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Alaba Oluyomi v. Janet Napolitano

September 19, 2011

ALABA OLUYOMI, PLAINTIFF,
v.
JANET NAPOLITANO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

OPINION AND ORDER

Plaintiff Alaba Oluyomi, proceeding pro se, brings these actions pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17 ("Title VII"), alleging that defendants Janet Napolitano, Secretary of Homeland Security, and the United States Citizenship and Immigration Services (collectively, the "Government"), discriminated against him on the basis of his race, color, and national origin. The parties consented to have this matter decided by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Oluyomi and the Government have each moved for summary judgment as to both of the actions. For the reasons discussed below, Oluyomi's motions for summary judgment are denied and the Government's motions for summary judgment are granted.

I. BACKGROUND

A. The Instant Proceedings

Oluyomi commenced these actions through two separate complaints, one filed on November 4, 2009, and the other filed on December 18, 2009, alleging discrimination on the basis of race, color, and national origin under Title VII. See Complaint for Employment Discrimination, filed Nov. 4, 2009 (Docket # 1 in 09 Civ. 9171 ) ("9171 Compl."); Complaint for Employment Discrimination, filed Dec. 18, 2009 (Docket # 1 in 09 Civ. 10293) ("10293 Compl."). In the 09 Civ. 9171 complaint, Oluyomi claims failure to promote and "disregard of veterans' preference right." 9171 Compl. at 2-3. In the 09 Civ. 10293 complaint, he challenges two incidents of discipline, alleging they are the result of discrimination and retaliation for his prior EEO activity. See 10293 Compl. at 3.

On March 10, 2011, Oluyomi filed a motion for summary judgment as to his two actions against the Government.*fn1 On March 15, 2011, the Government moved for summary judgment with regard to both of the actions pursuant to Fed. R. Civ. P. 56, and opposed Oluyomi's motion.*fn2 Also on March 15, 2011, the Court denied Oluyomi's motion because it did not contain the statement required by Local Civil Rule 56.1 and because it was unaccompanied by any affidavits or declarations attesting to the authenticity of the documents upon which the motion relied. See Order, filed Mar. 15, 2011 (Docket # 35 in 09 Civ. 9171) (Docket # 40 in 09 Civ. 10293). The Court, however, gave Oluyomi leave to re-submit a motion for summary judgment as a "cross-motion" to the Government's motion and without refiling the motion or exhibits. Id. The Court noted that Oluyomi would need to submit the statement required by Local Civil Rule 56.1 and, if he wished the exhibits to be considered, a declaration or affidavit attesting to their authenticity. Id. Oluyomi subsequently re-submitted his motion for summary judgment, curing the defects of his previous motion.*fn3

B. Evidence Presented on the Summary Judgment Motions

Oluyomi "is an African-American male of Nigerian ancestry." See Def. 56.1 Stat. 9171 ¶ 1; Pl. Opp. at 2 ¶ 1. Oluyomi began his employment at the Department of Homeland Security ("DHS") as an inspection officer in Atlanta, Georgia. See Def. 56.1 Stat. 9171 ¶ 1; Pl. Opp. at 2 ¶ 1; Boeving Decl. 9171 ¶ 3; Depositon of Alaba Oluyomi, dated Nov. 30, 2010 (annexed as Ex. B to Boeving Decl. 9171) ("Oluyomi Dep. 9171") at 27.

1. Facts Relating to Claims Raised in 09 Civ. 9171 a. Background Facts

In 2004, Oluyomi became an adjudication officer in the New York Field Office of DHS. See Def. 56.1 Stat. 9171 ¶ 5; Pl. Opp. at 2 ¶ 5; Oluyomi Dep. 9171 at 28. Between 2004 and 2006 he worked in the "Adjustment of Status Unit." See Def. 56.1 Stat. 9171 ¶ 6; Pl. Opp. at 2 ¶ 6; Oluyomi Dep. 9171 at 29, 53. For two to three months after this assignment, he was detailed to the "Legalization Unit." See Def. 56.1 Stat. 9171 ¶ 7; Pl. Opp. at 2 ¶ 7; Oluyomi Tr. at 33. Thereafter, Oluyomi went on detail to the "NTA Unit" for approximately one year. See Def. 56.1 Stat. 9171 ¶ 8; Pl. Opp. at 2 ¶ 8; Oluyomi Dep. 9171 at 29-30. In 2007, following the conclusion of this detail, he was assigned to the "Naturalization Unit." See Def. 56.1 Stat. 9171 ¶ 9; Pl. Opp. at 3 ¶ 9; Oluyomi Dep. 9171 at 30, 53. Oluyomi has never managed employees at DHS. See Def. 56.1 Stat. 9171 ¶ 10; Pl. Opp. at 3 ¶ 10; Oluyomi Dep. 9171 at 136-37.

