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WARD v. KENNARD

December 12, 2000

MICHAEL R. WARD, PLAINTIFF,
V.
WILLIAM E. KENNARD, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, DEFENDANT.



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

MEMORANDUM OPINION

Granting the Defendant's Motion for Summary Judgment; Denying the Plaintiff's Motion for Partial Summary Judgment

I. INTRODUCTION

II. BACKGROUND

Pro se plaintiff Michael R. Ward "had worked as a writer-editor and at the GS-12 level for several years." Compl. at 2.*fn1 In his complaint, Mr. Ward asserts that he had "competitive civil service status" and that he was "a preference eligible candidate, a 10-point compensably [sic] disabled veteran with a service-connected disability rated at 30 percent or more by the Department of Veterans Affairs." Id.

From July 11, 1994 through August 12, 1994, the FCC posted Vacancy Announcement Number ("VAN") 94-128, which sought applications from "all sources" to fill the position of writer-editor, grade GS-13, in its Office of Public Affairs ("OPA"). See Mot. for Summ. J. at 3. Mr. Ward applied for the job, but the FCC did not select him for the position. See Compl. at 2.

Mr. Ward alleges that the FCC's rejection of his application violated his constitutional right to due process and amounted to employment discrimination on the basis of his sex, age, and disability. In addition, he claims that, by denying his application, the FCC violated the merit-system principles embodied in 5 U.S.C. § 2301, and committed personnel practices prohibited by 5 U.S.C. § 2302. See generally Compl. Mr. Ward brings his claims under the Fifth and Fourteenth Amendments to the Constitution, 5 U.S.C. § 1302, 2108, 2301, 2302, 3309, 3313, 3314, 3317, and 1318, the Rehabilitation Act of 1973 (§ 501, 29 U.S.C. § 791), the Age Discrimination in Employment Act of 1967 ("ADEA") (29 U.S.C. § 633 (a)), 38 U.S.C. § 4214, 42 U.S.C. § 2000 (e) et seq. ("Title VII"), and 42 U.S.C. § 1981 (a). See Compl. at 2-15.

Mr. Ward charges that because he had competitive civil service status, was preference eligible, and had a disability rated at more than 30 percent, the FCC's selection of another person for the writer-editor position violated both merit-system principles and government personnel practices. Specifically, the plaintiff alleges that the FCC failed to follow proper selection procedures in assessing applicants, intentionally excluded his application from consideration, and manipulated the selection process to appoint the applicant of its choice. See generally Compl. Moreover, Mr. Ward asserts that the defendant committed all these acts with the intent to discriminate against him on the basis of his age, sex, and disability. See id.

Both the plaintiff and the defendant have filed motions for summary judgment, followed by corresponding oppositions and replies. For the reasons that follow, the court will grant the defendant's motion for summary judgment and will deny the plaintiff's motion for partial summary judgment.

III. DISCUSSION

A. Legal Standard

Summary judgment is appropriate when a court concludes 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 substantive law on which a claim rests determines which facts are "material." See Anderson v. Liberty Lobby, Inc., 477. U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If a fact bears on an essential element of the legal claim, then it is material; otherwise, it is not. See id.; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Only disputes over facts that can establish an element of the claim, and thus that might affect its ultimate resolution, can create a "genuine issue" sufficient to preclude summary judgment. See Anderson. 477 U.S. at 248, 106 S.Ct. 2505; Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

To prevail on a motion for summary judgment, the moving party bears the burden of establishing that there are no genuine issues of material fact and that the non-moving party has failed to offer sufficient evidence to support a valid legal claim. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 325, 106 S.Ct. 2548. In ruling on the motion, the court must accept the evidence of the nonmoving party as true and must draw all justifiable inferences in favor of the nonmoving party. See Anderson. 477 U.S. at 255, 106 S.Ct. 2505. It is not sufficient, however, for the non-moving party to establish "the mere existence of a scintilla of evidence in support of the [non-moving party's] position . . .; there must be evidence on which the jury could reasonably find for the [non-moving party]." See id. at 252, 106 S.Ct. 2505. If the evidence in favor of the non-moving party "is merely colorable, or is not significantly probative, summary judgment may be granted." See id. at 249-50, 106 S.Ct. 2505 (internal citations omitted).

B. Analysis

1. The Plaintiff's Non-Title VII and Non-ADEA Claims of Discrimination

The defendant argues that the court should dismiss many of the complaint's 48 counts because the plaintiff is essentially asserting Title VII and ADEA discrimination claims under alternative and impermissible statutes, or as constitutional claims. See Mot. for Summ. J. at 10-11. Specifically, the defendant asserts that because the Supreme Court has ruled that Title VII is the exclusive remedy for claims of sex and race discrimination in federal employment, the plaintiff may not allege sex discrimination by the defendant under any alternative statute. See Brown v. General Serv. Admin., 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). The Court's holding in Brown is clear and wellsettled, and the D.C. Circuit has applied it on numerous occasions. See, e.g., Ramey v. Bowsher, 915 F.2d 731, 734 (D.C.Cir. 1990); Ethnic Employees of the Library of Congress v. Boorstin, 751 F.2d 1405, 1414-15 (D.C.Cir. 1985) ("Allowing federal employees to recast their Title VII claims as constitutional claims would clearly threaten" the policies underpinning the rigorous administrative exhaustion requirements and time limitations of Title VII.). The same ...


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