendant concedes that the facts establish the first
three elements of a prima facie case of race and sex
discrimination.

Plaintiff is an African-American woman, she was

qualified for a DO position, and she was denied a promotion.
(Def.’s Br. at 7-8).

As such, the only issue at summary

judgment for the first two claims is whether the denial of the
DO promotion gives rise to an inference of unlawful
discrimination.

Defendant contends that it does not.

Plaintiff, in arguing that the record shows a prima facie
case of discrimination, points to several facts from which she
argues an inference of unlawful discrimination arises.
12

First,

Plaintiff argues that the use of the writing assessment,
something that had not been used before in this context gives
rise to such an inference, particularly when writing ability was
also assessed during the resume phase.

(Pl.’s Br. at 7).

Second, she argues that the involvement of Kendrick in the
selection process – a supervisor with whom she had a previous
union-related disagreement – gives rise to such an inference.
(Id. at 7-9).

Third, she argues that the application process’s

inclusion of a writing sample and unapproved resume rating
system is a violation of policy or is otherwise invalid.
at 6).

(Id.

Fourth, she argues that she has historically been denied

leadership positions or promotions because of her race or
gender, which would have yielded a higher score in the resume
phase.

(Id. at 6-7).

Even viewing the facts in the light most

favorable to Plaintiff, the Court disagrees that any of these
contentions demonstrate, individually or collectively, facts
from which an inference of unlawful discrimination could be
drawn.
Plaintiff’s first argument – the fact that a writing
assessment had never been used before – does not give rise to an
inference of unlawful gender or race discrimination.

Under

Plaintiff’s theory, any new method of assessing candidates
whatsoever would give rise to a discrimination claim solely by
the fact that it was new.

Plaintiff has pointed to no evidence
13

that the resume or writing assessment were conducted in a manner
designed to discriminate against her because of her race or
gender; she does not contend she was evaluated any differently
than anyone else.

Importantly, it is uncontested that the

writing sample (which Plaintiff appears to take the most umbrage
with) was graded blindly by Gill, who was unaware of the race or
gender of the writers.

(Def.’s St. and & Pl.’s Resps. ¶¶ 84-

85).
Importantly, it is also uncontested that writing is an
important skill for DOs to possess, and that writing samples
have continued to be used for hiring since the initiation of the
process.4 (Vogler Dep. at 19:6-13; Tsoukaris Dep. 19:3-11, 21:814).

It is those two facts that also inoculate the basic fact

that the important skill was assessed at two different stages,
into which Plaintiff reads too much.5

The fact that a critical

skill was twice-evaluated in a job selection process, without
more, simply does not give rise to an inference that the purpose

The Court’s reasoning is not altered by deposition testimony
that another office does not use writing samples in evaluating
DO promotions. (Pl.’s Br. Ex. D (“Aneke Dep.”) 9:21-25).
5 Tsoukaris also indicated in his declaration that the reason
writing samples were taken in addition to assessing writing in
resumes was that there was no guarantee in assessing resumes
that an accurate picture of the applicant’s writing skills could
be taken, given the resumes could have been written by others.
(Tsoukaris Dec. ¶ 5).
4

14

of so doing was to discriminate against Plaintiff on the basis
of her race or gender.
Plaintiff’s second argument about her history with Kendrick
and his involvement in hiring, while under different
circumstances having the potential to give rise to an inference
of discrimination, does not do so here.

Taking the facts in the

light most favorable to Plaintiff, this Court treats the process
as if it were led by Kendrick, who was the selecting official.
This Court must also assume Plaintiff is correct when she states
that Kendrick vaguely told her there would be “consequences” for
her after she assisted Dargan in recovering his job in 2004.
Nevertheless, this argument suffers from the fatal flaw that
Plaintiff has not pointed to any evidence in the record
suggesting that Kendrick knew that Plaintiff wrote poorly or
that a writing sample would weed Plaintiff out of contention for
a DO position.

Plaintiff has pointed to no evidence that

Kendrick even knew Plaintiff had applied when the writing
assessment was devised.

Even assuming that Kendrick knew

Plaintiff applied for the position when he formulated the
writing assessment and that he also knew she was a poor writer
who would be weeded out by the writing sample, Plaintiff has not

15

pointed to any facts suggesting such conduct was be based on her
race or gender.6
Plaintiff’s third argument, that the application process
was out-of-compliance with regulations for hiring or was
improperly developed in-house, fares no better.
6).

(Pl.’s Br. at

Plaintiff has pointed to no case law which indicates that

an out-of-compliance promotion process by itself gives rise to
an inference of discrimination based on race or gender.

In the

same vein, the fact that the application process allocated 5 out
of 30 points to management or supervisory experience when the
position was a non-management, non-supervisory position does not
give rise to the inference that Defendant discriminated against
Plaintiff.

