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Lipscomb v. Winter

September 18, 2008

MICHAEL A. LIPSCOMB, PLAINTIFF,
v.
DONALD C. WINTER, SECRETARY OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Michael Lipscomb, a housing manager employed by the Department of the Navy, brings this action against the Secretary of the Navy ("Navy" or agency), alleging that the Navy has refused for years to approve a career ladder promotion from GS-9 to GS-11 and, in other respects, has treated him unfairly. He brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., contending that he is the victim of race and gender discrimination and a hostile work environment. Lipscomb and the Navy have submitted cross-motions for summary judgment on all claims. Lipscomb also has submitted an affidavit pursuant to Fed. R. Civ. P. 56(f) contending that the Navy's motion should be denied because of his need for additional discovery on certain issues, and to that end, he has filed a second motion to compel discovery as well. For the reasons explained below, the Court will grant summary judgment in favor of the Navy on all claims.

BACKGROUND*fn1

Lipscomb, an African American male, has served as a housing manager with the Navy since 1992, starting out as a GS-7 in a career ladder position with promotion potential to GS-11. Lipscomb Depo. at 14-15. He began his service at the Washington Navy Yard in 1995 as a housing manager in the Family Housing Department "Flag Housing" Division, where he was responsible for the maintenance, upkeep, and repair of the homes occupied by "flag officers" --that is, top Navy and Marine Corps officials including admirals and generals. Id. at 18; ROI at 183, 186. By all accounts, he performed successfully during his first two years in Flag Housing. In June 1996, he received a noncompetitive promotion to GS-9. See Def.'s Ex. 8 & 9. His performance appraisals from 1996 and early 1997 rated him "Level 4/Exceeds Fully Successful" (the second highest of five ratings) and praised him as a "responsible, hard-working employee who always gets the job done." ROI at 175, 179, 183.

In October 1997, Lt. Brett Blanton -- Lipscomb's first-level supervisor -- gave him the highest rating available -- "Level 5/Outstanding" -- and recommended him for promotion to GS-11. ROI at 181. This time, however, the promotion was denied. Lipscomb Depo. at 39. Lipscomb's second-level supervisor, Lt. Commander Jim Wink, told Lipscomb soon thereafter that he did not have sufficient training to be promoted and also cited a complaint by a rear admiral (Mobley) alleging that Lipscomb had made an error in a projected budget. Id. at 38-43. Lipscomb believed that he had obtained the necessary training and that he was not at fault for the budget error,*fn2 but did not seek EEO counseling in the months thereafter. Id. at 44-46.

In December 1997, Glenda Brown -- a Caucasian woman -- replaced Blanton as Lipscomb's first-level supervisor. Affidavit of Glenda Brown at 1 (Def.'s Ex. 11) ("Brown Affidavit"). A month or two later, she submitted paperwork for Lipscomb's promotion to GS-11 but was informed that the rear admiral -- this time, Rear Admiral Ellis -- would not approve the promotion because he considered Lipscomb "incompeten[t]" and had barred Lipscomb from his quarters. Id.

A few months later, in March 1998, Lipscomb's performance appraisal was due, and Brown and the new second-level supervisor, Lieutenant Commander Andrew Trotta, gave him a Level 4 rating of "Exceeds Fully Successful." Def.'s Ex. 12. She also "routinely resubmitted" the GS-11 promotion paperwork that month. Brown Affidavit at 2; Lipscomb Depo. at 67. However, by August 1998, she observed that Lipscomb had begun falling behind in his work and seemed inattentive, as reflected in a journal that she kept on employee performance. Second Brown Affidavit ¶¶ 5, 7 & ROI at 211 (Def.'s Reply Ex. A).*fn3 When Lipscomb inquired about his promotion in October 1998, he was told it had not been approved. Id. ¶ 3. In the months thereafter, Brown noted that his timely completion of work continued to be a problem and observed that poor planning was a contributing factor. Id. ¶ 5 & ROI at 212. She also noted that a Flag Housing resident had complained that Lipscomb had entered the resident's home without permission; in response, she cautioned Lipscomb not to enter a home without permission, though noting that he had "the best intentions." Id. By December 1998, Brown had begun discussions with her supervisor on whether Lipscomb should be downgraded to a GS-7 or transferred to a different department because of her doubts about his ability to perform at the GS-9 level. Id. ¶ 6.

Lipscomb's situation at work worsened in early 1999 due to a confluence of events -- a disappointing performance review, a charge of sexual harassment, and an allegation of telephone abuse, all within a period of a few weeks. Brown gave him his annual performance review on March 5, 1999, for the period running from April 1998 to February 1999. Def.'s Ex. 14. Lipscomb received a rating of "Acceptable" under a new two-tier system ("Acceptable" or "Unacceptable"),*fn4 but accompanying written comments indicated that his performance was only borderline acceptable:

Mr. Lipscomb excels in areas of attitude, politeness, and internal working relations. However, the employee has been generally distracted most of the rating cycle and is obviously struggling. His performance is at the bare minimum level for acceptance. A written complaint was received relative to the employee's performance from a customer. Employee is failing to complete simple tasks in all elements. Mr. Lipscomb's performance will be closely monitored over the next 60 days and re-evaluated.

