UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
FELECIA A. REDDING,
Plaintiff,
v. Civil Action No. 16-2149 (TJK)
LLOYD AUSTIN,1
Defendant.
MEMORANDUM OPINION
Felecia Redding is an African-American woman who works in human resources at the
Defense Intelligence Agency (“DIA”), a component of the Department of Defense. In 2013, she
interviewed for a role as a senior human resources manager, but the DIA passed on her
application in favor of Aradhana Nayak-Rhodes, a fellow employee who was younger and
Asian-American. Redding filed this action against the Secretary of Defense, claiming age
discrimination in violation of the Age Discrimination in Employment Act as well as racial
discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. Redding
alleges, among other things, that Defendant’s qualifications-based reason for hiring Nayak-
Rhodes over her was pretextual because she was substantially more qualified than Nayak-
Rhodes. This Court previously dismissed Redding’s retaliation claim, ECF No. 19, and
Defendant has now moved for summary judgment on the remaining discrimination claims. For
the reasons explained below, the Court will grant Defendant’s motion and enter summary
judgment in his favor.
1 Defendant Lloyd Austin, who assumed office as Secretary of Defense in January 2021, is automatically substituted for Jim Mattis under Federal Rule of Civil Procedure 25(d). Background
In 2013, a reorganization in the Defense Intelligence Agency (DIA) Office of Human
Resources (OHR) resulted in the creation of an “Employee Mobility” division. See ECF No. 37
at 2 (“Admitted Material Facts”) ¶ 1. Warner Eley, an African-American man about three years
younger than Redding who had been hired as the new Chief of Employee Mobility, was tasked
with “implement[ing] a more strategic approach for utilizing human capital within DIA that
looked at how to move people across the agency in a proactive manner that anticipated need,
identified talent and moved that talent in the most effective manner possible.” Id. ¶¶ 4–5. One
of the first steps in standing up this new function required hiring a Deputy Chief of Employee
Mobility to assist Eley, because his deputy in his prior position, who would have as assumed the
new deputy position, was reassigned within OHR. Id. ¶¶ 6–7.
Deborah Hartman, the Director of OHR, was about a year older than Redding.
According to Hartman and Eley, Hartman “was looking for someone to fill the Deputy Chief of
Employee Mobility position who had strategic management experience consistent with the
mission of the Employee Mobility Division.” Id. ¶ 9.2 Positions in the DIA OHR are classified
by billet. Each series of billet aligns with a set of skills and job expectations. Eley, for example,
was assigned to be the first Chief of Employee Mobility with a GG-301-15 series billet
appropriate for a “Supervisory Human Capital Advisor position.” Id. ¶ 3. Eley’s deputy in his
prior position also held a GG-0301-15 Supervisory Human Capital Advisor billet. Id. ¶ 8. When
2 Redding denies this assertion and several others because they are unsupported by “contemporaneous evidence.” Id. ¶ 9. But there is no requirement for a purported fact to be supported by contemporaneous evidence, as opposed to sworn testimony. Salazar v. Wash. Metro. Transit Auth., 401 F.3d 504, 507 (D.C. Cir. 2005). And in any event, the Court includes these assertions here merely to reflect Defendant’s stated reasons for filing the position as it did. As explained below, Redding argues, based on other evidence, that this reasoning is pretextual.
2 it came time to hire a Deputy Chief of Employee Mobility, three billets were available to support
the position. Id. ¶ 10. But according to Hartman, none of those billets fully aligned with the
Deputy Chief position. Id. ¶ 11.3 Because “time was of the essence to get the position
advertised, [and] management did not have the time to go through the process of having the billet
reclassified” to more closely align with the position that management envisioned, id. ¶ 12, it used
an existing GG-0201-15 billet, associated with a Supervisory Human Resource Specialist
position, id. ¶ 13. According to Eley, “a GG-0201 series position is one focused more on the
technical aspects of human capital positions rather than on strategic management.” Id. ¶ 14. In
any event, according to Hartman and Eley, “it was management’s intention to change the
position to match the type of work that was being performed once the position was filled.” 4 Id.
