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SUSSMAN v. TANOUE
February 4, 1999
JERRY SUSSMAN AND NICHOLAS J. BURGESS, PLAINTIFFS,
DONNA TANOUE, CHAIRPERSON, FEDERAL DEPOSIT INSURANCE CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Aubrey E. Robinson, Jr., District Judge.
Presently before the Court are cross-motions for summary
judgment and Plaintiffs' motion to unseal. The Court has
considered the pleadings carefully and, for the reasons stated
below, the Court will grant Defendant's motion for summary
judgment on Counts Three, Four, and Seven, and deny the other
pending motions, including Plaintiffs' motion to unseal.
Plaintiffs filed a seven count First Amended Complaint
seeking to vindicate their rights under Title VII of the Civil
Rights Act of 1964 and other federal laws. Count One, which
alleged misclassification of their positions in violation of the
Administrative Procedures Act (APA) was dismissed. Count Six is
a request for an injunction against further discrimination, which
the Court finds inappropriate to decide at this time. The grounds
for the remaining counts are described below.
Plaintiffs are white males who work in the FOIA unit of the
Federal Deposit Insurance Corporation (FDIC). At the beginning of
their FDIC employment, the two were detailed to the FOIA unit of
the Resolution Trust Corporation (RTC), but since January 1996
they have worked at FDIC headquarters. The positions Plaintiffs
currently occupy are not attorney positions, but they are
supervised by a Senior Attorney. In addition, Plaintiff Sussman
is an attorney, and has acted at times as Acting Senior Attorney.
Plaintiffs were hired in 1991 at Grade 13, and have remained
at Grade 13 ever since. Plaintiffs believe their work deserves a
higher grade, particularly in comparison to other FOIA personnel.
While working at the RTC in 1993, Plaintiffs sought a "desk
audit" of their responsibilities in an effort to be promoted to
Grade 14 or higher. The results of the desk audit confirmed
Plaintiffs' positions at Grade 13. Count Two of the First Amended
Complaint alleges that Plaintiffs position were misclassified as
a result of discrimination against white males.
In 1992, 1996, and 1997, the FDIC posted an opening for the
Senior Attorney position. Plaintiff Sussman applied for the
position each time. In 1992 he was found qualified but was not
selected. In 1996 and 1997 he was not found to be qualified for
the position. Sussman alleges in Count Three he was rejected for
the 1996 opening because of discrimination against white males
within the FDIC. He alleges in Count Four that he was rejected in
1997 in retaliation for alleging that discrimination.
Plaintiffs allege in Count Five that since their return to
the FDIC in 1996, their supervisors have taken adverse and
harassing actions against them, and that these actions were taken
in retaliation for Plaintiffs' protected equal employment
opportunity (EEO) activities.*fn1 The alleged retaliatory actions
include undeservedly low performance appraisals, denial of
performance awards, weakened position descriptions, and various
Finally, in Count Seven, Plaintiffs allege that the FDIC's
affirmative action program creates illegal quotas for the
promotion of women and minorities within the FDIC, making it
difficult for white males to get promoted.
Defendant has sought summary judgment on all counts.
Plaintiffs have sought summary judgment on Counts Two, Five and
A. Standard of Review for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides
that the Court should grant summary judgment in favor of a party
if "the pleadings, depositions, answer 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."
In deciding motions for summary judgment all inferences must be
viewed in the light most favorable to the non-moving party. See
Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir. 1994) (citing Anderson
v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986)). "If material facts are at issue, or, though undisputed,
are susceptible to divergent inferences, summary judgment is not
The Court approaches summary judgment in discrimination and
retaliation cases with acute awareness that plaintiffs need not
prove their case by direct evidence. See United States Postal
Serv. v. Aikens, 460 U.S. 711, 714 n. 3, 103 S.Ct. 1478, 75
L.Ed.2d 403 (1983). Rather, plaintiffs are entitled to rely on
the three-step McDonnell Douglas framework. See McDonnell Douglas
v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288-89
(D.C.Cir. 1998) (en banc).
Summary judgment, however, is appropriate where the plaintiff
relies on "purely conclusory allegations of discrimination."
Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985); see also
Anderson v. Liberty Lobby, 477 U.S. 242, 249-50, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986) ("If the evidence is merely colorable, or
is not significantly probative, summary judgment may be
granted.") (citations omitted).
B. Count Two: Discrimination Through Misclassification of
Count Two of the First Amended Complaint alleges that the RTC
refused to properly classify Plaintiffs' positions because
Plaintiffs were white males. Both sides seek summary judgment on
Plaintiffs contend that they were entitled to hold their
positions at least Grade 14, if not Grade 15, while they were
employed by the RTC, and after they returned to the FDIC.
Plaintiffs believe that a desk audit of their RTC positions was
unsuccessful in upgrading their positions because of
discrimination against white males.
Defendant contends that Plaintiffs were not given Grade 14
positions because no non-supervisory FOIA personnel at RTC held
Grade 14 positions, and therefore it would require changing the
entire salary structure of the FOIA unit to accommodate
Plaintiffs' desire for Grade 14 positions.
Based on the parties' Local Rule 108 statements, the Court
finds that there is a genuine issue of material fact as to
whether Plaintiffs' positions should have been graded higher than
Grade 13, and whether the failure to do so was based on a
discriminatory motive.*fn2 Accordingly, the Court will deny summary
judgment on Count Two.
C. Count Three: Discrimination Through Failure To Promote
Count Three of the First Amended Complaint alleges that the
FDIC refused to hire Plaintiff Sussman in November 1996 for the
position of Senior Attorney because he was a white male.
Defendant seeks summary judgment on this count.
Defendant argues that Plaintiff Sussman cannot make out a
prima facie case of discrimination because Sussman was not
qualified for the Senior Attorney position.*fn3 See Def.'s Mot. for
Summ.J. at 17. Alternatively, Defendant argues that it has
presented a legitimate nondiscriminatory explanation for the
decision not to promote Sussman, and Sussman has failed to
provide sufficient evidence of discriminatory motive to survive
Sussman argues that he had been found qualified for the
position in 1992 and that, if he was not qualified in 1996, it
was only because the position description was rewritten to
preclude him for competing for the position.
The Court finds that Sussman was not qualified for the
position, and therefore he cannot make out a prima facie case.*fn4
The Senior Attorney position posting required:
4 years of progressively responsible legal
experience which demonstrates that [the applicants]
have the knowledge, skills, and abilities required
to perform the duties of the position and possess
the relevant selective factors referred to below.
At least one year of professional experience must
have been at a level of difficulty and
responsibility comparable to the next lower grade
level in the Federal Service.
Pls.' Opp. to Def.'s Mot. for Summ.J., Ex. 42.
Defendant argues that Sussman did not meet this requirement.
See Def.'s Mot. for Summ.J., Ex. 12 (contemporaneous letter from
Gregory Myles to Sussman informing Sussman he was being rejected
for lack of legal experience; sworn affidavit of Gregory Myles
attesting that Sussman was rejected for lack of adequate relevant
legal experience). Sussman believes that he did have the adequate
legal experience, pointing to a period of five years when he
served as Acting Senior Attorney during temporary absences of the
Senior Attorney, as well as five years in private practice.
In an effort, however, to grant Sussman the benefit of every
doubt, the Court will assume he has made out a prima facie case,
will treat the question of inadequate legal experience as a
non-discriminatory explanation, and will proceed to consider
whether Sussman has any evidence of pretext to undermine
Defendant's nondiscriminatory explanation for the decision not to
select him for the position.
The Court of Appeals has recently attempted to clarify what
is required of a plaintiff at this stage,
Assuming then that the employer has met its burden
of producing a nondiscriminatory reason for its
actions, the focus of proceedings at trial (and at
summary judgment) will be on whether the jury could
infer discrimination from the combination of (1)
the plaintiff's prima facie case; (2) any evidence
the plaintiff presents to attack the employer's
proffered explanation for its actions; and (3) any
further evidence of discrimination that may be
available to plaintiff (such as independent
evidence of discriminatory statements or attitudes
on the part of the ...