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Short v. Chertoff

May 27, 2008


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 17




George Short, a former employee of the U.S. Department of Homeland Security, ("the plaintiff") brings suit for employment discrimination against Michael Chertoff ("the defendant") in his official capacity as Secretary thereof. In short, the plaintiff alleges that the defendant subjected him to a hostile work environment and discriminated against him based on his age, race and sex.*fn1 Specifically, he challenges his non-selection for a deployment to Buffalo, New York; disciplinary sanctions including records of infractions, a notice of proposed suspension, and a 30-day suspension; and harassment regarding the misplacement of his weapon and work and vehicle, denial of his requested leave, and missing work supplies. He claims that these acts were in violation of and in reprisal against his prior invocation of his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 623 et seq.; and the Equal Pay Act ("EPA"), 29 U.S.C. §§ 201 et seq. The defendant maintains that the plaintiff has failed to articulate a prima facie case on all of these claims; the defendant has also submitted nondiscriminatory reasons for each of its contested decisions. Because the court is discouraged from considering whether the plaintiff has put forth a prima facie case when litigation has progressed to summary judgment and the defendant has proffered a nondiscriminatory justification, the court only decides whether the plaintiff has produced sufficient evidence for a reasonable juror to conclude that the defendant's reasons are a pretext concealing unlawful discrimination. Because the plaintiff has not carried his burden of producing rebuttal evidence challenging the defendant's proffered reasons, the court grants summary judgment for the defendant.


No dispute of a material fact exists.*fn2 The plaintiff is a black male over the age of forty who formerly worked for the U.S. Department of Homeland Security ("the department"), which he claims discriminated against him on the basis of his race, sex and age.*fn3 Compl. ¶ 1. In Count 1 of his complaint charging discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the plaintiff alleges that he performed the duties of a sergeant without commensurate pay from 1995 until his discharge on February 25, 2005, and that on February 13, 2003 he learned that the Department temporarily promoted a younger, less qualified female corporal to sergeant without first opening the position to competition. Id. ¶ 8; Pl.'s Opp'n to Def.'s Mot. for Partial Dismiss ("Pl.'s Opp'n") at 2. More generally, Count 1 also alleges that the defendant discriminated against the plaintiff based on his race, sex and age by "subjecting him to constant harassment, work conditions which were humiliating and by forcing him to retire before he was ready to retire." Id. ¶ 7. Count 2 reiterates this allegation of unfair promotion under the rubric of an age discrimination claim governed by the ADEA. Compl. ¶¶ 9-11. Count 3 phrases the allegation as gender discrimination violating the EPA, for which the plaintiff seeks $500,000 in damages. Id. ¶¶ 12-15. The complaint concludes with a prayer for damages for "back pay, future pay, interest and all damages the plaintiff is entitled to." Id. ¶ 21.


A. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

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, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

The nonmoving party may defeat summary judgment through factual representations made in a sworn affidavit if he "support[s] his allegations . . . with facts in the record," Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993)), or provides "direct testimonial evidence," Arrington v. United States, 473 F.3d 329, 338 (D.C. Cir. 2006). Indeed, for the court to accept anything less "would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial." Greene, 164 F.3d at 675.

B. Legal Standard for Gender, Age and Race Discrimination

Generally, to prevail on a claim of discrimination under Title VII or the ADEA, a plaintiff must follow a three-part burden-shifting analysis known asthe McDonnell Douglas framework. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003). The Supreme Court explained the framework as follows:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection" . . . . Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination . . . .

The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff ...

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