United States District Court, E.D. North Carolina, Western Division
C. DEVER III Chief United States District Judge
January 4, 2016, Nathaniel Willingham ("Willingham"
or "plaintiff') sued Ray Mabus, Secretary of the
Department of Navy ("Navy" or
"defendant") alleging race discrimination and
retaliation in violation of Title VII of the Civil Rights Act
of 1964, as amended [D.E. 1]. On October 27, 2017, the Navy
moved for summary judgment [D.E. 35] and filed a memorandum
in support [D.E. 36]. On December 1, 2017, Willingham
responded in opposition [D.E. 43]. On December 14, 2017, the
Navy replied [D.E. 46]. As explained below, the court grants
the Navy's motion for summary judgment.
November 23, 2009, the Camp Lejeune MCCS Human Resources
Division ("MCCS HRD") posted a job vacancy for an
equal employment opportunity ("EEO") specialist.
See Compl. [D.E. 1] ¶ 12. Andrew Ennett, Director of
MCCS HRD, and the selecting official for the position, had
the option to fill the vacancy through competitive
appointment, non-competitive appointment, or reassignment.
See [D.E. 38-2] 5-6, 38-47; [D.E. 38-4] 7-8. An employee who
is reassigned to a vacant position is excluded from the
competitive appointment process, so long as the reassigned
employee is moved to "a position with no higher pay
potential" than the position currently held by that
employee. [D.E. 38-2] 42; see [D.E. 38-4] 5.
an African-American male, and 61 other applicants applied for
the EEO specialist position through the competitive
appointment process. See Compl. ¶¶ 13-16. A Human
Resources Technician ("HRT") in the MCCS HRD
reviewed all of the applications. See Id. ¶ 15.
The HRT then determined which candidates met the base line
eligibility requirements and compiled a list of the
"best qualified" applicants. See id.; [D.E. 38-2]
5-6. Willingham was included on the list of "best
qualified" applicants along with five other individuals.
See Compl. ¶ 16; [D.E. 38-2] 5-6. The HRT also included
the name of one applicant who was eligible for a
noncompetitive appointment in accordance with Marine Corps
policy. See Compl. ¶ 18; [D.E. 38-2] 5-6.
December 29, 2009, the HRT forwarded the results of the
screening analysis and the applicant list to Ennett. See
Compl. ¶¶ 17-18, 30; [D.E. 38-2] 5-6. On January 4,
2010, Ennett organized a rating and ranking panel to
interview the "best qualified" applicants. See
Compl. ¶ 19; [D.E. 3 8-2] 11-31. Ennett was not required
to organize a rating and ranking panel, however, he was
permitted to use the panel to assist him concerning the
hiring decision. See [D.E. 38-2] 45-46. The rating and
ranking panel included Patricia Turner, MCCS HRD Deputy
Director, Jose Cabrera, MCCS Director of the Review and
Analysis Division, and Gwendolyn Hopkins, Equal Employment
Opportunity Supervisor. See [D.E. 37] ¶ 18.
the rating and ranking panel interviewed the candidates, the
panel recommended John Fuller to Ennett. See [D.E. 38-4]
13-14; Compl. ¶ 20. At me time, me panel had interviewed
Fuller over the telephone, but the panel contacted Fuller to
arrange a face-to-face interview before making any final
recommendation. See [D.E. 45] 66-67. On January 19, 2010,
Fuller withdrew his application for personal reasons. See
[D.E. 38-4] 16; Compl. ¶ 20. Although Willingham had the
second highest score behind Fuller, the panel recommended
Theresa Foster, an African-American female, for the position.
See [D.E. 3 8-3] 43; [D.E. 3 8-4] 16; Compl. ¶ 20. The
panel recommended Foster instead of Willingham because
Foster's credentials and interview impressed the panel,
and the panel was concerned that Willingham came across as
condescending and unapproachable in his interview. See [D.E.
