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Walker v. England

December 15, 2008


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiff Sidney L. Walker ("Walker"), an African-American male who was formerly employed at the Navy Public Works Center ("NPWC") in Washington, D.C., filed this suit against Defendant Gordon R. England in his official capacity as Secretary of the Navy, alleging various claims of employment discrimination and retaliation in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This is not the first suit between these parties. In the course of his employment at NPWC, Walker filed numerous administrative complaints and three prior lawsuits alleging various discriminatory employment actions, all of which were settled by the parties in May 2000. The instant lawsuit involves claims arising after the parties' settlement.

Following the Court's Order and Memorandum Opinion granting in part and denying in part Defendant's Motion to Dismiss in this case, four claims remain: (1) discrimination and retaliation based on Walker's non-selection for a Mechanical Engineering Technician position; (2) retaliation based on Walker's supervisors having denied him overtime work; (3) retaliation based on the rejection of Walker's application to a Leadership Development Initiative Program; and (4) retaliation based on Walker's non-selection for an Electronic Industrial Controls Mechanic Supervisor position.*fn1 Defendant has filed a [54] Motion for Summary Judgment on the four remaining claims, which Walker has opposed.

After thoroughly reviewing all of the parties' submissions, including the attachments thereto, applicable case law and statutory authority, and the entire record of the case as a whole, the Court shall GRANT-IN-PART Defendant's Motion for Summary Judgment as to Walker's retaliation claims based on the Leadership Development Initiative Program and non-selection for an Electronic Industrial Controls Mechanic Supervisor position (claims 3 and 4 above), and DENY-IN-PART Defendant's Motion for Summary Judgment as to Walker's discrimination and retaliation claim based on his non-selection for a Mechanical Engineering Technician position and retaliation claim based on Walker's supervisors having denied him overtime work (claims 1 and 2 above), for the reasons that follow.


A. Factual Background

Walker began his employment with NPWC in 1991.*fn2 Pl.'s Stmt. ¶ 2(a). He filed his first EEO complaint against Defendant in 1993, alleging that he was not selected for two positions to which he had applied because of racial discrimination.*fn3 Id. ¶ 2(b). These allegations were heard by an Administrative Law Judge who, in 1995, determined that Defendant had racially discriminated against Walker by not selecting him for one of the two positions. Id. ¶ 2(c). On December 22, 1995, the Deputy Assistant Secretary of the Navy issued a final agency decision accepting the conclusions of the Administrative Law Judge and agreeing to certain "make whole" relief that included a promotion to a position that was substantially similar to the one that Walker was discriminatorily denied. Id. ¶ 2(d); Pl.'s Opp'n, Ex. 4 at 2 (12/22/95 Letter from D. Meletike to S. Walker).

Defendant failed to place Walker in a substantially similar position and took other actions that Walker alleged were discriminatory and retaliatory. Pl.'s Stmt. ¶¶ 2(e), 2(f). These actions led Walker to file three separate lawsuits in this Court. Id. ¶ 2(g). On September 10, 1998, Judge Harold H. Greene held a hearing and issued an order finding that "the Secretary has failed to promote Mr. Walker to a position that is substantially similar to the position he was denied [and] the Secretary has failed to remedy the Navy's discrimination against Mr. Walker." Pl.'s Opp'n, Ex. 5 at 1-2 (9/10/98 Order). Judge Greene ordered the Commanding Officer of NPWC to place Walker "in an employment position that is substantially similar to the Maintenance Supervisor position as it existed at the time of the discrimination," and further ordered the Secretary to "provide [the] Court with the name of the Commanding Officer responsible for implementing and ensuring compliance with this Order." Id. at 2.

Judge Greene's hearing and order gave rise to an article in the Washington Post titled "Navy Accused of Not Obeying Federal Order." Pl.'s Opp'n, Ex. 6 at 1 (12/11/98 Washington Post Article). The article featured a picture of Walker and a description of how Judge Greene "excoriated the Navy for failing to follow [the] Equal Employment Opportunities Commission order to give [Walker] a job equal to the one that he was illegally denied in 1993." Id. The article also described how Judge Greene "denounced the agency's behavior as 'an outrage,'" and how he "demanded that the Navy provide him with the name of the officer responsible for implementing the EEOC order 'so [he] know[s] whom to put in jail.'" Id. After subsequent court proceedings related to Walker's lawsuits, the parties reached a court-approved monetary settlement on May 12, 2000. Id. ¶ 12(i).

