DOJ Lawyer's Discrimination Suit Moves Towards Trial

A race discrimination lawsuit against the U.S. Department of Justice filed by a 20-year veteran prosecutor can proceed to trial, a Washington federal district judge ruled yesterday. Joshua Nesbitt, a federal prosecutor since 1992, accused department officials of passing him over for a promotion because of his race. Nesbitt is black, and the lawyer who was hired for the job is white. The Justice Department moved for summary judgment, presenting non-discriminatory reasons why it didn't hire Nesbitt. Yesterday, U.S. District Senior Judge Royce Lamberth said Nesbitt identified enough inconsistencies in the hiring process to survive the motion. "Of course, it may be true, and at trial a jury may well find, that there are innocuous reasons for all of the department's actions and that Mr. Nesbitt simply lost out to a better candidate. Alternatively, a jury may reasonably credit Mr. Nesbitt's version of events," Lamberth said. "It is not the duty of this court to resolve this dispute by judicial fiat at summary judgment." Nesbitt declined to comment. When he filed the lawsuit in May 2012, he was a trial attorney in the Organized Crime Drug Enforcement Task Force. A department spokesman declined to comment but confirmed Nesbitt was still with the Justice Department. A spokesman for the U.S. attorney's office in Washington, which is litigating the case, declined to comment. According to court filings, Nesbitt became a federal prosecutor in 1992, joining the U.S. attorney's office in the Northern District of New York. He moved to the Justice Department in Washington in 1999, serving as an attorney in the organized crime and intelligence sections. In 2010, when he was in the Office of Intelligence branch of the National Security Division, an announcement went out advertising a new deputy chief position in the division's litigation section. Nesbitt said he was told by a human resources official that he would have to follow all of the instructions included in the announcement, even though he was an internal applicant. Nesbitt said he submitted a complete application. At the same time, he alleged, a white lawyer in the department also applied, but wasn't required to follow the vacancy announcement's application guidelines. The white lawyer was hired. Nesbitt said officials told him they selected the white lawyer because of factors not included in the vacancy announcement, such as experience with high-level meetings. Nesbitt said he did have experience with high-level meetings but was never asked during the hiring process, according to filings. In moving for summary judgment, the Justice Department denied race was a factor, saying the white lawyer was the most qualified candidate. Lamberth said that regardless of a head-to-head comparison of the lawyers' qualifications for the job, Nesbitt presented enough evidence of inconsistencies in the hiring process and flaws in the Justice Department's explanations to defeat the motion.

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