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October 27, 2000


The opinion of the court was delivered by: Stanley S. Harris, District Judge.


Before the Court are defendant's motion for summary judgment on Counts I and II of plaintiff's second amended complaint, plaintiff's opposition, and defendant's reply thereto.*fn1 Upon careful consideration of the entire record, defendant's motion for summary judgment is granted. "Findings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56." Fed.R.Civ.P. 52(a); Summers v. Department of Justice, 140 F.3d 1077, 1079-80 (D.C.Cir. 1998). Nonetheless, the Court sets forth its reasoning.


Plaintiff, Jimmie L. Hastie, is a black retired employee of the United States Postal Service ("Postal Service"). The Postal Service hired her in March 1989 for an EAS-23 position at Postal Service Headquarters. Plaintiff retired from the Postal Service in 1993. Her complaint seeks relief pursuant to Title VII of the Civil Rights Act of 1964 based on three distinct events that occurred during her employment.

The first event occurred when, in the fall of 1989, the Postal Service advertised a vacancy for a Procurement Specialist, an EAS-25 position in the Research and Engineering Division of the Office of Procurement. Plaintiff applied for the position, along with over 100 other individuals. The review panel recommended six finalists, including one black male and one white female; plaintiff was not one of the finalists. Plaintiff filed her first Equal Employment Opportunity ("EEO") complaint (Case No. 6-F-0190-90) alleging race and sex discrimination regarding her non-selection to the Procurement Specialist position. Plaintiff alleges that after she filed this complaint, her work product was subjected to close scrutiny by a supervisor, Keith Strange.

The second event occurred in 1992, when plaintiff received a "Very Good," instead of an "Outstanding," merit evaluation. Defendant had set a cap of ten percent on the number of "Outstanding" ratings that could be given in any single year. In 1992, the number of employees receiving an "Outstanding" evaluation exceeded the ten percent cap by seven employees. Defendant organized a committee to review the "Outstanding" ratings and recommend changes. As a result of the review and upon advice from other supervisors, Strange reduced plaintiff's evaluation, as well as six white employees' evaluations, to "Very Good." In December 1992, plaintiff filed her second EEO complaint (Case No. 6-0-0057-93) regarding this merit evaluation reduction because of alleged race discrimination and retaliation for filing her first EEO complaint.

The third event also occurred in 1992 when the Postal Service underwent a nationwide restructuring, which reduced the number of available positions in plaintiff's former department. All postal employees had to compete for the remaining positions within the new structure. Plaintiff applied for an EAS-25 position in the new Office of Procurement. Only one manager, Frank Hansen, offered plaintiff a position in the new structure, and he offered her an EAS-23 position of Procurement Specialist, contingent on her improving her interpersonal skills, which she accepted. Hansen submitted the list to the new vice president of the department, Darrah Porter, for approval. Porter, however, decided not to approve the placement, allegedly because of his concerns about her interpersonal skills and a recent incident where plaintiff encountered a secretary to another supervisor Juanda Barclay in the elevator, formed her hand into the shape of a gun, pointed her hand towards the secretary's head, and said: "Your boss, bang, bang!" Plaintiff was angry because she had interviewed with Barclay for an EAS-25 position during the restructuring, and Barclay told other managers that it was the worst interview she ever had. Plaintiff was then transferred to a Career Transition Center, supposedly with the guarantee that she would be placed in another Postal Service position, and that she would permanently retain her former grade and salary. In December 1992, plaintiff filed an informal complaint of discrimination, alleging that her nonplacement in any position in the procurement department was due to retaliation for filing EEO complaints. In March 1993, plaintiff filed her third formal EEO complaint (Case No. 6-0-0159-93), alleging that the decisions to rescind her placement to the EAS-23 position and to not place her in any other position in the new Postal Service structure were motivated by race, sex, and retaliation discrimination.*fn2 Plaintiff then filed this lawsuit, alleging race, sex, and reprisal discrimination. Defendant moves for summary judgment on all claims.

Claims Presented

The Court stated at the beginning of this Opinion that Counts I and II of plaintiff's second amended complaint are at issue on this summary judgment motion. Count I asserts race and sex discrimination claims regarding plaintiff's nonpromotion to the EAS-25 Procurement Specialist position in 1990. Count II asserts a reprisal claim that her EEO complaint filed in 1990 prevented her from assuming the title of Contracting Officer except for short periods of time in 1991, caused the reduction in her merit evaluation in 1992, and prompted an improper transfer out of her EAS-23 Senior Procurement Specialist position to the Postal Service's Career Transition Center during the restructuring in 1992. Additionally, the introduction of the second amended complaint states that the plaintiff's action includes a reprisal claim for when defendant rescinded her placement in the downsized Postal Service.

