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WEBB v. DISTRICT OF COLUMBIA

August 22, 1994

ISAIAH WEBB, Plaintiff,
v.
DISTRICT OF COLUMBIA, Defendant.



The opinion of the court was delivered by: LAMBERTH

 This case comes before the court on defendant's motion to dismiss or, in the alternative, for summary judgment. Upon consideration of the filings of counsel and the relevant law, defendant's motion to dismiss or, in the alternative, for summary judgment is granted in part and denied in part in accordance with this memorandum opinion.

 I. Factual Summary

 In his complaint, plaintiff seeks to recover damages for employment discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"); and 42 U.S.C. § 1981 ("Section 1981").

 On January 23, 1973, defendant District of Columbia hired plaintiff Isaiah Webb as a probationary correctional officer DS-6 with the Department of Corrections. Initial Compl. P 4. *fn1" Plaintiff received numerous promotions and step increases through 1984, attaining the rank of supervisory correctional officer (captain) DS-11. Id.

 Between November 1983 and November 1990, plaintiff alleges that he applied for and was denied promotion to more than 100 DS-12 positions for which he was the most qualified applicant. *fn2" Second Am. Compl. ("Compl.") at 3. During that period, plaintiff lodged numerous labor complaints and grievances with the D.C. Department of Corrections, the D.C. Office of Employee Appeals, the D.C. Office of Human Rights, and the U.S. Equal Employment Opportunity Commission. Compl. at 35-36. Plaintiff, a black male, claims that his failure to gain promotion was the result of discrimination on the basis of race and sex in violation of Title VII and Section 1981. Plaintiff alleges race discrimination when the selectee was white, and similarly, sex discrimination when the selectee was female. When the selectee was a black male, plaintiff alleges that the denial of promotion was in retaliation for having filed administrative grievances against defendant, which are activities protected from reprisal. Id. at 3.

 Subsequent to filing this action in November 1990, defendant failed to certify plaintiff as qualified for a chaplain position or to promote him to a supervisory correctional officer DS-12 position. Plaintiff contends that defendant's actions constituted reprisal for engaging in protected activity. Id. at 3-4. Plaintiff therefore seeks equitable relief in the form of promotion and $ 150,000 in back pay. *fn3" First Am. Compl. P 31.

 II. Legal Standards

 A. Motion to Dismiss

 Plaintiff's factual allegations must be presumed true and liberally construed in favor of the plaintiff when reviewing the adequacy of a complaint for purposes of a Rule 12(b)(6) motion. Phillips v. Bureau of Prisons, 192 U.S. App. D.C. 357, 591 F.2d 966, 968 (D.C. Cir. 1979) (citing Miree v. Dekalb County, Georgia, 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977)). In addition, plaintiff must be given every favorable inference that may be drawn from his allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). "However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness." 2A Moore's Federal Practice, § 12.07, at 63 (2d ed. 1986) (footnote omitted); see Haynesworth v. Miller, 261 U.S. App. D.C. 66, 820 F.2d 1245, 1254 (D.C. Cir. 1987) (citing Pauling v. McElroy, 107 U.S. App. D.C. 372, 278 F.2d 252, 254 (D.C. Cir.), cert. denied, 364 U.S. 835, 5 L. Ed. 2d 60, 81 S. Ct. 61 (1960)). Dismissal is only appropriate if it appears beyond doubt that no set of facts proffered in support of plaintiff's claim would entitle him to relief. Haynesworth, 820 F.2d at 1254 (citations omitted); Phillips, 591 F.2d at 968.

 B. Motion for Summary Judgment

 Federal Rule of Civil Procedure 56(e) provides, inter alia, that "when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must Bet forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the party." Fed. R. Civ. P. 56(e). The Advisory Committee notes that the "very mission of the summary judgment procedures is to pierce the pleadings and assess the proof to see whether there is a genuine issue for trial." Fed. R. Civ. P. 56(e), Advisory Committee Note. *fn4" For purposes of evaluating a motion for summary judgment, the facts must be viewed in the light most favorable to the nonmoving party.