Oluyomi received an undergraduate degree in computer science from Ogun State University in Nigeria. His undergraduate studies did not include any courses in the areas of immigration law or policy. See Def. 56.1 Stat. 9171 ¶¶ 11-12; Pl. Opp. at 3 ¶¶ 11-12; Oluyomi Dep. 9171 at 9, 11-13. Oluyomi also has a Master's degree in computer science from the University of Maryland. His studies at the University of Maryland did not include any course work in the areas of immigration law or policy. See Def. 56.1 Stat. 9171 ¶¶ 13-14; Pl. Opp. at 3 ¶¶ 13-14; Oluyomi Dep. 9171 at 13-14. Oluyomi recently completed an online Ph.D. program at Walden University, focusing on applied management and decision sciences. These studies also did not include any courses on immigration law or policy. See Def. 56.1 Stat. 9171 ¶¶ 15-16; Pl. Opp. at 3 ¶¶ 15-16; Oluyomi Dep. 9171 at 14-17, 19-22.

b. Vacancy Announcement CIS-137951-BUR

Vacancy Announcement CIS-137951-BUR announced an opening for the position of "Senior Adjudication Officer (Temporary)." See Def. 56.1 Stat. 9171 ¶ 17; Pl. 56.1 Stat. ¶ 2; Pl. Opp. at 3 ¶ 17. The position required, inter alia, the abilities to analyze and implement immigration law and policy, to act as a liaison between the New York field office and DHS headquarters in Washington, D.C., to conduct research and provide recommendations on cases, and to provide training to other DHS employees. See Def. 56.1 Stat. 9171 ¶ 18; Pl. Opp. at 3 ¶ 18; Senior Adjudication Officer (Temporary) (annexed as Ex. C to Boeving Decl. 9171); Position Description (annexed as Ex. D to Boeving Decl. 9171); Ryan Decl. ¶ 3; Troy Decl. 9171 ¶ 2; Bunce Decl. 9171 ¶ 2; Rosina Decl. ¶ 2.

The position was announced in accordance with the "Merit Promotion procedures," and thus selections were made according to the "Tri-Bureau Merit Promotion Plan." See Def. 56.1 Stat. 9171 ¶ 19; Pl. Opp. at 3 ¶ 19; Clark Decl. ¶ 6; U.S. Customs and Border Protection (annexed as Ex. K to Clark Decl.) ("U.S. Customs and Border Protection"). Pursuant to the Merit Promotion Plan, the selecting officials considered, inter alia, answers to job-related questions, narrative responses, and structured interviews. See U.S. Customs and Border Protection § 5.7; see Def. 56.1 Stat. 9171 ¶ 20; Pl. Opp. at 4 ¶ 20. "Because the individuals selected for the position would train other adjudication[] officers and interact with the public, their communication and interpersonal skills were critical." Ryan Decl. ¶ 4; See Def. 56.1 Stat. 9171 ¶ 22; Pl. Opp. at 4 ¶ 22. Oluyomi applied to this position by submitting a resume and narrative responses to required questions. See Def. 56.1 Stat. 9171 ¶ 23; Pl. Opp. at 4 ¶ 23; Oluyomi Dep. 9171 at 63, 81. Twenty-nine individuals, including Oluyomi, were certified as eligible for this position. See Def. 56.1 Stat. 9171 ¶ 24; Pl. Opp. at 4 ¶ 24; Clark Decl. ¶¶ 3-4; Burlington Service Center Merit Promotion Certificate of Eligibles Control Sheet (annexed as Ex. I to Clark Decl.) ("Burlington Service Ctr. Merit Promotion Certificate").