This evidence at best gives rise to the inference

that the process was poorly-designed, which is unrelated to
whether an inference of discrimination arise.
Plaintiff’s final argument that her resume evaluation was
under-scored because she was improperly denied acting leadership
experience is not sufficient to overcome summary judgment.
Plaintiff vaguely contends that “other, non-African American

The exact circumstances of the dispute with Dargan are hard to
discern from the record. It appears that in 2004, a swastika
was placed on Dargan’s desk and Kendrick was tasked with
investigating the incident, but, according to Plaintiff,
Kendrick instead decided to fire Dargan. Plaintiff stepped in
and prevented the firing. Kendrick told her there would “be
consequences” for her involvement. (Moore Dep. 93:4-21).
6

16

females were given [the] opportunity” to gain leadership
experience which would have yielded an additional one to two
points in the resume review stage.

This argument is based upon

Plaintiff’s deposition testimony that she was told by an
employee that a second-line supervisor of Plaintiff stated she
was “too ethnic” to represent the United States in court and
that for a particular leadership role.

Plaintiff also points to

two promotions that were denied to her by Kendrick in 2007,
purportedly because Plaintiff assisted Dargan.
As an initial matter, this argument assumes that if
Plaintiff’s score had been higher than the lowest scoring person
to make it through the writing sample round to the final list,
she would have been selected for the promotion.

See Bailey v.

Principi, 2003 WL 22245100, at *6 (E.D. Pa. Aug. 20, 2003)
(“[T]he plaintiff . . . must demonstrate the existence of
sufficient facts to allow him to prove by a preponderance of the
evidence that a prima facie case of discrimination exists that
goes beyond the plaintiff’s mere speculation.”).7

More

fundamentally, this Court cannot credit what Defendant correctly
identifies as an attempt to “bootstrap in years-old allegations
of discrimination through a complaint regarding a specific

This was not a given. For instance, one person who scored a 19
on his or her resume sample, and received the same writing score
as Plaintiff, was not selected for the position. (Taylor Dec.
Ex. R).
7

17

employment action.”

(Def’s Br. at 6 n.2); see also Cardenas v.

Massey, 269 F.3d 251, 255 (3d Cir. 2001) (“Title VII claims must
be the subject of a charge filed with the EEOC within either 180
days or 300 days of the complained-of unlawful employment
practice, depending upon whether the state has an antidiscrimination law, and a complaint must be filed in the
district court within 90 days of receipt of a right-to-sue
letter from the EEOC.”) (internal citations omitted).
Plaintiff’s complained-of comments and denied promotions
occurred between 2004 to 2007.8
125:22-25).

(Pl.’s Ex. C at 90:3-5, 93:4,

That sort of temporal remoteness does not give rise

to an inference of unlawful discrimination in the context of
Plaintiff’s promotion.
Even viewing the record in the light most favorable to
Plaintiff, there are insufficient facts put forth to support an
inference of unlawful discrimination based on race or gender.
Plaintiff, therefore, cannot demonstrate a prima facie case of

While the comment suggesting Plaintiff was “too ethnic” to
represent the United States in court certainly could give rise
to an inference of unlawful race-based discrimination under
other circumstances, it was not made by Kendrick and is
unconnected to the adverse employment action in this case. To
the extent they would have factored into Plaintiff’s resume
review score, the denial of promotions by Kendrick in 2007,
which Plaintiff contends was due to Plaintiff’s assistance of
Dargan, does not give rise to an inference of unlawful
discrimination because it would not have anything to due with
Plaintiff’s race or gender.
8

18

discrimination.

Accordingly, this Court GRANTS Defendant’s

motion for summary judgment on Plaintiff’s race and gender
discrimination claims.
B. Retaliation Claim
In order to make a prima facie case of retaliation, a
plaintiff must show: (1) that she engaged in protected employee
activity; (2) that there was an adverse action by the employer
either after or contemporaneous with the employee’s protected
activity; and (3) that there is a causal connection between the
employee’s protected activity and the employer’s adverse action.
Marra v. Phila. Housing Auth., 497 F.3d 286, 300 (3d Cir. 2007).
Defendant concedes that the record establishes the first
two elements in Plaintiff’s favor, leaving only causation to
provide grounds for summary judgment.

In order to demonstrate a

causal link for the third element of a prima facie claim of
retaliation, a plaintiff may rely on a “broad array of
evidence.”

Id.

For instance, in narrow circumstances, the

proximity between the protected activity and the adverse action
may give rise to a claim of discrimination.

In other

circumstances, antagonistic behavior by the employer,
inconsistent reasons for the adverse action, or treatment of
other employees may give rise to an inference.

Id.

Here, Plaintiff concedes the timing of the events in this
case is not unusually suggestive of causation between her
19

protected activity and her failure to be promoted.
at 9).

(Pl.’s Br.

Instead, Plaintiff points to Kendrick’s role in the

process and his prior statement that “there would be
consequences” in the Dargan matter, as well as Kendrick’s denial
of two previous promotions of Plaintiff.
The Court holds that these incidents, all of which occurred
years prior to the adverse employment action in this case, do
not establish causation for purposes of a retaliation claim.
While temporal proximity is not a requirement, the causal link
here is broken not just by the years of separation, but by the
abject speculation required to assume that Kendrick knew
Plaintiff was a poor writer, knew that she had applied for the
position when the writing sample was implemented, and knew how
Gill would grade one of the several different writing prompts
Plaintiff would be required to take.

