The opinion of the court was delivered by: John D. Bates, District Judge
Plaintiff Bennie L. Boykin ("plaintiff") brings this action for alleged discrimination on the basis of his race, color, and age, and for alleged retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et. seq. ("Title VII"). Defendant Gordon R. England, Secretary, Department of the Navy ("defendant" or "the Navy"), moves to dismiss plaintiff's complaint or, in the alternative, for summary judgment. For the reasons stated below, the motion is granted.
Plaintiff, an African-American male, was employed by the Department of the Navy, Office of Information, as a Visual Information Technician (OA), GS-0303-06. Compl. ¶ 6. In the summer of 2000, plaintiff used Navy equipment to duplicate a copyrighted movie not yet available to the public. Def.'s Mot., Ex. 5. Lt. Richard Naystatt, Deputy Director, Navy Visual News Service, told plaintiff that the unauthorized duplication of copyrighted material was a felony, and that such use of government equipment was intolerable. Def.'s Mot., Ex. 2. Nevertheless, on September 19, 2000, plaintiff again used government equipment to make unauthorized copies of a copyrighted production not yet available to the public. Def.'s Mot., Ex. 2, 3, 5.
Plaintiff was thereafter subjected to a series of what he contends were discriminatory actions. First, on January 9, 2001, plaintiff was notified that his access to classified information was suspended, and a request was made to suspend his security clearance. Compl. ¶¶ 9, 10. The following day, plaintiff received a Notice of Proposed Removal and was placed on administrative leave. Id. ¶ 12. Three months later, on April 17, 2001, plaintiff was notified of the Navy's formal Decision to Remove. Contemporaneously therewith, however, plaintiff was offered the opportunity to enter and, in fact, did enter an Abeyance/Last Chance Agreement, which allowed him to remain employed on a probationary status for 18 months, as long as he refrained from engaging in further misconduct. Def.'s Mot., Ex. 14, 15. That same day, following the execution of the Abeyance/Last Chance Agreement, and apparently to plaintiff's surprise, he received a Notice of Proposed Indefinite Suspension and was again placed on administrative leave. Def.'s Mot., Ex. 19; Compl. ¶¶ 16, 18. Two days afterwards, on April 19, 2001, plaintiff visited an EEO counselor, and was informed of his right to file an EEO complaint. Def.'s Mot., Ex. 18.*fn1
Plaintiff was given an opportunity to respond to the Notice of Proposed Indefinite Suspension and did so in writing on May 10, 2001. Thereafter, he was offered an opportunity to rescind his Abeyance/Last Chance Agreement, but he never replied. Def.'s Mot., Ex. 20, 21. On August 16, 2001, defendant issued a Notice of Decision on Proposed Indefinite Suspension to plaintiff Def.'s Mot., Ex. 22. Plaintiff remained on indefinite suspension until his ultimate removal, effective June 21, 2002. Pl.'s Mem. P. & A. Supp. Opp'n Def.'s Mot., Ex. 4.*fn2
In this litigation, plaintiff brings several counts of discrimination and retaliation under Title VII, alleging that the following actions were improper: (1) the suspension of his access to classified information, Compl. ¶ 9; (2) the request to suspend his security clearance id. ¶ 10; (3) the decision to issue the Notice of Proposed Removal, id.¶ 12; (4) the subsequent Decision to Remove coupled with the Abeyance/Last Chance Agreement id. ¶ 14; (5) the decision to place plaintiff on administrative leave in two instances, the latter of which was rendered on the same day as the Decision to Remove id. ¶¶ 12, 16; (6) the decision to issue a Notice of Proposed Indefinite Suspension and subsequent decision to suspend plaintiff indefinitely, id., ¶ 18; and (7) defendant's failure to properly rate plaintiff's performance, id. ¶ 21.
Defendant now moves to dismiss or, in the alternative, for summary judgment on plaintiff's claims.*fn3 Based on the record before it, the Court concludes that there is no genuine issue of material fact and that defendant is entitled to judgment as a matter of law on all of plaintiff's claims.
A. Standard for Summary Judgment
Summary judgment is appropriate when the pleadings and the evidence demonstrate 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). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "`informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed.R.Civ.P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted). ...