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Gatebe v. Bridenstine

United States District Court, D. Maryland

November 29, 2018

JAMES F. BRIDENSTINE, Administrator, NASA, Defendant


          Paula Xinis United States District Judge

         Pending in this employment discrimination case is Defendant James F. Bridenstine, the Administrator of the National Aeronautics and Space Administration (“NASA”)'s Motion to Dismiss, or Alternatively, for Summary Judgment. ECF No. 25. The motion is fully briefed, and a hearing was held on November 19, 2018. For the reasons that follow, the Court grants in part and denies in part NASA's motion.

         I. Background

         Plaintiff Dr. Charles Gatebe, an African American man, began working at the NASA Goddard Space Flight Center in Greenbelt, Maryland, in 2000, through a Cooperative Agreement with the University of Maryland, Baltimore County. ECF No. 11 ¶ 36. On April 20, 2011, Dr. Gatebe was offered the position of Manager II with the Universities Space Research Association (“USRA”), another organization performing work at the NASA Goddard Space Flight Center. Id. ¶ 31. Before Dr. Gatebe began work on the new job in May of 2011, NASA had to approve Dr. Gatebe's qualifications. Id. ¶¶ 32, 33.

         In his current position, Dr. Gatebe manages twenty USRA employees at NASA and performs research in atmospheric sciences collaboratively with NASA. Id. ¶¶ 33, 38. Both USRA and NASA assign work to Dr. Gatebe, including work involving the Cloud Absorption Radiometer and the Bidirectional Reflectance Distribution Function, Albedo, Cloud, Aerosol Radiometer. Id. ¶¶ 38-39. All of Dr. Gatebe's work is conducted on NASA property and NASA provides Dr. Gatebe's office space and other resources. Id. ¶¶ 41-42. USRA provides Dr. Gatebe's salary and benefits. ECF No. 25-6 at 1. Dr. Gatebe is directly supervised by USRA employee Dr. William Corso, and his second-level supervisor is Dr. Charles Ichoku of NASA. ECF No. 11 ¶ 33; ECF No. 25-30 at 1.[1] Dr. Ichoku describes his role as “see[ing] that overall, [Dr. Gatebe's] research is in line with NASA's Strategic goals” and “collaborat[ing] on some research.” ECF No. 25-8 at 1.

         A. Dr. Gatebe's Applications for Exclusive Employment with NASA

         Between 2009 and 2015, Dr. Gatebe has applied for nine open positions to work exclusively for NASA and was not selected for any of the positions. ECF No. 11 ¶¶ 43-44, 47, 50. In 2009, NASA rejected Dr. Gatebe for the position of Experimental Scientist. Id. ¶ 43. Between 2011 and 2013, NASA rejected Dr. Gatebe for six Atmospheric Science positions, four of which Dr. Gatebe had reached the final interview phase. Id. ¶ 58. In 2015, NASA rejected Dr. Gatebe for the positions of Physical Scientist in the Earth Sciences Division (“the management position”) and Research Physical Scientist in the Climate and Radiation Laboratory, also within the Earth Sciences Division (“the research position”). Id. ¶¶ 47, 50. These latter two positions are the primary subject of the Complaint.

         Dr. Gatebe asserts that his experience is not unique. In the past twenty years, only one African American has been selected as a Physical Scientist in the Climate and Radiation Laboratory. No. African American occupies any senior management positions in the Earth Science's Division. Id. ¶ 59; ECF No. 25-30 at 9.

         i. The Management Position

         The Goddard Space Flight Center's Office of Human Capital Management, in consultation with a subject matter expert, reviewed the applications for the management position and pre-selected four qualified applicants, which included Dr. Gatebe. ECF No. 25-18 at 3. Dr. James Irons, Deputy Director of the Earth Sciences Division, Science Exploration Directorate, led the interview panel responsible for selecting the management position. ECF No. 11 ¶ 46; ECF No. 25-18 at 1. The panel consisted of Dr. Irons, Dr. Kenneth Ranson, Dr. Scott Braun, and Shane Dover, all white men. ECF No. 25-30 at 2. The panel asked each applicant the same six questions, which were designed to explore the applicants' previous experience, career goals, communication styles, and vision for the Earth Sciences Division. ECF No. 25-19. Three of the panelists kept contemporaneous handwritten notes reflecting the candidates' answers. ECF Nos. 25-19, 25-20, 25-22.

