B. Disparate Treatment Theory
Alternatively, of course, the Court may treat Dr. Lu's proof as tending to prove a prima facie case of disparate treatment by AID in failing to promote him from FS-2 to FS-1, although Dr. Lu's approach seems not to have regarded it as such. Even here, though, Dr. Lu's proof fails.
It is axiomatic that in establishing a prima facie case of disparate treatment, where the wrong alleged is the failure to promote a member of the protected class, the plaintiff must show at a minimum that he was qualified for the promotion. However, the unrebutted evidence introduced at trial -- wholly apart from evidence relating to Dr. Lu's language skills -- indicates that in the view of his superiors Dr. Lu simply was not prepared to assume the responsibilities associated with FS-1 status. According to Hans Peterson, Dr. Lu's rater for 1985 and his reviewer for 1986 and 1987, Dr. Lu -- while a "trained, effective agricultural economist," lacked at that stage of his career certain of the analytical skills required to operate at FS-1. In particular, according to Dr. Peterson, Dr. Lu often required guidance in determining which economic "tools" were most appropriate for various situations. The ability to make such determinations on an independent, individual basis, he testified, "is the difference, in my judgment, between an officer serving at an FS-2 level and serving in a higher rank, FS-1."
Dr. Peterson testified that while Dr. Lu is capable of acquiring those skills with experience, he lacked them during the relevant time period. Further, Dr. Peterson testified that Dr. Lu's interpersonal skills in dealing with both his inferiors and his superiors lacked the qualities needed for promotion during the relevant time frame.
Accordingly, Dr. Peterson refused to recommend that Dr. Lu be promoted in 1987, despite his rater's recommendation that he be so promoted. Dr. Peterson's testimony as to Dr. Lu's qualifications, apart from any language problems he may have had, was essentially unrebutted.
The Government offered the testimony of two other members of AID's Dhaka delegation to corroborate Dr. Peterson's testimony. Howard Kramer, the Program Officer for the Dhaka delegation during the relevant period, testified as to several instances of what he regards as Dr. Lu's marginal competence. Kramer testified that, in his view, Dr. Lu was a "relatively poor" Foreign Service Officer,
and that, language problems aside, he generally lacked the ability to cogently articulate the nature of his projects or their relation to the AID program as a whole. He supported this view with several anecdotes, the accuracy of which was unrebutted. John Westley, an AID officer in Dhaka who was able to observe Dr. Lu regularly, for the most part reiterated this view.
Both men based their opinions almost exclusively upon Dr. Lu's abilities, and not upon any problems that might have been caused by his problems with English. Each testified that, in his view, Dr. Lu was not qualified to serve at the FS-1 level during the relevant period.
Although the Court recognizes that both men are senior AID officials, and it may therefore be in their interests to testify as they did, the Court finds their testimony persuasive, and, in the absence of effective rebuttal, accords it great weight.
This testimony, coupled with the Court's review of the entire body of evidence presented at trial, convinces the Court that -- language problems aside -- Dr. Lu was simply not qualified for a promotion from FS-2 to FS-1 during the period of which he complains. Accordingly, the Court holds that Dr. Lu has not established a prima facie case of disparate treatment on the basis of AID's failure to so promote him between 1985 and 1987, and his claim in this regard must fail.
2. PRIMA FACIE CASE OF RETALIATION
It has become settled that the concept of a "prima facie case," as derived from the alternative evidentiary burdens set forth in McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-06, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), also applies to claims of retaliation under 42 U.S.C. § 2000e-3(a). See Barnes v. Small, 268 U.S. App. D.C. 265, 840 F.2d 972, 976 (D.C. Cir. 1988). "In order to establish a prima facie case of retaliation, a plaintiff must show: (1) that [he] engaged in a statutorily protected activity; (2) that the employer took an adverse personnel action; and (3) that a causal connection existed between the two." Id. (quoting McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 790 (D.C. Cir. 1984). The latter requirement, that the plaintiff prove causation, essentially amounts to a requirement that the plaintiff prove that an employer had knowledge of the plaintiff's protected activity, and that the employer's actions were motivated, if only in part, by that knowledge.
