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DOUGLAS v. PIERCE

September 7, 1988

BESSIE DOUGLAS, Plaintiff,
v.
SAMUEL R. PIERCE, Secretary of Housing and Urban Development, Defendant



The opinion of the court was delivered by: HARRIS

 STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE

 This matter is before the Court upon defendant's motion for summary judgment. Upon consideration of the motion, the opposition and reply thereto, and the entire record herein, the Court concludes that the motion should be granted.

 Until shortly after defendant filed his motion for summary judgment, attorney James Edward Mercer represented plaintiff in this action. Mr. Mercer, however, became ill and no longer was able to represent plaintiff. Subsequently, a series of attorneys informally contacted Chambers to apprise the Court that plaintiff had obtained new counsel. On April 2, 1987, plaintiff's current counsel, John L. McGann, filed a praecipe notifying the clerk of court of Mr. McGann's appearance as counsel of record for plaintiff. The Court regrets the delay in issuing this Opinion since Mr. McGann's appearance; however, the Court hesitated to issue an Opinion because of both the absence of any supplemental pleadings and the uncertainty, in light of the previous series of attorneys who informally had contacted Chambers to apprise the Court that they represented plaintiff, whether plaintiff would continue to use Mr. McGann as counsel.

 Plaintiff's complaint for employment discrimination alleges that defendant discriminated against her on the basis of her age, sex, and race (white) and retaliated against her for filing a complaint with the Equal Employment Opportunity Commission (hereafter EEOC). *fn1" In her statement of facts (hereafter the Statement of Facts) attached to her amended opposition to the motion for summary judgment (hereafter the Opposition), *fn2" plaintiff contends that the material facts as to which there is a genuine issue are:

 (1) Whether defendant discriminated against plaintiff on the basis of age or sex by failing to transfer her to an office where her work responsibilities would have been less difficult.

 (2) Whether defendant discriminated against plaintiff on the basis of age by instituting performance standards for examiners, which adversely affected plaintiff's job performance rating.

 (3) Whether defendant discriminated against plaintiff by failing to train her adequately while she was employed at the Multifamily Insurance Benefits Branch (hereafter MIBB).

 (4) Whether defendant retaliated against plaintiff for filing a charge of discrimination against defendant with the EEOC or discriminated against plaintiff on the basis of age by scrutinizing her work more closely than it scrutinized the work of other examiners.

 (5) Whether defendant retaliated against plaintiff for filing a charge of discrimination against defendant with the EEOC or discriminated against plaintiff on the basis of age by subjecting her to a more hostile work environment than that to which the other examiners were subjected.

 (6) Whether defendant discriminated against plaintiff on the basis of sex or age by failing to provide her with proper performance evaluations.

 (7) Whether defendant discriminated against plaintiff on the basis of sex or age by denying her a within grade salary increase.

 (8) Whether defendant discriminated against plaintiff on the basis of sex or age by denying her overtime opportunities.

 (9) Whether defendant discriminated against plaintiff on the basis of sex or age by denying her the opportunity to work on less complex cases, as other examiners were allowed to do.

 (10) Whether defendant discriminated against plaintiff on the basis of sex or age by threatening to fire her if she did not retire.

 (11) Whether defendant discriminated against plaintiff on the basis of sex or age by the use of its job assignment system.

 (12) Whether defendant discriminated against plaintiff on the basis of sex or age by doing unspecified acts for the purpose of pressuring plaintiff to retire. *fn3"

 After adequate time for discovery and upon motion, the Court must grant summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986); Fed. R. Civ. P. 56(e). A party seeking summary judgment always bears the initial responsibility of informing the Court of the basis for the motion and identifying the evidence that the party believes demonstrates the absence of a genuine issue of material fact. Celotex, 106 S. Ct. at 2553. When the nonmoving party will bear the burden of proof at trial on a dispositive issue, Rule 56(e) requires that party to go beyond the pleadings, and by her own affidavits, or the discovery on file, designate specific facts showing there is a genuine issue for trial. Id. The nonmoving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment. Id. at 2553-54. The nonmoving party "enjoys the benefit of all favorable inferences from the evidence proffered . . . ." Red Lake Band of Chippewa Indians v. United States, 255 U.S. App. D.C. 162, 800 F.2d 1187, 1199 (D.C. Cir. 1986) (quoting Abraham v. Graphic Arts International, 212 U.S. App. D.C. 412, 660 F.2d 811, 814 (D.C. Cir. 1981) (footnotes omitted)). The following discussion will make clear that the evidence that plaintiff offers in opposition to defendant's motion, even according that evidence all favorable inferences, fails to provide sufficient facts to show there is a genuine issue of material fact for trial. *fn4"