 C. Proof of Discrimination in Title VII and Section 1981 Cases

 The standards regarding the entry of summary judgment apply equally to claims involving allegations of employment discrimination. Paul v. Federal Nat'l Mortgage Assoc., 697 F. Supp. 547, 553 (D.D.C. 1988) (Lamberth, J.) (citing Harris v. District of Columbia, 652 F. Supp. 154, 157-58 (D.D.C. 1986)); see Skelton v. Action, 668 F. Supp. 25, 29 (D.D.C. 1987).

 In order to prevail under Title VII and Section 1981, a plaintiff must prove purposeful discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) (citations omitted) (Title VII plaintiff has "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against plaintiff"); Patterson v. McLean Credit Union, 491 U.S. 164, 186, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989) (citation omitted) (Section 1981 plaintiff has "burden of persuading the jury of intentional discrimination").

 The Supreme Court set forth the "basic allocation of burdens and the order of presentation of proof" in Title VII cases alleging discriminatory treatment. Burdine, 450 U.S. at 252 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)). Under this framework, the "plaintiff has the initial burden of proving, by a preponderance of the evidence, a prima facie case of discrimination." Patterson, 491 U.S. at 186 (citing Burdine, 450 U.S. at 252-53). Plaintiff can accomplish this by showing that: (1) he is a member of a protected class; (2) he applied and was qualified for a position for which the employer was seeking applicants; (3) despite his qualification, he was rejected; and (4) after his rejection, the defendant either continued to seek applicants for the position or selected a non-protected class individual. McDonnell Douglas Corp., 411 U.S. at 802; Patterson, 491 U.S. at 186-87.

 Second, if the plaintiff succeeds in proving his prima facie case, thereby creating an inference of discrimination, the burden shifts to the defendant "to articulate some legitimate nondiscriminatory reason for discharge." Burdine, 450 U.S. at 253 (citation omitted). Finally, should the defendant meet its burden, the plaintiff must prove by a preponderance of the evidence that the defendant's proffered reasons were not his true reasons, but were a pretext for discrimination. Id. This framework of proof, initially established in Title VII cases, applies equally to claims of discrimination under Section 1981. Patterson, 491 U.S. at 186.

 III. Analysis *fn5"

 A. Race and Sex Discrimination Under Title VII

 In a Title VI cause of action for denial of promotion, the plaintiff must establish that his employer's conduct was discriminatory and that he exhausted the requisite administrative remedies prior to resorting to the courts. See 42 U.S.C.A. § 2000e et seq. (West Supp. 1994); Love v. Pullman Co., 404 U.S. 522, 523, 30 L. Ed. 2d 679, 92 S. Ct. 616 (1972).

 1. Proof of Discrimination

 To demonstrate a prima facie case of employment discrimination, plaintiff established that he is a black male and offers evidence that he applied unsuccessfully for numerous positions, maintaining he was more qualified than each individual selected by defendant. *fn6"

 When ordered by the court to present the names of "in excess of 100" individuals selected in his stead, plaintiff proffered only 69. Compl. at 3, 10-28. Eleven of the selectees are listed twice. *fn7" Id. at 21-25. Of the remaining 58 selectees, eighteen are black males. Plaintiff fails to establish a prima facie case of race or sex discrimination as to these 18 individuals. *fn8" Accordingly, the court dismisses these 18 instances of non-selection for failure to state a claim upon which relief can be granted. See infra app. A, B.

 The remaining 40 selectees includes 24 black females, 14 white males, and 2 white females. Thus, plaintiff has established a prima facie case of race discrimination in only 16 instances of non-selection. Similarly, a prima facie case of sex discrimination has been established in 26 cases. Accordingly, the court dismisses an additional 24 instances of non-selection based on race and 14 based on gender. See infra app. A, B.

 Where plaintiff sufficiently established a prima facie case of employment discrimination, defendant District of Columbia must now articulate some legitimate, nondiscriminatory reason for failing to promote plaintiff. However, defendant misapplies this standard, instead seeking summary judgment based on the "totality of the evidence," thereby failing to ...


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