United States District Court, District of Columbia
June 20, 2001
RONALD O. LEWIS, PLAINTIFF,
BOOZ-ALLEN & HAMILTON, INC. DEFENDANT.
The opinion of the court was delivered by: Ricardo M. Urbina, United States District Judge.
GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION IN LIMINE;
DENYING THE PLAINTIFF'S MOTION TO STRIKE BERNARD SISKIN AS AN EXPERT
WITNESS; DENYING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This section 1981 matter comes before the court on three motions: the
defendant's motion for summary judgment, the defendant's motion to
exclude certain statistical evidence, and the plaintiff's motion to
strike Dr. Bernard Siskin as an expert witness. The plaintiff, Ronald O.
Lewis (the plaintiff or Mr. Lewis), brings suit under 42 U.S.C. § 1981,
claiming that Booz-Allen & Hamilton (the defendant or Booz-Allen) refused
to promote him, fired him, and engaged in unlawful discrimination against
him because of his race. Since a motion for summary judgment requires an
examination of the entire record, including all pleadings and all
admissible evidence,*fn1 the court will first address the evidentiary
motions. Upon consideration of these motions, their supporting
documents, and the entire record therein, the court will deny in part and
grant in part the defendant's motion to exclude statistical evidence. In
addition, the court will deny the plaintiff's motion to strike Dr.
Bernard Siskin as an expert witness. Lastly, because a genuine issue
exists as to a material fact, the court will deny the defendant's motion
for summary judgment.
Ronald O. Lewis, an African-American man, is an information-technology
professional with a bachelor's degree in Engineering and a Master's degree
in Industrial Engineering and Operations Research. See Am. Compl. & 2.
Booz-Allen, a Delaware corporation with its principal place of business
in Virginia, is an international management and technology consulting
firm with more than 100 offices around the world and more than 9,000
employees. See Mot. for Summ. J. at 3; Ans. to Am. Compl. (Ans.) ¶¶ 2,
3. In 1994, Booz-Allen hired Mr. Lewis, who worked at the company for
five years until it fired him in 1999. See Am. Compl. & 1, 49.
Booz-Allen is divided into two business units: the Worldwide
Technology Business (WTB), where Mr. Lewis worked, and the Worldwide
Commercial Business (WCB). See Am. Compl. & 6; Mot. for Summ. J. at 3.
WTB is divided into five client-service teams, which provide consulting
services to government clients. See id. Accordingly, Booz-Allen must
operate in conformance with both federal laws*fn2 and its own ethics
rules.*fn3 See Mot. for Summ. J. at 4.
In January 1994, Booz-Allen hired Mr. Lewis at a salary of $80,000 to
work as a Senior Associate in its Lexington Park, Maryland office. See
Mot. for Summ. J. at 4, Ex. 9; Pl.'s Opp'n to Mot. for Summ. J. (Pl.'s
Opp'n) at 2. The company considers Senior Associates, Principals and Vice
Presidents as management, and lists five criteria for promotion to
partnership: business development, client relationship, technical
ability, people development, and leadership. See Mot. for Summ. J. at 5;
Pl.'s Opp'n at 2.
During his first two years at Booz-Allen, Mr. Lewis performed well by
all accounts. See Mot. for Summ. J. at 5; Pl.'s Opp'n at 11. Despite some
concerns about his personnel-management skills, his superiors rated Mr.
Lewis's first-year performance as excellent or exceptional in every
category. See Mot. for Summ. J. at 5. Mr. Lewis's overall performance
earned him a $5,000 raise. See id. The following year Booz-Allen promoted
Mr. Lewis to Principal and awarded him another $5,000 raise. See id.
In his third year, 1996, Mr. Lewis received a $10,000 raise after his
as Principal. See id. To enhance his career and obtain
access to a broader set of clients, Mr. Lewis requested a transfer to
Booz-Allen's main office in McLean, Virginia. See id. Mr. Lewis requested
the move after noticing what he perceived as a racially discriminatory
environment wherein partners charged with the responsibility for
mentoring and supporting him did not do so. See Pl.'s Opp'n at 4.
