Haywood et al v. Gutierrez
Filing
27
MEMORANDUM ORDER to 25 Order granting Defendant Carlos M. Gutierrez's 8 Motion for Summary Judgment 7 Motion to Dismiss. /s/ by District Judge Gerald Bruce Lee on 4/30/09. (tbul, )
IN THE UNITED
FOR THE
STATES
DISTRICT COURT
; K .if
EASTERN DISTRICT OF VIRGIN ALEXANDRIA DIVISION
Cherrie Haywood,
et al.,
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A-.7 3O2009
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Plaintiffs, v.
CLi ;-»K, b.- . .. 3"
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Case No.
1:08cv981(GBL)
Carlos M.
Secretary,
Gutierrez,
United States
Department of Commerce,
Defendant.
)
}
MEMORANDUM ORDER
THIS MATTER is before the Court
on Defendant
Carlos M.
Gutierrez's Motion for Summary Judgment and Partial Motion for Dismissal. This case concerns the discrimination claims of ten
Plaintiffs who allege that they were discriminated against when denied accretion-of-duties promotions within the United States Patent and Trademark Office
before the Court. The first the
("USPTO").
issue
There are
three
issues
is whether a comparator is
similarly situated where through the
promotions,
comparator receives a promotion
same process under which Plaintiffs were denied
but is the comparator performs different above that of job duties and The second
his pay grade
issue is
six steps
Plaintiffs
Plaintiffs.
whether
show pretext where
Defendant's
proffered reason for denying
them promotions
is
that
a desk audit
revealed that Plaintiffs' a higher grade,
job duties did not warrant promotion to
but Plaintiffs present facts showing a history of The third issue
inefficiencies in the USPTO's promotion process.
is whether Plaintiffs'
constitutional claims survive where
Plaintiffs allege due process and equal protection violations
against an agent of the United States government in his official capacity but the United States has not waived its sovereign
immunity in the case.
The Court grants Defendant's Motion for Summary Judgment and Partial Motion for Dismissal. First, the Court holds that
Plaintiffs fail to establish a prima facie case of discrimination
because being subject to the same promotion process does not make a comparator similarly situated where his position and job duties
are substantially different. Plaintiffs were able Second, assuming, arguendo, case of that
to establish a prima facie
discrimination,
the Court holds
that
Plaintiffs
fail to show in an employer's
pretext because proof of general promotion process,
inefficiencies
without additional evidence of discrimination is insufficient to create a
Third, fail under
directed at individual Plaintiffs,
genuine issue of the Court holds Rule 12(b)(1) fact that
regarding discriminatory motive. Plaintiffs' constitutional claims
because
the United States has not waived its alternatively, under Rule 12(b)(6)
sovereign immunity and,
because Plaintiffs cannot bring Bivens claims against an agent of
the federal government in his official capacity.
holdings are addressed fully in order below.
I. BACKGROUND
The Court's
This case concerns the employment discrimination claims of
ten similarly-situated current and former employees of the
USPTO.1 Plaintiffs allege that the USPTO unlawfully
discriminated against them when it denied Plaintiffs accretionof-duties promotions from GS-7 to GS-8 positions, yet granted an accretion-of-duties promotion to Mr. Kevin Little, a white male.
Defendant Carlos Gutierrez, standing in as Defendant in his
official capacity, now moves for summary judgment and partial
dismissal of Plaintiffs' claims.
Plaintiffs are ten current and former employees of the USPTO's Office of Initial Patent Examination {"OIPE"). branch within the USPTO that receives incoming patent OIPE is a
applications and screens them for completeness before forwarding
them to the appropriate Patent Technology Center for examination.
In or around 2000, the OIPE was undergoing a major
reorganization that implemented a new automated patent
Eight of the ten Plaintiffs are African American females: Ms. Cherrie Haywood, Ms. Theresa Williams, Ms. Kathy Nelson, Ms. Karen Smith, Ms Marian Day, Ms Tushombe Stokes, Ms. Deshawn Durham, and Ms. Roxanne Rawls
Dill is an African American male.
Plaintiff Ms
Eleanor Kurtz is a European American female. Plaintiff Mr. John
3
application processing system.