See, e.g., Davis v. State Univ. of New York, 802 F.2d 638, 642 (2d Cir. 1986) (requiring knowledge on part of employer); Schlei & Grossman, Employment Discrimination Law 558-60 (2d ed. 1983). Causation (i.e., knowledge) serves as the prima facie "proxy" for discriminatory intent, which, as is the case with disparate treatment, is the sine qua non of a finding in favor of the plaintiff.
In this case, Dr. Lu alleges retaliation in two instances: (1) the PSB's reference in 1985 to the "limited data" in his personnel file, as an apparent result of which the PSB refused to recommend tenure; and (2) AID's refusal to grant him an assignment in Washington in 1987, alleged to be in response to his refusal to accept a Washington assignment, but at GS compensation, in return for dismissal of his then-pending EEO complaints. In the Court's view, neither claim, as elaborated at trial, states a prima facie case of discriminatory retaliation.
Dr. Lu's first claim, regarding the 1985 PSB comment, is moot. Dr. Lu received tenure in 1986, and the deferral of tenure from 1985 to 1986 (assuming that he was entitled to tenure in 1985) appears to have had no adverse impact upon his career. Moreover, even were the PSB's comment still at issue, the record is devoid of evidence that the members of the 1985 PSB had any knowledge or awareness of the reason for the limited contents of Dr. Lu's file.
Thus, the PSB's comment as to the file's limited contents can hardly be said to be in retaliation for Dr. Lu's having commenced the prior litigation.
Dr. Lu's second claim of retaliation is slightly more complicated, but equally unavailing. Dr. Lu contends that AID's refusal to assign him to Washington in 1987 was based upon his unwillingness to drop his pending EEO claims in return for civil service assignment in Washington. Dr. Lu refused to accept the transfer, contingent as it was upon a conversion to the civil service, because he regarded civil service status as less attractive than foreign service. The only evidence Dr. Lu offers is a letter he received from John Chao, an AID employment official. In that letter, Dr. Lu indicated that he "understood" that AID's hostility to Dr. Lu's application was based upon Dr. Lu's unwillingness to accept the offer.
Other than this letter (which in any event constitutes hearsay) the record is devoid of evidence of retaliation.
This letter, while supportive of Dr. Lu's contention, does not establish by a preponderance of the evidence that Dr. Lu's refusal to accept AID's offer "caused" AID to retaliate against him. Indeed, in opposition to the suggestion contained in this letter, AID marshals persuasive proof that, while Dr. Lu may have been "eligible" for a Washington assignment after four years in Dhaka, prevailing agency practice limits Washington assignments to those officers who have served at least eight years abroad.
Thus, the evidence suggests most strongly that, rather than any invidious, retaliatory intent, it was AID's regulations and established practice that "caused" the denial of Dr. Lu's application for a Washington assignment. The Court concedes that the matter is not entirely free from doubt, but nevertheless finds that the evidence most strongly favors the conclusion that AID did not retaliate against Dr. Lu when it rejected his application for a Washington assignment in 1987.
Accordingly, Dr. Lu's claim of retaliation must fail.
The Court has considered the record, including the documentary and testimonial evidence at trial, and concludes that Dr. Lu's complaint must fail, and that judgment must be granted in favor of AID. An appropriate Order shall issue.
Date: July 13, 1989
ORDER - July 13, 1989; July 14, 1989, Filed
For the reasons stated in the Opinio issued of even date herewith, it is, by the Court, this 13th day of July, 1989,
ORDERED, that judgment in the above-captioned matter shall be, and hereby is, entered in favor of the defendant; and it is further
ORDERED, that the above-captioned matter shall be, and hereby is, dismissed from the dockets of this Court.