¶ 33.
In April 2013, Eley provided a staffing checklist to Human Resources to help identify
staffing requirements. In answering the question “What knowledge, skills, and/or abilities are
required to perform the duties of this position?,” Eley wrote: “Responsible for organizing,
planning, supervising and directing work through subordinate supervisors of human resources
specialists responsible for execution of highly complex DIA human capital programs. Exercises
broad responsibility and authority for planning and managing the overall efficiency and
effectiveness of assigned operations and communicating the strategic plan, mission, vision and
values to employees within the directorate(s). - Oversees through subordinate experts/supervisors
3 Redding also denies this assertion and says it is unsupported by “contemporaneous evidence.” Id. ¶ 11. 4 Again, Redding denies this assertion as unsupported by “contemporaneous documentary evidence.” Id. ¶ 33.
3 various special projects to meet unique customer and headquarters requirements.” Id. Eley also
answered the question “What knowledge, skills, and/or abilities would distinguish candidates
with superior qualifications from those who meet only basic qualifications?” as follows:
“Candidates MUST possess senior level staffing experience, and has [sic] previously served in a
variety of complex HR assignments, additionally, exercises technical and administrative
supervision over human resources professionals with a thorough knowledge of a wide
range of concepts, principles and practices to advise or independently accomplish the
establishment and implementation of practices, polices [sic] and procedures.” ECF No. 37-3 at
2.
On April 17, 2013, the DIA internally advertised the Deputy Chief of Employee Mobility
position, described as a Supervisory Human Resources Specialist, GG-0201-15. Admitted
Material Facts ¶ 15. The Vacancy Announcement listed the following Mandatory Assessment
Factors for the position:
“1. (U) Establishes working relationships with senior leaders within and across other
agencies and private organizations in order to advance corporate and community goals
2. (U) Develops change strategies, including recommending innovative solutions to
human capital issues while minimizing unintended consequences
3. (U) Knowledge of the DIA Strategic Plan, to include its goals and objectives
4. (U) Senior level staffing experience exercising technical and administrative
supervision over human resources professionals with a thorough knowledge of a wide range of
concepts, principles and practices, policies and procedures.” ECF No. 33-2 at 15.
According to Hartman, the position was not advertised as she had intended because all
human resources employees were not on the email distribution list, and the announcement did
4 not indicate that it was open to GG-0300 series employees. Id. ¶ 16. On May 1, 2013, Hartman
directed that the distribution list be updated to include all human resources employees and the
position be “advertise[d] [to] HR [employees] only as both 201 or 301.” Id. ¶ 17. On May 2,
2013, the original vacancy announcement was re-issued to all human resources employees, but
the announcement still failed to indicate that it was open to GG-0300 series employees. Id. ¶ 18.
At the time of the announcement, 52-year-old Felecia Redding worked as a supervisory
Human Resources Specialist. ECF No. 37 at 16 (“Pl. Additional Facts”) ¶ 9. As she explains,
she had “7 years of senior level staffing experience and 9 years of experience supervising
civilian employees with 17 years of experience supervising military personnel.” Id. At that
same time, Aradhana Nayak-Rhodes, a younger Asian-American woman, was serving as Deputy
Staff Director within OHR. ECF No. 33-2 at 30. In that capacity, she served “as a second-level
supervisor and senior administrative advisor on matters pertaining to the day-to-day operations
or management of administrative support functions” within OHR. Id. She had prior experience
as Chief, Strategic Initiatives, within the Directorate for Human Capital at DIA, and she also had
experience as a Staff Officer. Admitted Material Facts ¶ 27.