Plaintiff does not assert

the subject-matter of the writing sample was designed to
eliminate her.

Plaintiff does not contend that the writing

sample was administered to her under materially different
conditions than it was administered to anyone else.

Absent

showings of this sort, plaintiff does not make out a prima facie
case.
Put differently, Plaintiff’s entire prima facie case of
retaliation is built on the argument that because Kendrick was
angered by Plaintiff’s protected decision to speak up for
20

Dargan, he retaliated against her by deliberately denying her
the promotion.

In many instances, causation might be

demonstrated in such cases because the temporal proximity is
uncanny or the manner of the denial telling.

Those uncanny or

telling facts give rise to the finding of causation, and they
are lacking here.

The record simply puts forth no evidence from

which the inference can reasonably be drawn that Kendrick
designed the seemingly neutral and multifaceted review process
to retaliate against Plaintiff.
C. Pretext
Finally, even if this Court did find that Plaintiff was
able to establish a prima facie case of discrimination or
retaliation based on the above-discussed facts, which she
cannot, it nevertheless would grant summary judgment in favor of
Defendant.

There is not sufficient record evidence to permit a

jury to find that Defendant’s proffered reason for the adverse
employment decision – that Plaintiff scored insufficiently
during the first two rounds of evaluation – is pretextual.
In support of meeting their burden under the McDonnell
Douglas burden-shifting analysis, Defendant has proffered the
reason that Plaintiff was not promoted because she did not
achieve a sufficient score in the neutrally-administered writing
component of the hiring process.

(Def.’s Br. at 19).

Plaintiff’s counterargument is that the hiring process, and
21

particularly the writing assessment portion of it, was
discriminatory or retaliatory and the supposedly neutral twophase hiring process was pretext for Kendrick’s desire to
unlawfully deny Plaintiff the promotion.

As evidence for this,

Plaintiff cites a series of supposed inconsistencies and
problems in the hiring methodology, along with Kendrick’s
troubled history with Plaintiff.

These arguments, even when

viewing the facts in the light most favorable to Plaintiff, do
not provide a basis from which a reasonable jury could determine
Defendant’s reason for denying Plaintiff the promotion is
pretextual.
With regard to her arguments that it made no sense for the
panel to twice evaluate writing skills or over-weight management
or supervisory experience, the Court finds that the
uncontroverted records indicates the multilayered review process
was designed to remove “the effects of individual favoritism or
animus.”

Gillyard v. Geithner, 81 F. Supp. 3d 437, 447 (3d.

Cir. 2015).

While Plaintiff may have qualms with the

individual measures by which her application for promotion was
adjudicated, she has not pointed to any inconsistencies or
implausibilities in how she was assessed that could undermine
the legitimate reasons that have been put forth for the
evaluation method.
(3d Cir. 2005).

Kautz v. Met-Pro Corp., 412 F.3d 463, 467

As Kautz set forth, “[a]n employer may not use
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evaluating criteria which lacks any relationship at all to the
performance of the employee being evaluated because to do so
would be inconsistent with and contradictory to the employer’s
stated purpose.

Absent this type of violation of the Fuentes

standard, we will not second guess the method an employer uses
to evaluate its employees.”

Id.

Plaintiff simply has not

pointed to any metric by which she was evaluated that bears no
relationship at all to the performance of the employee being
evaluated; management and supervisory experience can still be
relevant to hiring for a non-management or non-supervisory
position.

The writing sample itself was certainly well-tailored

to the writing intensive nature of the position.
Moreover, even if Kendrick had a desire to retaliate
against Plaintiff for her previous conduct undermining his
firing of Dargan, he could not have done so.

Plaintiff was

eliminated by the first two phases of the DO promotion process,
which were carried out by supervisors who evaluated Plaintiff’s
resume and writing under the same standards as other applicants.
Yet again, Kendrick’s involvement at a high level designing the
evaluation process along with his Tsoukaris, against whom
Plaintiff makes no allegations of animus, does not show that the
evaluation process was a pretext absent any criticisms in its
application or methodology other than it was poorly designed.
Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (“To
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discredit the employer’s proffered reason, . . . the plaintiff
cannot simply show that the employer’s decision was wrong or
mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent.”).

In

opposition to summary judgment, Plaintiff has not identified
weaknesses in the evaluation of Plaintiff’s candidacy from which
a reasonable factfinder could infer that Defendant denied
Plaintiff’s promotion for any other reason than that her
composite score was insufficient to advance to the next round.
Id.
In light of the above, even if Plaintiff had established a
prima facie case of discrimination or retaliation, the Court
additionally holds that Plaintiff has failed to establish that
the proffered non-discriminatory explanation for the employment
decision is a pretext.

As such, summary judgment is proper in

favor of Defendant on this additional ground.
IV.

CONCLUSION
In sum, for the above-stated reasons, Defendant’s motion

for summary judgment is GRANTED.

An appropriate Order follows.

DATED: December 22, 2016

s/Renée Marie Bumb
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RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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