Id. Brown's performance log and other documents indicate that the customer complaint at issue concerned a complaint from Vice Admiral Fargo's residence that Lipscomb "was not inspecting the work he ordered and was making appointments with the resident and staff and then not coming, not following through, etc." Def.'s Ex. 13 at 1; Pl.'s EEO Mem. at 1-2. In Mrs. Fargo's words, Lipscomb "is not Flag Housing material" -- a label Lipscomb found highly demeaning. Id. In his view, Brown was quick to agree, even though the charges were unfounded. Pl.'s EEO Mem. at 2. He explained to Brown that the problems cited by the customer were caused by government and outside contractors who provide an unreliable window of time their services, instead of a set time. Id. In response, Brown decided to subject him to a 60-day evaluation period. Id.

Within a few days of his performance appraisal, a potential sexual harassment charge against Lipscomb came to light. On or about March 4, 1999, Lipscomb had met with Denise Arthur -- a mess steward responsible for the residence of Vice Admiral and Mrs. Nelson -- to provide assistance with a washing machine problem at the Nelson residence. See Pl.'s EEO Mem. at 2; Def.'s Ex. 16, at 1.*fn5 During the course of the meeting, the subject of their children and family planning arose. Pl.'s EEO Mem. at 2; Def.'s Ex. 16 at 1. Their accounts of the conversation differ significantly. According to Arthur, Lipscomb raised the subject of his vasectomy, stating that "it did not work" and "some young women told him to go and have lots of sex to get the sperm out." Def.'s Ex. 16, at 1. He also asked her what form of birth control she used and asked her for information about other birth control methods. Id. She avoided speaking but, at some point in the conversation, told him to talk to his wife, doctor, or Planned Parenthood and that she could not help him. Id. She tried to stop the conversation and lead him to the door, but did not voice her discomfort. Id. at 2.

According to Lipscomb, it was Denise Arthur who raised the subject of birth control in response to his comment that having children was expensive. Pl.'s EEO Mem. at 2. Arthur also was the one who suggested a vasectomy as a method he should consider. Id. Furthermore, she never told him that she was uncomfortable with the conversation. Id.

The incident soon came to the attention of Trotta, Lipscomb's second-level supervisor.*fn6 Pl.'s EEO Mem. at 2. Trotta called Lipscomb into his office on March 19, 1999 to discuss a potential sexual harassment charge after he had interviewed Arthur earlier that day. Id. Trotta asked Lipscomb to provide a written statement describing the substance of his conversation with Arthur; Lipscomb did not initially do so because of concern about what his rights were, but subsequently provided a statement dated April 1, 1999. Id.; Def.'s Ex. 17. While the investigation was pending, Lipscomb was ordered to have no contact with customers, primarily because Nelson was a direct customer. Brown Affidavit at 3. Ultimately, Lipscomb was not disciplined, although Brown and Trotta believed he should have been. Id. at 4 ("I do not know why [Lipscomb] was not disciplined . . . (I did participate in meetings with personnel concerning disciplining [him]); subsequently, LCDR Trotta told me that [Lipscomb] was 'the luckiest guy in the world.'"). At a meeting held on March 29, 1999, attended by Trotta, Brown, and Lipscomb, Trotta informed Lipscomb that he would be reassigned within the Family Housing Office, from Flag Housing to Customer Referral; Teasha Thompson from Customer Referral, in turn, would be switched to Flag Housing to cover Lipscomb's duties. Def.'s Ex. 17; Brown Affidavit at 3;*fn7 Lipscomb Depo. at 53-54. According to Brown's performance log, the reassignment was considered necessary because Lipscomb's "relationship with the customer [Vice Admiral Nelson] has deteriorated to the point he is ineffective in his current position." Def.'s Ex. 13 at 4.

Around the same time, an office-wide internal audit revealed that several employees in Flag Housing, including Lipscomb, Trotta, and three other persons, had made excessive use of their government phones for personal calls. See Brown Affidavit at 2; see also Def.'s Ex. 15 (noting that the audit was conducted by the Navy Audit Service and Navy Criminal Investigative Service). On March 16, 1999, Brown notified Lipscomb that the office considered his use of the office landline and cell phones excessive, noting in particular that he had made 307 landline calls in 20 working days, which was beyond the amount of all other employees in Flag Housing and far beyond the number of calls necessary to do his job.*fn8 Pl.'s EEO Mem. at 1. By Lipscomb's own account, "there were perhaps more calls than there needed to be," including calls to and from his prayer group on a regular basis that typically lasted 10 to 15 minutes each; thus, he did not object to repaying for any personal use. Lipscomb Depo. at 93, 133-35. But he felt that "how they came at [him]" with the telephone abuse charge was discriminatory. Id. at 94.