         After completing the interviews, the panelists discussed the candidates and came to a consensus as to the most qualified for the position. ECF No. 25-21 at 3. The panelists prioritized candidates with experience in planning, organizing, and managing airborne science field campaigns, and unanimously selected Christy Hansen, a white woman. ECF No. 25-18 at 3; ECF No. 25-21 at 3; ECF No. 25-23 at 2. The panelists unanimously agreed that Dr. Gatebe was the second most qualified candidate. ECF No. 25-18 at 4; ECF No. 25-21 at 5; ECF No. 25-23 at 3.

         Christy Hansen had previous experience planning, implementing, and managing a multi-year NASA airborne mission, Operation Ice Bridge, that had three annual field deployments. ECF No. 25-21 at 4. Ms. Hansen also managed the Arctic Radiation IceBridge Sea and Ice Experiment. ECF No. 25-18 at 3. Altogether, Ms. Hansen had managed eight campaigns, each with three to five instruments operated by three to five investigation teams. Id. at 4. Ms. Hansen received awards for her work on these campaigns. ECF No. 25-17 at 2. Prior to this work, Ms. Hansen worked as a robotic refueling mission operations manager from 2010-2012 and an engineer, astronaut instructor, and flight controller from 1999-2010. Id. at 3-4. Ms. Hansen holds a Master's Degree in Space Studies from the University of North Dakota. Id. at 7.

         Dr. Gatebe has sixteen years of experience in airborne missions and has managed three instruments: Cloud Absorption Radiometer (“CAR”), CAR Autonomous Navigation System, and Bidirectional Reflectance Distribution Function, Albedo, Cloud, Aerosol Radiometer. ECF No. 25-30 at 4. Dr. Gatebe won several achievement awards for his work on airborne field campaigns. Id. at 5. He now works as a Group Lead, supervising twenty scientists on various projects. Id. at 7. However, Dr. Gatebe has not managed multiple investigators and airborne assets on a cohesive field campaign, a fact weighted heavily by the interviewing panel. ECF No. 25-18 at 4. Dr. Gatebe received a doctorate in atmospheric physics, summa cum laude, from the University of Witwatersrand in Johannesburg, South Africa. ECF No. 11 ¶ 37; ECF No. 25-16 at 4.

         After the interview, Dr. Irons informed Dr. Gatebe that his interview went well and his qualifications were “very good.” ECF No. 25-30 at 3. Dr. Irons also told Dr. Gatebe that there was “no merit reason” for his non-selection. ECF No. 11 ¶ 53.

         ii. The Research Position

         Dr. Lazaros Oreopoulos of the Climate and Radiation Laboratory led the interview process for the research position. ECF No. 25-24 at 1. Previously, Dr. Oreopoulos had informed Dr. Gatebe that he had somebody in mind for the position and that the job announcement was just a routine to comply with the agency's hiring requirements. ECF No. 25-30 at 11. The Goddard Space Flight Center's Office of Human Capital Management, in consultation with a subject matter expert, selected an unknown number of applicants as qualified for the research position. ECF No. 25-24 at 2. Included for the final interview was Dr. Gatebe. Dr. Oreopoulos then led a panel interview for each of the qualified applicants. Id. The panel consisted of Dr. Oreopoulos, Dr. Nickolay Krotkov, and Dr. Donifan Barahona. Id. The first two panelists are white men and the latter is a man of “[m]ixed race of Hispanic background.” Id.; ECF No. 25-25 at 2; ECF No. 25-26 at 2.