As a result, many functions
previously performed by federal employees were transferred to
contract personnel and the automated system.
Among the employees most affected by OIPE's reorganization were the GS-7 Legal Instrument Examiners ("LIEs"). Prior to the
reorganization, the OIPE employed approximately one hundred LIEs.
By August 2002, it employed only fifty-one total federal
employees.
Most of the OIPE's LIEs were reassigned to various
One exception to this reassignment
Patent Technology Centers.
was a group of LIEs who stayed within OIPE and received temporary
promotions to GS-8 Lead LIEs.
These LIEs were promoted to help
contract personnel transition and assume the duties originally
performed by LIEs prior to the reorganization.
Plaintiffs were
all part of the excepted group of LIES that received temporary
promotions to GS-8.
The primary difference between the GS-7 LIE position and the GS-8 Lead LIE position is that the Lead LIE performs supervisory
functions.
LIEs "examine an assigned docket of legal documents
such as applications, petitions, notices, and other similar
materials for compliance [with USPTO legal requirements]."
Position Description, Gov't Ex. 2.) An LIE'S major
(LIE
responsibilities include: checking applications for completeness
and compliance with USPTO regulations; identifying errors or
deficiencies in an application; preparing notices to customers detailing missing information and/or fees; maintaining the application's docket and correspondence record; performing
quality reviews of transactions processed by lower grade
employees; and providing customer service regarding the
application process and the status of pending applications.
(Id.)
in contrast, Lead LIEs "lead a team of [lies]"; each Lead
(Lead
LIE must lead a group "composed of at least three [LIEs]."
LIE Position Description, Gov't Ex. 3.) A Lead LIE'S major
responsibilities include: directing daily duties of LIEs; making or providing input on selection and termination decisions;
serving as acting supervisor in the supervisor's absence;
providing input to the supervisor on the work-schedule priorities
of the LIEs; managing the work flow of LIEs and coordinating with
other Lead LIEs to facilitate the meeting of production quotas;
training LIEs on all aspects of initial patent examination,
including identifying problems and areas requiring additional
training; and collaborating with other Lead LIEs and supervisors
regarding the development of policies and procedures. (id.)
Plaintiffs were aware that their promotions to GS-8 Lead
LIEs were temporary and that they were not to exceed one year.
Although the promotions were not to exceed one year, Plaintiffs'
third-line supervisor and the director of OIPE, Mr. Thomas
Koontz, persuaded the USPTO to extend and renew Plaintiffs'
temporary promotions until 2002.
In or around July 2002, all of
the temporary GS-8 Lead LIEs, including Plaintiffs, were informed
that their temporary positions would soon expire and that,
beginning in August 2002,
7 levels.
they would return to their original GS-
Upon notification that their GS-8 promotions would soon
expire,
Plaintiffs sought accretion-of-duties promotions to
maintain their GS-8 positions.
An accretion-of-duties promotion
is "[a] promotion resulting from an employee's position being
classified at a higher grade because of additional duties and responsibilities." 5 C.F.R. § 335.103(c)(3)(ii). It is a
noncompetitive promotion that allows an employee to obtain a
higher GS level without going through the competitive process.
In the fall of 2002, the USPTO'S Office of Human Resources
("OHR")
conducted a desk audit of Plaintiffs' work tasks to
determine whether accretion-of-duties promotions were warranted. A desk audit is a nonpersonal evaluation used to make sure that
employees are being paid fairly for the duties that they actually
perform. In a desk audit, the supervisor retains the
responsibility of determining which position performs which
specific duties, while the classifier who performs the desk audit
compares the duties as determined by the supervisor against
published Classification Standards.
comparison to determine the title, position.
The classifier uses this
series, and grade of the
The Classification Standards for a particular grade
are established by the United States Office of Personnel
Management ("OPM"), not the USPTO.
OHR Human Resources Specialists Ms. Gail Zamperini and Ms.
Karen Long conducted the desk audit of Plaintiffs' work tasks. Both visited Plaintiffs' offices to conduct in-person interviews During the
and to observe the daily tasks Plaintiffs performed.
desk audit,
Plaintiffs had several opportunities to present
information showing that a reclassification of their LIE
positions was warranted. Plaintiffs received a ten-page
questionnaire concerning their job tasks, were allowed to provide
samples of their work product, and were informed to call or email
OHR anytime to provide additional information.
