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DEVERA v. ADAMS

January 25, 1995

VINCENT DEVERA, Jr., Plaintiff,
v.
ROBERT McCORMICK ADAMS, Secretary of the Smithsonian Institution, Defendant.



The opinion of the court was delivered by: PAUL L. FRIEDMAN

 Plaintiff is an Asian/Pacific Islander, his color is brown and his national origin is Filipino. He is, and at all times relevant to this case was, employed at the Smithsonian Institution in the Office of Protection Services. Since commencing employment at the Smithsonian in 1975, plaintiff has risen from a GS-3 Guard position to a GS-8 Guard Supervisor position. In November 1987 plaintiff applied for and was denied a promotion to one of three vacant GS-9 Executive Officer (Lieutenant) positions at the Smithsonian Institution. Plaintiff was among 16 applicants for the three positions. The group of 16 was narrowed to a group of six applicants, including plaintiff, who would be eligible for the position at a GS-9 level and were invited for interviews. Plaintiff was not chosen for any of the three vacancies. All three selectees were African-American, non-Filipino men.

 Defendant claims that plaintiff was not selected because he had not participated in the Modern Management and Training Course, or its equivalent, had not served as a temporary executive officer, or in an equivalent position, and did not exhibit the level of flexibility that the selection committee determined was necessary in an executive officer. Burford Dep. at 70-71, 79-83. On March 7, 1988, plaintiff filed a formal charge with the Smithsonian alleging discriminatory failure to promote.

 Shortly before November 1988, the Office of Protective Services, through Deputy Chief Ronald Colaprete, issued a directive that all name tags be removed from the outside surfaces of new lockers. Plaintiff used one of the new lockers. Plaintiff's immediate supervisor, Captain Harold W. Hancock, removed a name tag from plaintiff's locker on two occasions prior to November 1988 and verbally instructed plaintiff not to place a name tag on his locker. Hancock Dep., Ex. K; Pl. Opp., Ex. 21. On November 1, 1988, Captain Hancock issued a written memorandum to all the members of plaintiff's guard company, instructing them that name tags should not be placed on lockers and warning them that officers who disobeyed the no-tag policy would be subject to disciplinary action. Hancock Dep. at 33 and Ex. J. Captain Hancock specifically noted that he had twice removed nametags from one particular locker and copied the memorandum to plaintiff. Id. After Captain Hancock observed that plaintiff still refused to comply with Deputy Chief Colaprete's directive, Captain Hancock issued a letter of insubordination, dated November 10, 1988, reiterating plaintiff's obligation to follow orders and cautioning him that more severe discipline could result if plaintiff continued to tag his locker. Hancock Dep., Ex. K. On March 2, 1989, after plaintiff continued to refuse to remove his name tag from his locker, Captain Hancock issued an official reprimand. Pl. Opp., Ex. 21.

 In June 1989, Lieutenant Steptoe Wrenn retired from an Executive Officer position in plaintiff's guard company. Plaintiff alleges that he had two conversations with Captain Hancock regarding the vacancy, but concedes that he did not apply for the position on either a temporary or a permanent basis and did not contact anyone at the Office of Protection Services headquarters regarding the vacancy. Devera Dep. at 144-49. In September 1989, the vacancy was filled with a permanent executive officer.

 Plaintiff alleges that defendant engaged in race, national origin and color discrimination by failing to promote him to a GS-9 Executive Officer position in 1987, retaliated against him for filing an employment discrimination charge by disciplining him for placing a name tag on his locker in 1988, and denied him promotional opportunities by failing to offer him a temporary Executive Officer position in 1989. After the completion of discovery, defendant filed a motion seeking summary judgment on all of plaintiff's claims. Plaintiff opposed summary judgment. The Court heard oral argument on December 21, 1994. For the reasons stated by the Court from the Bench, the Court denied summary judgment on plaintiff's failure to promote claim and scheduled the case for trial on April 3, 1995. The Court announced its decision from the Bench to grant summary judgment for defendant on plaintiff's retaliation and denial of promotional opportunities claims. The reasons for that decision are set forth in this Memorandum Opinion.

 A. SUMMARY JUDGMENT STANDARD

 Under Rule 56, Fed. R. Civ. P., summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Washington Post Co. v. U.S. Dept. of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). But the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. U.S. Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50.

 "[A] Title VII plaintiff carries the initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were 'based on a discriminatory criterion illegal under the Act.'" Furnco Const. Corp. v. Waters, 438 U.S. 567, 576, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978) (citation omitted); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Once the plaintiff has made out a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory explanation for its conduct. McDonnell Douglas Corp. v. Green, 411 U.S. at 802-05. The burden then shifts back to the plaintiff to produce some evidence, either direct or circumstantial, that the articulated reason for the defendant's conduct is mere pretext. Id Skelton v. ACTION, 668 F. Supp. 25, 29 (D.D.C. 1987). Summary judgment "is appropriate where either the evidence is insufficient to establish a prima facie case, . . . or, assuming a prima facie case, there is no genuine issue of material fact that the defendant's articulated non-discriminatory reason for the challenged decision is pretextual." Paul v. Fed. Nat'l Mortgage Ass'n, 697 F. Supp. 547, 553 (D.D.C. 1988); see Ramsey v. Derwinski, 787 F. Supp. 8, 11-12 (D.D.C. 1992); Skelton v. ACTION, 668 F. Supp. at 29-30.

 In discrimination cases, summary judgment must be approached with special caution, and the Court "must be extra-careful to view all the evidence in the light most favorable" to plaintiff. Ross v. Runyon, 859 F. Supp. 15, 21-22 (D.D.C. 1994). Nevertheless, a plaintiff is not relieved in a discrimination case of his obligation to support his allegations by affidavits or other competent evidence showing that there is a genuine issue for trial. If defendant provides evidence that plaintiff was disciplined because of legitimate nondiscriminatory reasons, as it has here, plaintiff "must then bring forward evidence of the pretextual nature of the legitimate non-discriminatory purpose posited by defendant . . . . Evidence of discrimination that is 'merely colorable', or 'not significantly probative' cannot prevent the issuance of summary judgment." Johnson v. Digital Equipment Corp., 836 F. Supp. 14, 15 (D.D.C. 1993) (citation omitted).

 B. RETALIATION

 A prima facie case alleging retaliation under Title VII is established when the plaintiff demonstrates that (1) he engaged in protected behavior, (2) he was subject to an adverse action by his employer, and (3) there is a causal link between the adverse action and the protected activity. Mitchell v. Baldrige, 245 U.S. App. D.C. 60, 759 F.2d 80, 86 (D.C. Cir. 1985); McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 790 (D.C. Cir. 1984). The causal connection may be demonstrated by circumstantial evidence that leads to an inference of retaliatory motive.

 Plaintiff has established that he engaged in protected conduct by filing a formal discrimination charge alleging discriminatory failure to promote in March 1988. He has also established that he was disciplined by a letter of insubordination issued on November 10, 1988, and by an official reprimand on March 2, 1989. Plaintiff argues that he has established a causal link between his protected conduct and the ...


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