The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Plaintiff Melvin Porter brings this action against his employer, the United States Agency for International Development ("Agency"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3(a), 16(a) (2000) ("Title VII"), alleging that the Agency engaged in discriminatory employment practices against him based upon his race and gender, as well as retaliatory employment practices based on his participation in protected activity, i.e., his 2001 lawsuit against the defendant for illegal employment practices under Title VII and related Equal Employment Opportunity ("EEO") activity. This matter is now before the Court on the defendant's motion for summary judgment, Defendant's Motion for Summary Judgment ("Def.'s Mot."), which the plaintiff opposes, Opposition of Plaintiff Melvin C. Porter to Defendant's Motion for Summary Judgment ("Pl.'s Opp'n").*fn1 For the following reasons, the Court must award summary judgment to the Agency.
Viewing the evidence in the light most favorable to the plaintiff, the facts underlying this lawsuit are the following.
The plaintiff, an African-American male, was employed in the Agency's Office of Human Resources from 1985 to 1995, until being transferred to the Agency's Bureau of Policy and Program Coordination where he was assigned when this case was filed. Second Amended Complaint ("Second Am. Compl.") ¶¶ 6, 8. The plaintiff joined the Agency in 1985 as a GS-13 grade level employee, and was elevated to the GS-14 grade level after two years; however, since 1987, his pay grade level has not been increased. Id. ¶ 8.
Since 1988, the plaintiff alleges that the Agency's acts of discrimination and retaliation have stymied his advancement. And, between 1988 and 1991, the plaintiff filed four EEO complaints alleging that the Agency committed various discriminatory and retaliatory acts against him based upon his race and gender, and in response to his complaints against the Agency. Id. ¶¶ 9-10. The Agency settled the plaintiff's first round of complaints in 1992, awarding him monetary damages, a retroactive temporary promotion, training, and attorneys' fees. Id. ¶ 10. Following the settlement, the plaintiff filed three additional EEO complaints over the next several years against the Agency, again alleging discrimination and retaliation. Id. ¶ 11. In 1995, the Agency settled the plaintiff's second round of complaints, agreeing to transfer him from the Office of Human Resources to the Bureau for Policy and Program Coordination, as well as awarding him additional "compensatory damages, a revised performance appraisal, a retroactive merit increase and performance award, and attorneys' fees." Id.
In 2000, the plaintiff, frustrated that he still had not been promoted to the GS-15 level, sought additional relief in this Court. Id. ¶ 13; see generally Complaint ("Compl."), Porter v. U.S. Agency for Int'l Dev. ("Porter I"), Civ. No. 00-1954 (D.D.C. Aug. 11, 2000); First Amended Complaint ("Am. Compl."), Porter I (D.D.C. May 2, 2001). On June 5, 2002, a jury in that case found for the plaintiff on two of the six counts of his amended complaint, specifically finding that the defendant had engaged in "retaliation in connection with the [d]efendant's decision[s] not to select [the plaintiff]" for two positions for which he applied in 1998. Jury Verdict at 2, Porter I (D.D.C. June 5, 2002). The plaintiff requested and the Court entered a judgment in his favor, which, among other things, forbid the Agency from engaging in any further retaliation against the plaintiff. Judgment at 2, Porter I (D.D.C. Feb. 3, 2003); Memorandum & Order at 1-2, Porter I (D.D.C. Feb. 3, 2003).
After receiving the partially favorable jury verdict in Porter I and the issuances of an accompanying order from the Court which forbid the Agency from retaliating against him, on June 24, 2003, in post-trial proceedings, the plaintiff filed a motion requesting that the Agency show cause why it should not be found in violation of the Court's 2003 order enjoining the Agency from retaliating against him based on what the plaintiff characterized as "two adverse employment actions." Plaintiff's Memorandum in Support of His Motion for an Order to Show Cause Why Defendant Should Not be Held in Contempt and Authorizing Plaintiff to Take Discovery ("Pl.'s Show Cause Mem.") at 2, Porter I (D.D.C. June 24, 2003). Namely, that the plaintiff claimed that the Agency's decision not to grant him a 2001 performance bonus and his receipt of a "Needs Improvement" assessment for his 2002 performance amounted to retaliation. Id. While the Court granted the motion to the extent that it compelled the Agency to respond, Order, Porter I (D.D.C. June 27, 2003), after reviewing the evidentiary support offered by both parties, the Court discharged the show cause order on the merits and denied the plaintiff's request to conduct discovery with regards to the two purported adverse employment actions, Order ¶ 2, Porter I (D.D.C. Nov. 25, 2003); see also Order at 1, Porter I (D.D.C. May 25, 2005).
