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PHUONG v. NAS

October 12, 1995

TRAN ANH PHUONG, Plaintiff,
v.
NATIONAL ACADEMY OF SCIENCES, Defendant.



The opinion of the court was delivered by: FRIEDMAN

 I. BACKGROUND

 Plaintiff, a fifty-nine year old Vietnamese female, was employed by the National Academy of Sciences ("NAS") for over 18 years. She began her employment at NAS in May 1973. In April 1991, her supervisor in the Commission on Engineering and Technical Systems ("CETS") at NAS was Executive Director Archie L. Wood, a white male. Ms. Phuong was Mr. Wood's Executive Assistant.

 On April 9, 1991, Mr. Wood informed plaintiff that he was delaying her annual performance review for three months in order to better assess her performance. Pl.'s Ex. 1; Deposition of Archie L. Wood ("Wood Dep.") at 62. He then assigned plaintiff new duties, requiring her to learn and apply several computer software applications with which he was aware that she previously had no familiarity. Mr. Wood set a three month deadline by which plaintiff was required to have learned how to use the software and have completed setting up various databases. Pl.'s Ex. 1; Wood Dep. at 38-39.

 In July 1991, plaintiff informed Mr. Wood that she could not complete the work without working overtime and informed him that indeed she had been working overtime in an effort to complete the work. Plaintiff maintains that Mr. Wood never gave her approval to work overtime and that Ms. Marlene Beaudine and Ms. Mary Frances Lee, two members of the CETS executive office staff, both told her that she was not approved to work overtime. Deposition of Tran Ahn Phuong ("Phuong Dep.") at 1-4. Plaintiff claims that while she worked overtime, she did not report the overtime on her pay sheets. Phuong Dep. at 3-4. Mr. Wood asserts that he did not object to plaintiff working overtime and would not have objected to her claiming overtime pay. Wood Dep. at 42-47.

 In mid-July 1991, Mr. Wood concluded that plaintiff could not handle her "new" job. Around that time Mr. Wood discussed with Ms. Beaudine and Ms. Lee the fact that plaintiff was approaching retirement age. Wood Dep. at 50. In July Mr. Wood also informed Mr. Charles Starliper, the white male Personnel Director of NAS, that plaintiff was not performing satisfactorily. On July 22, 1991, Mr. Wood informed Mr. Starliper that he wanted plaintiff removed from her position or that she be made a part-time employee. On August 16, 1991, Mr. Starliper informed plaintiff that her options were either to take a demotion or to reduce her hours to part-time. Throughout the entire period that Mr. Wood was her direct supervisor, he never documented in writing the deficiencies that he saw in plaintiff's work performance and never provided her with a written performance appraisal.

 Plaintiff last performed unreported overtime work on August 28, 1991, a date that fell within the pay period ending on September 9, 1991. Phuong Dep. at 164. On August 30, 1991, plaintiff received a written notice of demotion. Plaintiff was absent from the workplace from August 30, 1991, through September 8, 1991, because of a back injury. She returned for one day on September 9, 1991, but did not return thereafter. She received worker's compensation benefits for the period September 10, 1991, through October 22, 1991. At some unspecified time, plaintiff was replaced by Teree Dittmar, a white female who was younger than plaintiff. Pl.'s Ex. 3. Ms. Dittmar subsequently was removed from the position because of an attendance problem that pre-dated her appointment to plaintiff's former position. Pl.'s Ex. 3.

 The Court previously denied defendant's motion to dismiss for failure to exhaust administrative remedies and stayed the action for 30 days in order to permit plaintiff an opportunity to obtain a right to sue letter from the EEOC. Upon a theory of equitable tolling, the Court denied defendant's motion to dismiss plaintiff's age discrimination claim. The Court also found that plaintiff's Fair Labor Standards Act claim was adequately pled to avoid summary dismissal on statute of limitations grounds.

 II. DISCUSSION

 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. Rule 56(c), Fed. R. Civ. P. 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 [her] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Washington Post Co. v. U.S. Dept. of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). In discrimination cases 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). 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. Rule 56(e), Fed. R. Civ. P.; Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); 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. Fair Labor Standards Act and Age Discrimination in Employment Act Claims

 Until November 21, 1991, both the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., drew their statutes of limitations from the Portal-to-Portal Pay Act of 1947, 29 U.S.C. §§ 255, 259. Under the Portal-to-Portal Pay Act, an action must be commenced within two years from the date the cause of action accrues, unless the violation was willful, in which case the statute of limitations is three years. 29 U.S.C. § 255. Addressing the statute of limitations under the FLSA, the Supreme Court has held that willfulness exists if the "employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by statute." McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 100 L. Ed. 2d 115, 108 S. Ct. ...


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