Opinion
Civil No. 04-490 (RCL).
June 29, 2005
MEMORANDUM OPINION
Introduction
This matter comes before the court on defendant's motions for summary judgment on the discrimination, retaliation, and negligence claims. Calvin Stover filed this suit after he was not promoted to Labor Relations Manager at Safeway, stating that his non-promotion was based on discrimination on the basis of race (African-American). Plaintiff's complaint alleges three counts: Count I alleges racial discrimination in promotion practices under Title VII of the 1964 Civil Rights Act ("Title VII"); Count II alleges retaliation under Title VII; Count III alleges negligence. Plaintiff contends that he is therefore entitled to compensatory damages in excess of two million, five hundred thousand dollars; punitive damages in excess of five million dollars, and attorney's fees and costs.
Upon consideration of the submissions of the parties and the relevant law, defendant's motion for summary judgment is granted on all three counts. Factual Background
At the time this litigation commenced, plaintiff, an African-American, was employed in the Human Resources department in Safeway's Eastern Division headquarters. Stover has obtained both an undergraduate degree and a law degree, and has taken classes in mediation. Mr. Stover has worked at Safeway since 1996, and has worked as the Human Resource Advisor for just over four years, where he worked with some union officials in resolving grievances and investigating claims. Although Mr. Stover has experience handling individual grievances, he does not have experience negotiating collective bargaining agreements. (Plaintiff's Motion at 1-5.) Donna Gwin, the Human Resource Director at Safeway is Stover's immediate supervisor. (Bull Decl. ¶ 5.)
Although Mr. Stover had graduated from law school, he has not passed the bar in any state or in the District.
On July 15, 2002 Trudee Kondos informed Mike Bull she would resign from her position as Labor Relations Manager at Safeway. (Id. ¶ 2.) Ms. Kondos reported directly to Mr. Bull, the Labor Relations Director for Safeways's Eastern Division for the last thirteen years. Mr. Bull, with Ms. Gwin's assistance, was responsible for hiring the new Labor Relations Manager. Two days after Mr. Bull learned of the job vacancy, he posted a job listing internally at Safeway and also on Monster.com. The job posting for Eastern Division Labor Relations Manager listed the following "preferred or desired" qualifications: 1) 4 year college degree or equivalent professional experience; 2) 5-6 years Human Resources or Labor Relations experience, with 2-3 years of negotiation experience (this experience referred to negotiating collective bargaining agreements); 3) PC knowledge (Microsoft Windows, Excel, and Word); 4) strong analytical problem solving skills; 5). excellent verbal and written communications skills; 6) able to work independently, but a strong team player. The posting also stated that the key responsibilities included, but were not limited to: 1) working with union representatives to address the legitimate concerns of Safeway's employees; 2) negotiating retail and division contracts; 3) supporting the Labor Relations manager in major negotiations; 4) helping train management in the prevention resolution of labor problems; 5) monitoring contributions to and performance of benefit trust funds. (Id. ¶¶ 1-4.)
Mr. Bull stressed the importance of working effectively with union officials as well as with Safeway management teams. (Bull Dep. at 39.) Mr. Bull personally contacted Mr. Stuebner Mr. Begg to inform them of the vacancy, and ask them to apply for the position. Upon posting this job vacancy, Safeway received forty-six applications, from which Mr. Bull Ms. Gwin picked four to grant interviews: Mr. Stover (African-American), Mr. Robert Stuebner (Caucasian), Mr. Glenn Begg (Caucasian) Mr. Tim Matthews (Caucasian). Mr. Bull Ms. Gwin picked these four candidates based on their resumes, work experience, and their personal experiences with these individuals. (Bull Decl. ¶ 5.)
Mr. Matthews has been in retail at a non-union grocery for ten years, the last three of which he was the store manager. In this position, Matthews conducted seminars on employee management tools and progressive disciplinary procedures. Matthews also had been working in Human Resources for the last 2 and a half years (the last six months for Safeway). Although Matthews does not have a college degree, he had more than three years of college education. He is also a member of the Society for Human Resource Management. (Bull Dep. at 3.)
Mr. Bull felt that Mr. Stuebner was the most qualified candidate "on paper." (Bull Decl. ¶ 6.) Stuebner has a Bachelor's and Master's degree, and is also a member various professional societies such as the Society for Human Resource Management. Stuebner has worked in retail grocery for over thirty years, has extensive collective bargaining agreement experience with the unions, and is also the ex-Vice President of Human Resources for AP grocery. Additionally, Stuebner taught classes on progressive disciplinary procedures and labor relations. (Defendant's Ex. 2.)