Meanwhile, throughout the pendency of Porter I, the plaintiff continued to apply for GS-15 grade level positions for which he was not selected by the Agency. Second Am. Compl. ¶¶ 15-22. He now challenges those actions of the Agency alleging that he was denied the promotions for discriminatory and retaliatory reasons. Specifically, the plaintiff contends that several days after he initiated Porter I, he applied for a Supervisory Labor Relations Specialist position at the GS-15 grade level. Id. ¶ 15. And in 2001, while Porter I was still pending, the plaintiff also applied for an Administrative Officer position at the GS-15 grade level, id. ¶ 18, as well as a Deputy Chief position in the Personnel Operations Division at the GS-15 grade level, id. ¶ 21. In each case, the Agency did not select the plaintiff for the positions. Id. ¶¶ 15-22.
On August 24, 2004, the plaintiff instituted this action under Title VII alleging that, with respect to these non-selections, as well as other employment actions, the Agency engaged in discriminatory employment practices because of the plaintiff's race and gender, and retaliatory employment practices due to the plaintiff's participation in a protected activity, i.e., his 2001 lawsuit against the defendant and related EEO complaints. See Compl. ¶¶ 22-30; see also Second Am. Compl. ¶¶ 29-63. In addition, the plaintiff asserts the following claims arising from four additional incidents of alleged discrimination and retaliation: (1) the denial of a performance bonus award for the work he performed in 2001, despite his overall rating of "Excellent,"*fn2 id. ¶ 24; (2) his supervisor's "Needs Improvement" evaluation in February 2003, with respect to his 2002 job performance, id. ¶ 25; (3) the mid-year "borderline unacceptable" oral assessment he received with respect to his 2003 job performance, id. ¶ 27; and (4) his receipt of an interim "Unacceptable" assessment in September 2004, with respect to his 2004 job performance, id. ¶ 28.
On July 21, 2006, the defendant filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 stating that there are no genuine issues of material facts in this case, and the defendant is entitled to judgment as a matter of law. Def.'s Mot. at 1. Specifically, the defendant contends: (1) as to Counts I-VI of the second amended complaint,*fn3 which challenge the Agency's promotion decisions, each claim should be dismissed because the individuals selected were more qualified for the positions than was the plaintiff, Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("Def.'s Mem.") at 2; (2) Counts III, IV, VII, IX, and X should be dismissed because the plaintiff failed to exhaust his administrative remedies as to these claims, id. at 2, 4, 7-9, 22-24; (3) Counts VIIXIV, which challenge the Agency's "denial of a bonus award and certain performance appraisals," should be dismissed because they are "unmeritorious," and allege "nothing more than personality disputes, complaints about management style or the normal trials and tribulations of any workplace," id. at 2; and (4) Counts VII-XIV are barred by res judicata, id. at 3-4.
In response, the plaintiff contends that summary judgment is improper because: (1) as to each claim he has made out a prima facie case that the defendant's actions amounted to unlawful discrimination or retaliation based on his race or gender, or in response to his prior protected activity, and any non-discriminatory or non-retaliatory reasons offered by the Agency for its decisions not to select him are merely pretextual, Pl.'s Opp'n at 14, 16, 22, 26, 33, 54; (2) the existence of genuine issues of material fact regarding whether his performance rating was an adverse employment action precludes summary judgment, id. at 31; (3) the acts alleged in his Counts VII-XIV relate to events that occurred after the verdict in Porter I was rendered and therefore are not barred by res judicata as they "were not pled, litigated or adjudicated" in Porter I, id. at 14; and (4) he has exhausted his administrative remedies with respect to Counts III, IV, and X,*fn4 id. at 52, 68.
