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Barbeau v. Progressive Technology Federal Systems

March 17, 2008


The opinion of the court was delivered by: Alan Kay United States Magistrate Judge


Pending before this Court is a Motion for Summary Judgment ("Motion") [42] by Defendant Progressive Technology Federal Systems, Inc. ("Defendant"); Plaintiff Selwyn Darbeau's ("Plaintiff") opposition to Defendant's Motion ("Opposition") [43]; and Defendant's reply to Plaintiff's Opposition ("Reply") [44]. Upon consideration of the Motion, Opposition and Reply, and a hearing on the Motion having been held on March 13, 2008, for the reasons set forth below, Defendant's Motion is GRANTED. An appropriate Order accompanies this Memorandum Opinion.

I. Background

Plaintiff Selwyn G. Darbeau ("Darbeau") filed this civil action on June 14, 2006, and he subsequently amended his complaint two times, resulting in his Second Amended Complaint [34], which contains one count alleging age discrimination against Defendant Progressive Technology Federal Systems, Inc. ("Progressive"). Progressive is a Maryland corporation "which at all time[s] relevant to the complaint was engaged in the business of providing services to various government agencies on a contract basis." (Second Amended Complaint at ¶4.) Plaintiff was employed by Progressive from September 8, 2005 until January 4, 2006, as a contract specialist. (Motion, Exh.1 (Darbeau deposition transcript) at 46-47.) Prior to his employment with Progressive, the Plaintiff had been working as a contract specialist for Jordan & Howard Technologies, Inc. (Jordan & Howard"), a private company which contracted with the federal government to provide various services for government agencies, since December 2003. (Exh. 1 at 17-18; Second Amended Complaint at ¶5.) Plaintiff was assigned to the Library of Congress and performed financial services relating to purchasing and payment of bills. (Second Amended Complaint at ¶6.)

In September 2005, Defendant Progressive began handling the Library of Congress ("LOC") contract that was previously being handled by Jordan & Howard. In connection with acquisition of the LOC contract, Progressive "was asked to absorb all of the affected employees of the [previous] contractor, and not just Mr. Darbeau, so that those workers would not be terminated when the [Jordan & Howard] contract expired." (Reply, Exh. 7 (Affidavit of Sheila Hess) at ¶5; Motion Exh. 2 (Hess Deposition transcript) at 18-19, 22.) Sheila Hess was the director of the professional services division at Progressive and Darbeau's supervisor during his employment with Progressive. (Exh. 1 at 49; Exh. 2 at 21-22, 25; Exh. 7 at ¶2.)

Beginning in October 2005, Plaintiff's direct supervisor at the LOC was LOC employee Ursula Holmes ("Holmes"). (Exh. 1 at 22-23.) Holmes was Contracting Officer's Technical Representative and head of operations for the contract team, who was responsible for giving Plaintiff his work assignments at the Library of Congress. (Motion, Exh. 2 (Hess Deposition Transcript) at 20-25; Exh. 3 (Ursula Homes Affidavit) at ¶¶3-4; Exh. 7 at ¶6.)

In mid-December 2005, Holmes indicated to Progressive that Plaintiff should be terminated for poor work performance. (Exh. 3 at ¶¶7-10.) Holmes communicated her decision to Hess orally in December 2005, and via electronic mail on December 29, 2005. (Exh. 2 at 5, 24; Exh. 3 at ¶¶9-10; see also amended copy of e-mail [3A] attached as Exhibit 7B.) In her correspondence with Hess, Holmes also expressed dissatisfaction and performance concerns about certain other contractual employees of Progressive and at least one of these employees was under the age of 40. (Exh. 2 at 38-40; Exh. 3 at ¶12; Exh. 7 at ¶11; Exh. 7B.) In contrast, Holmes praised the performance of certain employees, at least one of whom was approximately 50 years of age. (Exh. 7 at ¶11; Exh. 7B.) Plaintiff's employment was subsequently terminated by Sheila Hess, on behalf of Progressive, on or about January 4, 2006. (Exh. 1 at 50-51; Exh. 2 at 32-34.) On June 14, 2006, Plaintiff filed his Complaint alleging age discrimination, noting that the EEOC issued a Dismissal and Notice of Rights on March 30, 2006.

Defendant filed the instant Motion for Summary Judgment on October 9, 2007, alleging that Plaintiff cannot establish a claim for age discrimination because "plaintiff has no admissible evidence whatsoever that his termination from the employment of defendant [Progressive] was [based on] illegal discrimination because of his age." (Memorandum of Points and Authorities in support of Motion ("Points and Authorities") at 5).

II. Legal Standard

A. Summary Judgment Standard

Pursuant to Fed. R. Civ. P. 56(c), a court should grant summary judgment if "the pleadings, depositions, answers to interrogatories and admissions . . ., together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). 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 v. Liberty Lobby, 477 U.S. 242, 255 (1986). Although a court should draw all reasonable inferences from the records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. See Anderson, 477 U.S. at 248.

The nonmoving party must demonstrate specific facts in the record which create a genuine issue as to a material fact to oppose the motion for summary judgment. To be genuine, the issue must be supported by sufficiently admissible evidence such that a reasonable trier of fact could find for the nonmoving party; to be material, the factual assertion must be capable of affecting the substantive outcome of the litigation. See Anderson, 477 U.S. at 248; see also Laningham v. U.S. Navy, 813 F. 2d 1236, 1242-43 (D.C. Cir. 1987).

Mere allegations or denials in the adverse party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment. The nonmoving party must establish more than "the mere existence of a scintilla of evidence" to support its position. Anderson at 252. The moving party may defeat summary judgment through factual representations made in a sworn affidavit if he can provide "direct testimonial evidence," Arrington v. United States, 473 F.3d 329, 338 (D.C. Cir. 2006) or "support his allegations . . . with facts in the record," Greene v. Dalton, 164 F.3d 671, 674 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). The ...

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