Mr. Begg had been the District Labor Relations Manager for United Parcel Service ("UPS") for fifteen years. At this position, Mr. Begg developed a training program for management, and also was a member of the negotiations team. Mr. Begg had also worked for Safeway in the past as a driver supervisor. (Defendant's Ex. 3.) Mr. Begg had asked Mr. Bull to contact him if there were any job openings at Safeway, because he was very interested in re-joining Safeway. (Bull Dep. at 105.)
Before the interviews with the four finalists, Mr. Bull and Ms. Gwin prepared a list of questions to ask the candidates. Mr. Bull stated the questions were designed to get a better idea of each applicant's "skills and suitability" for the position. (Bull Declaration ¶ 10.) Both Mr. Bull Mr. Stover stated they felt Mr. Stover's interview went well. Mr. Stover states that there was nothing out of the ordinary at the interview, and that it appeared that both interviewers were interested in him, and what he was saying. (Stover Dep. at 105.) Mr. Bull stated the Matthews interview was great and that there was a "wow" factor during the interview. (Bull Decl. ¶ 7.) Mr. Bull also stated that Mr. Stuebner's interview did not go very well, and that Mr. Stuebner seemed to be disinterested at some points during the process. (Defendant's Ex. 8.)
After interviews, Mr. Bull tried to gain information about each candidate by contacting those who had relevant information regarding the applicants. (Bull Decl. ¶ 11.) Mr. Matthews received excellent commendations from both Ann Erickson, Senior Corporate Counsel at Safeway; Patty Nelson, Director of Labor Relations at Safeway; and Phillip Morris, Matthews' former supervisor. (Id.) Mr. Stuebner received high praise from senior union officials, and was lauded as well respected for his honesty. In regards to plaintiff, Mr. Bull contacted Mr. Tippett, Stover's current District Manager, as well as Mr.Gronbeck, his former District Manager. Mr. Gronbeck stated that Stover was "not real responsive and not real supportive." (Bull Decl ¶ 15.) Mr. Tippett stated that Stover would be a good candidate for the Labor Relation Manager position. (Bull Dep. at 86.) Mr. Bull states he also received some unsolicited feedback from three senior union officials. One official, Mr. Earman, provides a statement in which he confirms that he did make some negative comments to Mr. Bull about Mr. Stover. He stated that putting Mr. Stover in the position of Labor Relations Manager would not help the current backlog of grievances, and that it might actually make the situation worse. (Earman Dep. at 15.) The other two union officials do not recall making any such comments to Mr. Bull. (Wise Dep. at 8, 9; Boyle Dep. at 8, 9.)
After taking all these elements into consideration, Mr. Bull and Ms. Gwin ranked the candidates, putting Mr. Matthews as their first choice. (Bull Decl. ¶ 16.) Although all the candidates were qualified to some extent, Safeway believed that Mr. Matthews would do the best job — he had the retail experience that Safeway was looking for, had an excellent interview, came highly recommended from two supervisors at Safeway, and had extensive experience training managers. (Id.)
After Mr. Matthews had accepted the job, Mr. Bull explained to plaintiff that the decision was based on the negative feedback about Stover, and that they believed Mr. Matthews was the overall "best candidate for the job." (Id. ¶ 18.)
Plaintiff filed suit, bringing three counts against defendant Safeway. Stover states that his non-promotion was the result of discrimination based on race, and that it violates his rights under 42 U.S.C. § 1981. Plaintiff also contends he engaged in the protected activity of filing a PGHRC complaint, and filing a complaint in this Court, and because of these activities he received a lower performance appraisal and was treated differently, which adversely affected his employment. Plaintiff also alleges that defendant has a duty to train its managers in order to rid the workplace of discrimination, and that defendant was negligent for breaching this duty. After the parties conducted discovery, defendant has moved for summary judgment on all three counts.
Legal Standard
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and consequently affect the outcome of the action. Celotex, 477 U.S. at 322.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. If summary judgment is denied, there must be evidence on which the jury could reasonably find for the non-moving party. Id. at 252. A nonmoving party, must establish more than a "mere existence of a scintilla of evidence" in support of its position. Id. Furthermore, if the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment may be granted. Celotex, 477 U.S. at 322. Pointing to the absence of evidence proffered by the nonmoving party, may allow the moving party to succeed on summary judgment. Id.