Following the desk audit, OHR determined that Plaintiffs'
position was properly classified at the GS-7 level.
OHR issued a
Position Evaluation Report, which detailed how OHR determined the classification. The Report first classified the LIE position
within the job family "Legal and Kindred Group" and the series
"Legal Instruments Examining Series."
alternate series,
OHR also considered an
"Paralegal Specialist Series," before
determining that the Legal Instruments Examining Series was a
better fit.
Within this series and title,
Plaintiffs received
the maximum factor-level assignments possible, with the exception of one factor, "Knowledge Required by the Position," to which OHR
assigned the second-highest factor level.
According to Plaintiffs,
several facts surrounding the desk
First, Ms. Long
audit indicate that the desk audit was a "sham".
had never performed a desk audit prior to conducting Plaintiffs'. As a result, exercise. Plaintiffs' desk audit was instead a training
Second, Ms.
Zamperini provided Ms. Long little
guidance during the desk audit and fell asleep during the desk
audit interviews.
Plaintiffs filed a discrimination complaint after being
denied accretion-of-duties promotions.
Both the USPTO's Office
of Civil Rights and the Equal Employment Opportunity Commission
found no discrimination and issued a right to sue letter.
Plaintiffs brought this suit alleging race and gender discrimination in violation of Title VII of the Civil Rights Act
of 1964 as amended,
42 U.S.C.
§ 2000e et seq., age discrimination
in violation of the Age Discrimination in Employment Act of 1967,
as amended,
29 U.S.C.
§ 621,
and constitutional violations.
Defendant now moves for summary judgment on Plaintiffs'
discrimination claims and dismissal of Plaintiffs'
claims.
constitutional
II.
DISCUSSION
A.
Standard of Review
1__ Rule 56 Summary Judgment
Under Federal Rule of Civil Procedure 56,
the Court must
grant summary judgment if the moving party demonstrates that
there is no genuine issue as to any material fact, and that the
moving party is entitled to judgment as a matter of law.
Civ. P. 56(c) .
Fed. R.
In reviewing a motion for summary judgment, the Court views
the facts in a light most favorable to the nonmoving party.
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255
(1986).
Once
a motion for summary judgment is properly made and supported,
the
opposing party has the burden of showing that a genuine dispute
exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574,
586-87
(1986).
"[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact." Anderson,
All U.S. at 247-48.
A "material fact" is a fact that might Id. at 248; JKC Holding
affect the outcome of a party's case.
Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465
(4th Cir.
2001).
Whether a fact is considered to be "material"
is
determined by the substantive law,
and «[o]nly disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment."
Anderson,
477 U.S.
at 24 8.
Rule 56(e)
requires the
nonmoving party to go beyond the pleadings and by its own
affidavits,
or by the depositions,
answers to interrogatories,
and admissions on file,
there is a genuine issue
designate specific facts showing that
for trial. Celotex Corp. v. Catrett,
477 U.S.
317,
324
(1986).
Dismissal
2_j. Rule 12 (b) (6)
A Federal Rule of Civil Procedure 12(b)(6) granted unless an adequately stated claim is
motion should be
"supported by
showing any set of facts consistent with the allegations in the
complaint." Bell Atlantic Corp. v. Twowbly, 127 S. Ct. 1955,
1969
(2007);
see Fed. R. Civ. P.
12 (b) (6).
In considering a Rule
12(b)(6)
motion,
the Court must construe the complaint in the read the complaint as a Mylan Lab.,
light most favorable to the plaintiff, whole,
and take the facts asserted therein as true.
Inc.
v. Matkari,
7 F.3d 1130,
1134
(4th Cir.
1993).
In addition
to the complaint,
the Court may also examine
"documents
incorporated into the complaint by reference, which a court may take judicial notice."
and matters of Inc. v. Makor
Tellabs,
10
Issues & Rights,
Ltd.,
127 S.
Ct.
2499,
2509
(2007).
"Conclusory
allegations regarding the legal effect of the facts alleged" need
not be accepted.
1995).
