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CARTER v. PENA

October 23, 1997

LAWRENCE C. CARTER, Plaintiff,
v.
FEDERICO PENA, Secretary, U.S. Department of Energy, Defendant.



The opinion of the court was delivered by: LAMBERTH

MEMORANDUM OPINION

 This matter comes before the court on defendant's motion for summary judgment on the discrimination claims of plaintiff Lawrence Carter. Carter filed suit against Federico Pena, Secretary of the United States Department of Energy, alleging a discriminatory failure to promote Carter due to his race, previous EEO activity, and age, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967, 28 U.S.C. § 621 et seq. Upon consideration of the written submissions of the parties, oral arguments, and the relevant law, defendant's motion for summary judgment is granted.

 I. Background

 Plaintiff Lawrence Carter is an African American male over the age of forty employed by the United States Department of Energy ("DOE") as a GS 2001-12 General Supply Specialist. He holds two Masters of Science degrees--one in Administration and one in Contract and Acquisition Management and has been an employee of the DOE since 1989. Moreover, Carter has over thirty-two years of service in the government, with twenty years in the military and twelve years as a civil servant.

 Currently, Carter's position as a General Supply Specialist is part of the "2001" job series at the DOE. Between 1993 and 1995, Carter submitted several applications in response to vacancy announcements for positions in the "1102" job series posted by the Department but was not selected to fill any of the vacancies for which he applied. Carter contends that his failure to obtain one of the advertised positions is a result of the "discrimination and perverted personnel practices that exist within the Office of Personnel, as well as the Office of Procurement" at the DOE. Pl.'s Supp. Opp. to Summ. J. at 2. Based on these contentions, Carter filed suit alleging that the DOE engaged in discrimination based on race and retaliation for previous EEO activity, in violation of Title VII and discrimination based on age, in violation of the ADEA. Defendant has moved for summary judgment on these claims.

 The employment decisions made by the DOE which affected Carter can be divided into two separate categories: (1) cancellations of vacancy announcements for which Carter had applied and (2) DOE selections of other applicants to fill positions for which Carter had applied but was subsequently rejected. Turning to the first category, Carter submitted an application to fill one of four vacancy announcements in the DOE which were all subsequently canceled by the Department prior to the selection of an individual to fill these vacancies. During 1993, Carter applied for the position of Procurement Analyst, GS-1102-13, advertised in Vacancy Announcement Number 93-PR-049. This vacancy announcement was canceled "per management" prior to being filled by DOE officials. In fact, this cancellation occurred before any applicants were screened by a department panel or interviewed by a selecting official.

 On August 27, 1993, Carter was interviewed for a different position within the DOE in conjunction with his application for the position of Contract Specialist, GS-1102-11/12, as advertised in Vacancy Announcement Number 92-PR-203/EF-0259. The interviewer rated Carter a "one" out of a possible "ten" and the exchange between the interviewer and Carter during the interview is the subject of some dispute. Nonetheless, the DOE canceled this vacancy citing budgetary limitations.

 On November 21, 1994, Carter applied for three positions that were advertised in Vacancy Announcement Number 94-PR-064/065/066, Contract Specialist, GS-01102-13. Prior to submitting this application, Carter requested that the Office of Personnel Management ("OPM") evaluate his employment qualifications. Carter contends that the OPM certified him as qualified and eligible for a GS-01102 position at either Grade 12 or 13, and this certification was submitted along with Carter's application to the DOE. On January 30, 1995, the DOE notified Carter by letter that the vacancy announcement for all three positions had been canceled. Again, the DOE made this cancellation prior to interviewing or screening any applicants.

 Finally, on May 22, 1995, Carter applied for a Contract Specialist, GS-01102-13 position announced in Vacancy Announcement Number 95-EH-71-250. In September 1995, Carter received yet another letter from a DOE Headquarters Personnel Specialist dated July 10, 1995, indicating that the position's vacancy announcement had been canceled. Neither Carter nor any other applicants were screened or interviewed for this position prior to the cancellation.

 The second category of employment decisions made by the DOE affecting Carter involve his application for one of four Contract Specialist, GS-1102-13 positions advertised in Vacancy Announcement Number 93-PR-003/004/005/028. For the two positions that were filled in conjunction with this vacancy announcement, the personnel office collected applications and forwarded them to a panel of three individuals for review and scoring. This panel was composed of an African American male, an African American female, and a white male. The panel's purpose was to identify for the selecting official which candidates among all applicants were the "best qualified" for the available positions. The names of individuals rated as "best qualified" were then forwarded to the selecting official for further consideration.

 The panel rated the applicants on a scale of 1 to 48 and required that the applicants obtain a minimum score of 31 to be characterized as "best qualified," thereby permitting the applicant to proceed to the interview stage of the selection process. In March 1993, Carter received a score of 20 from the panel and thus, did not make the "best qualified" list. As a result of this score, Carter did not proceed through the selection process and was never interviewed by the selecting official.

 The Department hired DOE employees John Harris,'a white male, and Kristen Wright, a white female, to fill two of the four GS-13 Contract Specialist positions advertised in this vacancy announcement. Harris received a perfect score of 48 and Wright received a score of 41 from the panel in the pre-screening process.

 After the selection of these individuals, the DOE advised selecting official, Scott Sheffield, that due to budgetary constraints, he would not be permitted to hire the two outside applicants whom he had selected for the remaining slots. The DOE chose instead to fill those vacancies with two GS-13 employees, both white males, from the DOE's Office of Financial Services ("OFS"). Those chosen to fill these vacancies were both employed in the 1102 job series as GS-13 Procurement Analysts prior to their transfer to the Contract Specialist position and were transferred upon the elimination of their positions at OFS. Carter filed a formal EEO complaint concerning his non-selection for these jobs in July 1993.

 II. Analysis

 A. Summary Judgment

 Defendant has moved for summary judgment on the age, race, and retaliation claims of discrimination brought by the plaintiff in this case. Summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In order to obtain summary judgment, the movant has the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When confronted by a properly supported motion for summary judgment, the opposing party must produce some contrary evidence which could support a favorable verdict.

 To defeat summary judgment, an issue of fact in dispute must be both genuine and material--one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court's consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in favor of that party as well. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). If summary judgment is to be denied, there must be evidence on which the jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 252. Furthermore, if the non-moving party "fails to make a showing ...


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