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August 30, 1999


The opinion of the court was delivered by: Kessler, District Judge.


This matter comes before the Court upon Defendant's Motion for Summary Judgment [# 35], Plaintiff's Motion for Partial Summary Judgment [# 46], and Defendant's Motion to Dismiss Second Amended Complaint, or, in the Alternative, for Summary Judgment [# 78]. Plaintiff, John E. Lutes, brings this action alleging discrimination on the basis of race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and on the basis of age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff further alleges retaliation in violation of Title VII and the ADEA, as well as infringement upon his constitutional right to equal protection. Upon consideration of the parties' submissions and the entire record herein, for the reasons set forth below, Defendant's Motion for Summary Judgment is granted; Plaintiff's Motion for Partial Summary Judgment is denied; and Defendant's Motion to Dismiss Second Amended Complaint, or, in the Alternative, for Summary Judgment is granted.

I. Background*fn1

A. Plaintiff's Employment History

Plaintiff, a fifty-four year old Caucasian male, was hired in October 1989 as an Aerospace Engineer in the Office of Aeronautics and Space Transportation, Code R Division, at the National Aeronautics and Space Administration ("NASA"). He was initially assigned a GS-14 classification. In October 1990, Plaintiff received a performance rating of "Outstanding". He received a slightly lower rating of "Highly Successful" in November 1991. In November 1992, Plaintiff received an even lower rating of "Fully Successful", well below the rating he expected. His performance ratings then rose to "Highly Successful" again in October 1993 and August 1994. Throughout his service with NASA, Plaintiff received various awards and recognitions.

B. Plaintiff's Efforts at Promotion*fn2

Plaintiff was hired into his current GS-14 position at full performance level with no promotion potential except through certain designated processes*fn3 The only procedure for advancing beyond a full performance level position is 1) to separately apply for a vacant position at the next performance level, or 2) to request a review by a Performance Review Board ("PRB") or a desk audit to determine whether an increase in a position's duties supports reclassification at a higher performance level.

In 1990, Plaintiff's then supervisor, Jack Levine, allegedly promised Plaintiff that be would be promoted to a GS-15 position in late 1991. That promotion never took place. Plaintiff conceded in deposition that the denial of promotion by Levine had nothing to do with his race or gender. Def's Ex. 6 at 68.

Following receipt of his "Fully Successful" rating in November 1992, Plaintiff filed an informal grievance with the agency alleging improper supervisory practices. As part of his grievance, Plaintiff requested again that he be promoted to a GS-15 grade. That request for promotion was denied in January 1993. Plaintiff chose to withdraw his grievance rather than appeal its denial.

Subsequently, Plaintiff repeatedly requested that his name be submitted to a PRB for advancement consideration. The PRB for Plaintiff's division, Code R, is composed of Code R Division Directors, and is chaired by the Code R Associate Administrator. To be considered for a position upgrade, an employee must be nominated by his or her Division Director. The PRB then considers an employee's qualifications, his or her performance level, the potential to perform at a higher level, and other recommendations the employee may have garnered. The PRE then makes a determination whether to make a recommendation for upgrade to the Headquarters personnel office. Def.'s Ex. 4 at 5; Def.'s Ex. 10 at 63; Def.'s Ex. 11 at 19-20.

By 1993, Richard Christiansen occupied the position of Division Director for Plaintiff's division. Christiansen declined to submit Plaintiff's name for advancement review during the March 4, 1993 PRB meeting. In the face of repeated requests from Plaintiff, however, Christiansen finally nominated Plaintiff for upgrade, and advocated on his behalf before the August 25, 1993 PRB session. He did so only after his supervisor, Kristen Hessenius, Deputy Associate Administrator, suggested that rather than deny Plaintiff's requests himself, he allow the PRB to determine Plaintiff's qualifications. After a hearing, however, the PRB recommended unanimously against promoting Plaintiff. Plaintiff chose not to appeal the PRB's determination.

In August 1994, at Plaintiff's request, Wesley Harris, the Code R Associate Administrator requested a desk audit of Plaintiff's position. In April 1995, Brenda L. Spicer, the Personnel Management Specialist who conducted the desk audit, issued a report concluding that Plaintiff's duties did not support a GS-15 classification. Def.'s Ex. 14. Ms. Spicer's supervisor, Peggy A. Phelps, concurred in the conclusion. Plaintiff opted not to appeal the determination despite being told he could do so.

In August 1995, Plaintiff was submitted for a second desk audit by the Chief of the Agency Personnel Policy Branch. On August 11, 1995, the Chief issued a report concluding again that Plaintiff's duties and responsibilities supported only a GS-14 classification. Def.'s Ex. 21. Again, Plaintiff declined to appeal the second desk audit.

C. Procedural Background

Plaintiff filed an informal complaint with NASA's Equal Opportunity Office on February 7, 1995, alleging race and sex discrimination. He filed a second complaint on July 14, 1995, alleging race, sex, and age discrimination. Plaintiff has apparently filed at least five other administrative discrimination complaints.

On December 18, 1996, Plaintiff, acting pro se, filed this action alleging both disparate treatment and disparate impact discrimination. On May 7, 1997, Plaintiff filed an Amended Complaint with the assistance of counsel. The Amended Complaint alleged only disparate treatment discrimination. On October 5, 1998, this Court granted Plaintiff leave to file a second Amended Complaint, Plaintiff's second Amended Complaint added a cause of action for violation of his constitutional right to equal protection.

II. Standard of Review

Under Fed.R.Civ.P. 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the "evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C.Cir. 1989).

The nonmoving party, however, "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party's opposition 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. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party must provide evidence that would permit a reasonable jury to find in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C.Cir. 1987).