Labram v.
Havel,
43 F.3d 918,
921
(4th Cir.
Because the central purpose of the complaint is to
provide the defendant
"fair notice of what the plaintiff's claim
the plaintiff's legal
is and the grounds upon which it rests,"
allegations must be supported by some factual basis sufficient to
allow the defendant to prepare a fair response.
Gibson,
B.
Conley v.
355 U.S.
41,
47
(1957).
Analysis
3__
Title VII/ADEA Discrimination
The Court grants summary judgment
for Defendant because
case of
Plaintiffs have not established a prima facie
discrimination since their proffered comparator, not similarly situated. Assuming, arguendo,
Mr.
Little,
is
that Plaintiffs their
properly established a prima facie case of discrimination,
claims still fail because they fail to rebut Defendant's
legitimate,
nondiscriminatory reason for denying them promotions.
are evaluated under the
Title VII and ADEA discrimnation claims
burden shifting rules established by the Supreme Court in McDonnell Douglas Corporation v.
First,
Green,
411 U.S.
facie
792
(1973).
in order to establish a prima
case of
discrimination in the
failure-to-promote context,
the plaintiffs
11
must show that 1)
they were members of a protected class; 2)
they
applied for the position in question; 3)
the position; and 4)
they were qualified for
the defendant rejected their application
under circumstances that give rise to an inference of
discrimination. See Anderson v. Westinghouse Savannah River Co.,
406 F.3d 248, Next,
268
{4th Cir.
2005).2
if the plaintiffs establish a prima facie case of the burden shifts to the defendant "to articulate
discrimination,
a legitimate,
nondiscriminatory reason for the adverse employment
action."
See Holland v.
Washington Homes,
Inc.,
487 F.3d 208,
214
(4th Cir. 2007).
This is a burden of production, not one of
so the reasons proffered need not persuade
proof or persuasion,
the Court, be deemed credible, or even have been relied upon in
making the employment decision. See id.; St. Mary's Honor Ctr.
v. Hicks,
509 U.S.
502,
509
(1993).
This is so because the
burden of proof and persuasion remains with the plaintiffs at all
times. Id. at 511 (noting that the defendant's burden to offer a
nondiscriminatory rationale "does not shift the burden of proof,
[and that]
...
the Title VII plaintiff at all times bears the (internal citations omitted)); 335 (4th Cir. 2004).
ultimate burden of persuasion." Mereish v. Walker, 359 F.3d 330,
2This framework applies, with little variation, to failure-to-promote claims whether based upon race, gender, or age. See Westinghouse, 406 F.3d at 268;
Hux v. City of Newport News, Va., 451 F.3d 311, 314 (4th Cir. 2006); Laber v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006) {en bane).
12
Finally,
once the defendant states a nondiscriminatory
reason for denying the promotions,
the burden shifts back to the
plaintiffs to prove by a preponderance of the evidence that the
reasons offered were not the actual reasons,
for discrimination. See Beeves v.
but were a pretext
Sanderson Plumbing Prods.,
Inc.,
530 U.S. 133,
143
(2000); Lettieri v. Equant,
Inc., 478
F.3d 640, 646-47 {4th Cir. 2007).
At this last step "the burden
to demonstrate pretext merges with the ultimate burden of
persuading the court that [the plaintiffs have] been the
victim [s]
of intentional discrimination."
See id.
(quoting Texas
Dep't of Coim. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).
The plaintiffs' "own assertions of discrimination in and of
themselves are insufficient to counter substantial evidence of
legitimate nondiscriminatory reasons," Dockins v. Benchmark
Comns., 176 F.3d 745, 749 (4th Cir. 1999), and their burden
cannot be satisfied "by focusing on minor discrepancies that do not cast doubt on the explanation's validity, or by raising
points that are wholly irrelevant to it.
315.
.
." Hux, 451 F.3d at
Here, the Court finds that Plaintiffs fail to establish a
prima facie case of discrimination. Assuming, arguendo, that the
Plaintiffs established a prima facie case of discrimination,
Court finds that they fail to rebut Defendant's nondiscriminatory
13
reasons for denying them promotions.
holding in turn below.
The Court addresses each
a.