Additionally, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). The nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, (internal citations omitted).
Analysis
I. Disparate Treatment Claim — McDonnell Douglas Framework
The plaintiff in Title VII bears the burden of proving that his employer intentionally discriminated against him. To make such a showing of discrimination, the plaintiff can rely on either direct or indirect evidence to support the charge. If there is no direct evidence, the plaintiff can use indirect evidence and the burden shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Because the plaintiff in this case offers no direct evidence of discrimination, the court must employ the McDonnell Douglas framework.
Under the McDonnell Douglas analysis, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. In order to establish a prima facie case of discriminatory failure to promote, the plaintiff must show: (1) that the plaintiff belongs to a protected group; (2) that he was qualified and applied for a promotion; (3) that the plaintiff was rejected despite the plaintiff's qualifications; and (4) that the position remained open and was filled by a similarly qualified person from outside the protected group. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); McDonnell Douglas, 411 U.S. at 802.
Once the plaintiff has shown a prima facie case of discrimination, the burden of production shifts to the employer to "articulate some legitimate, non-discriminatory reason" for his actions. Burdine, 450 U.S. at 254-55; McDonnell Douglas, 411 U.S. at 803. The employer must only introduce some evidence that he was not motivated by a discriminatory reason. Burdine, 450 U.S. at 257. The reasons can be objective or subjective, as long as the employer articulates a clear and reasonably specific factual basis on which it bases its opinion. Carter v. George Washington Univ., 180 F. Supp. 2d. 97, 104 (D.D.C. 2001). At this point, the employer is not required to convince the court that it was actually motivated by the suggested reasons, as long as he raises a genuine issue of fact as to whether they discriminated against the plaintiff. Stewart v. Ashcroft, 211 F. Supp 2d 166, 171 (D.D.C. 2002).
If the defendant produces this evidence, the McDonnell Douglas system, "with its presumptions and burdens disappears and the sole remaining issue is discrimination vel non." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000). The plaintiff then bears the burden of proving that the reasons articulated by the defendant for the employment actions are merely a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). At that point, to "survive summary judgment the plaintiff must show that a reasonable jury could conclude that [he] was [rejected] for a discriminatory reason." Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998). The Court must note that "`[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253).
In Hicks, the Supreme Court concluded that a plaintiff who discredits the employer's stated reasons for its employment decision is not automatically entitled to judgment in his favor as a matter of law. Hicks, 509 U.S. at 1291. The Court further explained that an employee must show that the true reasons are not the suggested one, and that race was the real reason. Id. Even when there is not direct evidence, a jury could infer discrimination from: the plaintiffs prima facie case, any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and any further evidence of discrimination that may be available to the plaintiff or any contrary evidence that may be available to the employer (such as evidence of a strong track record in equal opportunity employment). Aka, 156 F.3d at 1289.
There is a Circuit split as far as how to interpret Hicks when dealing with the defendant's motion for summary judgment, but the District of Columbia Circuit Court of Appeals has previously explained how it interprets the Hicks decision inAka v. Washington Hosp. Ctr., 156 F.3d 1284, (D.C.Cir 1998). The D.C. Circuit does not read Hicks to mean that a plaintiff who shows a genuine issue of material fact as to whether the employer has given the true reason for its employment decision will always be judged to have presented enough evidence to survive summary judgment. Aka 156 F.3d at 1290. "Under Hicks a plaintiff's discrediting of an employer's stated reason for its employment decision is entitled to considerable weight, but the plaintiff's attack on the employer's explanation must always be assessed in light of the total circumstances of the case." Id. at 1291.
When an employer has multiple reasons for its hiring decision, the plaintiff cannot raise a triable question by challenging only one of them. See Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir. 1995). In cases where the plaintiff calls into question the employer's reason that the successful candidate was a "better candidate" than the plaintiff, the court must assume that "a reasonable juror who might disagree with the employer's decision, but would find the question close, would not usually infer discrimination on the basis of a comparison of qualifications alone." Aka, 156 F.3d at 1294. In these close cases, a reasonable juror would usually assume that the employer simply made a judgment call and that it is more capable of evaluating the significance of minor differences in the candidates' qualifications. Id. 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 a demonstrably discriminatory motive. Milton v. Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982) (internal citations omitted). However, if a factfinder can conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a less-qualified candidate. Aka, 156 F.3d 1294.
