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WARE v. BILLINGTON

October 26, 2004.

DONALD R. WARE, Plaintiff,
v.
DR. JAMES BILLINGTON, in his official capacity as Librarian of Congress, Defendant.



The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge

MEMORANDUM OPINION

Plaintiff Donald Ware, an African American male, alleges gender and race discrimination, as well as retaliation, by his employer of two decades, the Library of Congress, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Defendant has moved for summary judgment. For the reasons set forth below, the Court grants defendant's motion.

BACKGROUND

  Ware, who joined the Library in 1982, spent seventeen years performing classification work for the Library's Human Resources Services ("HRS") division. (Def.'s Ex. 2 at ¶ 5(a) (Myers Aff.).) For much of that time until 1999, Ware was the GS-15 level Chief of the Classification and Position Management Office in HRS, where he reported to the Library's Director of Personnel Ben Benitez, a Hispanic male. In August 1999 plaintiff voluntarily took a detail or temporary assignment (see Details of Staff Members in Non-Bargaining Unit Positions, L.C.R. 2010-15 § 2(A) (1996)) to the Combined Federal Campaign ("CFC"), where he remained until March 2000. While Ware was at CFC, Benitez retired and Teresa Smith, the new Director of HRS as of June 1999, became Ware's supervisor at the Library. Smith, who is an African American female, was brought in during a "critical time in HR . . . to reinvent, reengineer, the HR Office. There were many problems with the organization." (Pl.'s Ex. 2 at 20 ("Smith dep.").) In autumn 1999 Smith implemented an interim reorganization of HRS, whereby the GS-15 Classification Chief position was unofficially eliminated; the classifications section, which consisted of only four employees, was merged into a new Operations section that was headed by a white female GS-15 manager, Nora Bardak. (Def.'s Ex. 1 at ¶ 2.) This interim reorganization remained in effect until October 2002. (Pl.'s Ex. 1 at 71 ("Ware dep.").)

  During the course of his detail at CFC, Ware met on several occasions with Smith. They discussed the restructuring, as well as what Ware's role would be when he returned to the Library. While there is some dispute as to whether Ware wanted to return to his prior Classifications Chief position, it is undisputed that he declined reinstatement because he believed that resuming that position would constitute a demotion since he would no longer report to the HRS Director, and because the head of classifications would be categorized as GS-14, rather than a GS-15. (Ware dep. at 17; Smith dep. at 72.) Ware instead expressed interest in the Operations manager slot (Ware dep. at 17), but that position had already been filled by Bardak in October 1999 (Ware dep. at 20-21; Smith dep. at 87; Def.'s Ex. 6 at ¶ 11(4)), and when Ware returned from his CFC detail nearly half a year later in March 2000, Smith stated that in order to maintain continuity, she would not place him in the position. (Smith dep. at 87; Ware dep. at 24.) As an alternative, they discussed the possibility of Ware serving as Smith's special assistant to work on special projects. (Ware dep. at 22.)

  While Ware was on detail at CFC, Smith had become aware of allegations of sexual impropriety and mismanagement by Ware. (Def.'s Ex. 1 at ¶ 7.) The Hay Group, an outside consultant that was retained to evaluate the performance of the HRS divisions, validated Smith's concerns, ranking Ware's division as the worst in all of HRS in terms of "program management." (Pl.'s Ex. 14; Smith dep. at 139.) With respect to the allegations of misconduct, Smith consulted the Library Deputy General Counsel, Jesse James, Jr., an African American male, who opined that "Ms. Smith took my advice perhaps, in part, because she was new on the job and I was her legal counsel. She wanted to establish a new way of conducting business in HRS. She wanted to clean up the organization to make it more effective." (Def.'s Ex. 3 at ¶ 13.) Therefore, she followed the recommendation of James, who "told [Smith] the allegations [against Ware] sounded serious and that they were of such a nature that she could not ignore them. I further told her that even though the allegations arose under the prior head of HRS and could be considered stale, she had an obligation to determine whether or not the allegations were true. As the head of HRS, she was obligated to determine whether one of her senior managers had engaged in sexual acts in the office, whether positions were improperly classified and whether HRS might be subject to a claim of sexual harassment." (Id. ¶ 6.)

