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April 2, 1996

JOSEPH E. TAYLOR, Plaintiff,

The opinion of the court was delivered by: HARRIS

 Before the Court are defendant's motion to dismiss or for summary judgment, plaintiff's opposition, and defendant's reply. Also before the Court are defendant's motion to strike, plaintiff's opposition, and defendant's reply. Upon careful consideration of the entire record, defendant's motion for summary judgment is granted in part and denied in part. Defendant's motion to strike is granted. "Findings of fact and conclusions of law are unnecessary in motions under Rule 12 or 56." Fed. R. Civ. P. 52(a). However, for the benefit of the parties, the Court nonetheless sets forth its analysis.

 Background Facts

 The following facts were taken from plaintiff's complaint and the parties' briefing on defendant's dispositive motion. Plaintiff is an employee of defendant Washington Metropolitan Area Transit Authority (WMATA); he has worked for WMATA and its predecessor transit companies since 1958. In 1976, after plaintiff transferred to WMATA's newly-created Metrorail Department (the "Rail Department"), he was promoted to Assistant Superintendent of Central Control in the Rail Department. He was promoted to Superintendent of Central Control in 1978 and remained in that position until 1986. Thereafter, until August 1992, plaintiff remained a Superintendent but had various duties and assignments. As a Superintendent, plaintiff reported directly to the General Superintendent for Rail Transportation (RTRA), who in turn reported to the Assistant General Manager (AGM) for Rail Support (RAIL). Plaintiff's General Superintendent for the relevant time period was Aubrey Burton; Fady Bassily has occupied the AGM RAIL position since 1984.

 In 1986, an incident occurred which has some relevance to this case. Plaintiff was apparently instructed by Bassily to tell train operators that, if a particular train safety mechanism (the "ATP") was malfunctioning, the operator could disconnect the ATP and continue to operate trains with passengers aboard until it reached the end of the line, at which point the train would be serviced. *fn1" Bassily's instruction was apparently in contravention of WMATA's safety rules, which prescribe that if the ATP is malfunctioning, passengers are to be evacuated from the train at the next stop. Plaintiff apparently orally instructed his subordinates that, if they wished to follow Bassily's instructions, they should seek clearance from another supervisor. Plaintiff then reported the matter to WMATA's General Superintendent of Safety, who investigated the incident and issued a report critical of Bassily's instruction.

 From 1986 to 1991, plaintiff remained in a Superintendent's position but was reassigned several times to various locations. In March 1991, plaintiff was reassigned to a newly-created position, that of Superintendent for Rail Transportation Operations Support (also referred to as "RTRA Disciplinarian" by the parties). Plaintiff was then salaried at a TA-22 pay grade. In September 1991, plaintiff received a position description showing that his current position was salaried at a TA-24 grade, a higher grade than his then-current status.

 On October 16, 1991, plaintiff was informed by his direct supervisor, Burton, that he was ineligible to receive an upgrade from TA-22 to TA-24. On November 6, 1991, plaintiff wrote to Burton asking for an explanation, and noting that one other Superintendent whose work plaintiff felt to be unsatisfactory had been upgraded to a TA-24. Burton apparently responded to plaintiff's letter, but plaintiff did not then pursue the issue of an upgrade.

 In March 1992, plaintiff received his yearly performance evaluation. Plaintiff was evaluated as "Superior" in one category, "Above Satisfactory" in three others, and "Satisfactory" in the remaining ten categories. While plaintiff accepted his evaluation, he noted the following above his signature: "... The job description indicates a TA-24. Why must I remain at a TA-22." Def.'s Mot. for Summ. J., Ex. 14.

 On May 26, 1992, Burton responded to plaintiff's question, stating in a letter to plaintiff that the position plaintiff currently occupied, that of RTRA Disciplinarian, was "not [a position] that would necessarily support an upgrade to TA-24." Def's Mot. for Summ. J., Ex. 8. Burton therefore informed plaintiff that he would be reassigned to a Line Superintendent position, where the TA-24 upgrade was available, and that plaintiff would be evaluated every six months for two years. Burton also informed plaintiff that he would be upgraded if he achieved an "Above Satisfactory" overall rating on his yearly performance evaluation (meaning that plaintiff would have to receive at least eight "Above Satisfactory" marks out of 15 individual categories). Burton concluded the letter by noting that "any future re-occurrence [sic] of any of the type of unsatisfactory performance indicated above, will result in your demotion ... or termination. . . ." Def.'s Mot. for Summ. J., Ex. 8.

 On May 31, 1992, plaintiff filed an internal grievance protesting Burton's actions. In the grievance, plaintiff asserted that "because of my age and longevity, the Assistant General Manager [Bassily] constantly threatens me." *fn2" Pl.'s Opp., Ex. 15. Bassily denied plaintiff's grievance in July 1992, and on August 4, 1992, WMATA denied plaintiff's request that it review the matter.