Walker's discrimination complaints against Defendant became known to many of the persons employed at NPWC, in large measure because of the Washington Post article describing Judge Green's hearing and order. Id. ¶ 12(j). All twelve individuals working at NPWC who were deposed by Walker in this case testified that they had knowledge of Walker's complaints against Defendant or the Washington Post article, or both. Id. Several of the persons employed in the NPWC Maintenance Department even submitted declarations stating that Walker's discrimination complaints against Defendant were "a matter of common knowledge in the workplace." Pl.'s Opp'n, Ex. 10, ¶ 6 (Decl. of B. Pickens); id., Ex. 11 ¶ 4 (Decl. of B. Chase) (same); id., Ex. 12 ¶ 4 (Decl. of F. Young) (same).

Against this backdrop, the Court sets forth the specific facts pertaining to each of Walker's four remaining claims.

1. Non-Selection for Mechanical Engineering Technician Position

On May 8, 2001, Theron Houston, the Supervisory General Engineer, and John Verde, the Chief Engineer, approved a position description for a GS-11 Mechanical Engineering Technician position. Def.'s Stmt. ¶ 3; Pl.'s Resp. Stmt. ¶ 3; Def.'s Mot., Ex. 12 at 113 (5/8/01 Position Description). Because a lengthy description of the duties, responsibilities, and knowledge required for a GS-12 Mechanical Engineering Technician position already existed, Houston and Verde created a "Statement of Differences" to accompany the position description, explaining that the GS-11 position was "similar" to the GS-12 position but "requires more supervision and guidance" because it is a "training position." Def.'s Stmt. ¶ 3 n.1; Pl.'s Resp. Stmt. ¶ 3; Def.'s Mot., Ex. 12 at 114 (Statement of Differences).

Verde acted as the selecting official for the new position, and he designated David Capozzoli, the Assistant Deputy Chief Engineer, as the evaluating official. Def.'s Stmt. ¶ 6. In the course of advertising the position and selecting applicants, Capozzoli and Verde decided to hire two applicants for the position at either the GS-11 or GS-12 level, or one of each. See Def.'s Mot., Ex. 6 at 18:6 - 18:9 (Depo. Tr. of D. Capozzoli) ("Q: . . . How many positions were [g]oing to be filled with this? A: We actually had enough work to justify two positions."); id. at 19:5 -19:10 ("Q: Was there a decision made prior to the selection about whether the positions were going to be filled by like two GS-11s or two GS-12s or one of each or did it just depend on the qualifications? A: It just depended on the qualifications.").

On May 29, 2001, NPWC posted the vacancy announcement, titled "Mechanical Engineering Technician (HVAC)." Def.'s Stmt. ¶ 7. The vacancy announcement described the duties of the position, including (among others) the ability to monitor and control "Heating and Air Conditioning and Ventilation systems" (i.e., HVAC) and supervising and tracking "HVAC preventative maintenance checks." Def.'s Mot., Ex. 12 at 123 (5/29/01 Vacancy Announcement). According to the vacancy announcement, applicants would be ranked according to their knowledge, skills, and abilities corresponding to the following six evaluation criteria:

1. Knowledge of HVAC systems with direct digital control technology as used on military installations

2. Ability to manage two or more HVAC projects simultaneously

3. Knowledge of engineering contract administration

4. Knowledge of construction material and cost estimating practice

5. Knowledge of specification writing practices

6. Ability to communicate orally and in writing at all levels Id.

Walker applied for the Mechanical Engineer Technician Position along with six other individuals. Def.'s Stmt. ¶ 9. All but one person were deemed eligible for the position. Id. Capozolli reviewed the eligible candidates using a crediting plan, assigning each applicant between one and four points for each of the six evaluation criteria (the higher the point total, the more qualified the candidate). Id. ¶ 10. See also Def.'s Mot., Ex. 12 at 237-49 (Mechanical Engineering Technician Crediting Plan). Three applicants, including William Schank, tied for the highest score of 18 points. Def.'s Mot., Ex. 12 at 250 (7/10/01 Scoring Sheet). George Altenbach had next highest score with 16 points. Id. Ross Fife received 15 points and Walker received 13 points.*fn4 Id. Capozolli recommended to Verde that he select Schank as a GS-12 technician, see Pl.'s Opp'n, Ex. 33 at 1 (8/28/01 GS-12 Ranking Sheet), and select Altenbach as a GS-11 technician, id., Ex. 32 at 1 (8/28/01 GS-11 Scoring Sheet). Def.'s Stmt. ¶¶ 34, 36. Verde agreed with Capozzoli's recommendations and selected Altenbach and Schank, two white males, for the two available positions.*fn5 Id. ¶ 39.