A. Mr. Stover Establishes A Prima Facie Case
The elements of a prima facie case are flexible and must be tailored on a case by case basis, to differing factual circumstances. Grossman, Paul Barbara Lindeman, Employment Discrimination Law Ch. 2 at 15 (3d ed. 1996). Plaintiff is African American, and therefore a member of a protected group. (Complaint ¶ 3.) He applied for the job, was rejected, and the position was filled by someone outside the protected class. Although Plaintiff did not meet each "desired or preferred" qualifications for this job, he was nonetheless qualified for this position. His qualifications in light of those desired, were at least equal to that of the person eventually hired. (See Defendant's Ex. 5 6.) It can also be inferred that Safeway believed Stover was qualified, because out of an applicant pool of forty-six, Stover made it to the final round of four. (Defendant's Motion at 19, n. 6) Mr. Bull also stated in an email to Rich Cox Karl Schroeder that each of the four candidates were "quality candidates" and that "any one of the four would be effective in the position." (Defendant's Ex. 8.) Even though Mr. Stover did not meet each of the desired qualifications, he was still qualified for the job. Mr. Stover has made out a prima facie case for discrimination.
B. Safeway Provides Legitimate and Nondiscriminatory Reasons for Its Hiring Decision.
In response to Stover's prima facie case, Safeway puts forth legitimate and non-discriminatory reasons for its non-promotion of Stover. Safeway stated that it thought Mr. Matthews was the "best candidate for the job." To support this statement, Mr. Bull gives a list of ten reasons why Mr. Matthews was the first choice, putting the most emphasis on Matthews' extensive retail experience which would help him relate better to the retail management team, his "wow" factor during the interview, and his high recommendations from two sources. (Bull Decl. ¶ 16.) Additionally, Safeway contends they did not hire Stover because of: 1) negative feedback from three senior officials at the Union, and 2) negative feedback from Eric Gronbeck (a Safeway District Manager). Mr. Bull stated that three union officials told him that Mr. Stover would not help in alleviating the backlog of complaints, and that "if anything, it would probably make it worse." (Bull Dep. ¶ 14.) Mr. Bull also provides that Mr. Gronbeck stated that Stover was "not real responsive and not very supportive." (Bull Decl. ¶ 15.) Mr. Bull also makes it clear that he placed great emphasis on having a good working relationship with union officials as well as with safeway management. (Bull Dep. at 39.) Defendant offers legitimate, non-discriminatory reasons for hiring Matthews, and for not hiring Stover.
C. Mr. Stover did not provide sufficient evidence to support an inference of discrimination.
When an employer has multiple reasons for its hiring decision, the plaintiff cannot raise a triable question by challenging only one of them. See Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir. 1995). Safeway states that Mr. Stover was not promoted because Mr. Matthews was the "better candidate" and because Mr. Stover received some negative feedback.
The D.C. Circuit has stated that, in disputes involving relative job qualifications, discrimination can not be inferred without a showing that the plaintiff's qualifications were far superior to the successful candidate's. Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998). In another Circuit decision, Stewart v. Ashcroft, 352 F.3d 422 (D.C. Cir. 2003), the court ruled that there was no evidence of a "stark superiority of credentials" between plaintiff and other candidate, and that without this there would be no inference of discrimination.
Mr. Stover attempts to discredit Mr. Bull's declarations in order to show that the proffered reasons were really a pretext for discrimination. Stover contends that Matthews was not the "best candidate for the job", because he was less qualified than Stover. Stover admits that his assessment is based only on the first two "desired qualifications" on the job posting. (Stover Dep. at 164.) Plaintiff asserts that he has more human resources experience (including experience with the union) and formal education than Matthews. The first desired qualification was four-year college degree or equivalent professional experience. Stover had an undergraduate degree as well as a law degree. Matthews had over three years of college, but had a significant amount of professional experience in retail, and was certified Human Resources Professional through the Society of Human Resource Managers. Although it is clear that Stover has more formal education, both candidates seem to fulfill the requirement. Mr. Bull stated that the "equivalent professional experience" he was looking for would vary, and that for the finalists it was significant retail experience. (Bull Dep. at 46.) Stover does not make an argument as to why a law degree makes him a more qualified candidate for a Labor Relations position. He readily admits that one four-year degree is no different than another, and that one who has this degree, as well as classes in a relevant field, might be even more qualified. (Stover Dep. at 161.)