  As a result of this advice, Smith decided that an investigation must be undertaken. (Smith dep. at 128.) Therefore, on the morning of March 6, 2000, when Ware returned from his seven-month detail, he was directed to see James. (Id. at 29-30.) Over the course of several meetings that week, James and Ware discussed the pending investigation, the possibility that Ware might resign or retire in order to avoid an investigation, and plaintiff's options if he elected to remain with the Library. (Id. at 30-37; Def.'s Ex. 3 at ¶¶ 2-4.) "The investigation would have been halted only if [Ware] had decided to leave the Library." (Def.'s Ex. 3 at ¶ 4 (James EEO investigation responses).)

  During his first few weeks back at HRS, Ware was not given any assignments, because James "thought he would resign or retire. . . . Thus, there was no point in assigning him tasks if he would be leaving the Library soon thereafter." (Pl.'s Ex. 3 at ¶ 3.) But Ware did not leave. Instead, on March 28, 2000, he filed an informal Equal Employment Opportunity ("EEO") complaint with the Library, alleging sex, race and age discrimination by Smith. (Pl.'s Ex. 5.) Six days later, on April 3, Smith requested that the Library Inspector General ("IG") investigate Ware. (Smith dep. at 129.) On April 28, 2000, Ware lodged a formal EEO complaint, which omitted the age discrimination charge. (Def.'s Ex. 6; Pl.'s Ex. 24.)

  On September 12, 2000, the Acting IG reported that "Mr. Ware did not provide adequate supervision of staff and management of programs and activities of the Classification and Position Management Office ("CPMO") during Fiscal Years 1997 to 1999. . . . Also, Mr. Ware failed to ensure that classification actions were properly conducted and documented." (Def.'s Ex. 7 at 1.) Based on that twenty-nine page report, on October 30, 2000, Smith issued a Letter of Warning to Ware that denied him any managerial or supervisory duties within HRS. (Def.'s Ex. 8.) Ware submitted a rebuttal to the IG's report (Pl.'s Ex. 15), but in its response on January 22, 2001, the IG's Office identified only one misstatement in its September 2000 report, and therefore, with that one exception, IG staff reiterated that "our findings were factual and conclusions proper." (Pl.'s Ex. 17.) As for the inquiry into the charges of favoritism and sexual improprieties by Ware, the Library's Office of Investigations concluded that, because "[c]ertain issues involved matters that were alleged to have occurred many years ago, where it was difficult or impossible to establish facts," its results were inconclusive and did not substantiate serious misconduct by Ware. (Pl.'s Ex. 23; Def.'s Ex. 1 at ¶ 9.)

  On March 26, 2001, Ware was detailed to the Library's Integrated Support Services ("ISS"), where he was to help with a reorganization; Ware remained with ISS until October 9, 2002. (Ware dep. at 52-54.)

  While he was at ISS in early 2002, Ware applied for three positions within HRS. Ware qualified for interviews for the two job openings as Supervisory Human Resource Specialist, but a computer system that evaluated each candidate rejected Ware's application for the third position. (Ware dep. at 88-91.) According to Ware, his interview was rescheduled "about three" times; each time, one or another member of the interview panel was unavailable on account of car trouble or a sick family member. (Id. at 92; Def.'s Stmt. of Material Facts ("Def.'s Stmt."), Payne Aff. ¶ 5). Convinced that Smith would not give him fair consideration, Ware withdrew his name from consideration for the Supervisory Human Resource Specialist positions. (Ware dep. at 93-94; Def.'s Stmt., Payne Aff. ¶ 5 and attached email.)

  Upon Ware's return to HRS from ISS in October 2002, Smith assigned him to what he considered to be an isolated and inferior office on the first floor. (Ware dep. at 55.) She also gave him three special project assignments. When Ware finally submitted a report for one of the three assignments in October 2003, a year after he had been given the task, Smith wrote him a counseling memorandum deeming the report unacceptable and refusing to grant him further annual leave until he successfully completed the project. (Ware dep. Ex. H.)