As part of his evaluation process, Capozolli spoke with each of the applicants by phone or in person. Def.'s Mot., Ex. 6 at 45:14 - 46:5 (Depo. Tr. of D. Capozolli) (". . . I remember evaluating the resumes and making phone calls . . . I don't know if the phone calls are really interviews or if they were just trying to get some questions to answer some of the things that weren't kind of clear on the resumes"); id at 51:1 - 51:13 ("since I knew [some of] them I might have talked to them personally, like had a face-to-face interview with them . . . I think I talked to two on the phone and one came by or one on the phone and two came by, I can't remember. But they were in and out during that period while we were interviewing, I do remember that"). Defendant's Merit Promotion Procedures Manual authorizes a selecting official, such as Capozolli, to "interview none, any, or all of the certified candidates[,] but equity should be observed." Pl.'s Opp'n, Ex. 25 at 24 (12/28/93 Merit Promotion Procedures Manual). The facts and circumstances associated with Capozolli's interviews are a source of substantial dispute between the parties.

Capozolli claims that he interviewed Walker by phone. Pl.'s Opp'n, Ex. 17 at 49:5 -49:12 (Depo. Tr. of Capozolli) ("Q: When you say you called the applicants to ask them questions for clarification, did you ask Mr. Walker any questions . . . A: I can't remember. I'm sure I asked him questions, I talked to him. I asked him questions about his resume, but I can't honestly recall what conversation we had"). Walker denies that Capozolli ever interviewed him:

I received a call about the position from David Capozolli who asked if I was still interested in the position and said that I had an impressive resume and he would be calling me back. However, there was never any substantive discussion or return call. I was never interviewed in person or over the telephone by Capozolli.

See Pl.'s Opp'n, Ex. 1 ¶ 15 (Affid. of S. Walker). Capozolli possesses no recollection of what he believes he may have discussed with Walker. See Pl.'s Opp'n, Ex. 17 at 67:15 - 67:18 ("Q: So sitting here now you can't remember what you may have asked Sidney Walker about his application? A: No. I can't remember that.").

Beyond their threshold dispute as to whether Capozolli interviewed Walker, there is conflicting evidence in the record concerning the significance of the interviews. Capozolli testified that he might have ranked the candidates before interviewing them. Id. at 46:1 - 46: 5 (Depo. Tr. of D. Capozolli) ("I can't remember if I ranked them and then called them or called them and then sat down and went through the resumes and ranked them."). There is other evidence in the record, however, suggesting that Capozolli took the interviews into account during his evaluation of the applicants. In particular, the sixth evaluation criteria required evaluation of a candidate's ability to communicate orally. See Def.'s Mot., Ex. 12 at 123 (5/29/01 Vacancy Announcement). Capozolli awarded Schank and Altenbach 3 points each for criteria six because they "spoke clearly during [their] telephone conversation[s]." Id., Ex. 16 ¶¶ 6, 7 (Decl. of D. Capozolli). With respect to Walker's communication abilities, Capozolli awarded Walker 2 points because he "didn't speak very clearly" and was "just kind of hard to understand." Id., Ex. 6 at 96:3 - 96:9 (Depo. Tr. of D. Capozzoli). Capozolli also recalls that he "had to ask [Walker] to repeat his statements several times," even though he testified that he has no recollection of what he and Walker discussed, including (apparently) the statements that were allegedly repeated several times. Id., Ex. 16 ¶ 9 (Decl. of D. Capozolli).

Capozolli also testified that his conversations with the applicants were not really interviews because they were simply his way of clarifying aspects of their resumes and applications. See Pl.'s Opp'n, Ex. 17 at 45:18 - 45:21 (Depo. Tr. of Capozzoli) ("I don't know if the phone calls are really interviews or if they were just trying to get some questions to answer some of the things that weren't kind of clear on the resumes"). There is substantial evidence in the record, however, that such clarifications (or lack thereof) were material to Capozolli's scoring. For example, Capozolli conceded that Walker's application "contained some well-written narratives regarding his experiences," but he also stated that portions of Walker's application were unclear. See, e.g., Def.'s Mot., Ex. 16 ¶ 9 (Decl. of D. Capozolli) ("a significant portion of [Walker's] application consisted of long lists or [sic] experiences and he did not provide any detail our [sic] explain how they applied to the position"). This lack of clarity apparently affected Capozolli's scoring of the first and second evaluation criteria (relating to knowledge of HVAC systems and the ability to manage two or more HVAC projects simultaneously). See Def.'s Mot., Ex. 12 at 123 (5/29/01 Vacancy Announcement). Altenbach received scores of 4 and 3 on criteria one and two, respectively, whereas Walker received scores of 2 and 2, respectively. See Pl.'s Opp'n, Ex. 31 (7/10/01 Scoring Sheet).*fn6 Walker asserts that he should have received higher scores for these two evaluation criteria because his application contained a lengthy list of HVAC equipment and controls about which he was knowledgeable, and the fact that he supervised a multi-trade department, including six HVAC mechanics, as a Maintenance Supervisor for the NPWC and worked with heating and ventilation systems for the Army Corps of Engineers.