Booz-Allen granted Mr. Lewis's request for a transfer and he began
working at the McLean office in 1996. See Mot. for Summ. J. at 6. The
instant case centers on events that took place between January and
October of 1997. In January 1997, the United States Air Force awarded the
Intelligent Tutoring Systems (ITS) Program contract to Booz-Allen. See
Mot. for Summ. J. at 6, Ex. 16. As manager of the performance of the
contract, Mr. Lewis handled the bidding on the ITS contract. The original
bid submitted to the Air Force involved in-house development of software
by Booz-Allen for use by the Air Force. The bid did not mention the
possibility of purchasing ready-made software. See Pl.'s Opp'n at 26. In a
1997 appraisal, Mr. Lewis's supervisors commended him for the key win on
the ITS Contract, noting that he had developed a strong market focus
through his leadership. See Mot. for Summ. J. at 6, Ex. 19; Pl.'s Opp'n
While managing the performance of the ITS contract, Mr. Lewis learned
of Nereus, a commercial off the shelf (COTS) product created by Vicom
Multimedia, a Canadian company. See Pl.'s Opp'n at 25. Nereus is a
multimedia publishing system that can be used in the ITS program rather
than creating new software. See Mot. for Summ. J. at 10; Pl.'s Opp'n at
25. Mr. Lewis conducted negotiations with Vicom Multimedia to purchase
the multimedia software and visited Vicom's headquarters in Edmonton,
Alberta in May 1997. See Pl.'s Opp'n at 25. After Vicom demonstrated the
product, Mr. Lewis told Vicom that Booz-Allen would want to use the
software on the ITS program if the Air Force approved its use and
purchase. See Mot. for Summ. J. at 25.
Booz-Allen's original bid to the Air Force did not include the purchase
of software. See Pl.'s Opp'n at 25-26. Rather, it entailed the in-house
development of software for use in the ITS program. See id. Between May
and August of 1997, Mr. Lewis, along with Jerry Keybl and Brian Padgett,
conducted an evaluation of the Nereus software to determine whether it
was suitable for the ITS program, and whether Booz-Allen could justify
the software purchase to the Air Force. See Pl.'s Opp'n at 26. On July
8, 1997, during an in-progress review, Mr. Lewis informed the Air Force
of Booz-Allen's intention to use the Nereus software on the ITS program.
See Mot. for Summ. J. at 26, Ex. 102; Pl.'s Opp'n at Ex. M, Ex. O.
On July 31, 1997, Sharon Hines, Vicom's primary negotiator, sent a
letter (the July 31 letter) to Mr. Lewis concerning the status of
negotiations. See Mot. for Summ. J. at 9. The July 31 letter was a
business proposal sent to outline the framework for an acceptable
business relationship, and included a proposal for the scope of the
software license, the price of the license, and the length of an
evaluation period for the Pilot Project. See id. On August 7, 1997, at
another in-progress review, Booz-Allen formally recommended to the Air
Force that it authorize purchase of the Nereus software. See id. at 10;
Pl.'s Opp'n at 27. On August 28, 1997, Mr. Lewis sent a document entitled
Justification for Purchase of the Nereus Software recommending that the
Government utilize the software because it
would save the Government
money. See Mot. for Summ. J. at 10. The next day, Ms. Hines confirmed in
a letter dated August 29 (the August 29 letter) that the two parties had
work[ed] out the details of a business relationship, which included the
potential purchase of the software license. See id. at 10. The August 29
letter stated that if the Nereus software passed the 90-day evaluation,
Booz-Allen would buy the software license. See id. The letter included a
Pilot Program Agreement, which stated that the evaluation period would
begin on September 15 and end no later than December 15, 1997. See Mot.
for Summ. J. at 11. On September 22, the government sent written approval
to purchase the software. See id; Pl.'s Opp'n at 28.
Less than two weeks later, on October 2, 1997, the government issued a
Stop Work order on the ITS Contract, instructing Booz-Allen to halt work
on the project. See Mot. for Summ. J., Ex. 20. The government indicated
that funding cuts made it necessary to reassess the status of the ITS
program. See id.
In November 1997, Mr. Lewis began to organize an effort to bid for
another Air Force contract called Trac2es.*fn4 See Mot. for Summ. J.
at 6; Pl.'s Opp'n at 15. Trac2es was a large system-integration project
with a contract valued at $300 million over a 10-year time frame. See
Mot. for Summ. J. at 7; Pl.'s Opp'n at 15. Mr. Lewis served as the
project's proposal manager. See id.
During this bidding period, Mr. Lewis says he encountered various forms
of discrimination, including that (1) Mr. Lewis's manager, Mr.
Picarelli, declined to provide routine support to Lewis when Mr. Lewis
was having trouble keeping his staff billable*fn5; (2) Mr. Lewis invited
Mr. Picarelli, who did not attend, to a Red Team review meeting to
critique the proposal and provide input; and (3) Mr. Picarelli did not
attend any of the practice sessions for the oral presentation that Mr.