While Count I appears properly pleaded and briefed, there has been confusion over what the other claims encompass. The parties have briefed the summary judgment motion as if the second amended complaint contains broader claims than actually asserted: for example, the parties discuss the 1992 merit evaluation and the nonplacement in the downsized Office of Procurement in 1992 with regard not only to the reprisal claim, which is asserted in the complaint, but also to sex and race discrimination claims, which are not asserted in the complaint. The parties also brief claims of sex, race, and reprisal discrimination with regard to an "unlawful nonpromotion claim" for the fact that defendant did not place her in an EAS-25 position during the restructuring, which is not asserted anywhere in the second amended complaint. This confusion prompted the Court to issue an Order on August 28, 1998, requesting clarification of the claims.

In response to the Court's Order, defendant maintains that it simply "briefed each matter as if it were before the Court in an abundance of caution." Consequently, it urges the Court to consider only the claims that are explicitly asserted in the second amended complaint. Plaintiff's counsel, however, argues that all the claims briefed in the summary judgment motion were asserted in her third EEO complaint, and he does not know why plaintiff's prior counsel did not draft the second amended complaint in conformity with plaintiff's third EEO complaint. Plaintiff urges the Court to overlook this oversight and decide the motion based on the broader claims; defendant should suffer no prejudice since it has litigated the case as if plaintiff's second amended complaint asserted these broader claims. If the Court denies the summary judgment motion, plaintiff will then move for leave to amend her complaint to plead Count II properly. Alternatively, plaintiff requests leave to amend the complaint to make Count II broader in conformity with her third EEO complaint.*fn3 Pl.'s Resp. to 8/28/98 Order, at 7.

The Court declines to add the claims not explicitly asserted in the second amended complaint because the Court finds no merit in those claims. A motion to amend should not be granted if adding the new claims would be futile. See Foman v. Davis, 371 U.S. 178, 181-82, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C.Cir. 1996). Adding meritless claims would be futile. Furthermore, considering the multiple opportunities plaintiff has had to amend her complaint, there is no excuse for her failure to have asserted her claims properly. See Mittleman v. U.S., 997 F. Supp. 1, 10 (D.D.C. 1998) ("Denial of leave to amend is appropriate where a party has had sufficient opportunity to state a claim but has failed to do so").

For the sake of clarity, the Court outlines below the claims that are properly before the Court as well as the claims the Court declines to add. The Court will discuss all of the claims, including the ones not being added, in order to show that adding those claims would be futile.

-------------------------------------------------------------------------------------------- Alleged Incident Claims Before Court Claims Not Added -------------------------------------------------------------------------------------------- 1990 nonpromotion to the EAS-25 race and sex Procurement Specialist Position discrimination -------------------------------------------------------------------------------------------- 1992 reduction in merit evaluation reprisal discrimination race and sex discrimination -------------------------------------------------------------------------------------------- 1992 nonplacement in downsized Postal Service reprisal discrimination race and sex discrimination -------------------------------------------------------------------------------------------- 1992 nonpromotion to EAS-25 race, sex, and reprisal position in downsized Postal Service discrimination --------------------------------------------------------------------------------------------


Defendant seeks summary judgment on all of plaintiff's claims for failure to state a prima facie case. Defendant also contends that it is entitled to summary judgment because plaintiff has failed to provide evidence from which a reasonable jury could conclude that defendant's asserted legitimate nondiscriminatory reasons for its conduct are pretexts for discrimination. As to plaintiff's claim of sex discrimination in her 1992 merit evaluation, defendant also moves for summary judgment because plaintiff has failed to exhaust her administrative remedies.*fn4 The Court first considers the exhaustion of administrative remedies defense, and next considers the substance of plaintiff's claims.

I. Standard of Review

Summary judgment may only be granted if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering a motion for summary judgment, all evidence and inferences must be viewed in a light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment cannot be granted "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In Title VII cases, courts must view summary judgment with special caution because discriminatory intent and proof of disparate treatment are difficult to establish. See Albritton v. Kantor, 944 F. Supp. 966, 970 (D.D.C. 1996); Ross v. Runyon, 859 F. Supp. 15, 21-22 (D.D.C. 1994). If a reasonable factfinder in a Title VII case could infer discrimination based on the evidence submitted, then summary judgment is inappropriate. See Albritton, 944 F. Supp. at 970; Hayes v. Shalala, 902 F. Supp. 259, 264 (D.D.C. 1995).

This does not, however, preclude the use of summary judgment in Title VII cases. A plaintiff in a Title VII case retains the burden of supporting allegations of retaliation and pretext "with affidavits or other competent evidence showing that there is a genuine issue for trial." Hayes, 902 F. Supp. at 263. To defeat a motion for summary judgment, a plaintiff cannot create a factual issue of pretext with mere allegations or personal speculation, but rather must point to "genuine issues of material fact in the record." Id. at 263-64. As the court in Hayes stated, "[e]vidence of discrimination or pretext that is `merely colorable' or `not ...

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