Labor & Employment Law Daily Wrap Up, DISCRIMINATION—D.D.C.: Long-time DOL employee, passed over for promotions, cannot show bias motivated decisions, (Dec 5, 2025)

By Todd Harrison, J.D.

While the employee’s “lack of upward mobility has no doubt been frustrating,” a reasonable jury could not find the department’s proffered reasons for its decisions to be pretextual.

Granting summary judgment against the Title VII claims of a DOL employee who alleged race, color, and sex discrimination, a federal court in the District of Columbia found that the employee failed to adduce sufficient evidence for a reasonable jury to conclude that DOL’s proffered reason for each of the three non-selections was pretext for discrimination. In two instances, the chosen candidate was at least, if not more, qualified for the position than the employee. The third concerned a position that another worker occupied temporarily, that the department then opted to leave open for several months. Here, the court noted that the employee could not establish that he was passed over for an opportunity that did not exist (Cofield v. Chavez-Deremer, No. 21-cv-1755 (CRC) (D.D.C. Dec. 4, 2025)).

The employee is an African American who has served as a claims examiner in the DOL’s Office of Workers’ Compensation Program for roughly 20 years. Currently, he is at the maximum pay grade and step that he is eligible for in his position as a claims examiner.

Lead analyst. In July 2016, the employee applied to serve as the lead analyst in his division. Fourteen people were interviewed for the position, including the employee, and each candidate was required to complete two written tasks. Two female candidates were selected to move forward, one African American and one white. Ultimately, the African-American woman was chosen for the position.

Acting assistant chief. A shuffling of the employee’s division leadership in 2018 resulted in the assistant policy branch chief stepping into the fiscal branch chief role for a short-term stint. This left the assistant policy branch chief open for at least a temporary amount of time. The two options for filling that role consisted of the employee and another worker, a white woman. The record suggested that some duties were split between the two, but the majority of the position’s duties went to the white coworker.

Eventually, it was announced that the coworker would “informally” serve as acting assistant policy branch chief in September 2018. This turned into a formal promotion in November 2018 and the coworker served in this capacity until February 2019, when the former assistant policy branch chief returned to her role. The employee never got the chance to rotate into the role.

Deputy branch chief. In December 2021, the employee applied for a position as deputy fiscal branch chief. Three candidates were interviewed for the position, including the employee. All were presented with the same interview questions and tasked with completing a writing assignment. The chosen candidate, a white male, had given an “excellent” interview and had correctly identified an overpayment calculation on the writing assignment. The employee’s interview was deemed “good,” and he did not correctly complete the writing assignment.

EEO complaints. The employee filed EEO complaints after being passed over for the lead analyst and acting assistant policy branch chief positions. After losing these administrative battles, he filed this lawsuit. He added a third claim concerning the deputy fiscal branch chief position after exhausting the EEO administrative process for that claim.

Legitimate, nondiscriminatory reasons. At the outset, the DOL did not contest whether the employee had established a prima facie case and instead jumped right to explaining his non-selection for the three positions at issue. The court addressed each position in turn.

Comparative qualifications. First, the court addressed the employee’s candidacy for the 2016 lead analyst position. According to the DOL, the employee was not selected for the position because the candidate who was ultimately chosen had a “higher level of expertise” with FOIA and the Privacy Act, had performed better in her interviews and on the written assignments, and the employee’s performance during the process placed him in the bottom half of candidates. Here, the court considered whether the two candidates’ comparative qualifications were sufficient to show that the DOL’s proffered explanation was pretext for discrimination.

In this instance, the record demonstrated that the employee was not substantially more qualified for the position. The chosen candidate’s total FOIA experience in federal government added up to at least nine years as compared to the employee’s roughly eight years of part-time FOIA experience. Further, the chosen candidate performed better than the employee throughout the interview process.

Misstatement and misrepresentation. Because the court concluded that the employee was not markedly better suited for the position than the chosen candidate, it considered whether any other circumstances could allow a reasonable jury to infer the DOL’s explanation for not selecting the employee was pretextual. To this end, the employee identified two potential concerns: (1) a misstatement of his years of FOIA experience; and (2) a purported misrepresentation of the hiring process.

