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SUSSMAN v. TANOUE

February 4, 1999

JERRY SUSSMAN AND NICHOLAS J. BURGESS, PLAINTIFFS,
v.
DONNA TANOUE, CHAIRPERSON, FEDERAL DEPOSIT INSURANCE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Aubrey E. Robinson, Jr., District Judge.

    OPINION

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.

I. Background

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 lesser incidents.

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 Seven.

II. Analysis

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 available." Id.

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
       Positions

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 this count.

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 summary judgment.

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 ...

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