The second criterion Stover focuses on is the desired 5-6 years Human Resources or Labor Relations experience, with 2-3 years of negotiation experience (this experience referred to negotiating collective bargaining agreements). Stover had just over four years of Human Resources and Labor Relations experience and had also worked with the unions in resolving personal grievances, but had no experience negotiating collective bargaining agreements. (Defendant's Ex. 5.) Matthews had two and a half years of Human Resources experience, but also did not have any collective bargaining agreement experience. Matthews worked in a non-union store, which Mr. Bull asserts was an environment which required Matthews to keep his employees happy, so that the union would stay out. Because of this, Bull felt that Matthews might have a better working relationship with management and employees at Safeway. (Bull Dep. at 53.)
Stover stresses this comparison of the two candidates establishes that he is markedly more qualified than Matthews. (Stover Dep. at 162.) This Court does not agree. We liken this comparison to the one made in Stewart, where plaintiff argued he was discriminated against in his non promotion to the position of Chief of the Environmental Crimes Division of the Department of Justice. There the plaintiff stated that because he had significantly more prosecutorial experience than the successful candidate, he was more qualified for the job. The court noted that although Stewart did have more prosecutorial experience in environmental matters, the other candidate did have some experience trying cases. This was one criteria that the government looked at in the hiring process, and because both had experience, the small distinctions were not enough for a finding of pretext. Stewart, 352 F.3d at 430-31. Similarly, both candidates in this case have some Human Resource experience, though neither have the desired five or six years, nor does either employee have any collective bargaining experience. If Mr. Stover had over ten years of experience, with significant collective bargaining experience, or if Matthews has no human resource experience at all, this Court may have been able to find evidence of pretext, but this is not the case.
Mr. Bull stated that having an effective working relationship with the retail management and union officials is very important to this position. (Bull Dep. at 39.) Bull stated that Matthews' retail experience would help him relate to the management team at Safeway. (Id. at 33.) Plaintiff essentially asserts that Mr. Bull's reliance on Matthews' retail experience as one reason he was hired over Stover, cannot possibly be the true reason for Stover's non-promotion. Plaintiff puts so much emphasis on his union experience, inferring that retail experience should not carry the same weight in light of the desired qualifications or key job responsibilities. Stover states that Bull's contention that he wanted to complement his lack of retail experience was incredulous, because Bull had worked at Safeway for so long, that he must have had retail experience. (Plaintiff's Motion at 8.) Whether or not retail experience is more important than union experience is not something this Court will decide; we will not second guess which nondiscriminatory criteria an employer feels carries the most weight. Stewart 352 F.3d at 429.
In making his decision, Mr. Bull did not only focus on the two criteria on which Mr. Stover states he was the best candidate. Mr. Bull also considered the interview process, retail experience, as well as any feedback he received from individuals. (Bull Dep. at 31.) Mr. Bull explained this fully in an email to Mr. Richard Cox, as well as Mr. Mr. Karl Schroder, the President of Safeway's Eastern Division. Mr. Matthews has other relevant experience that Mr. Stover does not have: Mr Matthews is a member of a professional society, has significant retail experience, and has conducted seminars on multiple discipline and management tools. Mr. Matthews also received excellent feedback, while it is it is undisputed that there was at least some negative comments made in regards to Stover's performance. Stover insists that his human resource experience and education alone determine that he is the "better candidate." Even if Safeway was forced to use these criteria to select who should be promoted, Stover would not have been selected. Mr. Stuebner, who has over ten years of Human Resource experience, as well as a significant amount of retail and collective bargaining experience would have been the likely choice. (Defendant's Ex. 2.)
In essence Mr. Stover's argument is an invitation to second guess Safeway's promotion decision — something the court is not inclined to do. Stewart, 352 F.3d at 430. Nothing in his argument shows that he is significantly more qualified than Matthews, nor is there anything in the record to show that Mr. Bull did not honestly believe that Mr. Matthews was the best candidate. Any arguable disparities between the candidate's qualifications are simply "too fine a reed to support an inference of" discrimination. Horvath v. Thompson, 329 F. Supp, 2d 1, 9 (D.D.C. 2004). "Title VII liability cannot rest solely on the judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates." Fischbach v. D.C. Department of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996).