Six individuals were on a recommending panel that interviewed candidates and made recommendations to the selecting official: Dennis Bunce (Section Chief of the Naturalization Unit), Enrica Troy (Site Manager in the Naturalization Unit), John Ryan (Section Chief of the Adjudications 2 Unit and acting supervisor of the other section chiefs), James Tu (Section Chief of the Adjudications 3 Unit), Steve Rosina (Section Chief of the Adjustment of Status Unit), and Sue Young (Site Manager in the Adjustment of Status Unit). See Def. 56.1 Stat. 9171 ¶¶ 27-33; Pl. Opp. at 4-5 ¶¶ 27-33; Ryan Decl. ¶¶ 6-9; Troy Decl. 9171 ¶¶ 4-5; Bunce Decl. 9171 ¶¶ 4-5; Rosina Decl. ¶¶ 4-5. The selecting official, Field Office Director Gwynne MacPherson, had been delegated that responsibility by District Director Andrea Quarantillio. See Def. 56.1 Stat. 9171 ¶ 34; Pl. Opp. at 5 ¶ 34; Quarantillo Decl. 9171 ¶¶ 3-4. Quarantillo played no role in the selections for this vacancy. See Def. 56.1 Stat. 9171 ¶ 35; Pl. Opp. at 5 ¶ 35; Quarantillo Decl. 9171 ¶ 3.

Ryan was in charge of coordinating the hiring process for Senior Adjudication Officers under this vacancy. See Def. 56.1 Stat. 9171 ¶ 36; Pl. Opp. at 5 ¶ 36; Ryan Decl. ¶ 8. He divided the six panel members into three teams of two in order to conduct interviews. The teams consisted of: (1) Bunce and Troy, (2) Ryan and Tu, and (3) Rosina and Young. See Def. 56.1 Stat. 9171 ¶ 37; Pl. Opp. at 5 ¶ 37; Ryan Decl. ¶ 9. Candidates were interviewed by a team that did not include anyone who was the candidate's current or former permanent supervisor. See Def. 56.1 Stat. 9171 ¶ 38, Pl. Opp. at 5 ¶ 38; Ryan Decl. ¶ 8. Each candidate was asked the same questions during the interview. See Def. 56.1 Stat. 9171 ¶ 39; Pl. Opp. at 6 ¶ 39; Ryan Decl. ¶ 8; Troy Decl. 9171 ¶ 5; Bunce Decl. 9171 ¶ 5. After interviewing candidates, the panel members discussed the interviews together, informed the panel of their strongest candidates, and solicited feedback from other panel members regarding these candidates, including those members who had acted as the candidate's current or former supervisors. See Def. 56.1 Stat. 9171 ¶ 40; Pl. Opp. at 6 ¶ 40; Ryan Decl. ¶¶ 8, 17; Troy Decl. 9171 ¶ 5; Bunce Decl. 9171 ¶¶ 5, 10; Rosina Decl. ¶ 12. Rosina had previously served as Oluyomi's second line supervisor. See Def. 56.1 Stat. 9171 ¶ 41; Pl. Opp. at 6 ¶ 41; Oluyomi Dep. 9171 at 156-57. At the time of Oluyomi's interview, Tu was his second line supervisor. See Def. 56.1 Stat. 9171 ¶ 42; Pl. Opp. at 6 ¶ 42; Oluyomi Dep. 9171 at 156-57.

Oluyomi interviewed for this vacancy with Bunce and Troy. See Def. 56.1 Stat. 9171 ¶ 43; Pl. Opp. at 6 ¶ 43; Troy Decl. 9171 ¶ 7; Bunce Decl. 9171 ¶ 7. The interviewers ended Oluyomi's interview prematurely and he was called back later on the same day to complete the interview. See Def. 56.1 Stat. 9171 ¶ 44; Pl. Opp. at 6 ¶ 44; Troy Decl. 9171 ¶ 7. Bunce and Troy did not recommend Oluyomi to the panel members. See Def. 56.1 Stat. 9171 ¶ 45; Pl. Opp. at 6 ¶ 45; Troy Decl. 9171 ¶ 10; Bunce Decl. 9171 ¶ 8.