Prima facie discrimination
The Court grants summary judgment for Defendant because
Plaintiffs have not established a prima facie case of
discrimination since the comparator they rely upon is not
similarly situated.3
In order for a comparator to be similarly
See
situated, he must be "similar in all relevant respects."
Heyward v. Monroe, 166 F.3d 332
(4th Cir. 1998)
(table); Telep v.
Potter, NO. 2:04-CV-006, 2005 WL 2454103, at *7 (E.D. Va. 2005);
Reese v. C. Richard Dobson, Inc., No. 3:01-cv-181, 2001 U.S.
Dist. LEXIS 12853, at *9-10 (E.D. Va. Aug. 23, 2001); see also
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997); Smith v.
Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir. 1994); Mitchell
V. Toledo Hosp., Monsanto Chem. 964 F.2d 577, 583 (6th Cir. 1992); Smith V. 770 F.2d 719, 723 (8th Cir. 1985).
Co.,
3As a matter of law, Plaintiffs need not identify a similarly-situated comparator in order to state a prima facie case of Title VII/ADEA discrimination. See Bryant v. Aiken Reg'l Med. Ctrs, Inc., 333 F.3d 536, 54546
rely upon comparisons to a similarly-situated employee from a non-protected depends upon the validity of their comparator.
class the plaintiffs'
(4th Cir
2003).
However, where the plaintiffs'
discrimination allegations
ability to state a prima facie case of discrimination
a "jury's finding of pretext does not stand or fall on [a comparison of the plaintiffs' qualifications with those of the successful candidate]," the jury's finding could be upheld). Here, the crux of Plaintiffs' argument is that they were denied accretion-of-duties promotions yet a similarily-situated, white male, Mr. Kevin Little, was not. As such, the Court evaluates
Colletonled. Ctr., Inc.. 290 F.3d 639, 648 (4th Cir. 2002) (noting that where
Cf. Dennis v. Columbia
Plaintiffs' ability to state a prima facie case by considering the validity of
Little as a similarly-situated comparator.
14
Mr
«[M]erely showing that an individual
[is]
involved in an
analogous situation is insufficient."
NO. 2:97-CV-73,
Powell v. city of Norfolk,
(E.D. Va.
1998 U.S. Dist. LEXIS 15915, at *10
Aug. 17, 1998), aff'd by unpublished opinion, 181 F.3d 90 (4th
Cir. 1999) (table).
Here, Plaintiffs argue that Mr. Little is similarly situated because both he and Plaintiffs performed increased job duties at
a higher grade level over a substantial period of time, but that
a disparate application of the accretion-of-duties criterion
resulted in Mr. Little receiving the same type of promotion denied Plaintiffs. Hence, Plaintiffs argue that they have shown
disparate treatment among similarly-situated employees by showing
the disparate application of this promotion criterion.
Plaintiffs' argument fails because Mr. Little is not Viewing the record in the light most
similarly situated.
favorable to Plaintiffs, even if both they and Mr. Little
performed increased job duties for an extended period of time,
the Court must go beyond this similarity to determine whether Mr.
Little is a similarly-situated comparator.
authority suggests,
As the weight of
the Court must look for similarities as to
all relevant factors, not just one.
Plaintiffs contend that the
performance of additional duties is the only relevant factor in
deciding their discrimination claims,
15
but this position does not
weigh several basic factors necessarily relevant to any failureto-promote inquiry.
In addition to the performance of increased job duties,
the
Court must also consider the exact nature of the job duties and
the employees'
positions within the organization.
In analyzing
these additional factors,
it is clear to the Court that Mr.
Little is not a valid similarly-situated comparator for two
reasons.
First,
Mr.
Mr.
Little's duties were far more complex than
Plaintiffs'.
Little coordinated with government contractors
and various departments within the USPTO for automation system
planning and led development teams that defined the requirements
for the system, Ex. 14; (See Little Position Evaluation Statement, Gov't
Accretion of Duties Promotion Justification,
Gov't Ex.
13),
but Plaintiffs'
work was primarily within OIPE and involved
(See LIE Position Evaluation Report, Gov't
no strategic planning
Ex.
10 at 6).
These differences are important because Mr.