In employment discrimination cases, summary judgment "must be viewed with special caution because intentional discrimination . . . [is] difficult for a plaintiff to establish." Plummer v. Safeway, Inc., 1995 WL 129100, *1 (D.D.C. March 17, 1995) (citing Johnson v. Digital Equip. Co., 836 F. Supp. 14, 18 (D.D.C. 1993)). Thus, this Court must take extra caution to examine all the evidence in the light most favorable to the plaintiff. Ross v. Runyon, 859 F. Supp. 15, 21-22 (D.D.C. 1994). If, on the basis of probative evidence submitted in opposition to summary judgment under Fed.R.Civ.P. 56(e), a reasonable fact finder could infer discrimination, summary judgment for the defendant is inappropriate. Hayes v. Shalala, 902 F. Supp. 259, 264 (D.D.C. 1995).

The Court's function in analyzing a motion for summary judgment is to determine whether the moving party has met its burden by showing "that there is an absence of evidence to support the non-moving party's case." Albritton v. Kantor, 944 F. Supp. 966, 969 (D.D.C. 1996). Once the moving party meets its burden, the burden shifts to the non-movant to "come forward with specific facts showing that there is a genuine issue for trial." Cones v. Shalala, 945 F. Supp. 342, 345-46 (D.D.C. 1996) (citation omitted). "Credibility determinations, the weighing of the evidence and the drawing of legitimate inferences from the facts are jury functions." Albritton, 944 F Supp. at 970. Purely legal determinations are, however, the province of the Court. Id.

III. Analysis

A. Race and Sex Discrimination under Title VII

1. Applicable Law

The Civil Rights Act of 1964, as amended, prohibits discrimination in federal employee personnel actions on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-16. To prevail in the typical Title VII action, a plaintiff must satisfy a three-part analysis. The Supreme Court wrote in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), that "the complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination." The plaintiff must prove that the defendant acted with discriminatory intent, General Bldg. Contractors v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982), although he may use circumstantial evidence to satisfy that showing. Thomas v. National Football League Players Ass'n, 131 F.3d 198 (D.C.Cir. 1997).

Once the plaintiff has made out a prima facie case, the burden of production shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for its conduct. McDonnell Douglas, 411 U.S. at 802-05, 93 S.Ct. 1817. The burden then shifts back to the plaintiff to provide some evidence, either direct or circumstantial, that the articulated reason for the defendant's conduct is merely pretextual.*fn4

2. Plaintiff's Prima Facie Case

To establish a prima facie case of racial or gender discrimination under Title VII, Plaintiff must demonstrate that: 1) he applied for a position; 2) he was qualified for that position; 3) he was rejected for the position under circumstances giving rise to an inference of discrimination; and 4) other employees in the favored group with similar qualifications were promoted at the time that he was denied promotion. Harding v. Gray, 9 F.3d 150, 152 (D.C.Cir. 1993); Parker v. B & O R. Co., 652 F.2d 1012, 1017 (D.C.Cir. 1981). Courts in this jurisdiction have added the requirement in "reverse discrimination" cases that a Caucasian or male plaintiff "show additional `background circumstances [that] support the suspicion that the defendant is that unusual employer who discriminates against the majority.'" Harding, 9 F.3d at 153 (citations omitted); see also Parker, 652 F.2d at 1017; Bishopp v. District of Columbia, 788 F.2d 781, 786 (D.C.Cir. 1986).

Defendant does not dispute that Plaintiff requested an upgrade to GS-15 on repeated occasions, and was denied such an upgrade.*fn5 Rather, Defendant contends that Plaintiff was not qualified for upgrade and, in any case, discrimination played no part in the repeated denial of Plaintiff's requests for upgrade.

a. Plaintiff's Qualifications

Plaintiff makes several arguments in support of his claim that he is qualified for upgrade to GS-15. First, Plaintiff provides a long list of various awards and accolades he has received throughout his career. Pl.'s Ex. 1 at 2-4. Plaintiff further states that Mr. Christiansen, the Code R Division Director, advocated strongly on behalf of his upgrade before the August 25, 1993 PRB meeting. Plaintiff adds that Christiansen's advocacy was suggested by Dr. Kristen Hessenius, then-Code R Deputy Associate Administrator. Finally, Plaintiff states that NASA recently sent him a letter acknowledging another application he submitted for upgrade to GS-15 in another division which states that he is performing at a level commensurate with a GS-15 grade. Pl.'s Ex. 45.

Despite demonstrating that Plaintiff had an exemplary performance record as a GS-14, the record is replete with repeated determinations by different agency officials that, during the relevant time period, Plaintiff's position and his performance in it did not justify an upgrade to a GS-15.

As early as 1991, Jack Levine, Plaintiff's then-supervisor, denied Plaintiff a requested upgrade. Plaintiff admitted in his deposition that the denial of upgrade by Levine had nothing to do with his race or gender. Def.'s Ex. 6 at 68.

In November 1992, Plaintiff received a rating of only "Fully Successful", rather than "Outstanding" or "Highly Successful" as he had expected. In response, he filed an informal grievance alleging improper supervisory practices in January 1993, in which he also requested a position upgrade as a means of resolving the grievance. John McCarthy, his supervisor at the time, responded in writing:

  I have reviewed your current duties with Mr. Richard
  Christiansen and find that they comprise essentially the same
  level of scope and responsibility as those of your previous
  position description of record. Those duties were classified at
  the GS-14 level. Therefore, I find that your current duties are
  those of a GS-14 level Program Manager.
  In conclusion, neither the past supervisory practices that you
  allege, nor the duties of your current position are supportive
  of your advancement to the GS-15 grade level. ...

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