According to the employee, an interviewer had mis-recorded the number of years of his FOIA experience in her interview notes, stating that the employee only had two-to-three years of experience. However, there was no evidence that the selection was made based solely on years of FOIA experience, explained the court, finding this argument fell short of the mark.

As to the employee’s claim that the logistics of the hiring process were misrepresented during his interview—with an interviewer stating that three, not two, candidates would advance—the court found that even if such a statement served to cast doubt on the interviewer’s credibility, a reasonable jury could not conclude that the misstatement was pretext for unlawful discrimination, as there was no evidence the ultimate decision was motivated by animus given the chosen candidate’s superior performance. Accordingly, summary judgment was granted against this claim.

Temporary role. Next, the court turned to the employee’s claim concerning the position of acting assistant policy branch chief. Once the decision was made to formally promote the chosen candidate into this position, she could only serve in this higher-grade position on a non-competitive basis for 120 days. The DOL asserted that it intended to rotate the employee into this position if the person who normally served in this role was still on her detail after the 120 days were up. However, upon completing her 120-day stint as acting fiscal branch chief, the employee in question returned to her role as acting assistant chief foreclosing the opportunity for the employee to rotate into this role. Four months later, the acting assistant chief was rehired as fiscal branch chief on a more permanent basis. After this second departure, the position sat vacant for nearly two years.

The court again considered whether the employee was substantially more qualified than the coworker to assume the role of acting assistant policy branch chief for the first 120 days, and the court again found that he was not, noting that the coworker was “just as strong a candidate,” if not stronger.

Transparency issues. Looking beyond the comparative qualifications for evidence of pretext, the employee asserted that he was never given the opportunity to volunteer for acting assistant policy branch chief duties because he was not aware they were available. The record suggested that his coworker was assisting with these duties long before the position temporarily opened up.

Although “the record suggests a possible lack of transparency in the Policy Branch that would be understandably exasperating to any team member,” the court found it could not be read to suggest the employee was kept out of the loop for any impermissible basis.

Vacant position. Next, the employee argued that the DOL proffered no explanation as to why he could not be rotated into the acting assistant policy branch chief position during the nearly two years that it was vacant. Setting aside the fact that this was effectively a new and discrete non-selection claim, the court observed that the DOL was not obligated to backfill this position and, in fact, chose not to. As such, the employee could not establish that he was passed over for an opportunity that did not exist, and summary judgment was granted against his second non-selection claim.

Drawing names. Finally, the court addressed the employee’s claim as it related to the deputy branch chief position. Here, the employee pointed to a perceived irregularity that occurred prior to the hiring process for this position. The outgoing policy branch chief told their replacement that the employee should get the first shot at rotating into the still vacant assistant policy branch chief position, ahead of the two other candidates who were ultimately considered for the deputy branch chief position. Rather than following this advice, the policy branch chief decided to draw names from a hat to determine who would rotate in first, and the name that came up was the person who was ultimately hired as deputy branch chief.

According to the employee, this purported irregularity cast doubt on the fairness of the candidate’s later selection for deputy branch chief, even though the policy branch chief played no role in that decision. The court was not moved.

Even if the hat draw was pretext for any decision, it was for the role of acting assistant policy branch chief, a choice not squarely challenged in this suit, explained the court. Second, the individual in charge of the hat draw played no role in the selection process for deputy branch chief, foreclosing any potential cat’s paw theory of causation. Finally, without additional context or evidence, the court was not persuaded that this random selection process was fundamentally unfair or biased. Thus, summary judgment was also granted against this non-selection claim.

The case is No. 21-cv-1755 (CRC).

Judge: Cooper, C.

Attorneys: Nicholas Woodfield (Employment Law Group) for Joel Cofield. Anna Davis Walker, U.S. Department of Justice, for Lori Chavez-DeRemer.

Cases: Discrimination RaceDiscrimination SexDiscrimination PublicEmployees DistrictofColumbiaNews