Little
cannot be similarly situated if his position consists of vastly different duties, as Defendant's reasons for promoting him are
likely to be vastly different as well. Second, Mr. Little's position is completely different from
Plaintiffs'.
Mr.
Little was a GS-13 prior to his accretion-ofa full six grades above Plaintiffs.
Mr.
duties promotion,
Ex. 11.) Further,
(See Gov't
Little's position falls within the Program
16
Analyst series,
which is completely different than the Legal
Instruments Examiner series.
Mr.
(See Gov't Exs. 10 and 14.)
While
Little was a program analyst responsible for program development, and execution of automated systems
management,
within OIPE
(Gov't Ex.
14),
Plaintiffs as LIEs primarily
processed patent applications and reviewed the work of
contractors involved in pre-examination processing (Gov't Ex.
10).
Although the Court acknowledges that a similarly-situated exact match, the Court finds
comparator need not be Plaintiffs'
that these numerous relevant distinctions prevent Mr. Little from
being a similarly-situated comparator and therefore Plaintiffs
fail to show prima facie discrimination.
b. Pretext
Assuming,
prima facie
arguendo,
that Plaintiffs sufficiently establish a
the Court grants summary
case of
discrimination,
judgment in Defendant's favor because there is no issue for trial as to pretext. In considering a plaintiff's discrimination claim tt[t]he crucial issue [for the court] is an
not
against an employer,
unlawfully discriminatory motive for a defendant's conduct, the wisdom or folly of its business judgment." Anderson,
406
F.3d at 269
369, 383
(quoting Jiminez v. Mary Washington College,
1995)). Likewise,
57 F.3d
(4th Cir.
a plaintiff cannot point to
minor discrepancies in an employer's promotion process to rebut
17
the nondiscriminatory reason articulated by the employer;
negligence is not discrimination and cannot sustain an action
brought under Title VII and the ADEA. Inc., 133 F.3d 293, 299 (4th Cir.
346
See DeJarnette v. Smith v. Univ.
Corning, of North
1998);
Carolina,
632 F.2d 316,
{4th Cir.
1980)
(«[T]he law does not
require,
in the first instance,
that employment be rational,
wise,
or well-considered - only that it be nondiscriminatory.").
Here, Defendant offers a well-documented, nondiscriminatory
reason for denying Plaintiffs promotions, fail to rebut. First,
which Plaintiffs simply
OHR personnel performed a thorough desk ultimate classification. During
audit and agreed on Plaintiffs' the desk audit,
Plaintiffs had several opportunities to provide
(Gov't Exs. 7
OHR with information regarding their job duties.
and 18.)
The desk audit was a coordinated effort by personnel its Office of Civil Second, OHR issued
within three separate divisions of the USPTO, Rights, OHR, and OIPE. (Gov't Ex. 18 1 12.)
a Position Evaluation Report,
which provided a comprehensive
The eight-page
justification for the nonpromotion decision. Position Evaluation Report examined the
"Paralegal Specialist
Series" before determining that the "Legal Instruments Examining
Series" was a better fit for Plaintiffs' at 2-3.) Within this series and title, position. (Gov't Ex. 10
Plaintiffs received the
maximum factor-level assignments possible,
with the exception of
18
one factor,
"Knowledge Required by the Position", to which OHR
(See Gov't. Exs. 10
assigned the second-highest factor level. and 25.)
The report provided an in-depth explanation for why
(Gov't Ex.
Plaintiffs' received the second-highest factor level.
10 at 3-6.)
In response to Defendant's proffered nondiscriminatory
reason for denying the promotion, Plaintiffs simply argue that
numerous problems with the desk audit prove that they were denied
promotions for discriminatory reasons. However, the Court
rejects Plaintiffs' premise that Defendant's proffered reason is
pretext just because the desk audit was not perfect.
mentioned above, the Court's inquiry is focused on
As
discrimination, not negligence.
Nothing in the facts Plaintiffs
Plaintiffs do not
present point to a discriminatory motive.
assert that any USPTO official used any racially derogatory
language or referred to gender or age in any part of the promotion process. While Plaintiffs may differ with the USPTO's
business judgment, Plaintiffs have not responded with admissible
evidence that the USPTO's judgment was motivated by race, gender,
or age.