Redding, Nayak-Rhodes, and seven other individuals applied for the Deputy Chief
position. Belinda Payne and Veronica Mason, human resources staffing specialists, screened the
applications and referred only six applicants to Eley. Id. ¶ 19. The referred candidates,
including Redding, were all working in series GG-0201 positions. Id. ¶ 20. The staffing
specialists screened out Nayak-Rhodes and two other candidates in GG-300 series positions, on
the basis that their resumes did not reflect “staffing/operational experience.” Id. ¶ 21.
According to Eley, the selecting official for the vacancy, “the human resources staffing
consultants who screened the applications erroneously determined that GG-0201 series staffing
5 experience was a requirement for the position,” id. at 23, and he directed the specialists to
provide him with all the received resumes, id. at 25. Ultimately an interview panel composed of
Eley, Melissa Hawkes, and Steven Rush, interviewed all nine applicants. Id. ¶ 29. Each panel
member independently gave Nayak-Rhodes their highest rating and ranked Redding and Kenneth
Chalk, in that order, as the next two highest-rated candidates. Id. ¶ 30. Redding does not
contend that Hawkes or Rush acted with discriminatory animus towards her in connection with
the selection process. Id. ¶ 31. The interview panel selected Nayak-Rhodes for the Deputy
Chief Employee Mobility role, under the formal title of Supervisory Human Resource Specialist,
GG-15-201. Id. ¶ 34.5 Within two months, her position was converted to a Supervisory Human
Capital Advisor GG-15-301 position similar to the position held by Eley and his prior deputy.
Id.
On June 12, 2013, Redding contacted an EEO counselor to initiate a discrimination
complaint related to her non-selection. And on October 26, 2016, Redding filed this suit against
the Secretary of Defense. Her operative complaint brings two counts against Defendant, each
alleging a different type of unlawful conduct: Count I alleges unlawful race and age
discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.
and Count II alleges Retaliation in violation of both Title VII and ADEA ECF No. 11. In 2018,
this Court dismissed Count II without prejudice. ECF No. 19. And last year, the Defendant
5 Redding suggests that there are factual disputes about Hartman’s exact role in the final stage of the hiring process. She points to testimony about Hartman’s role as “approving the selection made by the interview panel” as contradicting Eley’s testimony that he “recommended to Ms. Hartman that she select Nayak-Rhodes.” Pl. Opp. at 13. The Court finds no material factual dispute on this point.
6 moved for summary judgment on the remaining age and race discrimination claims contained in
Count I.
Legal Standard
Under Federal Rule of Civil Procedure 56, a court must grant summary judgment “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” “Summary judgment is appropriately granted when, viewing
the evidence in the light most favorable to the non-movants and drawing all reasonable
inferences accordingly, no reasonable jury could reach a verdict in their favor.” Lopez v. Council
on Am.-Islamic Rels. Action Network, Inc., 826 F.3d 492, 496 (D.C. Cir. 2016). To survive
summary judgment, a plaintiff must “go beyond the pleadings and by her own affidavits, or by
the depositions, answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986) (internal quotation omitted). Courts “are not to make credibility determinations or weigh
the evidence.” Lopez, 826 F.3d at 496 (quoting Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.
2006)). But the “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.” Lopez, 826 F.3d at 496 (emphasis omitted) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)). If the evidence “is merely
colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477
U.S. at 249–50 (citations omitted).
Analysis
Under Title VII of the Civil Rights Act, all “personnel actions affecting employees or
applicants for employment” in executive agencies “shall be made free from any discrimination
based on race.” 42 U.S.C. § 2000e-16(a). Likewise, the Age Discrimination in Employment Act
7 provides that “[a]ll personnel actions affecting employees . . . shall be made free from any
discrimination based on age.” 29 U.S.C. § 633a. “Where, as here, the plaintiff has no direct
evidence that the adverse employment action[] of which she complains w[as] caused by
prohibited discrimination,” the Court applies the McDonnell Douglas burden-shifting
framework. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–05 (1973)). That framework first requires Redding to show
that: “(1) she is a member of a protected class; (2) she applied for and was qualified for an
available position; (3) despite her qualifications she was rejected; and (4) someone filled the
position.” Lathram, 336 F.3d at 1088 (cleaned up). Defendant does not dispute that Redding
satisfies this minimal burden—she is African-American, she applied and was qualified for the
Deputy Chief position, and she was ultimately rejected when Nayak-Rhodes was selected for the
role. In response, Defendant must “assert[ ] a legitimate, non-discriminatory reason for the
decision” not to hire Redding. Brady v. Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008). And, as Redding concedes, Defendant has done so here by pointing to the assessment of
the interview panel that Nayak-Rhodes was more qualified. Pl. Opp at 6.
