The opinion of the court was delivered by: Urbina, District Judge.
DENYING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
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
On May 26, 1996, the USDA notified Mr. Sanders that it would
reassign him from the Washington, D.C. office to another GS-13
Criminal Investigator position in Riverdale, Maryland. Mot. for
at 3. Mr. Sanders viewed this involuntary transfer to an office
outside of headquarters as a negative career move that would
decrease his chances of receiving a promotion. Compl. ¶ 8.
Moreover, he claims that he "also suffered financial harm as a
result of the transfer in that his per diem pay was
significantly reduced, which noticeably diminished his salary."
Pl.'s Opp'n to Mot. to Dismiss at 4-5. Accordingly, on May 28,
1996, two days after he learned of his transfer, Mr. Sanders
contacted an Equal Employment Opportunity ("EEO") counselor.
Id. at 5.
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.
In addition, the nonmoving party may not rely solely on
allegations or conclusory statements. Greene v. Dalton,
164 F.3d 671, 675 (D.C.Cir. 1999); Harding v. Gray, 9 F.3d 150,
154 (D.C.Cir. 1993). Rather,
the nonmoving party must present specific facts that would
enable a reasonable jury to find in its favor. Greene, 164
F.3d at 675. If the evidence "is merely colorable, or is not
significantly probative, summary judgment may be granted."
Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (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