The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
Lawrence J. McNally is a Sergeant with the United States Park
Police ("USPP" or "Park Police"), working in Greenbelt, Maryland.
He is a white male and is over 40 years old. Since 2000, he has
applied three times for reassignment to be a Sergeant
(Technician) in the Canine Unit of the Park Police, without
success. Sgt. McNally sues Gale Norton, Secretary of the U.S.
Department of the Interior, of which the USPP is a constituent
agency, in her official capacity. He alleges discrimination on
the basis of race, gender and age in his non-selection in 2000
and discrimination based upon age in his non-selection in 2003
and 2004. Defendant moves for summary judgment, which Sgt.
McNally opposes. After consideration of the parties' briefs and
the entire record, the Court concludes that material facts are in
dispute and Defendant's motion for summary judgment must
therefore be denied.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is appropriate when the record shows "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); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In
determining whether there is a disputed issue of material fact,
the Court must view the underlying facts and draw all reasonable
inferences in favor of the non-moving party. See Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587
(1986); Washington Post Co. v. U.S. Dep't of Health and Human
Services, 865 F.2d 320, 325 (D.C. Cir. 1989).
The Court's threshold inquiry is whether there are "any genuine
factual issues that properly can be resolved only by a finder of
fact because they may reasonably be resolved in favor of either
party." Anderson, 477 U.S. at 250. Once the moving party shows
that there is a lack of evidence to support the opponent's case,
the burden shifts to the non-movant to show, through affidavits
or otherwise, the existence of a material issue for trial. Bias
v. Advantage Intern, Inc., 905 F.2d 1558, 1561 (D.C. Cir. 1990)
; see Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir.
1987) (citing Fed.R.Civ.P. 56 (c)). Conclusory allegations by
the non-movant are insufficient to withstand summary judgment.
Exxon Corp. v. F.T.C., 663 F.2d 120, 127 (D.C. Cir. 1980)
(citing Marks v. United Stated Dep't of Justice, 578 F.2d 261,
263 (9th Cir. 1978)).
Defendant concedes that Sgt. McNally has presented a prima
facie case.*fn1 See Memorandum of Points and Authorities
in Support of Defendant's Motion for Summary Judgment ("Def.'s Mem.") at 11-12. In 2000, Sgt. McNally was not
selected for reassignment, although he was qualified, and a
Hispanic younger woman was given the position. In 2003 and 2004,
Sgt. McNally, who was in his late forties and eligible to retire
at the time, was again not selected and younger sergeants in
their thirties received the positions. While the Park Police has
put forth legitimate nondiscriminatory reasons for its
selections, Sgt. McNally has responded by putting forth
sufficient evidence with "concrete particulars" that require a
trial. See R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69,
77 (2d Cir. 1984).
The Court must give all reasonable inferences in favor of Sgt.
McNally, the non-movant. See Washington Post Co.,
865 F.2d at 325 (D.C. Cir. 1989); Abraham v. Graphic Arts Int'l Union,
660 F.2d 811-814 (D.C. Cir. 1981). Most particularly, Sgt. McNally
has presented evidence that may lead to "[t]he factfinder's
disbelief of the reasons put forward by the defendant" that
could, "together with the elements of the prima facie case,
suffice to show intentional discrimination." Saint Mary's Honor
Center v. Hicks, 509 U.S. 502, 511 (1993).
The fundamental question of law on which the USPP bases its
motion for summary judgment is its contention that Sgt. McNally
suffered no actionable adverse action due to the non-selections
at issue. See Def.'s Mot. at 9. The District of Columbia Police
and Firemen's Salary Act delineates USPP officers' rates of
compensation.*fn2 In addition, the D.C. Code designates
certain positions within USPP that are entitled to technician's
pay, which consists of an additional six (6) percent of the rate
of basic compensation plus any locality adjustments. See D.C.
Code § 5-543.02. The Canine Unit is one of the units within the
Park Police that is entitled to technician's pay. Id. Sgt.
McNally's current position is a non-technician Line Sergeant, classified at Class 4, Grade 5. A Sergeant
(Technician) is classified at Class 4, Grade 7. Defendant argues
that assignments to a position receiving technician's pay do not
result in a change of salary class and therefore do not
constitute promotions, but are only lateral transfers or
reassignments. Def.'s Reply at 2.
Defendant reads the law too narrowly. While it may not be a
strict "promotion," a transfer from a non-technician to a
technician sergeant's position clearly carries with it a
six-percent increase in salary plus other advantages, such as a
police vehicle and money for gas to transport canine and officer
to-and-from work. The Court cannot conclude that these
differences are so insignificant that the Park Police can pick
and choose among qualified candidates for the positions without
selection standards, without regard to equal employment
opportunity principles, and based on the purely personal
predilections of the recommending officials, as is alleged here.
The Court intimates no conclusion as to the merits of Sgt.
McNally's allegations because the facts must be determined by a
jury, after hearing testimony and determining the credibility of
the witnesses. Suffice it to say that Sgt. McNally has presented
a prima facie case and has come forward with additional
evidence that, if credited, could call into question Defendant's
allegedly nondiscriminatory reasons for its selections. It is as
much illegal to deny a six-percent salary increase because of
race, gender or age discrimination as it is to deny a promotion
to another salary class. Accordingly, Defendant's motion for summary judgment will be
DENIED. A separate Order accompanies this memorandum opinion.
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