The Court must therefore “resolve one central question,” considering “all relevant
evidence presented by” Redding and the government: has Redding “produced sufficient evidence
for a reasonable jury to find that the [defendant’s] asserted non-discriminatory reason was not the
actual reason and that [it] intentionally discriminated against [her] on the basis of race [or age]”?
Brady, 520 F.3d at 494–95. In other words, has Redding shown that Defendant did not “honestly
and reasonably believe[ ]” that Redding was the more qualified candidate? Id. at 496.
Redding challenges as pretextual Defendant’s qualification-based explanations for
selecting Nayak-Taylor over her. In a non-selection case, a plaintiff can satisfy her burden of
8 demonstrating pretext by showing that “a reasonable employer would have found the plaintiff to
be significantly better qualified for the job.” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294
(D.C. Cir. 1998); see also Ash v. Tyson Foods, Inc., 546 U.S. 454, 458 (2006) (citing Aka’s
“significantly better qualified” standard). Redding tries to do so in two main ways.
First, Redding argues that Nayak-Rhodes was not even “minimally qualified” for the
Deputy Chief Employee Mobility job. ECF No. 37 at 19 (“Pl. Opp.”) at 6–7. She points to the
job listing, which includes a series of four “mandatory assessment factors.” Focusing on the
fourth factor—“Senior level staffing experience exercising technical and administrative
supervision over human resources professionals with a thorough knowledge of a wide range of
concepts, principles and practices, policies and procedures,” see ECF No. 33-2 at 15—she
contends that Nayak-Rhodes did not have the “senior level staffing experience” required. 6 In her
view, that phrase meant “technical staffing experience,” i.e., direct supervisory experience over
employees engaging in the staffing process. Thus, she says, Nayak-Rhodes did not meet the
minimum requirements for the position, and so by default she was substantially more qualified.
Pl. Opp. at 6–8.
The problem for Redding is that Defendant had a different view of the position it was
filling. And this Court “must not second-guess an employer’s initial choice of appropriate
qualifications; rather the court defers to the employer’s decision of what nondiscriminatory
qualities it will seek in filling a position.” Jackson v. Gonzales, 496 F.3d 703, 708 (D.C. Cir.
6 Redding also notes that Eley used the same phrase—“senior level staffing experience”—in the staffing checklist as a required criterion for the job.
9 2007) (cleaned up).7 According to Hartman and Eley, the job did not require technical staffing
experience, and so Nayak-Rhodes’s higher-level staffing experience also minimally qualified her
under the fourth assessment factor. Thus, the Deputy Chief position listing’s use of the phrase
“senior level staffing experience” included a higher-level managerial understanding of staffing.
See ECF 33-3 at 5 (explaining that the ideal Deputy Chief candidate did not “have to be the
practitioner or the technical tactical person to have knowledge of how that system works”).
According to Eley, this sort of “senior level staffing experience” “can be gained through series
0300 positions that are involved in various human capital issues.” ECF 33-2 at 3.
Redding, to be sure, disputes all this. But once an employer has articulated a non-
discriminatory explanation for its action, as Defendant has here, the issue is not “the correctness
or desirability of [the] reasons offered . . . [but] whether the employer honestly believes in the
reasons it offers.” Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996)
(quoting McCoy v. WGN Cont’l. Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)).
