The opinion of the court was delivered by: Kennedy, District Judge.
Plaintiff Sidney Walker, an African-American employee of the
Navy's Public Works Center ("PWC"), proved to an administrative
law judge that the Navy had racially discriminated against him in
denying him a promotion. The Navy adopted the administrative law
judge's finding and agreed to provide plaintiff certain relief,
including back pay. The Navy provided plaintiff approximately
seventeen thousand dollars in back pay. Plaintiff filed this suit
under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., as amended ("Title VII"), alleging, inter
alia, that he is entitled to additional back pay. Presently
before the court is defendant's motion for summary judgment on
the ground that the Navy has paid plaintiff all of the back pay
to which he is entitled.*fn1
In 1996, the Navy promoted plaintiff to the WS-10 level, and
plaintiff held a series of WS-10 Maintenance Supervisor I
positions with the PWC. The Navy also awarded plaintiff back pay
at the WS-10 rate for the hours that plaintiff had actually
worked from September 9, 1993 until March 19, 1996.*fn2 Cynthia
Elliott, a Payroll Technician for the Defense Finance and
Accounting Services (DFAS), calculated the award.*fn3 Ms.
Elliott described her method as follows:
I first obtained the records of what Mr. Walker had
actually been paid for that time period. I then
performed handwritten calculations determining what
Mr. Walker would have been paid for each pay period
if he had been a WS-10. The pay calculation includes
the actual overtime, hazard differentials, Sunday and
Holiday premiums and any other differentials which
Mr. Walker earned for each pay period. Each pay
period reflected the effective rates which were
applicable at that time.*fn4
Based on Ms. Elliott's calculations, defendant awarded plaintiff
a total of $17,836.05 in back pay.*fn5
In 1997, plaintiff filed suit in this court alleging that none
of the WS-10 Maintenance Supervisor I positions that he had been
given after prevailing on his EEO complaint were substantially
similar to the WS-10 position that he had been denied, and that
the Navy had not provided in full the back pay and attorney's
fees to which he was entitled.*fn6 In 1998, Judge Harold Greene
heard evidence regarding the "substantially similar position"
issue. Concluding that the Navy had not placed plaintiff in a
substantially similar position, Judge Greene, in an order dated
September 10, 1998 (the "Order"), commanded the Navy to place
plaintiff in a substantially similar position.*fn7 On November
10, 1998, defendant filed a response to the Order in which it
offered plaintiff a choice of three WS-10 positions. Plaintiff
objected, stating that none of these positions was substantially
similar to the position to which he was entitled. After hearing
evidence, this court found that one of the positions offered was
substantially similar to the position to which plaintiff was
entitled, and that defendant thus had complied with the
Order.*fn8
Under Rule 56, a motion for summary judgment should be granted
if and only if it is shown "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." Fed.R.Civ.P. 56(c). The moving
party's "initial responsibility" consists of "informing the
[trial] court of the basis for its motion, and identifying those
portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of
a genuine issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)
(internal quotation marks omitted).
If the moving party meets its burden, the burden then shifts to
the non-moving
party to establish that a genuine issue as to any material fact
actually does exist. See 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 is "required to provide evidence
that would permit a reasonable jury to find" in its favor.
Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C.Cir. 1987).
Such evidence must consist of more than mere unsupported
allegations or denials and must set forth specific facts showing
that there is a genuine issue for trial. Fed.R.Civ.P. 56(e);
Celotex, 477 U.S. at 322 n. 3, 106 S.Ct. 2548. If the evidence
is "merely colorable" or "not significantly probative," summary
judgment may be granted. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
B. De Novo Review v. Deferential Review
In determining whether defendant is entitled to judgment as a
matter of law, the court must first determine whether it should
give any deference to defendant's calculation of the back-pay
award. Plaintiff contends that the back-pay award should be
reviewed de novo, while defendant asserts that the back-pay award
is agency action that should be reviewed under the deferential
"rational basis" standard and upheld unless it is "arbitrary and
capricious." Def.'s Mem. Support Mot. Summ.Judg. at 6.
Defendant's position is based on the notion that, because Mr.
Walker prevailed at the administrative ...