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DuPree v. Peters

January 29, 2009


The opinion of the court was delivered by: Judge Joan H. Lefkow


Plaintiff, Lynette K. DuPree, an African-American female, filed a two count complaint against defendant, Mary E. Peters, Secretary of the Department of Transportation,*fn2 alleging sex and race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"),

42 U.S.C. § 2000e-2 et seq. Before the court is defendant's motion for summary judgment [#41]. For the reasons set forth below, defendant's motion [#41] is granted.


DuPree has worked for the federal government since 1971. In 1989, she began working in her current position as a Telecommunications Specialist ("TS") in the Operations Branch of the Federal Aviation Administration's ("FAA") Airways Facility Division. The Operations Branch is mainly a technical organization; its primary purpose is to fix problems of a technical nature within the National Airspace System ("NAS"). As a TS, DuPree is responsible for providing connectivity to the telecommunications systems in an eight-state region of the NAS. She is also responsible for purchasing phone systems for administrative and technical facilities.

In1989 or early 1990, Claude Nunez became DuPree's direct supervisor. Throughout the time that DuPree reported to Nunez, she consistently expressed a desire to move up to a higher pay grade, specifically, to the "J-Band" salary level, a level that was restricted to engineers. She spoke with Nunez about her ambitions during her performance reviews and in a few additional meetings with Nunez and Operations Branch Manger Jody Oles. Nunez and Oles suggested that DuPree obtain more national experience, that she work on projects with higher visibility, and that she obtain more technical experience within the NAS. As a result, DuPree worked on a few projects with higher visibility, such as the "ADTN 2000" project. In fact, her work on that project was recognized by the FAA at a national level. At a staff meeting led by Nunez shortly thereafter, however, Nunez himself failed to recognize Dupree for her work. He praised every employee present at the meeting for a work-related accomplishment except DuPree. Nunez testified that he did not feel the need to praise DuPree in light of her recent national recognition.

I. DuPree Worked a Six Month Detail as the TSE Section Supervisor

Between 1989 and 2003, DuPree worked several details, temporary positions in various sectors of the Airways Facility Division. One such detail took place in July 2002, when she worked for six months as the Telecommunications and Spectrum Engineering ("TSE") Section Supervisor. At the time, the position was vacant, and the FAA allowed employees to work six month details to temporarily fill the vacancy. The permanent TSE Section Supervisor position was at the J-Band salary level and therefore restricted to engineers; however, the FAA offered all employees the chance to work the six-month details at a lower salary level. Indeed, engineers that worked the details received the J-Band salary while non-engineers did not. Each of the four other employees selected for a detail, all of whom were white males, were either promoted to or already at the J-Band salary level because they were all engineers.

DuPree applied for the detail in early 2002. She acknowledged that she was not eligible for a salary increase*fn3 and represented that she nevertheless wanted to work the detail in order to gain knowledge and experience.*fn4 She was assigned to the detail from July 2002 until January 2003. Nunez, who at the time was the former TSE Section Supervisor, supervised her during the detail. Nunez received complaints from two employees that DuPree improperly coordinated assignments and failed to properly utilize her employees. DuPree's administrative assistant also voiced concerns. The relationship between DuPree and her assistant so deteriorated that the assistant chose to return to her permanent position before DuPree's detail ended. Nunez spoke with DuPree about these complaints and DuPree agreed to make an effort to resolve them. Nunez testified that DuPree was able to resolve the issues concerning employee utilization and assignment coordination and that these issues were common for someone in a new supervisory role. Deposition of Claude Nunez, Apr. 1, 2009, 114:3-115:8 (hereinafter "Nunez Dep.").

Nunez further testified that he did not believe that DuPree was able to develop any significant technical skills during her time in the detail. Id. 112:16-22. He acknowledged that DuPree participated in daily teleconferences concerning technological issues and could not recall that she had any technical problems during her detail; however, he "could not find anywhere where she had developed that [technical] skill set." Id. 112:21-22. He was unsure as to why she was unable to develop these skills but, from what he observed in his supervisory capacity, she was unable to. When DuPree's detail ended, she returned to her position as a TS.

II. The FAA's Decision to Hire a Permanent TSE Section Supervisor

On December 24, 2003, the FAA issued a vacancy announcement for the permanent TSE Section Supervisor position. The original announcement closed on January 13, 2004. Both DuPree and Jeffrey McCoy, the employee hired into the position, applied before this date. The FAA decided to reopen the announcement on January 21, 2004, however, after it realized that the timing of the announcement (so close to the holidays) may have prevented some employees from applying. The FAA also decided to open the position to all employees, reasoning that either an engineer or a non-engineer with a high degree of technical ability could do the job.

Per the Vacancy Announcement, the position required "an advanced knowledge of the technical aspects of the work directed." Vacancy Announcement, attached as Ex. K to Def.'s L.R. 56.1 SoF. The position also required non-technical skills, such as the ability to "assign[] tasks and responsibilities; monitor[] and evaluat[e] performance, coach[] and develop[] employee capabilities" and a wide range of knowledge about the FAA, including "an advanced knowledge of budget, human resource, and other administrative policies and procedures, and an advanced understanding of the objectives of the Airway Facilities Division." Id. Given the technical focus of the Operations Branch, the FAA was particularly interested in finding a candidate with extensive technological experience throughout the NAS.

In February 2004, after the announcement officially closed, Diana Maiello, a personnel specialist in Human Resources, reviewed the applications that were submitted and compiled a list of eligible candidates. Candidates were eligible if they met the minimum qualification standards listed in the announcement; specifically, if they had worked for at least one year in a position at a salary level immediately below that of the TSE Section Supervisor position. Maiello testified that she did not rank the candidates because there were so few of them. She also testified that the decision whether to rank candidates is made before a vacancy announcement is issued; however, when a low number of applications are received, she usually contacts the relevant department to ask if it still wants the candidates ranked. See Deposition of Diana Maiello 22:24-23:17, April 1, 2009, attached as Ex. G to Def.'s L.R. 56.1 SoF.

Maiello forwarded the list of eligible candidates to Nunez, who was the recommending official for the position. Nunez reviewed each candidate and prepared a recommendation memorandum for Oles, who was the selecting official. Due to time restrictions, Nunez did not conduct interviews; however, he had supervisory experience with most of the candidates and was able to solicit input from almost every candidate's supervisor. Nunez did not solicit input from DuPree's supervisor at the time because her supervisor was also a candidate. Nunez felt that he had sufficient experience supervising DuPree such that the lack of input would not put her at a disadvantage.

Nunez's final recommendation, as outlined in his recommendation memorandum, was to hire Jeff McCoy, a Caucasian male. Nunez believed McCoy to be the most qualified candidate based on McCoy's leadership skills and his NAS technical experience at the local, regional, and national levels. McCoy had successfully worked multiple supervisory details prior to his application and was a member of the Operations Branch Leadership Team, a team established to help resolve issues between management and the union. Though McCoy was not an engineer, he also had a strong technological background. He previously held several positions of a technical nature and in 2002, received the "Technician of the Year" award. Notably, he worked as a subject matter expert on the national STARS Program, an automation program that was used to separate and sequence aircraft and to provide traffic alerts and advisories. In this role, he was ...

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