         The panelists asked each applicant nine questions, compiled by Dr. Oreopoulos, which focused on experience, leadership, community service, and development of NASA's mission. ECF No. 25-28. Only Dr. Oreopoulos provided his own non-handwritten notes on the candidates' answers to these questions. Id. Dr. Oreopoulos considered the candidates' experience, publications, and stature in the scientific community, and recommended Dr. Daniel Feldman, a white man, for the position. ECF No. 25-24 at 2-3. Dr. Krotkov “was not asked to score or rank candidates.” ECF No. 25-25 at 2. Nor did Dr. Krotkov know who was selected for the position or the reasons for such selection. Id. at 3. Dr. Barahona discussed the candidates with Dr. Oreopoulos and agreed that Dr. Feldman was best suited for the position. ECF No. 25-26 at 2-3.

         Dr. Feldman declined the job offer. ECF No. 25-24 at 7. The position was never filled. Id. Dr. Oreopoulos asserts that the position was not filled because no other candidate was qualified for the position. Id. Contradicting Dr. Oreopoulos' account, Dr. Gatebe alleges that the position was subsequently offered to an unnamed applicant, who also declined the offer. ECF No. 25-30 at 10.

         Dr. Feldman was employed at the Lawrence Berkeley National Laboratory, performing atmospheric science and climate-related research with a focus on radiation science. ECF No. 25-27 at 1. His previous work involved using atmospheric radiation codes and simulating radiance for climate model runs. Id. at 1-2. Dr. Oreopoulos credited Dr. Feldman's first-author publication in the journal Nature (with an unknown number of citations). ECF No. 25-24 at 4. Dr. Oreopoulos also “deemed [Dr. Feldman's career] to be in an ascending trajectory with great potential for excellence.” Id. Dr. Feldman received a doctorate in Environmental Science and Engineering from the California Institute of Technology in 2008. ECF No. 25-27 at 4.

         In addition to Dr. Gatebe's qualifications described above, Dr. Gatebe published at least nineteen papers, and he was the first author listed for twelve of the papers. ECF No. 25-16 at 5- 7. According to Dr. Oreopoulos, three of Dr. Gatebe's publications received a total of 27 citations from other authors, a number which Dr. Oreopoulos interprets as “modest.” ECF No. 25-24 at 6-7. Dr. Barahona noted Dr. Gatebe's “extensive experience in radiation research, ” but stated he had less experience in developing radiative codes for atmospheric models. ECF No. 25-26 at 5. According to Dr. Gatebe, he works with models for satellite assessment of direct radiative forcing by wildfire aerosols. ECF No. 25-16 at 2. It is unclear the overlap, if any, between Dr. Gatebe's work on radiation and the job's requisite experience in radiative transfer algorithms and radiative transfer modeling. See ECF No. 25-14 at 2.

         B. Encounters with Robert Cahalan

         Dr. Gatebe also recounts a series of much earlier unfavorable exchanges with Robert Cahalan, a Lab Chief in the Laboratory for Atmospheres, as part of his retaliation and hostile work environment claims. In 2011, Mr. Cahalan shouted at Dr. Gatebe to stop speaking with Civil Servants about funding for his projects and forced Dr. Gatebe “to make unnecessary changes in a journal paper, ” even though Mr. Cahalan was not an author on the paper. ECF No. 11 ¶¶ 63, 65. Finally, Mr. Cahalan sent Dr. Gatebe an email, which Dr. Gatebe characterizes as “threatening.” Id. ¶ 64. The email reads:

Charles, Your “I have clarified S” sentence is precisely what I instructed you NOT to do. I believe you understood this, but apparently you chose to ignore my direction to you. Of course, I'm not your supervisor. If I was, (i.e. if you were a civil servant in my group) then this would be a serious problem. If you disagree with my interpretation of your “I have clarified S” sentence, then please come see me. -Bob-

ECF No. 25-29 at 1.

         C. Dr. Gatebe's Initial ...

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