Lewis was preparing. See Pl.'s Opp'n at 15. Finally, Mr. Picarelli
allegedly told Mr. Lewis that he had to win the Trac2es or another
important contract (known as the AETC project) to have a future at
Booz-Allen. See Pl.'s Opp'n at 15.
In May 1998, Mr. Lewis received another performance appraisal in which
he received an overall evaluation of maintaining.*fn6 See Mot. for
Summ. J. at 7. The appraisal detailed the strengths and weaknesses of
Mr. Lewis's performance, including that his staff perceived him as: (1)
taking credit for his staff's work or successes (this has generated
dissatisfaction); (2) claiming credit for his client's work; (3)
offending the client (resulting in the client's refusal to work with
him); and (4) disregarding what other people think is important about a
client relationship or issue. See id. Mr. Lewis received this appraisal
during a counseling session with Mr. Picarelli and Mr. Bollettino, in
which they discussed the problems with his performance, including his
alleged shortcomings in areas of leadership and people development. See
id. They suggested he attend leadership counseling. See id.
submitting the Trac2es proposal to the Air Force, Mr. Lewis met with a
member of Booz-Allen's Board of Directors, Joe Garner, to discuss how he
had been treated during the course of the proposal. See id. Mr. Garner's
response to Lewis was that Booz-Allen had a tough culture that wasn't
fore [sic] everybody. See Pl.'s Opp'n at 16. Soon after that meeting, in
August 1998, the Air Force awarded the contract to Booz-Allen and Mr.
Lewis decided to remain at the firm. See Pl.'s Opp'n at 16; Mot. for
Summ. J. at 7. The company named Mr. Lewis the program manager of the
contract. See Mot. for Summ. J. at 7. In October 1998, Brian Padgett,
Mr. Lewis's subordinate, resigned and notified Booz-Allen that Mr. Lewis
had instructed him to backdate (by 60 days) two separate dates in a
document. See id.; Pl.'s Opp'n at 32. The document in question was the
August 29, 1997 letter setting forth the terms of the business
relationship between Booz-Allen and Vicom Multimedia concerning the
potential purchase of the Nereus software license for use in the ITS
contract. See Mot. for Summ. J. at 8; Pl.'s Opp'n at 32.
Mr. Padgett later provided Art Fritzon, an IT team Vice President, with
supporting documents and information about the backdated document. Mr.
Padgett also told Mr. Fritzon that Mr. Lewis had instructed him to obtain
a copy of the letter with the changed dates after the Government had
issued a stop-work order for the ITS contract. See Mot. for Summ. J. at
8; Pl.'s Opp'n at 32. Mr. Fritzon went to see Mr. Lewis about the
document at issue. See Mot. for Summ. J. at 8; Pl.'s Opp'n at 33. Mr.
Lewis admitted that he caused the dates on the documents to be changed
for the Termination of Convenience claim being submitted to the
government for reimbursement of the ITS contract costs. See Mot. for
Summ. J. at 8; Pl.'s Opp'n at 33. Mr. Lewis explained that he had the
dates changed in order to better reflect the reality, that they had in
fact, been evaluating the product all summer long, and that changing the
dates was a more accurate reflection of what had actually occurred. See
Pl.'s Opp'n at 33; Mot. for Summ. J. at 15. The primary issue concerned
whether Booz-Allen, in fact, evaluated the Nereus software product in
July and August 1997, and whether Booz-Allen made a commitment to Vicom
to pay it for the ITS license. See id.
In accordance with Booz-Allen policies and procedures, Mr. Fritzon
referred the matter to the Booz-Allen Law Department for investigation.
See Mot. for Summ. J. at 8. Ivy Martin, Booz-Allen's Associate General
Counsel, conducted an internal investigation. See id. As part of that
investigation, Ms. Martin wanted to determine whether Mr. Lewis had said
truthfully that he had made changes to the August 29, 1997 letter so that
it would better reflect reality. See Pl.'s Opp'n at 36.
