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MARSHALL v. SHALALA

August 14, 1998

EDWARD W. MARSHALL, Plaintiff,
v.
DONNA SHALALA, Secretary of Health and Human Services, Defendant. EDWARD W. MARSHALL, Plaintiff, v. DONNA SHALALA, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: FRIEDMAN

OPINION

 These consolidated cases are before the Court on defendant's motion for summary judgment. Upon consideration of the motion and memorandum of points and authorities in support of the motion, plaintiff's opposition, defendant's reply, and the arguments presented by counsel in open Court, the Court concludes that defendant's motion should be granted.

 I. BACKGROUND

 In these employment discrimination cases, Edward Marshall, a 60-year-old African American male, alleges that his employer discriminated against him on the basis of his race, sex and age and retaliated against him because he complained about such discrimination. He was employed at the U.S. Department of Health and Human Services, Administration on Children, Youth and Families ("ACYF"), Administration on Children and Families, ("ACF"), Family and Youth Services Bureau ("FYSB"). *fn1" Mr. Marshall brings his claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and/or the Age Discrimination in Employment Act, 29 U.S.C. § 633a. He seeks compensatory damages of $ 600,000, a promotion to the GS-13 level, back pay and correction of all HHS records, including plaintiff's official personnel folder. *fn2"

 During the relevant time period, plaintiff was a Youth Development Program Specialist, GS-12 (step 8) in the Program Operations Division ("POD") of FYSB. *fn3" Mr. Marshall has been a GS-12 level employee at HHS for 15 years, and from mid-1992 to mid-1995 he received performance ratings of either "excellent" or "fully successful." Mr. Marshall claims that "the journeyman level" for his career field at FYSB is GS-13, and that he has been denied the opportunity to gain a promotion to this level despite having consistently received successful and excellent job performance ratings. He claims that during his 15-year tenure, mostly white females, all younger than he, have been promoted to the GS-13 level at FYSB. Terry Lewis, a white female who is plaintiff's second level supervisor, is allegedly the source of this promotion bias in favor of young, white, female employees.

 From May 1992 to July 1995, four GS-13 positions at FYSB were filled by white females, all younger than Mr. Marshall. In May 1992, Ms. Lewis laterally hired Donna Litton (a GS-13 in another department in ACF) into a GS-13 position at FYSB. This position was not posted and therefore was filled by noncompetitive means. In the summer of 1993, Ms. Litton left that position, and Ms. Lewis laterally (and noncompetitively) hired Judy Moore, another GS-13, to fill Ms. Litton's vacant position. Also in the summer of 1993, Gina Barbero lateraled into a GS-13 position at FYSB from her GS-13 position in another ACF department; according to defendant, Ms. Barbero brought her GS-13 position with her from another ACF office and FYSB obtained an additional GS-13 level position as a result. Finally, in July of 1995, Alice Bettencourt, an FYSB employee, was promoted from GS-12 to GS-13 after requesting a desk audit.

 On August 18, 1993, Mr. Marshall filed a formal administrative EEO complaint concerning the denial of promotion opportunities since 1988 based on his race, sex and age. Mr. Marshall alleges that after submitting his complaint, he was subjected to further discrimination and retaliation for having complained of discrimination (including the lowered performance ratings). On July 20, 1995, Mr. Marshall lodged a second formal administrative complaint of discrimination and retaliation. He claims that he continued to be subjected to discrimination and retaliation after filing his second complaint. On July 22, 1996, Mr. Marshall filed a third formal complaint of discrimination and retaliation.

 According to defendant, from 1994 to 1996 Mr. Marshall subjected one FYSB employee to unwelcome sexual attention and verbally threatened another employee (his immediate supervisor, Pamela Johnson), which ultimately prompted an investigation into plaintiff's behavior by James Harrell, Deputy Commissioner of ACF.

 After a reorganization of FYSB in 1997, two GS-13 positions opened up, the positions were posted, and two African American males were hired to fill those positions. Mr. Marshall did not apply for either position.

 Also in 1997, Mr. Marshall was transferred out of FYSB to a position in the Office of the Commissioner, Policy and Planning Branch. Plaintiff claims that this transfer was the ultimate retaliation against him, but defendant maintains that Mr. Marshall was transferred because he had expressed his dissatisfaction with the plans to reorganize FYSB.

 The defendant puts forth several reasons why plaintiff is unable to establish a prima facie case for his claims of discrimination and retaliation or that plaintiff's claims otherwise fail. Plaintiff's brief in opposition is unresponsive to many of these arguments. The Court assumes that those arguments to which plaintiff provides no response have been conceded.

 II. DISCUSSION

 A. Summary Judgment Standard

 Under Rule 56, Fed. R. Civ. P., summary judgment should 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. 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." Id. at 255; see also Washington Post Co. v. U.S. Dept. of Health and Human Services, 275 U.S. App. D.C. 101, 865 F.2d 320, 325 (D.C. Cir. 1989).

 The non-moving party's opposition, however, 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). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in his 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.

 In order to prevail in a case initiated under either Title VII or the ADEA, the plaintiff initially must establish a prima facie case of prohibited discrimination or retaliation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Koger v. Reno, 321 U.S. App. D.C. 182, 98 F.3d 631, 633 (D.C. Cir. 1996) (observing that the prima facie elements of a Title VII case are analogous to those applicable to an ADEA case); Cuddy v. Carmen, 224 U.S. App. D.C. 287, 694 F.2d 853, 857 (D.C. Cir. 1982) (same); see O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310, 134 L. Ed. 2d 433, 116 S. Ct. 1307 (1996). If the plaintiff succeeds in making out a prima facie case, the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory and/or nonretaliatory reason for the challenged action. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981); Ware v. Howard University, 816 F. Supp. 737, 749-750 (D.D.C. 1993) (ADEA cases governed by same evidentiary scheme as in Title VII cases).

 Once the defendant articulates a legitimate reason for its action, the presumption raised by the prima facie case is rebutted, and the burden shifts back to the plaintiff to produce some evidence, either direct or circumstantial, to show that the defendant's proffered reason for its actions is a mere pretext for discrimination or retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. at 802-05; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507-08, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). 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. Federal 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. 25, 29-30 (D.D.C. 1987).

 While summary judgment must be approached with special caution in discrimination cases, 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), a plaintiff is not relieved of his obligation to support his allegations by affidavits or other competent evidence showing that there is a genuine issue for trial. Specifically, if defendant provides evidence of a legitimate non-discriminatory reasons, 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,' ...


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