Navy prevails on race bias, retaliation claims

Where the record showed that a Navy employee wasn’t selected for a supervisory position for reasons other than his race or prior employment complaints, the Navy prevailed on his discrimination and retaliation claims.

Background

Antonio Smith is an African American man employed by the United States Department of the Navy in Quantico, Virginia. He alleges that he was not selected for a supervisory position because of his race and in retaliation for past complaints he had filed against the department, including Col. Hittle. Defendant has filed a motion for summary judgment. 

Discrimination

Defendant is willing to assume that plaintiff has made a satisfactory prima facie showing. Defendant argues, however, that the record demonstrates plaintiff was not selected based on a legitimate, nondiscriminatory reason, i.e., Col. Hittle’s determination that Sobieranski was best qualified for the job. The court finds this constitutes a legitimate, nondiscriminatory reason for plaintiff’s non-selection.

Plaintiff attempts to call into question Col. Hittle’s conclusion that Sobieranski was the better candidate for the position. The court, however, is not tasked with judging “the wisdom or folly of the employer’s business judgments” when assessing a claim of discriminatory non-selection. Nor does the court “‘sit as a kind of super-personnel department weighing the prudence of employment decisions’ by second-guessing whether a particular employment decision was ‘wise, fair, or even correct.’” Rather, the Court is tasked with determining whether plaintiff has shown “‘pretext[,]’ [which] means deceit used to cover one’s tracks.” 

On this record, and under such a framework, the court “finds insufficient indicia of discrimination to warrant second-guessing [d]efendant[‘s] apparent good-faith efforts to assess the candidates.” Instead, what it is left with is an evidentiary record that shows Col. Hittle consistently explained why he valued Sobieranski’s specific qualifications when making the “really tough call” of whom to select following a highly competitive process. The court, thus, finds that plaintiff has not made a “strong showing that his qualifications [we]re demonstrably superior” to Sobieranski’s, and must grant defendant’s motion for summary judgment on this claim.

Retaliation

The court, again, assumes that plaintiff has made his prima facie case. The court also finds that defendant has provided a non-retaliatory reason for plaintiff’s non-selection, namely Col. Hittle’s determination that Sobieranski was the better-qualified candidate. The controlling question thus returns to the issue of pretext.

Plaintiff argues that “Col. Hittle’s concern that he had to ‘walk on eggshells’ around [plaintiff] leaves wide the door for a jury to infer that his rejection of [plaintiff]’s application for the Deputy Director position was rooted in … retaliation.” In support, plaintiff continues that “similar expressions of discomfort about a person based on their protected class have been held to raise an inference of discrimination” and that “a reasonable jury could conclude that Col. Hittle’s EEO-induced eggshells are why he did not select [plaintiff] for the Deputy Director position.”

The court, however, finds that such testimony is insufficient to raise a triable issue of material fact regarding the “but-for” cause and “real reason” for plaintiff’s non-selection. The selection process involved multiple rounds of independent review that culminated in plaintiff, Sobieranski and a third individual being placed in front of Col. Hittle for consideration. The selection confirmed that either Sobieranski or plaintiff would have been an appropriate selection in the eyes of the seven other individuals tasked with winnowing the candidate pool down to those final three. In such circumstances, the court will not second-guess the selecting official’s business judgment as to which candidate was the proper choice.

The cases plaintiff relies upon to argue otherwise are inapposite. Each case allowed a finding of pretext in the discrimination context based on statements attributable to supervisors made prior to the allegedly discriminatory action. There is no such evidence of comments made by Col. Hittle that could be construed as retaliatory at any point during the selection process. Rather, the evidence from that process shows—in plaintiff’s words—that Col. Hittle conducted his interview in a manner that “was professionally done.”

Defendant’s motion for summary judgment granted.

Smith v. Del Toro, Case No. 1:21-cv-01406, Sept. 1, 2022. EDVA at Alexandria (Nachmanoff). VLW 022-3-394. 21 pp.