Mr. Stover also attempts to rebut Safeway's contention that Mr. Stover was not hired because he received negative feedback from union officials as well as a former Safeway District Manager. Mr. Stover states that Mr. Bull's reason is incredible, because two of those three officials admit never talking to Mr. Bull about Mr. Stover. Mr. Wise Mr. Boyle, who work for Mr. Earman, provided deposition testimony that they did not recall ever talking to Mr. Bull about Mr. Stover. (Wise Dep. at 8, 9; Boyle Dep. at 8, 9.) In his deposition Mr. Earman readily admitted telling Mr. Bull that putting Mr. Stover in the Labor Relations Manager position, might make the backlog of grievances worse. (Earman Dep. at 15.) Mr. Stover provides no evidence that Mr. Earman did not say anything negative about him. (See Plaintiff's Supplement to Opposition to Motion for Summary Judgment at 3-4.)
Mr. Stover also attempts to make the argument that Mr. Bull conducted a "sham reference check", because he did not contact any of the references which Mr. Stover provided. Mr. Bull admits that he did not contact any of the references which Mr. Bull provided, nor does he believe that Ms. Gwin contacted any of them. (Bull Dep. at 85.) Mr. Stover, however, does not contend that he was treated differently than any other of the final candidates in this respect. He does not allege that Mr. Bull did contact the references of any of the other final candidates, only that he should have contacted Mr. Stover's references. (Plaintiff's Motion at 9.) Mr. Bull states that after interviewing the four candidates, he and Ms. Gwin contacted individuals who "had relevant information regarding the applicants." (Bull Decl. ¶ 11.)
After the interviews, Mr. Bull contacted Mr. Gronbeck, Stover's former District Manager at Safeway, who also relayed some negative comments about Mr. Stover. He stated he was "not real responsive or supportive." Mr. Bull also called Mr. Tippett, who stated that he thought that Mr. Stover would do a good job in the Labor Relations Manager position. (Bull Dep. at 86.) Mr. Bull received both positive and negative feedback from various officials, and gave them appropriate weight in his mind. Mr. Bull also contacted people who had worked with Mr. Matthews Mr. Stuebner. (Bull Decl. ¶¶ 13-15.) Mr. Bull does not state that he called anyone in regard to Mr. Begg. (Bull Decl. ¶ 12.) Although Mr. Stover contends that Mr. Bull did not contact any of his provided references, he does not provide any evidence that this treatment was different than that of any other applicant. No where does Mr. Stover contend that Mr. Bull contacted references provided by the other candidates.
Stover does not create a triable issue as to whether all of Safeway's proffered reasons were the true ones. Also in light of all the circumstances, there is not enough here from which a reasonable jury could infer discrimination. Although the plaintiff is not required to present evidence of direct discrimination, the jury would have to look at Mr. Stover's claim in light of all the circumstances. See Aka, 156 F.3d 1292. The only information Stover presents to the Court is that the three people who previously held the position of Labor Relations Manager were Caucasian, and that Mr. Bull recruited three Caucasians to apply for the position. (Stover Dep. at 155 105.) Stover does not intimate that those previously hired were unqualified for the job or even that they were under-qualified, stating that he thought that all three individuals either had college degrees or were working towards one. (Stover Dep. at 155.) Additionally, Mr. Stover does not provide any other evidence as to how the previous people in the position were hired.
Stover also points to Ms. Gwin's statement that she does not recall asking Mr. Matthews one of the previously written questions during his interview. Ms. Gwin admits that she does not recall asking Mr. Matthews this question because he had not handled "a typical grievance". (Gwin Dep. at 104; Plaintiff's Ex. 5.) Mr. Bull testified that, although there was no recorded answer, he did ask Mr. Matthews question five. (Bull Dep. at 101.) Departure from procedure does not automatically create an inference of discrimination. See Richer v. Aldridge 889 F.2d 592, 597 (5th Cir. 1989). Ms. Gwin provides a legitimate non-discriminatory reason for why she believes she did not ask Mr. Matthews this question. Stover does not contend that this possible departure from procedure either helped Matthews in his interview or hurt Stover in his. See Salazar v. Washington Metropolitan Transit Authority, 401 F.3d 504, 513 (D.C. Cir. 2005) (Williams, J. dissenting). Stover also admits that nothing was said or done in the interview from which he could infer racial discrimination, nor was anything said or done during his employment decision from which he could infer racial discrimination. (Stover Dep. 137-38.)