In November 1998, at the same time as the law department conducted its
investigation, Booz-Allen partner Elliot Rosen conducted Mr. Lewis's
performance appraisal. See Mot. for Summ. J. at 17. Based on interviews
and input from approximately 30 people, including Vice Presidents,
Principals, Senior Associates, Associates, and Administrative Staff, the
appraisal was mostly negative. See id. Although it contained some positive
comments about Mr. Lewis in the areas of intellectual leadership, market
development, and client contact, see id. at 19, the characterization of
Mr. Lewis's negative performance outweighed the cited positive
qualities. Mr. Rosen's overall summary concluded that Mr. Lewis's
performance fell below the level that the company expected of its
Principals. Moreover, he
found that Mr. Lewis's conduct put the firm at
significant risk. See id. On January 11, 1999, Ms. Martin, the Associate
General Counsel, concluded that Mr. Lewis: 1) caused documents to be
altered for the purpose of submission to the government for payment of a
claim and that such alterations had no reasonable relationship to the
actual dates of occurrences; 2) failed to inform both the contracts
manager responsible for the compilation of the claim, and the
Officer-in-Charge who was responsible for certifying the claim that he,
the plaintiff, had altered the dates on the letter; and 3) failed to
cooperate fully with the Law Department in the course of the
investigation, providing misleading statements and refusing to meet with
the law department to address its findings. See id. at 8-9. On January
12, 1999, Ms. Martin, Robin Shaffert, IT Team Vice Presidents Rosen and
Picarelli, and the Human Resources services manager John Drew met to
discuss the Law Department's conclusions regarding Mr. Lewis's conduct.
See id. at 20. After a full discussion, the IT team Vice Presidents who
attended the meeting unanimously decided to fire Mr. Lewis. See id.
On January 13, 1999, Mr. Picarelli and Mr. Drew gave Mr. Lewis his
termination letter, which stated that the company fired him because of
his unprofessional conduct and poor performance. See id. Booz-Allen gave
Mr. Lewis four months severance pay. See id. On March 23, 1999, Mr. Lewis
filed the instant action in this court. On November 5, 1999, he filed an
amended complaint. Booz-Allen now seeks to exclude certain statistical
analyses performed by Dr. Jonathan L. Walker, the plaintiff's expert.
Booz-Allen also moves for summary judgment, and, in support of that
motion, Booz-Allen submits an affidavit by Dr. Bernard Siskin, which the
plaintiff seeks to strike.
A. Legal Standard for Summary Judgment
Federal Rule of Civil Procedure 56(c) states that summary judgment is
appropriate when the pleadings and evidence demonstrate that there is no
genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540
(D.C. Cir. 1995). To determine what facts are material, a court must look
to the substantive law on which each claim rests. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue is one whose
resolution could establish an element of a claim or defense and,
therefore, affect the outcome of the action. See Celotex, 477 U.S. at
322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all
justifiable inferences in the nonmoving party's favor and accept the
nonmoving party's evidence as true. See Anderson, 477 U.S. at 255. All
evidence and the inferences drawn therefrom must be considered in the
light most favorable to the nonmoving party. A nonmoving party, however,
must establish more than the mere existence of a scintilla of evidence in
support of its position. See Anderson, 477 U.S. at 252. To prevail on a
motion for summary judgment, the moving party must show that the
nonmoving party fail[ed] to make a showing sufficient to establish the
existence of an element essential to that party's case, and in which
party will bear the ultimate burden of proof at trial. See Celotex, 477
U.S. at 325. By pointing to the absence of evidence proffered by the
nonmoving party, a moving party may succeed on summary judgment. See id.
In addition, the nonmoving party may not rely solely on allegations or
conclusory statements. See Greene v. Dalton, 164 F.3d 671, 674 (D.C.
Cir. 1999). Rather, the nonmoving party must come forward with specific
facts that would enable a reasonable jury to find in its favor. See id.
If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted. Celotex, 477 U.S. at 249-50 (internal
citations omitted). Finally, the D.C. Circuit has directed that because
it is difficult for a plaintiff to establish proof of discrimination, the
court should view summary-judgment motions in such cases with special
caution. See Aka, 116 F.3d at 879; Johnson v. Digital Equip. Corp.,
836 F. Supp. 14, 18 (D.D.C. 1993).
Since a motion for summary judgment requires an examination of the
entire record, including all pleadings and all admissible evidence, the
court will first address the evidentiary motions. See Aka v. Washington
Hosp. Ctr., 116 F.3d 876, 879 (D.C. Cir. 1997), vacated on other grounds
by 156 F.3d 1284 (D.C. Cir. 1998).
B. The Defendant's Motion in Limine to Exclude Statistical Evidence
1. Standard for Admission of Statistical Evidence
This circuit has held that parties may use statistical evidence to
prove disparate-treatment claims in employment-discrimination cases. See
Davis v. Califano, 613 F.2d 957, 962 (D.C. Cir. 1980); Cook v. Boorstin,
763 F.2d 1462 (D.C. Cir. 1985). Statistical evidence is merely a form of
circumstantial evidence from which an inference of discrimination may be
drawn. Davis, 613 F.2d at 962.