Ryan and Tu interviewed and recommended (1) Patricia White, (2) Jane Sphatt, (3) Jessica Clarke, and (4) Veronica Yip. See Def. 56.1 Stat. 9171 ¶ 54; Pl. Opp. at 10 ¶ 54; Ryan Decl. ¶ 12. Tu and Ryan, unlike the other interviewers, assigned a numerical score to each candidate. The four individuals they recommended were the candidates with the highest assigned scores. See Def. 56.1 Stat. 9171 ¶ 55; Pl. Opp. at 10 ¶ 55; Ryan Decl. ¶¶ 10, 12. White, an African-American, had been an adjudication officer since 1999 and had worked in the Naturalization and Adjustment of Status Units. She had also served as an asylum clerk prior to becoming an adjudication officer. See Def. 56.1 Stat. 9171 ¶ 56; Pl. Opp. at 10 ¶ 56; Ryan Decl. ¶ 14. Sphatt had been an adjudication officer since 2002, working in the Adjustment of Status Unit. See Pl. Opp. at 10 ¶ 57; Def. Reply 9171 at 15; Ryan Decl. ¶ 13. Rosina, her former supervisor, recommended her based on her competence and professionalism and described her as a "go to person based on her technical knowledge." Def. 56.1 Stat. 9171 ¶ 57; Pl. Opp. at 10 ¶ 57; Rosina Decl. ¶ 13. Clarke had been an adjudication officer since 2002 where she worked primarily in Naturalization. She was a licensed attorney and had previously worked on immigration matters. See Def. 56.1 Stat. 9171 ¶ 58; Pl. Opp. at 10 ¶ 58; Ryan Decl. ¶ 15. Bunce and Troy, who supervised Clarke at the time, both recommended her for the position. See Def. 56.1 Stat. 9171 ¶ 58; Pl. Opp. at 10 ¶ 58; Bunce Decl. 9171 ¶ 9; Troy Decl. 9171 ¶ 12. Yip, an adjudication officer since 2001, had worked for seven years as an immigration inspector at JFK Airport before becoming an adjudication officer. See Def. 56.1 Stat. 9171 ¶ 59; Pl. Opp. at 11 ¶ 59; Ryan Decl. ¶ 16. Troy and Bunce had supervised Yip and recommended her for the vacancy. See Def. 56.1 Stat. 9171 ¶ 59; Pl. Opp. at 11 ¶ 59; Bunce Decl. 9171 ¶ 9; Troy Decl. 9171 ¶ 10.

Rosina and Young interviewed and recommended (1) Richard Kwan, (2) Kenneth Gibe, (3) Gina Pastore, and (4) Natalie O'Connor. See Def. 56.1 Stat. 9171 ¶ 60; Pl. Opp. at 11 ¶ 60; Rosina Decl. ¶¶ 8-11. Kwan had been an adjudication officer since 2001 and had worked in both the Naturalization and Adjustment of Status Units. "During his interview, he came across as a team player and someone who was willing to give the extra effort to complete any task assigned to him." Rosina Decl. ¶ 9; see Def. 56.1 Stat. 9171 ¶ 61; Pl. Opp. at 11 ¶ 61. Bunce and Troy, who had supervised Kwan in Naturalization, both recommended him for the position. See Def. 56.1 Stat. 9171 ¶ 61; Pl. Opp. at 11 ¶ 61; Bunce Decl. 9171 ¶ 9; Troy Decl. 9171 ¶ 10. Gibe had worked as an adjudication officer since 2002. In this position he handled "some of the most complex cases," and "trained other officers." Def. 56.1 Stat. 9171 ¶ 62; Pl. Opp. at 11 ¶ 62; Rosina Decl. ¶ 8. Ryan, Gibe's supervisor at the time of the interview, strongly recommended him based on his "excellent" performance. Def. 56.1 Stat. 9171 ¶ 62; Pl. Opp. at 11 ¶ 62; Ryan Decl. ¶ 17.