On March 31, 1999, Lipscomb contacted EEO counselor Loretta Johnson. See Def.'s Ex. 1. In a memorandum to Johnson dated April 21, 1999, he alleged that "since October 1997, I have been subjected to a pattern of continuous and on-going disparate treatment" on the basis of race and gender,*fn9 and enumerated the following claims:

A. Abusing Telephone Usage

B. Labeled As Being Inadequate for My Job

C. Alleged Matter that Occurred on or About March 4, 1999

D. Denial of Promotion

Pl.'s EEO Mem. at 1-3. Lipscomb provided a detailed factual summary in support of each claim that largely reflects the foregoing account of events involving the sexual harassment charge, his telephone abuse charge, the criticisms of his performance, and the events surrounding his nonpromotion "in October 1997 and October 1998." Id. He concluded with a request for relief that he be promoted to GS-11 with back pay "from October 1997 to present," and reassignment out of the "Family Housing Department Series" of positions. Id. at 3-4. He filed his formal EEO complaint on June 22, 1999, which in turn relied entirely on his April 21, 1999 memorandum to Johnson as setting forth the EEO claims. Def.'s Ex. 3. The Navy issued a "notice of acceptance" of complaint on December 13, 1999, identifying the accepted claims as "continuous and ongoing harassment by management officials beginning March 4, 1999," and discriminatory nonpromotion, but erroneously referring to the date of the nonpromotion as the date of Lipscomb's EEO memorandum -- April 21, 1999. See Def.'s Ex. 20.

While the EEO complaint was pending, Brown proceeded in November 1999 to authorize a temporary 90-day "career ladder" promotion for Lipscomb to the GS-11 level. See Brown Affidavit at 2. However, Pamela Curry, an African-American female who supervised him during that period, rated his performance as "unacceptable," and he was returned to the GS-9 level.

Def.'s Ex. 6 at 4-5. Curry provided the following written comments in the performance appraisal covering that period:

Michael was not meeting most of his work assignments in a timely manner and he was not requesting for additional time. Michael was not briefing me on status or problems. Michael is very unorganized which was making him unable to accomplish his work assignments. I informed Michael I would be working closely (micro-managing) him to ensure that the taskings were getting accomplished. I also explained to him he needed to work on his organization and management skills. I did explain to Michael I was disappointed in his performance since the temporary promotion to the GS-11 level. Michael has a lot of work to accomplish in order to develop his management, organization and leadership skills at the GS-11 level. Michael needs to accomplish working more independently without so much supervision. His leadership skill need[s] to increase so the lower grades will feel confident in requesting his assistance and ensure their confidence when he is left in the leadership role.

Def.'s Ex. 6. at 4-5.

Four other people in the Housing office were promoted to GS-11 positions in this general timeframe -- 1997 to 2000 -- each through a competitive merit promotion process (in contrast to career ladder promotions). See Def.'s Second Supplemental Response to Pl.'s Interrogatories at 2-4. All were women; two of the four were Caucasian (Floramae "Teasha" Thompson, Kelly Sieber), and two were African American (Cheryl Thompson and Pamela Driggers). Id. Lipscomb focused on the promotion of Teasha Thompson as the most troubling because, in his view, he had been responsible for training her, yet she was eventually promoted above him to do the same job he had once performed. Lipscomb Depo. at 195, 238; ROI at 153. She was selected over three other candidates in a competitive process effective July 16, 2000; Lipscomb was not one of the applicants. See Def.'s Second Supplemental Response to Pl.'s Interrogatories at 2; ROI at 153 (identifying the other three candidates as Leroy Ferguson, Kelly Sieber, and Cheryl Thompson).

Lipscomb's 1999 EEO complaint ultimately was unsuccessful. In 2005, an EEOC administrative judge entered summary judgment for the Navy, holding that Lipscomb had failed to rebut the Navy's articulated non-discriminatory reasons for its actions. See Compl., Ex. A. That decision was affirmed by the EEOC Office of Federal Operations on October 17, 2007. Id., Ex. C.

Lipscomb then filed this lawsuit seeking promotion to GS-11, backpay starting from October 1997, and $300,000 in compensatory damages. Complaint ¶¶ 15, 20, 26. Count One alleges race discrimination in violation of Title VII, and lists four actions as being discriminatory: (1) the criticisms of his telephone usage, (2) his nonpromotion, including the criticisms of his performance that reportedly justified nonpromotion; (3) the sexual harassment investigation and accompanying reassignment, and (4) the promotion of "a female he trained" --elsewhere identified as Teasha Thompson -- to a GS-11 position instead of himself. Compl. ¶¶ 11-15. Count Two alleges gender discrimination in violation of Title VII, and appears to focus on three actions as being discriminatory: (1) the customer criticism of him as "not Flag Housing material"; (2) the sexual harassment investigation and accompanying reassignment; and (3) the failure to promote him to GS-11. Id. ¶¶ 16-20. Count Three alleges a hostile work environment based on the sexual harassment investigation, the series of criticisms of his performance and telephone usage, and his nonpromotion. Id. ¶¶ 21-25.

STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.

DISCUSSION

I. ...


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