Notwithstanding Redding’s own interpretation of the phrase “senior level staffing experience,”
there is no evidence that suggests Hartman and Eley did not honestly believe that the kind of
staffing experience Nayak-Rhodes possessed would fit the bill. In fact, to the contrary, how the
hiring process unfolded overwhelmingly suggests that they believed that from the start,
especially as they focused on strategic management experience as the more important factor for
the Deputy Chief position.8
7 Further, “employers are not rigidly bound by the language in a job description.” Browning v. Dep’t of Army, 436 F.3d 692, 696–97. [full cite needed] 8 To the extent that Redding argues that the entire process Defendant used to fill the Deputy Chief role creates an inference of discrimination, her argument fails. She has not shown that the procedures here were “so irregular or inconsistent with [Defendant’s] established policies as to
10 To begin with, the parties agree that Eley was tasked with “implement[ing] a more
strategic approach for utilizing human capital within DIA” and that “[o]ne of the first steps in
standing up the employee mobility capability was to hire a deputy to assist Mr. Eley in that
effort.” Admitted Material Facts ¶ 6. Hartman testified that, from the beginning she was looking
for someone “who had strategic management experience consistent with the mission of the
Employee Mobility Division.” Id. ¶ 9. She also represented that because of time pressure, the
plan was to use a billet that did not quite align with the position, but to change the position to
match the work that was being performed once the position was filled. Id. ¶ 33. Consistent with
these representations, she instructed that the position be advertised to not only those employees
holding GG-201 series positions, which are “focused more on the technical aspects of human
capital positions rather than on strategic management,” but to those holding GG-301 series
positions, like Eley and his former deputy. Id. ¶ 14. Eley then overruled the staffing specialists’
assessment of the fourth mandatory assessment factor as requiring “staffing/operational
experience,” and their rejection of the three candidates holding GG-301 series positions; thus, the
panel interviewed all nine candidates.9 The panelists, two of whom Redding does not accuse of
make its hiring explanation unworthy of belief.” Porter v. Shah, 606 F.3d 809, 816 (D.C. Cir. 2010). And even if a court suspects that a job applicant “was victimized by . . . poor selection procedures” it may not “second-guess an employer’s personnel decision absent demonstrably discriminatory motive.” Milton v. Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982). Finally, to the extent that there are factual disputes as to some aspects of the process, such as whether and how Hartman may have encouraged Nayak-Rhodes to apply for the Deputy Chief role, they do not create an inference of discrimination. See Lopez, 826 F.3d at 496 (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). 9 Redding points to the staffing specialists’ decision to screen out Nayak-Rhodes and two other candidates as evidence that Nayak-Rhodes was not “minimally qualified” for the Deputy Chief role. But that would ignore the “necessary and appropriate realities of hiring processes” that are self-evident here. Jackson, 496 F.3d at 709. Hartman and Eley created the position and its
11 discriminating against her, found that Nayak-Rhodes was far more than minimally qualified for
the job, despite one of them noting her lack of technical staffing experience. ECF No. 33-4 at 7.
Finally, Defendant reclassified the Deputy Chief position from a 201 series billet to a 301 series
billet shortly after Nayak-Rhodes’ selection.10 In sum, none of this suggests that Hartman and
Eley did not honestly believe that the kind of staffing experience Nayak-Rhodes had counted as
“senior level staffing experience,” or otherwise supports an inference of discrimination.
Second, Redding argues, apart from whether Nayak-Rhodes was minimally qualified, the
reason Defendant gave for preferring her—strategic management experience—was pretextual.
Redding points again to the job posting, which she argues does not reflect this criterion, thereby
suggesting that it was pretextual. But to repeat, this Court “must not second-guess an employer’s
initial choice of appropriate qualifications; rather the courts defer to the [employer’s] decision of
what nondiscriminatory qualities it will seek in filling a position.” Jackson, 496 F.3d at 708
(cleaned up).