Statistical evidence can serve various purposes. For example, the
plaintiff may use statistical evidence to establish his prima-facie case
of race-based discrimination. See International Brotherhood of Teamsters
v. U.S., 431 U.S. 324, 339 (1977); Hazelwood School District, 433 U.S. at
307-08. In cases where the alleged racial disparities are less glaring,
however, the evidence must be combined with other evidence to establish
the requisite prima-facie case of discrimination. Robinson v. Sinclair &
Valentine, L.P., 1993 WL 47293, *1 (N.D.Ill. 1993). In addition, a
plaintiff may introduce statistical evidence tending to demonstrate a
pattern and practice of discrimination. See Cook, 763 F.2d at 1468.
Moreover, once an employer has offered a legitimate, non-discriminatory
reason for the alleged discrimination, a plaintiff may use statistics to
prove that the reason is pretextual. See McDonnell Douglas, 411 U.S. at
804-805. On the other hand, a defendant may use statistical evidence to
rebut a plaintiff's prima-facie case or to discredit a plaintiff's
2. Dr. Walker's Analysis
The Supreme Court set forth the test for admissibility of scientific or
technical testimony or evidence in Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993), and its progeny. These cases hold
that any and all scientific testimony or evidence admitted [must be] not
only relevant, but reliable. Daubert, 509 U.S. at 589; see Kumho Tire
Co. v. Carmichael, 526 U.S. 137 (1999) (affirming the trial court's
exclusion of technical expert testimony due to lack of credibility).
The defendant has moved to exclude certain statistical tests provided
by the plaintiff's expert, Dr. Walker, on the grounds that they are
methodologically flawed and irrelevant. See Defendant's Memorandum of
Points and Authorities in Support of its Motion in Limine to Exclude
Certain Statistical Evidence (Def.'s Mem.) at 2-3.
In discrimination cases, the general standard of relevance under the
Federal Rules of Evidence applies. See Abramson v. American University,
1988 WL 152020, *1 (D.D.C. 1988). Federal Rule of Evidence 401 defines
relevant evidence as evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action,
more probable or less probable than it would be without the evidence. In
addressing the relevance of evidence used to prove disparate treatment,
this circuit has held that the plaintiffs must show that they were
treated differently from other similarly-situated members of a
nonprotected class. See Anderson v. Zubieta, 180 F.3d 329, 341 (D.C.
Cir. 1999). Therefore, statistical data and comparative information
concerning an employer's treatment of minorities is relevant evidence in
an individual discrimination claim against that employer. Minority
Employees at NASA v. Beggs, 723 F.2d 958, 961 (D.C. Cir. 1983). The
defendant contends that precedents make plain that statistics have
virtually no role to play in a case of this type. See Def.'s Mem. at 2.
The defendant misreads this circuit's precedents. The D.C. Circuit has
held that a plaintiff may use statistical evidence in cases alleging
individual disparate treatment. See Cook, 763 F.2d at 1469 (holding that
the evidence of discrimination against employer's black librarians was
relevant to claims of discrimination against its black attorneys); see
Davis, 613 F.2d at 962; Minority Employees at NASA, 723 F.2d at 961; see
Abramson, 1988 WL 152020 at *1. Therefore, the defendant's contention on
this point misses the mark.
The defendant also maintains that statistics should only be admitted in
a disparate treatment case when they have a clear and direct bearing on
the motivation underlying the challenged employment decision. Def.'s
Mem. at 2. The court disagrees with both the standard set forth by the
defendant and the defendant's application of the standard for the use of
statistics. The standard for relevance is not whether the evidence has a
clear and direct bearing on a fact of consequence. Rather, it is the
Federal Rule of Evidence 401 standard that applies. See FED. R. EVID.
Moreover, because statistics may serve various purposes in
disparate-treatment cases, it is incorrect to limit their use to only .
. . when they have a . . . bearing on the motivation underlying the
challenged employment decisions. Def.'s Mem. at 2. In this case, the
plaintiff offers Dr. Walker's statistical examinations (the Promotion,
Termination, and Workforce Composition Tests) to support his claim of
discrimination and disparate treatment of African-American and other
minorities. Pl.'s Opp'n to Def.'s Mot. in Limine to Exclude Certain
Statistical Evidence and Mem. of Points and Authorities (Pl.'s Opp'n to
Mot. in Limine) at 1. If these examinations would make an inference of
discrimination more probable or less probable, the court would deem such
evidence relevant. See FED. R. EVID. 401.