 1. Age Discrimination Claim

 Plaintiff fails to show that a genuine issue of material fact exists concerning defendant's intent to discriminate against her on the basis of her age.

 The plaintiff carries the initial burden of establishing a prima facie case of age discrimination. Krodel v. Young, 242 U.S. App. D.C. 11, 748 F.2d 701, 705-06 (D.C. Cir. 1984), cert denied, 474 U.S. 817, 88 L. Ed. 2d 51, 106 S. Ct. 62 (1985). Plaintiff can establish a prima facie case of age discrimination by showing that (1) she is a member of a statutorily protected age group (40-70 years), (2) she improperly was singled out for adverse treatment, and (3) others, not members of the protected class, were treated dissimilarly. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 & n.13, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) (elements of a prima facie discrimination case may be reformulated according to the factual variations involved); Krodel, 748 F.2d at 705-06 (applying evidentiary scheme established in McDonnell Douglas to action brought under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634). If plaintiff cannot make a prima facie case under the McDonnell Douglas formulation, the Court must scrutinize the evidentiary offerings for indicia of unlawful discrimination. See Byrd v. Roadway Express, Inc., 687 F.2d 85, 86 (5th Cir.), reh'g denied, 691 F.2d 502 (5th Cir. 1982) ("no single formulation of the prima facie evidence test may fairly be expected to capture the many guises in which discrimination may appear," so the Court must scrutinize the evidentiary offerings for indicia of unlawful discrimination).

 (a) Denial of Transfer Claim

 Plaintiff does not meet her burden of establishing a prima facie case that defendant discriminated against her on the basis of age by not transferring her to an office where her work responsibilities would be less difficult. Plaintiff stated in her deposition that she never applied or asked for a transfer. [Deposition of plaintiff, p. 144, lines 21-25.] Plaintiff has not presented any evidence that she improperly was singled out for adverse treatment. Accordingly, the Court grants summary judgment in favor of defendant on this claim.

 (b) Institution of Performance Standards

 Plaintiff presents no evidence, and, therefore, fails to carry her burden of establishing a prima facie case, that defendant discriminated against her on the basis of age by instituting performance standards for its examiners. Although the evidence does show that defendant instituted performance standards [Deposition of Timothy Toomer, pp. 44-45], there is no indication that plaintiff improperly was singled out for adverse treatment or that these performance standards adversely impacted plaintiff as a result of her age. Accordingly, the Court grants summary judgment in favor of defendant on this claim.

 Plaintiff does not make a prima facie case that defendant discriminated against her on the basis of age by inadequately training her while she was employed at MIBB. Plaintiff points only to her deposition and her affidavit attached to her Opposition (hereafter the Affidavit) to support this claim. At her deposition, plaintiff testified that she did not receive "the cooperation" that she should have gotten. [Deposition of plaintiff, p. 102, lines 18-21.] In her Affidavit, plaintiff states that she "was denied training necessary for me to properly perform my job while in the Multifamily Insurance Benefits Branch (MIBB) of HUD." [Affidavit, para. 2.] This evidence, however, does not give any indication that the alleged inadequate cooperation/training was as a result of plaintiff's age or that she improperly was singled out for adverse treatment. Accordingly, the Court grants summary judgment in favor of defendant on this claim.

 (d) Higher Level of Scrutiny of Work

 Plaintiff does not make a prima facie case that defendant discriminated against her on the basis of age by scrutinizing her work more closely than it scrutinized the work of other examiners. Plaintiff points only to evidence in her deposition and in her Affidavit to ...


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