On this point, this case is quite similar to Jackson. In that case, the plaintiff challenged
his non-selection for a promotion at the Bureau of Prisons. The Bureau’s selection process gave
qualifications. Admitted Material Facts ¶ 9, 24. In contrast, the staffing specialists’ understanding of the position was entirely subordinate to theirs, and the staffing specialists had merely relied on the job posting drafted by Eley, including the billet, to assess the qualifications of the candidates. Id. ¶ 19, 21, 23, 24. Finally, nothing in the record suggests that Eley did not have the authority to overrule the staffing specialists’ screening decision to ensure that all the candidates he believed were minimally qualified were interviewed. 10 Although Redding disputes that the reclassification was planned from the beginning, she offers no evidence to the contrary. Admitted Material Facts ¶ 33. And in addition to sworn statements from Hartman to that effect, Defendant also cites documentary evidence from when the position was first advertised acknowledging that the billet would need to be changed eventually. ECF No. 33-6 at 3. Finally, while Redding argues that the reclassification did not happen until after she contacted an EEO counsellor, the evidence shows otherwise. ECF No. 40-2 at 4.
12 heavy weight to the selectee’s experience with its data management system. Id. at 705. Jackson
argued that because such experience was not expressly referenced in the job description, a
reasonable jury could disbelieve the Bureau’s reliance on it. Id. at 708. But the Circuit held that
“[t]he fact that an employer based its ultimate hiring decision on one or more specific factors
encompassed within a broader and more general job description does not itself raise an inference
of discrimination sufficient to overcome summary judgment.” Id. at 709.
So too here. The posting announced that the job would be “[r]esponsible for organizing,
planning, supervising and directing work through subordinate supervisors . . . responsible for
execution of highly complex DIA human capital programs. Exercises broad responsibility and
authority for planning and managing the overall efficiency and effectiveness of assigned
operations and communicating the strategic plan, mission, vision and values to employees . . .
Exercises a high degree of originality and judgment in accomplishing responsibilities that
contribute significantly in guiding and shaping the future of the Agency.” See ECF No. 33-2 at
14–15. To be sure, it is a general description that does not use the specific phrase “strategic
management.” But it reflects that the job was strategic in nature. “[T]hat an employer based its
ultimate hiring decision on one or more specific factors encompassed within a broader and more
general job description does not itself raise an inference of discrimination sufficient to overcome
summary judgment.” Jackson, 496 F.3d at 709. And for the same reasons described above,
nothing in the record calls into question that this reason was genuinely held, or suggests
pretext.11
11 Redding also suggests that strategic management experience is a subjective criterion and therefore a “ready mechanism for discrimination.” Pl. Opp. at 11. She claims that consideration of that kind of experience could allow the jury to infer that Eley and Hartman “resorted to subjective criteria because they knew that Ms. Redding objectively had more experience . . .” Id.
13 Even if Redding cannot show pretext in either Defendant’s decision to consider Nayak-
Rhodes as minimally qualified under assessment factor four, or to strongly weigh strategic
management experience, as noted above, she could still show pretext by showing that she was
“significantly better qualified” so as to allow a reasonable jury to “legitimately infer that the
employer consciously selected a less-qualified candidate—something that employers do not
usually do, unless some other strong consideration, such as discrimination, enters into the
picture.” Aka, 156 F.3d at 1294. But she never tries to do so, at least not without rearguing that
her employer should have substituted her conception of the Deputy Chief of Employee Mobility
position for her employer’s. In any event, the record does not reflect that she was significantly
better qualified than Nayak-Rhodes for the actual position Defendant intended to fill.
Conclusion
For all these reasons, Defendants’ Motion for Summary Judgment, ECF No. 33, will be
GRANTED. A separate order will issue.
/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge
Date: March 10, 2021
But strategic management experience is not particularly subjective. Perhaps reflecting that, Redding does not even attempt to argue that she has more of it than Nayak-Rhodes.