Courts have recognized that decisions about promotions in managerial positions are not made using only objective criteria, and that often subjective criteria must play a role in these cases. See e.g., Risher v. Aldridge, 889 F.2d 592, 597 (5th Cir. 1989). Mr. Stuebner, a Caucasian man who was offered a final interview, had at least ten years of Human Resources experience, over three years of collective bargaining experience and almost thirty years in the retail business. On paper, Mr. Stuebner was "more qualified" than both Mr. Stover or Mr. Matthews, but he was not hired as the Labor Relations Manager either, perhaps because Mr. Bull had commented that Mr. Stuebner did not have a strong interview. (Defendant Ex. 8.) As Mr. Bull stated, all of the men in the final round were to some extent qualified for the position. (Id.) The statement that the three prior Labor Relations Managers were white and that Mr. Bull asked three white people to apply for the job (one of which specifically asked Mr. Bull to contact him if there were an opening), is simply not enough for Mr. Stover to survive summary judgment.
The court must be careful to "distinguish between evidence that allows for a reasonable inference of discrimination and evidence that gives rise to mere speculation and conjecture." Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999). In light of all the circumstances, no reasonable jury could infer discrimination in the non-promotion of Mr. Stover. It seems that Safeway picked four quality candidates for its last round of interviews. From the record, it appears that Mr. Stover is the only candidate who received any negative feedback. In this stage of the application process, the candidates were all preliminarily qualified, and Safeway needed some criteria from which they could separate out which candidate it thought was best suited for the job. Stover does not provide evidence to prove that Mr. Bull did not firmly believe that Mr. Matthews was the best candidate for the job, nor does he offer evidence that would allow any reasonable juror to believe that the proffered reasons were a pretext for discrimination. Absent a "demonstrably discriminatory motive," this Court must defer to the employer's decision of what non-discriminatory qualities it deemed necessary. Fischbach v. D.C. Department of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996). Plaintiff has failed to show that defendant's proffered reasons for failing to promote him were a pretext for discrimination. Accordingly, this Court must grant summary judgment for the defendant.
II. Retaliation Claim
To establish a prima facie case of retaliation, a plaintiff must show: 1) that he engaged in a statutorily protected activity; 2) that the employer took an adverse personnel action; and 3) that a causal connection existed between the two. Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). Mr. Stover concedes that he has not suffered a cognizable adverse action for the purposes of this claim. (Plaintiff's Motion at 11.) Because plaintiff can not establish a prima facie case, summary judgment for the defendant is granted.
III. Negligence Claim
The elements of a common law action for negligence are (1) a duty of care owed by the defendant to the plaintiff, (2) a breach of that duty by the defendant, and (3) damage to the plaintiff, proximately caused by the breach of duty. District of Columbia v. Cooper, 483 A.2d 317, 321 (D.C. 1984). Here, plaintiff argues that Safeway owed Stover a duty to ensure that the work place was free from discriminatory conduct, and that to meet that duty Safeway was required to provide proper training to management officials. Stover does not provide any further evidence as to what specifically this duty might be. Stover further contends that the breach of this duty caused him injury.
Proximate cause is "that cause which . . . produces the injury, and without which the result would not have occurred." McKethean v. WMATA, 588 A.2d 708, 716 (D.C. 1991). Because this court has found that, as a matter of law, Stover's non-promotion was not the result of discriminatory action, plaintiff can not satisfy the third element. Assuming that Safeway did have a duty to train, and this duty was breached, this would still not be the cause of Stover's injuries, because his non-promotion was caused by something other than discrimination. Accordingly, summary judgment for the defendant is granted.
Conclusion
For the reasons stated above, plaintiff has failed to meet his ultimate burden to show racial discrimination. In light of all the facts, the jury could not infer a pretext for discrimination. Additionally, plaintiff has failed to make a prima facie case for retaliation because he has conceded that he has not suffered an adverse action. Because plaintiff's non-promotion was not the result of a discriminatory action, the plaintiff can not meet the proximate cause element of his negligence claim.
Accordingly, summary judgment will be granted on all three counts to the defendant. A separate Order accompanies this Memorandum Opinion.