After establishing relevance, the proponent must satisfy the second
prong of the Daubert test, which requires that the evidence must also be
reliable, or trustworthy. See Daubert, 509 U.S. at 590 n. 9. The court
reliability on a case-by-case basis. See Kumho Tire, 526 U.S.
at 158 (in assessing the reliability of an engineering expert's
testimony, the trial court may consider the Daubert factors to the extent
relevant, which will depend upon the nature of the issue, the expert's
particular expertise, and the subject of his testimony.). Applying the law
to the instant case, the court rules that both the Termination Tests and
the Workforce Composition Tests are relevant and reliable.
The court, however, agrees with the defendant that the Promotion Tests
are unreliable and inadmissible. The defendant argues that the Promotion
Tests are irrelevant and inadmissible because the initial tests contained
an error that affected the results. See Def.'s Mem. at 8. Dr. Walker
conducted the Promotion Tests by using data from the defendant's
correspondence with the Office of Federal Contract Compliance Programs
(OFCCP). See id. The tests related to promotions to officer positions
(Vice President and Principal) and minority representations therein. See
id. The court recognizes that the defendant's own affirmative-action data
is a reliable source from which Dr. Walker conducted his examinations.
Dr. Walker conceded, however, that he had erred by analyzing the wrong
groups, and that even after Dr. Walker corrected his mistake, he conceded
that the results, although still highly probable, were not statistically
significant by the standards applied. See Def.'s Mem. at 8.
Because Dr. Walker's analysis of promotions did not demonstrate
statistically significant underrepresentation of minorities for the
purposes of raising an inference of discrimination, the court finds that
the tests are not relevant under Rule 401. See FED. R. EVID. 401. The
court will exclude the results because their probative value is
substantially outweighed by the danger of unfair prejudice. See FED. R.
EVID. 403. C. The Plaintiff's Motion to Strike Bernard R. Siskin as an
Expert The court will deny the plaintiff's motion to strike Bernard R.
Siskin as an expert. Accordingly, the court will admit the expert
affidavit in support of the defendant's motion to exclude statistical
Federal Rule of Civil Procedure 26(a)(2)(A) states that, A party shall
disclose to other parties the identity of any person who may be used at
trial to present evidence under Rules 702, 703, or 705 of the Federal
Rules of Evidence. The defendant rightly points out that this rule does
not apply to the current situation. In Plaintiff's Motion to Strike
Bernard R. Siskin as a Contingent Testifying Expert, (Pl.'s Mot. to
Strike), the plaintiff properly noted that the affidavit was submitted
well after the discovery cutoff date. See Pl.'s Mot. to Strike at 3. The
affidavit, however, was provided in support of a motion in limine and not
as a discovery item in preparation for trial. See Defendant's Opposition
to Plaintiff's Motion to Strike Bernard R. Siskin (Def's Opp'n to Mot. to
Strike) at 2. Moreover, the defendant identified Dr. Siskin as an expert
and submitted the required Rule 26(a)(2)(B) reports well in advance of
the discovery cutoff date. Under these circumstances, even if Dr.
Siskin's affidavit were not admissible as a supporting document to the
motion in limine, it may have been admissible as a supplemental report
under Rule 26(e)(1). Federal Rule of Civil Procedure 26(e)(1)
specifically requires the supplementation or correction of expert
opinions. Potomac Electric Power Co. v.
Electric Motor Supply, 192
F.R.D. 511, 514 (D. Md. 2000).
The plaintiff objects to the use of a contingent testifying expert. But
Federal Rule of Civil Procedure 26(a)(3)(A) sets forth a pretrial
disclosure rule that requires parties to provide information for any
witness, if not previously provided, whom the party expects to present
and those whom the party may call if the need arises. FED. R. CIV. P.
26(a)(3)(A). The court denies the plaintiff's motion to strike Bernard
R. Siskin as a contingent testifying expert and to strike his untimely
D. The Defendant's Motion for Summary Judgment on Section 1981
Discrimination Claim 1. McDonnell Douglas Test
A discrimination claim under 42 U.S.C. § 1981 (section 1981)
requires proof of intentional discrimination. See General Bldg.
Contractors Ass'n. v. Pennsylvania, 458 U.S. 375
, 391 (1982).
Discriminatory animus may be shown through direct evidence, or with
indirect evidence using the burden-shifting structure set forth in
McDonnell Douglas v. Green, 411 U.S. 792
(1973). The plaintiff alleges
that the defendant violated certain of his rights protected by section
1981, which provides, in pertinent part:
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.