Pl.'s Stmt. ¶ 1(j). Defendant asserts that Walker's description of his HVAC-related knowledge and experience was not clear from his resume. See Def.'s Resp. Stmt. ¶ 1(j). Even if Capozolli's interviews were meant only to clarify the qualifications of the applicants, an alleged failure to interview Walker may have had a substantial effect on his HVAC-related scores.

The Court also notes that Defendant's explanation for why Walker's application was unclear is also subject to dispute. Defendant asserts that Walker's application contained "grammatical errors" (which it does not identify) and "the description of his knowledge, skills, and abilities did not correspond to the evaluation factors in the vacancy announcement." Def.'s Stmt. ¶ 32. Walker disputes that his application contained any more grammatical errors than any of the other applications for the position. See Pl.'s Resp. Stmt. ¶ 32. Walker also disputes that the organization of his application was problematic because Schank's application was not organized to correspond to the six evaluation criteria, and Schank tied two others for the highest score. Id. Paradoxically, Capozolli described Schank's application as "very organized." Def.'s Mot., Ex. 16 ¶ 7 (Decl. of D. Capozolli). Moreover, Walker explains that "there is no requirement that an applicant address each of the [evaluation criteria] . . . individually," a point that Defendant does not dispute. See Pl.'s Resp. Stmt. ¶ 32.

In terms of Capozolli's knowledge of the applicants, he claimed that he did not know Walker's race during the evaluation process. Id., Ex. 12 at 89 (EEO Decl. of D. Capozolli). There is substantial evidence to the contrary. During Capozolli's deposition in this case, he testified that when he spoke to Walker on the telephone he "could tell from his [Walker's] voice that he was a black guy." Id., Ex. 17 at 54:13 - 54:15 (Decl. of D. Capozolli). Capozolli also acknowledged reading the 1998 Washington Post article that described Walker's allegations of race discrimination, even though he denied recalling the picture of Walker in the article. See Pl.'s Opp'n, Ex. 17 at 38:3 - 38:15 (". . . I seem to recall an article, I don't seem to recall a picture in the article. Whether I read it kind of like this [a printed copy], as an e-mail or whether I just picked up the paper and read it, I can't even remember anymore").*fn7

Finally, the Court notes that the parties' briefs focus on two other factual disputes that, unlike the ones above, are not material to disposition of Defendant's Motion for Summary Judgment. First, Walker repeatedly emphasizes that Capozolli's focus on HVAC knowledge when ranking the candidates was inappropriate because the Statement of Differences did not mention HVAC knowledge and the position description for the GS-12 technician position did not specifically reference knowledge of HVAC systems in its "knowledge required" section. See, e.g., Pl.'s Resp. Stmt. ¶ 10. Walker's emphasis on this narrow point is misleading. There is no dispute that HVAC knowledge was identified in the "major duties and responsibilities" portion of the GS-12 position description. See Def.'s Mot., Ex. 12 at 116-121 (GS-12 Mechanical Engineer Technician Position Description) (explaining that the position requires the employee to "[m]onitor[] and control[] Hearing and Air Conditioning and Ventilation (HVAC) systems utilizing direct digital control technology"). There is similarly no dispute that the vacancy announcement emphasized that HVAC knowledge was required for the position by (1) titling the position "Mechanical Engineering Technician (HVAC)," (2) describing HVAC activities in the "duties of this position" section, and (3) explaining that two of the six criteria as to which applicants would be ranked would pertain to their knowledge and abilities related to HVAC systems and projects. Id. at 123 (5/29/01 Vacancy Announcement). Thus, consideration of HVAC knowledge was fully disclosed to putative applicants as an appropriate area of evaluation.*fn8