38-4] 16-19, 43, 76. The panel then submitted its
recommendation to Ennett.
was not excited about hiring any of the candidates that the
panel interviewed. See [D.E. 38-4] 57. In accordance
with the Marine Corps reassignment policy, Ennett decided to
see if Myonsuk (Kathy) Marshall, an Asian female, was
interested in the position. See [D.E. 38-3] 46-47. Ennett had
known Marshall for about ten years and felt her credentials
and her experience made her an ideal candidate for the
position. See [D.E. 38-4] 57-59. At the time of the vacancy,
Marshall was employed in the Camp Lejeune MCCS Review and
Analysis Division (RVAN) as an Inspection/Investigation
Manager. See [D.E. 38-2] 34. Marshall initially had submitted
an application for the EEO specialist position but withdrew
her application because she was involved in a project that
she felt she needed to complete. See [D.E. 38-3] 46.
January 22, 2010, Turner, on behalf of Ennett, asked Marshall
if she was interested in the EEO specialist position. See
Id. at 47. Shortly thereafter, Marshall informed
Turner that she was interested in the EEO specialist
position. See Id. at 48-49. On January 26, 2010,
Ennett decided to cancel the EEO specialist position vacancy,
non-select all of the referred applicants, and select
Marshall for the vacancy. See [D.E. 38-2] 33; [D.E. 38-3] 30.
Marine Corps policy allowed Ennett to reassign Marshall
because the reassignment did not put Marshall in a position
with "higher pay potential." See [D.E. 38-2] 41-42;
[D.E. 38-4] 27.
12, 2010, Willingham filed a complaint with an Equal
Employment Opportunity ("EEO") counselor alleging
that the Navy did not select him for the EEO specialist
position in retaliation for his protected activities. See
[D.E. 38-2] 48-52. Willingham's protected activities
concern his legal representation of several civilian
employees in EEO matters at Camp Lejuene from approximately
1995 until2005. See Compl. ¶44; [D.E. 38-3] 12.
Thereafter, Willingham expanded his complaint to allege race
discrimination. See [D.E. 38-2] 53. On June 7, 2013, an
Administrative Law Judge ("ALJ") held a hearing
concerning Willingham's claims and held that Willingham
failed to prove his race discrimination claim or retaliation
claim. See [D.E. 18-1]. On January 7, 2015, the Equal
Employment Opportunity Commission ("EEOC") affirmed
the ALJ's decision. See [D.E. 18-3]. On October 1, 2015,
the EEOC denied Willingham's request for reconsideration.
See [D.E. 1] 11-13.
considering a motion for summary judgment, the court views
the evidence in the light most favorable to the plaintiff and
applies well-established principles under Rule 56 of the
Federal Rules of Civil Procedure. See, e, g,, Fed.R.Civ.P.
56; Scott v. Harris. 550 U.S. 372, 378 (2007);
Celotex Corp. v. Catrett. 477 U.S. 317, 325-26
(1986); Anderson v. Liberty Lobby. Inc., 477 U.S.
242, 247-55 (1986); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 585-87 (1986). Summary
judgment is appropriate "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."
Fed.R.Civ.P. 56(a); see Anderson. 477 U.S. at
247-48. The party seeking summary judgment must demonstrate
an absence of a genuine issue of material fact. See
Celotex Corp., 477 U.S. at 325. Once the moving
party has met its burden, the nonmoving party then must
demonstrate that there exists a genuine issue of material
fact for trial. See Matsushita. 475 U.S. at 587.
"[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party." Anderson.
477 U.S. at 249. Conjectural arguments will not suffice. See
Id. at 249-52; Beale v. Hardy. 769 F.2d
213, 214 (4th Cir. 1985) ("The nonmoving party.,. cannot
create a genuine issue of material fact through mere
speculation or the building of one inference upon
another."). Likewise, a "mere.,. scintilla of
evidence in support of the [nonmoving party's] position
[will not suffice]; there must be evidence on which the [fact
finder] could reasonably find for the [nonmoving
party]." Anderson, 477 U.S. at 252; see
Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 962 (4th Cir. 1996).
VII prohibits employers from failing to hire an individual
"because of such individual's race." 42 U.S.C.
§ 2000e-2(a)(1). A plaintiff may establish such a Title
VII violation in two ways. First, a plaintiff may demonstrate
through direct evidence that illegal discrimination motivated
an employer's adverse employment action. Alternatively, a
plaintiff may proceed under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green. 411
U.S. 792 (1973). See generally Hill v. Lockheed Martin
Logistics Mgmt. Inc.,354 ...