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.
A. Plaintiff's Employment History
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
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
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.
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
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
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.
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.
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.
A. Race and Sex Discrimination under Title VII
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.
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
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.
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
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. ...