On September 14, 2007, Oluyomi became aware that he was not selected for this vacancy. See Pl. 56.1 Stat. ¶¶ 2, 4; Def. 56.1 Stat. 9171 ¶ 49; Pl. Opp. at 9 ¶ 49. "Seven individuals were offered and accepted the position: (1) Richard Kwan, (2) Jessica Clarke, (3) Veronica Yip, (4) Jane Sphatt, (5) Glen Jupe, (6) Kenneth Gibe, and (7) Patricia White." Def. 56.1 Stat. 9171 ¶ 50; Pl. Opp. at 9 ¶ 50; see Clark Decl. ¶ 7. Jupe had been an adjudication officer since 1983 and had "extensive experience in various aspects of immigration." Bunce Decl. 9171 ¶ 8; see Def. 56.1 Stat. 9171 ¶ 52; Pl. Opp. at 9 ¶ 52. Additionally, Troy felt that Jupe's interview had gone well and that he was a "strong communicator, trainer and supervisor." Troy Decl. 9171 ¶ 9; see Def. 56.1 Stat. 9171 ¶ 52; Pl. Opp. at 9 ¶ 52. Rosina recommended Jupe "based on his more than 25 years experience at DHS," "[h]is outstanding demeanor," and the fact that he had resolved some of the oldest and most complex cases. Rosina Decl. ¶ 14; see Def. 56.1 Stat. 9171 ¶ 53; Pl. Opp. at 10 ¶ 53.

Upon selection, Sphatt and Jupe were assigned to the Adjustment of Status Unit, see Def. 56.1 Stat. 9171 ¶ 63, Pl. Opp. at 11 ¶ 63, Rosina Decl. ¶¶ 13-14, Ryan Decl. ¶ 13; Kwan, Clarke, and Yip were assigned to the Naturalization Unit, see Def. 56.1 Stat. 9171 ¶ 64, Pl. Opp. at 11 ¶ 64, Rosina Decl. ¶ 9, Bunce Decl. 9171 ¶ 10, Troy Decl. 9171 ¶ 11; and Gibe and White were assigned to the Adjudications 2 Unit; see Def. 56.1 Stat. 9171 ¶ 65, Pl. Opp. at 11 ¶ 65, Rosina Decl. ¶ 8, Ryan Decl. ¶¶ 14, 17. In his deposition, Oluyomi stated that all of these individuals were either "qualified" or "generally" qualified for the positions for which they were selected. See Def. 56.1 Stat. 9171 ¶ 66; Pl. Opp. at 11 ¶ 66; Oluyomi Dep. 9171 at 251-53.

c. Vacancy Announcement CIS-PHJN-14362B-RPM

In June 2007, the U.S. Citizenship and Immigration Services announced a vacancy for the position of Adjudication Officer (Policy) with Vacancy Number CIS-PHJN-14362B-RPM. See Def. 56.1 Stat. 9171 ¶ 67; Pl. Opp. at 11 ¶ 67; Boeving Decl. 9171 ¶ 6; Job Announcement: Adjudication Officer (Policy) (annexed as Ex. E to Boeving Decl. 9171) ("Job Announcement"). The position was located in DHS's Regulation and Product Management Division ("RPM") in Washington, D.C. See Def. 56.1 Stat. 9171 ¶ 67; Pl. Opp. at 11 ¶ 67; Job Announcement. The vacancy announcement informed applicants that the position could be filled at one of three pay scales: GS-12, GS-13, or GS-14. See Def. 56.1 Stat. 9171 ¶ 67; Pl. Opp. at 11 ¶ 67; Job Announcement. Candidates selected for this position would manage "RPM's humanitarian and victim protection programs," including "developing and drafting policy and regulations," "interpret[ing] and analyz[ing] various laws, regulations, and court decisions," and "provid[ing] expert advice to DHS and the Administration." Chang Decl. ¶ 6; see Def. 56.1 Stat. 9171 ¶ 68; Pl. Opp. at 11 ¶ 68; Boeving Decl. 9171 ¶ 7; Position Description (annexed as Ex. F to Boeving Decl. 9171) ("Position Description"). "[T]he position required someone with extensive knowledge of immigration law, the ability to manage programs, and excellent writing and speaking skills." Chang Decl. ¶ 6; see Def. 56.1 Stat. 9171 ¶ 68; Pl. Opp. at 11 ¶ 68; Position Description. Branch Chiefs Laura Dawkins, Michael Valverde, and Mark Phillips reviewed the applicants' materials and made recommendations to Pearl Chang, the selecting official. See Def. 56.1 Stat. 9171 ¶¶ 69-70; Pl. Opp. at 12 ¶¶ 69-70; Chang Decl. ¶¶ 4-5; Dawkins Decl. ¶¶ 2-4; Phillips Decl. ¶¶ 2-4; Valverde Decl. ¶¶ 2-4. Human Resources Specialist Susan Clark prepared a certificate of eligible candidates for each GS-level, which she sent to RPM. See Def. 56.1 Stat. 9171 ¶ 71; Pl. Opp. at 12 ¶ 71; Clark Decl. ¶ 10; Certificate of Eligibles (annexed as Ex. M to Clark Decl.) ("Certificate of Eligibles").

