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African American Federal Prosecutor Sufficiently Alleges that the Department of Justice Denied him a Promotion on the Basis of Race and Color

In May 2012, Joshua Nesbitt, a federal prosecutor since 1992, filed an employment discrimination suit against the United States Department of Justice under Title VII of the Civil Rights Act of 1964. Nesbitt, who is African American, alleges that he was denied a promotion for which he was qualified because of his race and color.

Nesbitt joined the U.S. attorney’s office as a federal prosecutor in the Northern District of New York in 1992, and joined the Justice Department in Washington in 1999. In 2010, Nesbitt applied for a new deputy chief position in the litigation section of the department of organized crime and intelligence. As a trial attorney in the Organized Drug Enforcement Task Force, Nesbitt filed a complaint with the Equal Employment Opportunity office and filed suit after exhausting all administrative remedies. The Justice Department presented nondiscriminatory reasons for denying his promotion and moved for summary judgment. On September 6, Judge Royce Lamberth of the U.S. Court for the District of Columbia denied the department’s motion, arguing that Nesbitt demonstrated that the department may have engaged in inconsistent employment practices, and a jury may decide in his favor.

The court explained in its opinion that Nesbitt successfully pleaded a discrimination claim because he produced sufficient evidence, which could allow a reasonable jury to conclude that he suffered racial discrimination. The complaint stated that the position was given to a white lawyer who was not required to comply with the job application requirements.

The job announcement stated that all job applicants needed to submit a cover letter, resume, writing sample, law school transcripts and a current job performance review. However, Nesbitt stated that he was required to submit all application components despite being an internal applicant, while the successful candidate was permitted to submit an application with incomplete paperwork. Nesbitt produced emails from the department’s human resources employees, which show that the white candidate’s application was considered complete although he did not submit transcripts, a writing sample or a performance appraisal. 

Furthermore, Nesbitt presented sufficient evidence to suggest that the justifications the department offered to deny him the position were inconsistent. In countering Nesbitt’s claim, the department stated that the desired candidate needed experience related to national security matters, and that the chosen candidate had superior experience in this area. However, the description of job qualifications presented in the employment ad did not specify this criterion, and Nesbitt was not asked about such experience when he was interviewed.

In Nesbitt v. Holder, the District Court for the District of Columbia found that a jury may reasonably find that the Department of Justice discriminated Nesbitt on the basis of his race and color. Defendant’s motion for summary judgment was denied because Nesbitt produced sufficient evidence suggesting that that department (1) inconsistently enforced job application requirements, (2) offered inconsistent explanations for hiring another candidate, and (3) misstated the plaintiff’s qualifications in attempting to present a reasonable basis for denying him the promotion. The court clarified that the plaintiff did not need to conclusively prove that he was denied promotion because of his race, but that he only had the burden of producing enough evidence which could lead a reasonably jury to infer such illegal practices.

If you believe you have been subjected to inconsistent hiring criteria or discriminatory employment practices, please contact The Harman Firm, LLP.

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