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THORNE v. ALEXANDER

February 5, 1992

Horace Thorne, Plaintiff,
v.
Lamar Alexander, Secretary of Education, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 Before the Court is the defendant's Motion for Partial Summary Judgment in the above-captioned action. Upon careful consideration of the motion, the supporting and opposing legal memoranda, the underlying law, and the record in this case, the Court will deny this motion, without prejudice to renewal in any appropriate form before the end of the trial in this case.

 I. Background

 The plaintiff, a GS-12 Project Analyst in the Office of Elementary and Secondary Education ("OESE"), United States Department of Education ("Department"), is handicapped *fn1" and 67 years old. The plaintiff sues the Secretary of Education for handicap and age discrimination pursuant to the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Several of the plaintiff's claims were dismissed in an Opinion dated August 31, 1990. Thorne v. Cavazos, 744 F. Supp. 348 (D.D.C. 1990). On August 12, 1991, the Court ruled on cross-motions for summary judgment, and held that the only remaining claims in this action were a failure to accomodate claim under the Rehabilitation Act, and a failure to promote claim under the Rehabilitation Act and ADEA. See Opinion filed August 12, 1991.

 The Court granted the defendant summary judgment on, inter alia, his claim that he was suspended by his employer on two occasions as retaliation for engaging in statutorily protected activity. See Opinion, August 12, 1991. The Court found that even assuming, arguendo, that the plaintiff could establish a prima facie case of retaliation, the defendant offered legitimate, nondiscriminatory reasons for the actions which were not a pretext for discrimination. *fn2" The plaintiff failed to produce either direct or indirect evidence of retaliatory intent. Id.

 Subsequently, the plaintiff filed a Motion for a Preliminary Injunction seeking to prevent the defendant from discharging him, an action, he alleged, that was unlawful retaliation. The Court denied this motion in open court on November 22, 1991, finding that the plaintiff failed to demonstrate substantial likelihood of success on the merits or irreparable harm. See Order filed November 25, 1991.

 The plaintiff was discharged, effective November 25, 1991, from his position as a GS-12 Project Analyst with the Department of Education. The defendant asserts that the reasons for the removal were disrespectful and discourteous conduct, specifically the use of insulting and abusive language during conversations with three agency personnel, and the use of insulting and offensive comments to his supervisor. See Def.'s Mot. for Partial Summary Judgment, Decl. of Catherine Schagh ("Schagh decl.") at paras. 2, 4. One of these incidents concerned his telephone calls in March 1991 to three employees to report a stopped-up toilet in the Department's Health Unit. The employees reported that the plaintiff used insulting and obscene language and an abusive tone of voice. Id. at para. 5. The second series of incidents, in April and May of 1991, involved two conversations between plaintiff and his supervisor, Bruce Reinhart, whom the plaintiff knew was of German ancestry. Plaintiff allegedly made gratuitous comments that his family fought against the Germans in World War I, and told Mr. Reinhart that he could take those comments any way he wished. Id. at para. 6. The Department also noted that the plaintiff had twice been suspended for rude and disrespectful conduct, and had not responded to counseling about his behavior. Id. at para. 12.

 While the Court denied the Motion for Preliminary Injunction, the Court allowed the plaintiff to add his retaliation claim regarding the unlawful termination to his complaint. Order filed November 25, 1991. The defendant has filed a Motion for Partial Summary Judgment, seeking dismissal of the plaintiff's newly-added retaliatory discharge claim.

 II. Analysis

 A. The Standard for Summary Judgment

 A court shall grant summary judgment where "there is no genuine issue of material fact . . . and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court must credit the nonmovant's evidence and draw all justifiable inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). However, the nonmoving party may not rest upon a mere denial, but rather must set forth specific facts, by affidavit or otherwise, showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). These principles apply equally to employment discrimination cases. Paul v. Federal Nat'l Mortgage Ass'n, 697 F. Supp. 547, 553 (D.D.C. 1988); Harris v. District of Columbia, 652 F. Supp. 154, 157-58 (D.D.C. 1986).

 The plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 36 L. Ed. 2d 668, 93 S. Ct. 1817 & n.13 (1973) (Title VII). Once the plaintiff demonstrates a prima facie case, the burden of production falls upon the defendant to establish a legitimate, non-discriminatory reason for the employment action taken. Burdine, 450 U.S. at 253-55; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978). The plaintiff must then be given an opportunity to show, by a preponderance of the evidence, that the reasons set forth by the defendant for the employment action were merely a pretext for discrimination. Burdine, 450 U.S. at 253, 255. The plaintiff has the burden of persuasion at all times of showing that the defendant intentionally discriminated against the plaintiff. Id. at 256; McKenna v. Weinberger, 234 App. D.C. 297, 729 F.2d 783, 788 (D.C. Cir. 1984). This analytical framework applies to retaliation claims. McKenna, supra.

 To establish a prima facie case of retaliation, the plaintiff must demonstrate: (1) he engaged in statutorily protected activity; (2) his employer took an adverse personnel action; and (3) a causal connection exists between the two. McKenna v. Weinberger, 234 App. D.C. 297, 729 F.2d 783, 790 (D.C. Cir. 1984) (Title VII). However, "this initial burden is not great." Id. If the plaintiff meets his prima facie burden, the employer must articulate a legitimate, non-discriminatory reason for its action. McKenna, 729 F.2d at 791. The burden then shifts to the plaintiff to prove by a preponderance of the evidence that the proffered reason was a pretext for retaliation. Id.

 The plaintiff alleges that he was discharged in retaliation for bringing an employment discrimination action in which he prevailed in 1983. The defendant argues that the plaintiff cannot establish a prima facie case of retaliation, and that, even if he could, ...


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