Second, Walker argues that Capozolli improperly selected Schank as a "non-competitive eligible" candidate, see Pl.'s Opp'n, Ex. 33 (8/21/01 GS-12 Ranking Sheet), a designation that allows an evaluator to select a candidate for one of several reasons that fall outside the ordinary merit promotion plan process. See 5 C.F.R. § 335.103. Walker claims that Schank's designation as a non-competitive eligible was in error because "he did not qualify as a non-competitive candidate under the requirements of [D]efendant's Merit Promotion Program and OPM regulations." Pl.'s Stmt. ¶ 1(g) (citations omitted). Walker's assertion is both immaterial and unfounded. Schank was ranked along with all of the other candidates and received a total of 18 points. Thus, whether he was selected as a competitive or non-competitive eligible candidate is immaterial to whether he was properly selected instead of Walker, as it would have been appropriate to select him ahead of Walker in either scenario. Furthermore, Walker's assertion is based on a report prepared by David C. Knudsen, a personnel management consultant, who reviewed the scoring sheets used by Capozolli and concluded that Schank should not have been considered a non-competitive candidate because his application did not show experience at the "grade 12 level," citing 5 C.F.R. 335.103. See Pl.'s Opp'n, Ex. 26 at 1 (3/9/05 Statement of Opinions). Knudsen failed to consider (or even identify) Schank's experience, listed in his application, at the WS-12 level (while working as a Project Test Director at the Philadelphia Naval Shipyard) and WG-13 level (while working as a Mechanical Inspector at the same location). See Def.'s Mot., Ex. 12 at 141, 143 (W. Schank Application). Knudsen provides no explanation for why this experience would not allow Capozolli to appropriately designate Schank as a non-competitive eligible candidate under 5 C.F.R. 335.103.*fn9

2. Overtime

Employees at NPWC earn overtime pay for overtime work. Def.'s Stmt. ¶ 49. NPWC's overtime policy instructs that overtime must be "limited to urgent customer readiness, emergencies, safeguarding life and property, and an incidence where savings can be clearly demonstrated by the use of overtime." Id. ¶ 50. The collective bargaining agreement with the Washington Area Metal Trades Council prohibits the assignment of overtime to supervisors for work normally performed by union members if those employees are available. Id. Although the parties agree that these policy instructions exist, they have vastly different views as to whether and to what extent these policies have been followed.

Walker's supervisors, Albert Loften and Joseph Compofelice, testified that approval of overtime for supervisors was not permitted unless their supervision was necessary "(1) for large projects, such as the 'Specifics' projects performed by Code 580; (2) it was required or justified by the customer; or (3) if the supervisor directly performed the work." Id. ¶ 51. Although Compofelice testified that Defendant was approved to work overtime on one large project, Defendant contends that Walker was generally not assigned overtime because "[o]n the whole, [Walker's] unit performed tasks that did not necessitate overtime for the supervisors." Def.'s Stmt. ¶¶ 52, 53. In particular, Defendant asserts that Walker's unit performed "emergency and service tickets" for small projects, and that "the Agency's customers would not authorize overtime for a supervisor's presence." Id. ¶ 53. In contrast, Defendant asserts that Code 580, a department that performed large projects, entailed a lot of supervisory overtime work. Id. ¶ 54.

Walker has a much different view. First, he notes that his overtime work had to be approved by his supervisors, Loften or Compofelice, Pl.'s Stmt. ¶ 4(a), and that Loften testified that he was unfamiliar with the NPWC overtime policy instruction cited above. See Pl.'s Opp'n, Ex. 14 at 42:6 - 42:22 (Depo. Tr. of A. Loften) ("Q: Do you recognize this [instruction?] A: Not really. Q: You've never seen this [instruction] before? A: I can't recall.").

Second, Walker explains that both Loften and Compofelice were outwardly hostile toward him and other African Americans in general. Defendant does not dispute that Loften told Walker, prior to a reduction in workforce that resulted in Walker's termination, that he was glad he wouldn't have to see Walker anymore, that Walker shouldn't have been a Maintenance Supervisor, that the only way he could get advances was through the court system, and that if it was up to Loften, Walker would be sent back to Mississippi.

Pl.'s Stmt. ¶ 2(k); Def.'s Resp. Stmt. ¶ 2(k) (stating only that Loften made these statements after he no longer was supervising Walker). Defendant also does not dispute that Compofelice maintained a notebook that he used to document Walker's use of leave (but no other employees), even though Walker never exceeded his annual leave. Id. ¶ 2(l); Def.'s Resp. Stmt. ¶ 2(l) (stating this fact is irrelevant and/or does not constitute an adverse employment action).