 On June 12, 1992, after plaintiff had filed his grievance but before Bassily denied it, Robert Gholston and Rita Davis, also WMATA employees, visited plaintiff in his office. The parties agree that Gholston asked plaintiff if he would be attending the WMATA picnic, and that plaintiff answered vehemently in the negative. Defendant asserts that plaintiff followed up his initial remark with a string of invectives directed toward Bassily, and more specifically, toward Bassily's ethnic origin. Plaintiff asserts he said nothing of the sort.

 Gholston and Davis thereafter submitted separate letters to Bassily detailing what they remembered of the exchange. Bassily convened a panel of three individuals, among them the head of WMATA's Office of Labor Relations, to investigate the incident, and after interviewing only Gholston and Davis, the panel submitted to Bassily that it believed their letters to be accurate. The panel stated in its submission that plaintiff had committed a "Category 2 offense," which, under the WMATA personnel manual guidelines, warrants a number of disciplinary actions, up to and including dismissal.

 On August 10, 1992, plaintiff was informed in a memorandum from Burton that he had violated WMATA's Civil Rights Policy by "prefacing a reference to [Bassily's] race with expletives." Def's Answer at 4; Pl.'s Opp., Ex. 21. Plaintiff was given three choices: immediate resignation, immediate retirement, or demotion to Train Operator or Station Manager. (A demotion from Superintendent to Station Manager carries with it an approximately $ 30,000 drop in pay.) Plaintiff was given three days to make his choice. On August 13, 1992, plaintiff met with Burton and Bassily, told Bassily he had not made the statement attributed to him, and asked Bassily to rescind the penalty. Bassily declined to completely rescind the penalty, but offered to reinstate plaintiff as a TS-05, which would have entailed a much less severe salary cut of approximately $ 7,500 a year. Plaintiff refused to accept the reassignment, because it apparently meant that he would have no seniority in bidding on assignments. After the meeting with Burton and Bassily concluded, plaintiff signed a memorandum accepting his demotion, but noting that the acceptance was involuntary. On August 16, 1992, plaintiff was demoted to the position of Station Manager.

 On August 20, 1992, plaintiff filed a grievance with Burton, asserting, inter alia, that neither plaintiff nor his secretary had been interviewed by the investigative panel prior to its recommendation to Bassily. (Plaintiff's secretary, Carol DeShazo, has stated that she did not hear plaintiff make any inflammatory comments about Bassily.) Burton denied plaintiff's grievance on August 28, 1992, and on September 2, plaintiff appealed the denial to Bassily. Bassily denied plaintiff's second-level grievance, but again indicated that he was willing to place plaintiff in a first-line supervisory position, an upgrade from Station Manager which would "considerably reduce the financial burden" plaintiff was experiencing as a result of the demotion. Pl.'s Opp., Ex. 7, p. 6. Plaintiff did not accept Bassily's offer, apparently because he felt it would have been an admission of guilt. See Pl.'s Opp., Ex. 22.

 Plaintiff continued pursuing his internal grievance to the highest level possible. LeRoy Bailey, plaintiff's grievance reviewer at the fourth level of internal review, "questioned" certain actions taken by plaintiff's supervisors, including the fact that neither plaintiff nor his secretary was interviewed by the panel convened to investigate the June 12 incident. Pl.'s Opp., Ex. 22. However, Bailey noted in closing that after his independent review of all the records and statements made thus far, "it appears that Mr. Taylor's discipline was justified and that no mitigation would be acceptable to him," and Bailey denied plaintiff's grievance. Id. Plaintiff's internal grievance was conclusively denied in October 1992.

 On November 17, 1992, plaintiff filed a charge of age discrimination and retaliation with the EEOC against WMATA and Bassily. (Bassily was initially named as a defendant in this action; he was voluntarily dismissed from the case on August 24, 1993). Plaintiff filed his complaint in this case on April 30, 1993. *fn3" Plaintiff's complaint contains three counts. Count One alleges that WMATA discriminated against him on the basis of his age when it refused to upgrade him to a TA-24 level position, and also when it demoted him to a Station Manager position. In addition, Count One alleges that WMATA retaliated against him for having filed an internal grievance alleging age discrimination when it demoted him to Station Manager. Count Two alleges that WMATA breached its contract of employment with plaintiff when it determined to discipline plaintiff without first affording him an opportunity to contest the finding of violation. Count Three states that WMATA committed the tort of "wrongful demotion."

 Summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In considering a summary judgment motion, all evidence and the inferences to be drawn from it must be considered in a light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). The inferences, however, must be reasonable; a nonmoving party can only defeat a motion for summary judgment by responding with some factual showing to create a genuine issue of material fact. Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Summary judgment cannot be granted "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).

 Plaintiff has not made out a prima facie case of age discrimination with respect to WMATA's refusal to upgrade plaintiff. The Court therefore grants summary judgment as to this portion of Count I of plaintiff's complaint. However, the Court finds that genuine issues of material fact exist as to plaintiff's age discrimination claim arising from his demotion and plaintiff's retaliation allegation, and the Court accordingly denies summary judgment on these portions of Count I. Plaintiff has not submitted any relevant evidence to support his contention that the WMATA personnel manual constituted an employment contract, and the Court therefore grants defendant's motion for summary judgment on Count Two. ...

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