Plaintiffs likewise attempt to argue pretext by pointing to
statistics showing a long history of problems with the USPTO's
promotion process. The Court rejects Plaintiffs'
19
argument
because statistical evidence alone is insufficient to establish
discriminatory motive. In searching for discriminatory motive,
statistics are only useful in their ability to provide proper
context.
See Anderson, 406 F.3d at 263.
Here, Plaintiffs argue
that the USPTO's history of problems coupled with the specific
problems that occurred during the desk audit are sufficient
evidence of discrimination but, if anything, these specific
examples are just more evidence of a general problem; they do not
implicate discrimination as to employment decisions as to the
individual Plaintiffs' promotion requests.
General promotions
issues are properly within the realm of personnel and business
judgment and the courts are not suited to re-examine personnel
matters unconnected with civil rights protections. As such, the
Court grants summary judgment for Defendant on Plaintiffs' Title
VII and ADEA claims. 2_5_ Constitutional Claims
The Court grants Defendant's motion to dismiss Plaintiffs'
constitutional claims pursuant to Rule 12(b)(1) because the
United States has not waived its sovereign immunity from suit and, alternatively, pursuant to Rule 12(b)(6) because Plaintiffs
fail to state a claim for which relief can be granted. A Court
should grant a Rule 12(b)(1) motion if the jurisdictional facts
are undisputed and the movant is entitled to prevail as a matter
20
of law.
1999).
Evans v. B.F. Perkins, Co., 166 F.3d 642, 647 (4th Cir.
In claims against the United States, a court lacks
jurisdiction unless the government waives its sovereign immunity.
See United States v. Jones, 225 F.3d 468, 470 (4th Cir. 2000)
("Sovereign immunity deprives a court of jurisdiction.").
In Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971),
the Supreme Court recognized a limited damages remedy against
federal officers sued in their individual capacities, but the
Court has firmly held that no Bivens action lies against the
United States or its agencies. See FDIC v. Meyer,
473 (1994).
510 U.S. 471,
The same is true for suits brought against agency
officials in their official capacities.
170, 184
(2004) .
Doe v. Chao, 306 F.3d
540 U.S. 614
(4th Cir. 2002),
aff'd on other grounds,
Here,
it is clear that Plaintiffs'
suit is against the
United States through Defendant, named as defendant in his
official capacity.
The Complaint begins, Mt]his is an action
injunctive and other relief against an
for damages, backpay,
agency of the federal government .
clear, however,
.
.
."
(Compl. Hi.)
It is
that the United States has not waived its
It is also clear that Plaintiffs cannot
sovereign immunity.
obtain a damages award against Defendant as an agency official
sued in his official capacity.
Consequently, the Court dismisses
21
Plaintiffs' constitutional claims pursuant to Rule 12 (bid) because the United States has not waived its sovereign immunity.
Alternatively, the Court dismisses Plaintiffs- constitutional
claims pursuant to Rule 12(b.(6, because Plaintiffs' Bivens claim
fails as a matter of law.
III. CONCLUSION
The court holds that Plaintiffs fail to establish a prima
facie case of discrimination because being subject to the same
promotion process does not make a comparator similarly situated
where his position and job duties are substantially different.
Assuming, arguendo, that Plaintiffs were able to establish a
prima facie case of discrimination, the Court holds that
Plaintiffs fail to show pretext because proof of general
inefficiencies in an employer's promotion process, without
additional evidence of discrimination, is insufficient to prove
discriminatory motive.
Finally, the Court holds that Plaintiffs'
constitutional claims fail under Rule 12(b,(!) because the United
States has not waived its sovereign immunity and, alternatively,
under Rule 12(b)(6) because Plaintiffs cannot bring Bivens claims
22
against an agent of the federal govern^ in his office
capacity. Therefore, it is hereby
0TM that Defendant's Motion for Partial Dismissal and
lor summary Judgment is GRMJTED.
The ClerK is directed to forward a copy of this Order to
counsel.
Entered this
of April,
2009
Gerald Bruce Lee
Alexandria, Virginia
M.
United StateS Djstrlct Jud99
04/
^O
/°9
23
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