To grant a motion for summary judgment under Rule 56(c), this Court must find that "the pleadings, the discovery and disclosure materials on file, and any affidavits show 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). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Bayer v. U.S. Dep't of Treasury, 956 F.2d 330, 333 (D.C. Cir.1992). However, the non-moving party cannot rely on "'mere allegations or denials..., but... must set forth specific facts showing that there [are] genuine issue[s] for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation omitted) (some alterations in original). Under Rule 56(c), if a party fails 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," summary judgment is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, the party moving for summary judgment bears the burden of establishing the absence of evidence that supports the non-moving party's case. Id. at 325.
A. Exhaustion of Administrative Remedies
A plaintiff who fails to exhaust the administrative remedies available to him in pursing a claim of discrimination or retaliation, and who is not otherwise excused from doing so, may not seek relief from a United States district court on those claims under Title VII. Brown v. Gen. Servs. Admin., 425 U.S. 820, 832-33 (1976); Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985) ("a timely administrative charge is a prerequisite to initiation of a Title VII action in the District Court... [']subject to waiver, estoppel, and equitable tolling.'" (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982))); see also 42 U.S.C. § 2000e-5(e)-(f) (setting forth the time limitations for filing charges with the Equal Employment Opportunity Commission or a United States district court); 29 C.F.R. § 1614.105(a)(1) (1992) ("An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action."). The defendant contends that the plaintiff did not exhaust his remedies with respect Counts III, IV, and X.*fn5 Def.'s Mem. at 7, 22-23. The plaintiff counters that he has exhausted his administrative remedies, and all of his claims are therefore properly before the Court. Pl.'s Opp'n at 52, 68.
As to Counts III and IV, which relate to the plaintiff's claims concerning the Agency's selection of an Administrative Officer in its Global Bureau in May 2001, the defendant maintains that the plaintiff "first contacted the [A]gency concerning the Global Position selection on June 13, 2001," a date which exceeded the forty-five day window within which he had to file a timely administrative complaint. Def.'s Mem. at 9. In support of its argument, the defendant contends that the forty-five day period commenced on April 25, 2001. Id. The plaintiff's second amended complaint, however, states that the alleged discrimination asserted in Counts III and IV occurred in "May 2001," Second Am. Compl. ¶ 18, and the plaintiff's statement of undisputed material facts clarifies that it was specifically on May 28, 2001, when the Agency selected another candidate for the Administrative Officer position, Plaintiff's Rule 7.1(h) Statement in Response to Defendant's Statement of Undisputed Material Facts ("Pl.'s Facts Statement") ¶ 186. Thus, the plaintiff contends that his administrative claim was filed timely.
The question, therefore, is whether April 25, 2001, or May 28, 2001, was the date when the 45-day time period began to run. The plaintiff argues that although the Administrative Officer position at issue was classified as GS-15 on April 25, 2001, Pl.'s Facts Statement ¶ 185, it was the awarding of that position to another candidate, and thus the denial of the position to the plaintiff on May 28, 2001, that amounted to discrimination and retaliation about which he is complaining, Second Am. Compl. ¶¶ 35, 38. Because the Court must consider the facts in the light most favorable to the plaintiff, and the plaintiff contends that May 28, 2001, is the operative date when the forty-five day time period commenced, the Court finds that the plaintiff's June 13, 2001 administrative complaint was filed within the required time frame, and that the plaintiff has therefore exhausted his administrative remedies with respect to Counts III and IV.