  Even though Ware had not actually been performing the job of a HRS supervisor since his return from the CFC detail in 1999, during the interim reorganization he had remained classified as Chief of Classification at a GS-15 grade. (Id. at 71; Def.'s Stmt., Smith Aff. ¶ 10.) On November 30, 2003, plaintiff was reassigned to a new, non-supervisory HRS GS-15 position that Smith had created for him, Special Projects Coordinator, because Ware's previous position as Chief no longer existed under the now-final HRS reorganization plan. (Ware dep. at 71; Def.'s Stmt., Smith Aff. ¶ 10.) Contemporaneously, plaintiff had to lose his onsite parking privileges because he had officially lost his supervisory responsibilities. (Ware dep. at 71.)

  A few days later, on December 4, 2003, one of Ware's psychiatrists told him that she thought he should take off from work because she believed he was on the verge of a nervous breakdown. (Ware dep. at 107.) Beginning the next morning, Ware took several weeks of sick leave, which Smith subsequently disallowed, declaring plaintiff Away without Official Leave ("AWOL") and docking his pay because the doctor who served as the Library's Health Service Officer (Dr. Charles) determined that the medical documentation that Ware had submitted did not justify the requested sick leave. (Id. at 107, 111; Def.'s Stmt., Smith Aff. ¶ 12.) Four months later, in April 2004, Ware retired from the Library. (Def.'s Stmt., Smith Aff. ¶ 1.)

  In his complaint Ware alleges that defendant Dr. James Billington, in his official capacity as Librarian of Congress ("Library"), discriminated against him based on his race and gender in violation of Title VII (Count I). He also alleges that the Library retaliated against him for engaging in activities protected by Title VII (Count II). The Library has moved for summary judgment, contending that it took no adverse actions against Ware, and that he therefore has not made out a prima facie case of discrimination or retaliation. It likewise maintains that there is no causal connection between plaintiff's Title VII-protected activity and the Library's actions and therefore, no prima facie case of retaliation. In the alternative, the Library asserts that it had legitimate, nondiscriminatory reasons for any adverse actions it may have taken against plaintiff, and plaintiff has failed to show that these reasons were merely a pretext for a discriminatory and/or retaliatory animus.

  ANALYSIS

  I. Legal Standard

  Under Fed.R. Civ. P. 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255; see also Wash. Post Co. v. United States Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).

  The nonmovant's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant must provide evidence that would permit a reasonable jury to find in her favor. Laningham v. United States Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). "While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of [his] obligation to support [his] allegations by affidavits or other competent evidence showing that there is a genuine issue for trial." Calhoun v. Johnson, 1998 WL 164780, at *3 (D.D.C. Mar. 31, 1998), aff'd, 1999 WL 825425 (D.C. Cir. Sept. 27, 1999) (citation omitted).

  Title VII provides, in relevant part, that it is unlawful for an employer "to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race [or] color. . . ." 42 U.S.C. § 2000e-2(a)(1). Defendant seeks summary judgment as to plaintiff's claims of discrimination based on race and gender, thus triggering the application of the McDonnell Douglas three-part "shifting burdens" test. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

  The McDonnell Douglas framework establishes "an allocation of the burden of production and an order for the presentation of proof." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Plaintiff has the initial burden of proving a prima facie case of discrimination by a preponderance of evidence. Id. at 506. If he succeeds, the burden shifts to defendant to articulate some legitimate, nondiscriminatory reason for its actions. Id. Its burden is only one of production, and it "need not persuade the court that it was actually motivated by the proffered reasons." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); see also Hicks, 509 U.S. at 509 ("[T]he determination that a defendant has met its burden of production (and has thus rebutted any legal presumption of intentional discrimination) can involve no credibility assessment.").

  If defendant is successful, then "the McDonnell Douglas framework — with its presumptions and burdens — disappear[s], and the sole remaining issue [is] discrimination vel non." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000) (internal citations and quotation marks omitted). At that point, plaintiff has the burden of persuasion to show that defendant's proffered nondiscriminatory reasons were not the true reasons for the employment decisions. Burdine, 450 U.S. at 256.

  II. Count I: ...


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