Oluyomi applied for this vacancy. See Def. 56.1 Stat. 9171 ¶ 72; Pl. Opp. at 12 ¶ 72; Clark Decl. ¶ 9; Oluyomi Application (annexed as Ex. L to Clark Decl.) ("Oluyomi Application"); Oluyomi Dep. 9171 at 306, 396-97. He was placed at the top of the GS-13 "certificate" (that is, list of candidates) due to his 10-point veteran's preference. Def. 56.1 Stat. 9171 ¶ 74; Pl. Opp. at 13 ¶ 74; Clark Decl. ¶ 10; Certificate of Eligibles. He did not qualify for a GS-14 certificate. See Def. 56.1 Stat. 9171 ¶ 75; Pl. Opp. at 13 ¶ 75; Clark Decl. ¶ 10. Because Oluyomi was at the top of the GS-13 list and had a veteran's preference, he was considered a "preference eligible candidate." Def. 56.1 Stat. 9171 ¶ 76; Pl. Opp. at 13 ¶ 76; Clark Decl. ¶ 11.

Dawkins, Valverde, and Phillips unanimously recommended Anne-Marie Mulagha for the position. See Def. 56.1 Stat. 9171 ¶ 80; Pl. Opp. at 14 ¶ 80; Chang Decl. ¶ 9; Dawkins Decl. ¶ 9; Phillips Decl. ¶ 7; Valverde Decl. ¶ 7. Mulagha was recommended based on her "work experience and educational background." Dawkins Decl. ¶ 7; Phillips Decl. ¶ 8; see Valverde Decl. ¶ 8; Def. 56.1 Stat. 9171 ¶ 81; Pl. Opp. at 14 ¶ 81. She had "worked as a human rights officer with the United Nations High Commissioner for Human Rights," and "as an asylum officer at DHS for four years prior to selection," and she was a licensed attorney. Dawkins Decl. ¶ 7; Phillips Decl. ¶ 8; see Def. 56.1 Stat. 9171 ¶ 81; Pl. Opp. at 14 ¶ 81; Valverde Decl. ¶ 8. Dawkins, Valverde, and Phillips did not recommend Oluyomi because they felt that, although "highly creditable," his educational background and experience were not relevant for the position. Additionally, "RPM already had a sufficient number of adjudication policy officers to develop, manage, and provide subject matter expertise for the adjustment of status and admissibility programs (which was Mr. Oluyomi's primary expertise at DHS)." Dawkins Decl. ¶ 8; see Def. 56.1 Stat. 9171 ¶ 82; Pl. Opp. at 14 ¶ 82; Phillips Decl. ¶ 9; Valverde Decl. ¶ 9.

Chang interviewed and selected Mulagha for the position based on her "ability, skills, and knowledge." Def. 56.1 Stat. 9171 ¶¶ 83-84; Pl. Opp. at 14 ¶¶ 83-84; see Chang Decl. ¶¶ 10-11. She determined, after comparing the qualifications of Oluyomi and Mulagha, that Mulagha was a "better choice" for the position. Def. 56.1 Stat. 9171 ¶ 85; Pl. Opp. at 15 ¶ 85; Chang Decl. ¶ 12. Mulagha was selected for the position from the GS-12 list. See Def. 56.1 Stat. 9171 ¶ 86; Pl. Opp. at 15 ¶ 86; Chang Decl. ¶ 10; Clark Decl. ...


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