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Patterson v. Johnson

September 26, 2005

HARVEY L. PATTERSON, PLAINTIFF,
v.
STEPHEN L. JOHNSON, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff was employed at the Environmental Protection Agency ("EPA") from 1976 until his retirement in 2004. He claims that his former employer violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by discriminating against him on the basis of his race and then retaliating against him when he complained about this discrimination. Defendant has moved for summary judgment.*fn1 A previous motion for summary judgment was denied in order to allow plaintiff a reasonable opportunity to develop evidentiary support for his complaint. See Patterson v. Whitman, Civ. No. 02-2213, slip op. (D.D.C. June 9, 2003). Plaintiff has nonetheless failed to satisfy his burden of establishing a genuine issue for trial and, therefore, the Court will grant defendant's motion.

BACKGROUND

Plaintiff, an African American, served as the Director of Superfund/RCRA, Regional Procurement Operations Divisions ("SRRPOD"), Office of Acquisition Management ("OAM"), Office of Administration and Resources Management ("OARM") from February 1998 to August 2002. This was a position in EPA's Senior Executive Service ("SES"), a special class of employees established by federal statute.*fn2 See 5 U.S.C. § 3131. In June 2000, Judy S. Davis, a white female, became the Acting Director of OAM, and thus, plaintiff's immediate supervisor. (Compl. ¶ 8.) Plaintiff alleges that upon Davis's assumption of her new position, she undermined his authority and deprived him of the ability to do his job because of his race. Plaintiff claims that such treatment included: "(1) overriding his selection of a direct subordinate; (2) arbitrarily canceling previously approved leave; (3) not selecting him to serve as Acting OAM Deputy Director and selecting lower level white employees instead; (4) ordering him to use PCDOCS, a computer software program, but not ordering similarly situated white employees to do so; (5) preventing him from working on updating and upgrading staff positions within his division; and (6) generally interfering with his management of his division and undermining his authority with his subordinates and others." (Compl. ¶ 9.) These allegedly discriminatory acts took place between June 2000 and April 2002.

Patterson met several times with Morris Winn, an African American who was the Assistant Administrator of OARM (and Davis' superior), to complain about Davis' management style. (Def.'s Ex. 3 [O'Connor Decl.] ¶ 6.) Around December 2001, plaintiff stated that he could no longer work with Davis and requested to be moved to a comparable position within the SES. (Pl.'s Ex. 16 [Patterson Dep. Day 2] at 18; Def.'s Ex. 6 [Davis Dep. Day 3] at 105; Pl.'s Ex. 20 [Winn Dep.] at 50, 103.) He continued to complain to Winn in early 2002 about his relationship with Davis, forwarding him a draft of his equal employment opportunity ("EEO") complaint on January 4, 2002. (Winn Dep. at 47-51, 93; Pl.'s Ex. 8.) Plaintiff contacted an EEO counselor on February 28, 2002 and filed several complaints of discrimination with the EEO office. (Lafone Decl. (attached to Def.'s Exs.) ¶ 4.) He filed his first formal complaint on April 4, 2002 and his second on July 3, 2002. (Id.)

On July 27, 2002, Winn reassigned plaintiff to serve as the Associate Director for Competition and Strategic Planning, Office of Grants and Debarment ("OGD"), another section within OARM.*fn3 (Winn Dep. at 78-80.) According to defendant, the reassignment was part of EPA's SES "mobility initiative" and in response to Patterson's own request for a transfer. The mobility initiative aimed to move senior executives across various positions and different offices within EPA to "better enable EPA to deal with cross-agency and integrated environmental issues, as well as enhance the career development of SES members." (Mot. at 33; see O'Connor Decl. ¶ 5; see also Def.'s Ex. 9 [Turner Decl.] ¶¶ 2-3.)

According to David O'Connor, Winn's Deputy Assistant Administrator in 2002, he and Winn worked to "locate and identify an appropriate position" for plaintiff's reassignment. (Id. ¶ 6.) This effort coincided with a growing concern within the agency, the General Accounting Office, and Congress about EPA's management of grants, particularly with respect to the competitiveness of the grants process. (See id. ¶¶ 7-11; id, Ex. 6 [Office of Inspector General Audit Report].) In 2002, EPA issued a new statement of policy, known as EPA Order 5700.5, which formally expressed its intent to promote competition in the assignment of grants. The Order indicated that a new Grants Competition Advocate within OGD would be responsible for overseeing the implementation of the new policy. (Id. ¶ 11.) Following this order, OGD established the position of Associate Director, Competition and Strategic Planning. (Id. ¶ 12.)Among other responsibilities, the Associate Director would serve as the Grants Competition Advocate. (Id.) Winn and O'Connor concluded that "[g]iven Mr. Patterson's expressed desire to move outside of OAM, the concerns about EPA's grants management program, and the establishment of the Associate Director position in OGD in response to those concerns, . . . Mr. Patterson would be a great fit for the position and that the position would be a very good opportunity for him and the Agency." (Id. ¶ 12.) According to O'Connor, he and Winn believed that Patterson's experience with the statutory and regulatory requirements for competition in the contracting field made him particularly qualified to improve competition on the grants management side. (Id.)

Plaintiff continued at the same grade level and pay in his position within OGD, but claims that the new job carried substantially fewer responsibilities and was no more than a "glorified GS-12 position" (Opp'n at 1), which defendant disputes. Plaintiff also asserts that he was only one of two SES employees in OARM who were transferred as part of the mobility initiative and that he was the only one who was involuntarily transferred. (Id. at 20.)

Following this transfer, plaintiff filed a complaint with this Court on November 8, 2002, claiming discrimination and retaliation under Title VII. (Compl. ¶¶ 13,15.)

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 non-moving party'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 non-moving party must provide evidence that would permit a reasonable jury to find in the non-moving party's favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (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 (internal citations omitted). "While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of her obligation to support her 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. March 31, 1998) (internal citation omitted), aff'd, 1999 WL 825425, at *1 (D.C. Cir. Sept. 27, 2000).

To decide a summary judgment motion in a discrimination case, the Court applies the McDonnell Douglas three-part "shifting burdens" test. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiff has the initial burden of proving a prima facie case of discrimination. Id. at 802. To do so, plaintiff must establish: (1) that he is a member of a protected class; (2) that he suffered an adverse employment action; and (3) that the unfavorable action gives rise to an inference of discrimination. Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). 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 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) ("[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 reason was not the true reason for the employment decision. Burdine, 450 U.S. at 256; see also Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 2003) ("[a]lthough the McDonnell Douglas framework shifts intermediate evidentiary burdens between the parties, [t]he ultimate burden of persuading the trier of fact that the defendant ...


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