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May 14, 2002


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



This matter comes before the court on the defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. William Sanders ("the plaintiff" or "Mr. Sanders") brings this suit for damages under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The plaintiff claims that his employer, the U.S. Department of Agriculture, discriminated against him on the basis of his race and retaliated against him after he complained of unlawful discrimination. Specifically, the plaintiff alleges that his employer denied him promotions and reassigned him to a regional office, negatively affecting his career opportunities. Ann Veneman ("the defendant") is the Secretary of Agriculture, named in her official capacity.

On August 21, 2000, the defendant filed a motion to dismiss this action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. On February 22, 2001, this court held that the plaintiff had timely exhausted his administrative remedies and that the plaintiffs involuntary transfer could constitute an adverse personnel action within the meaning of Title VII. Sanders v. Veneman, 131 F. Supp.2d 225 (D.C. 2001). The court also rejected the defendant's contention that the plaintiff had to establish his prima-facie cases of discrimination and retaliation in his complaint. Id. at 230-31. The court noted that the D.C. Circuit had recently made it clear that a plaintiff did not have to set forth a prima-facie case in the complaint. Sparrow v. United Air Lines, Inc., 216 F.3d 1111 (D.C.Cir. 2000).*fn1 Accordingly, the court denied the defendant's motion to dismiss and, consequently, denied the defendant's motion for summary judgment as premature. Sanders, 131 F. Supp.2d at 231.

Now that discovery has closed, the defendant moves for summary judgment on the plaintiffs discrimination and retaliation claims. For the reasons that follow, the court denies the defendant's motion for summary judgment and allows the plaintiffs claims to proceed to trial.


An African-American man, Mr. Sanders works as a GS-13 Criminal Investigator in the Office of Inspector General ("OIG"), a division of the U.S. Department of Agriculture ("USDA"). Compl. ¶ 5. Between November 1995 and March 1996, Mr. Sanders applied for four GS-14 Criminal Investigator vacancies within the OIG. Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") at 4; Def.'s Mot. for Summ. J. ("Mot. for Summ. J.") at 2. He made the "best qualified" list for each promotion but did not receive any of them. Id. Instead, the defendant chose two white men, one African-American man, and one Hispanic man. Pl.'s Opp'n at 4; Mot. for Summ. J. at 3. The defendant announced the selection of one of the white men and the African-American man on January 16, 1996, and announced the other two selections on March 25, 1996. Mot. to Dismiss at 2.*fn2

Mr. Sanders asserts that Craig Beauchamp, the Assistant Inspector General, was both the selecting official for the four promotions and the official who authorized Mr. Sanders's transfer to the regional office. Id. at 3-4. Mr. Sanders claims that Mr. Beauchamp was aware of his involvement in a "coalition to address problems that confronted African-Americans" within the OIG. Id. at 3. On November 2, 1995, Mr. Sanders allegedly arranged and participated in a coalition meeting, the purpose of which was to discuss EEO problems in the office, including fewer promotional opportunities for African-Americans. Pl.'s Opp'n at 4. According to Mr. Sanders, Mr. Beauchamp attended this meeting. Id.

While Mr. Sanders was pursuing a promotion, Mr. Beauchamp allegedly assured him he would be promoted to Mr. Millard Reid's GS-14 position in the Washington office when Mr. Reid retired. Pl.'s Opp'n at 6. Mr. Sanders claims that this assurance prevented him from recognizing a pattern of discrimination in the promotion decisions. According to Mr. Sanders, he realized he was being discriminated against only when he received notice of his reassignment on May 26, 1996. Pl.'s Opp'n to Mot. to Dismiss at 3-4.

The defendant counters that the promotions were neither discriminatory nor retaliatory, and notes that an African-American man was chosen for one of the positions. Def.'s Reply to Pl.'s Opp'n to Mot. to Dismiss at 9. In addition, the defendant argues that any alleged conversations with Mr. Beauchamp "would simply not rise to the level of `misrepresentations' by the agency." Id. at 5. The defendant contends that Mr. Sanders suffered no diminution in salary or benefits as a result of his transfer. In addition, the defendant states that a decrease in per diem expense pay does not qualify as a legitimate salary diminution. Id. at 10-11. Moreover, the defendant asserts that each of the GS-14 selectees had worked in a regional or field office before their promotions, thus belying Mr. Sanders's claim that his transfer negatively affected his chances for promotion. Id. Finally, because the possibility of relocation was one of the conditions of Mr. Sanders's position, the defendant argues that Mr. Sanders cannot consider his reassignment involuntary. Mot. to Dismiss at 2-3.

Mr. Sanders visited an EEO counselor for the first time on May 18, 1996. Mot. to Dismiss at 3; Pl.'s Opp'n to Mot. to Dismiss at 5. On July 20, 1999, the EEOC issued a decision ruling that Mr. Sanders had satisfied the necessary procedural requirements for an administrative hearing. Pl.'s Opp'n to Mot. to Dismiss at 6. The EEOC issued its Final Agency Decision on March 17, 2000, holding that Mr. Sanders had met the procedural prerequisites for a hearing. Id. The EEOC also determined that Mr. Sanders's transfer and non-selections for the promotion were based on legitimate, non-discriminatory reasons. Mot. to Dismiss at 3.

Now that discovery has closed, the defendant asserts that there is no evidence in the record that any of its actions were motivated by Mr. Sanders' race or his participation in protected EEO activity. Mot. for Summ. J. at 1. According to the defendant, Mr. Sanders's discrimination claims are based only on his personal beliefs that he was more qualified than his co-workers and that the defendant transferred him to reduce his chances for promotion. Id. at 1-2. The defendant argues that these subjective beliefs are insufficient to create a genuine issue of material fact and, as such, Mr. Sanders cannot make out a prima-facie case of racial discrimination or retaliation under Title VII. Id. at 2, 8, 16; FED. R. CIV. P. 56(c). The court disagrees, and denies the defendant's motion for summary judgment on both counts.


A. Legal Standard for Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

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. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position.*fn3 Id. at 252, 106 S.Ct. 2505. 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 on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

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