Walker also submitted declarations from other individuals who were employed in Walker's Maintenance Department who observed Loften and Compofelice's treatment of Walker. These employees stated that Loften and Compofelice would frequently give work assignments directly to Felix Mulder, a Work Leader who worked under Mr. Walker, rather than giving them to Mr. Walker to assign to his Work Leaders as should have been the case, and as was the practice with other supervisors.

Pl.'s Opp'n, Ex. 8 ¶ 9 (Decl. of L. Gray). See also id., Ex. 9 ¶ 7 (Decl. of C. Long) (same); Ex. 10 ¶ 7 (Decl. of B. Pickens) (same); id., Ex. 11 ¶ 8 (Decl. of B. Chase) (same); id., Ex. 12 ¶ 7 (Decl. of F. Young) (same). Similarly, Loften would give "performance evaluation forms directly to Mr. Walker's men instead of allowing Mr. Walker to meet with the men and give them their evaluations like the other supervisors did." Id., Ex. 9 ¶ 8 (Decl. of C. Long). Loften and Compofelice would speak to Walker "in a condescending tone like he was a child," id., Ex. 10 ¶ 6 (Decl. of C. Long), and "would frequently check on Mr. Walker's whereabouts and the progress of his jobs, much more than they did for the other supervisors." Id., Ex. 8 ¶ 8. They would also require "Walker to stay until the very end of the workday no matter how early he came in, while other supervisors were allowed to leave early." Id. Regarding overtime work, Colie Long, a Work Leader in the North Zone of the NPWC Maintenance Department, stated that "Walker's men worked lots of overtime, [but] Mr. Loften and Mr. Compofelice generally would not allow him to work overtime").

These employees also explained that Loften and Compofelice generally treated African American employees in the Maintenance Department differently than white employees:

I observed that black employees were disciplined for things that were ignored for white employees, and white employees were allowed to leave early, but not blacks . . . [and] Loften [made] derogatory comments about blacks even though he himself is black.

Id., Ex. 8 ¶ 7 (Decl. of L. Gray).

I observed that blacks were treated differently than whites. For example, white employees would stand around outside the building talking and smoking and not only was nothing said to them, but Mr. Loften or Mr. Compofelice would sometimes be with them. However, when blacks would do that, Mr. Loften or Mr. Compofelice would tell them to get back to work or they would call the supervisors of the black employees and tell them to get the black employees back to work.

Id., Ex. 9 ¶ 4 (Decl. of C. Long).

I observed that blacks were treated differently than whites. For example, black employees were disciplined for things that were ignored for white employees.

Blacks were told not to have chairs in the 'cages' where we kept our tools, but whites were allowed to have them.

Id., Ex. 11 ¶ 6 (Decl. of B. Chase).

I observed that blacks were treated differently than whites. For example, white employees would stand around outside the [sic] on the loading dock talking and smoking and not only was nothing said to them, but Joe Compofelice, the assistant to North Zone Manager Al Loften, would sometimes be out there smoking and talking with them. However, when blacks would do that, Mr. Compofelice would tell them to get back to work.

Id., Ex. 12 ¶ 6 (Decl. of F. Young).*fn10

With respect to Walker's overtime claim specifically, there is substantial evidence in the record that conflicts with the explanation for why Walker was not approved for more overtime by Loften and Compofelice. For example, as reflected above, Compofelice testified that he refused Walker's overtime requests because Compofelice did not believe it was appropriate for a supervisor to perform the work of his employees. See Pl.'s Opp'n, Ex. 13 at 32:2 - 32:6 (Depo. Tr. of J. Compofelice) ("I told Mr. Loften I didn't feel it was deem-able [sic] for a Supervisor to perform overtime when he had sufficient men to do the work."). Loften agreed with him. Id. at 32:5 - 32:6. According to the overtime records for the period between August 18, 2003 and May 18, 2005, however, Compofelice himself had 351 hours of overtime. Id. These overtime hours included activities such as "snow removal," "power wash planters," and "replacing light fixtures." Id. Two other maintenance supervisors, William Felix and Melvin Thomas, had 196 and 263 hours of overtime, respectively. Id. Defendant maintains that these other supervisors had different positions and responsibilities so they are not comparable to Walker. Def.'s Resp. Stmt. ΒΆ 4(c). Although Defendant also asserts that the collective bargaining agreement ...

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