42 U.S.C. § 1981.
Under section 1981, parties may recover only for purposeful
discriminatory treatment. See Frazier v. Consolidated Rail Corp.,
851 F.2d 1447, 1449 n. 3 (D.C. Cir. 1988) (internal citations omitted).
The D.C. Circuit has held that the standards and order of proof in
section 1981 cases are identical to those governing Title VII
disparate-treatment cases. See Berger v. Iron Workers Reinforced Rodmen
Local 201, 843 F.2d 1395, 1412 n. 7 (D.C. Cir. 1988) (citing Carter v.
Duncan-Huggins, Inc., 727 F.2d 1225 (D.C. Cir. 1984)). The plaintiff must
allege facts that could support the inference that the defendants
intended to discriminate. See Frazier, 851 F.2d at 1449 n. 3. The Supreme
Court has stated that intent is the ultimate issue of fact to be
determined in an employment-discrimination suit. See Pullman-Standard v.
Swint, 456 U.S. 273, 288-89 (1982).
A court charged with assessing the propriety of summary judgment in a
Title VII case must view the plaintiff's evidence through the three-part
test set forth in McDonnell Douglas v. Green and developed by decisional
law in this Circuit. See McDonnell Douglas Corp., 411 U.S. at 802; Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981);
Frazier, 851 F.2d at 1449 n. 3. The three-part test requires that the
first establish a prima facie case of prohibited
discrimination. Once [the plaintiff] has done so, the
burden then shifts to the employer to articulate
legitimate, non-discriminatory reasons for the
challenged employment decision. Should the employer
succeed in presenting such reasons, the burden then
shifts back to
the [plaintiff], who then has an
opportunity to discredit the employer's explanation.
Aka, 156 F.3d at 1288 (citations omitted).
The plaintiff, who has the ultimate burden of persuasion, may not offer
his own speculations and allegations to refute the employer's
legitimate, non-discriminatory reasons for its decisions. See Brown v.
Brody, 199 F.3d 446, 458 (D.C. Cir. 1999); Carpenter v. Federal Nat'l
Mortgage Ass'n, 165 F.3d 69, 72 (D.C. Cir. 1999). Evidence of pretext
that is merely colorable or not significantly probative does not suffice
to withstand summary judgment. See Johnson v. Digital Equip. Corp.,
836 F. Supp. 14, 18 (D.D.C. 1993). The plaintiff cannot, however, merely
show that the defendant's proffered reasons for its actions were
pretextual. Rather, he must satisfy the trier of fact by a preponderance
of the evidence "that [he] has been the victim of intentional
discrimination." See St. Mary's Honor Ctr. v. Hicks, 113 S.Ct. 2742,
2752 (1993) (quoting Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 254 (1981)).
2. The Plaintiff Has Established a Prima-Facie Case of Discrimination
While McDonnell-Douglas sets forth the requisite elements of a
prima-facie case of discrimination in the hiring context, the Supreme
Court has stressed that the elements are flexible and must be adapted to
the particular facts of the case. See Burdine, 450 U.S. at 253; Batson
v. Powell, 912 F. Supp. 565, 573 (D.D.C. 1996). To establish a
prima-facie case of discrimination under section 1981, the plaintiff must
show that (1) he is a member of a protected class, (2) he suffered an
adverse employment action, and (3) he was replaced by a member of a
nonprotected class of equal or lesser qualifications or that nonmembers
of the protected class were treated more favorably. See McDonnell
Douglas, 411 U.S. at 792. The plaintiff has met his initial burden. As an
African-American, he is a member of a protected class. Since his employer
fired him, he clearly suffered an adverse employment action. In
addition, the plaintiff has identified other similarly situated
non-members who received more favorable treatment despite having violated
the Booz-Allen Code of Ethics. The plaintiff points to a 1993 incident in
which two white employees engaged in pervasive misbilling on EPA
contracts by instructing subordinates to bill all their time to the
government regardless of whether they were actually working. See Pl.'s
Opp'n at 43. The allegations resulted in "Booz-Allen's 1993 guilty plea to
two criminal counts of filing false claims with the government." Id. The
defendant also paid $1,000,000 in fines plus restitution to the
government. See id. Moreover, the severity of the allegations caused the
EPA to attempt to debar the two white employees. Both employees still
work at Booz-Allen. See id. at 44. The court deems this sufficient
evidence to establish that the company may have treated other similarly
situated non-members of a protected group differently from Mr. Lewis.
Accordingly, the court finds that the plaintiff has satisfied its burden
of establishing a prima-facie case.
3. The Defendant Has Met its Burden to Articulate a Legitimate
Non-Discriminatory Reason for the Plaintiff's Termination
Once the plaintiff has established its prima-facie case, the burden
the defendant to articulate a legitimate non-discriminatory
reason for having terminated the plaintiff. In an attempt to meet its
burden, the defendant argues that its treatment and discharge of the
plaintiff was a rational business decision motivated and justified by the
plaintiff's unprofessional conduct and poor performance, rather than by
racial animus. See Defendant's Statement of Material Facts as to Which
There is No Genuine Issue (Def.'s Mat. Facts) at 16.
The defendant points to the Law Department's conclusion that the
plaintiff intentionally caused a document to be backdated, thereby
rendering it false, in clear violation of the Booz-Allen Code of Ethics.
See Mot. for Summ. J. at 13, 15; Def.'s Mat. Facts at 11. Moreover, the
defendant explains that it made its decision to fire the plaintiff
because of his poor performance, which was exhibited by his violation of
the Booz-Allen Code of Ethics, and his conduct in the workplace. The
defendant contends that these reasons amount to legitimate and
nondiscriminatory factors. See id. The court agrees with the defendant's
conclusion that such actions may be proper nondiscriminatory reasons for
an employer to take action against an employee.
4. The Plaintiff Has Raised Genuine Issues of Material Fact that
Would Allow a Jury to Infer Discrimination
Once an employer has met its burden of advancing a nondiscriminatory
reason for its actions, the focus of proceedings at summary judgment:
will be on whether the jury could infer discrimination
from the combination of (1) the plaintiff's prima
facie case; (2) any evidence the plaintiff presents to
attack the employer's proffered explanation for its
actions; and (3) any further evidence of
discrimination that may be available to the plaintiff
(such as independent evidence of discriminatory
statements or attitudes on the part of the employer)
or any contrary evidence that may be available to the
employer (such as evidence of a strong track record in
equal opportunity employment).
Aka, 156 F.3d at 1289. In his opposition to the motion for summary
judgment, the plaintiff seeks to show that the defendant's explanations
for firing him were pretextual and based on racial animus. Based on the
record before the court, Mr. Lewis has succeeded in rebutting the
defendant's nondiscriminatory reasons for his termination by providing
other such circumstantial evidence, including the statistical evidence
provided by the plaintiff's expert, that would allow an inference of
discriminatory intent on the defendant's part. The plaintiff has
presented circumstantial evidence that his 1999 performance appraisal was
unfair since the partner assigned to conduct the appraisal, Elliot
Rosen, focused on subjective impressions by individuals who worked for
Mr. Picarelli and Ms. Doria, while ignoring the comments made by those
who worked on the plaintiff's project. See Mot. for Summ. J. at 18-19.
Moreover, white employees, all of whom are also subject to the Code of
Ethics, were not ultimately discharged for offenses allegedly similar to
those committed by the plaintiff. See Pl.'s Opp'n at 42-45.
Specifically, the plaintiff points to the employees who lied to the
government in connection with the withdrawal of the Nereus claim from the
Termination for Convenience submission. Booz-Allen imposed no discipline
at all on its own employees (Skanse, Salzano, and Fritzon) who knowingly
deceived the government about the very matters at issue. Pl.'s Opp'n at
In sum, while the plaintiff admits that he caused the documents to be
backdated, see Mot. for Summ. J. at 9; Pl.'s Opp'n at 36, he says he
backdated the documents to make them accurate, not false. See Mot. for
Summ. J. at 36. The plaintiff has demonstrated a genuine dispute as to a
material fact, namely, whether his performance provided a legitimate,
non-discriminatory basis for Booz-Allen to discharge him. See FED. R.
CIV. P. 56. The plaintiff has pointed to specific facts in the
pleadings, declarations, and other evidentiary matter that, if proven,
could lead the fact finder to infer discriminatory purpose. Because the
plaintiff has raised a genuine issue as to a material fact, the court will
deny the defendant's motion for summary judgment.
For all of these reasons, the court grants in part and denies in part
the defendant's motion in limine to exclude certain statistical
evidence. The court also denies the plaintiff's motion to strike Bernard
Siskin as an expert witness. Lastly, because the plaintiff has raised a
genuine issue as to a material fact, the court will deny the defendant's
motion for summary judgment. An Order directing the parties in a fashion
consistent with this Memorandum Opinion was previously issued.