As to Count X, which concerns the plaintiff's challenge to his 2002 "Needs Improvement" performance assessment, the defendant contends that while the plaintiff initially suspected that he was the subject of retaliation in early 2002, he did not file an administrative complaint until October 4, 2002. Def.'s Mem. at 23. The plaintiff seemingly contends that "[o]n February 21, 2003, the Agency discriminated against [him]" when it provided him with the 2002 "Needs Improvement" performance evaluation. Second Am. Compl. ¶ 25. This evaluation was rendered after the plaintiff filed his November 2002 EEO complaint against the Agency based on his supervisor's refusal to award him a bonus. Pl.'s Facts Statement ¶ 70. Therefore, while that EEO complaint did not contest his 2002 "Needs Improvement" performance rating, Pl.'s Facts Statement, Exhibit ("Ex.") 32 (Individual Complaint Form for Employment Discrimination) at 2, the plaintiff maintains that "in early March 2003, [he] contacted an EEO counselor regarding [his] claim [concerning his 2002 'Needs Improvement' performance rating]" and sought to amend the November 2002 complaint to include that allegation, Pl.'s Opp'n at 52; Pl.'s Facts Statement, Ex. 49 (E-mail from Melvin Porter to David Grim (Mar. 10, 2003)). Specifically, the plaintiff states that "[o]n March 10, 2003, [he] e-mailed an EEO Counselor, asking that his challenge to the 2002 Needs Improvement Assessment be added to his challenge of the bonus denial, which had been pending since October 2002 [sic]." Pl.'s Opp'n at 52. In addition, the plaintiff maintains that the questionnaire provided to the plaintiff's supervisor regarding the plaintiff's November 22, 2002 administrative complaint included questions concerning his 2002 Needs Improvement Assessment. Pl.'s Facts Statement, Ex. 50 (Affidavit of Barbara Turner) at 1. Therefore, in reading the facts in the light most favorable to the plaintiff, the Court must find that the plaintiff has not failed to exhaust his remedies with respect to his 2002 Needs Improvement assessment, as alleged in Count X of his second amended complaint, because he constructively amended his November 2002 EEO complaint to include a claim with respect to the 2002 assessment.*fn6
"Res judicata bars a claim when there has been a final judgment on the merits in a prior suit involving the same parties or their privies and the same cause of action." Polsby v. Thompson, 201 F. Supp. 2d 45, 48 (D.D.C. 2002) (citing I.A.M. Nat'l Pension Fund v. Indus. Gear Mfg. Co., 723 F.2d 944, 946-47 (D.C. Cir. 1983)). The doctrine precludes relitigation of claims that are identical to the claims that were raised and addressed previously or could have been raised in the earlier lawsuit, as well as "'issue[s] of fact or law [which were] actually litigated and resolved in a valid court determination essential to the prior judgment,' even if the issue recurs in the context of a different claim." Taylor v. Sturgell, __ U.S. __, __, 128 S.Ct. 2161, 2171 (2008) (quoting New Hampshire v. Maine, 532 U.S. 742 (2001)). "By 'preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate,' [the doctrines of issue and claim preclusion] protect against 'the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[r] reliance on judicial action by minimizing the possibility of inconsistent decisions.'" Id. (quoting Montana v. United States, 440 U.S. 147, 153-54 (1979)) (some alterations in original).
"The four factors that must exist for res judicata to apply are (1) an identity of parties in both suits; (2) a judgment rendered by a court of competent jurisdiction; (3) a final judgment on the merits; and (4) the same cause of action in both suits." Polsby, 201 F. Supp. 2d at 48 (citing, among others, U.S. Indus., Inc. v. Blake Constr. Co., 765 F.2d 195, 205 n. 21 (D.C. Cir. 1985)). "[T]he doctrine of res judicata applies to all the parties' rights regarding matters that could have been litigated as well as those matters that were actually litigated." Id. at 48 (citing I.A.M. Nat'l Pension Fund, 723 F.2d at 947).
The defendant contends that it is entitled to judgment as a matter of law on Counts VIII, X, XII, and XIV of the plaintiff's second amended complaint (i.e. the plaintiff's retaliation claims with respect to his 2001 bonus, his 2002 year-end performance assessment, his 2003 mid-year performance assessment, and his 2004 interim performance assessment) because the allegations contained within these Counts were litigated in Porter I.*fn7 Def.'s Mem. at 21-22. The defendant maintains that the member of this Court who presided over Porter I rendered a final judgment on those matters in post-judgment proceedings. Id. The plaintiff responds that Porter I "did not encompass any of the claims asserted in this case," and because the allegations of retaliation that he makes here "were not pled, litigated, or adjudicated by judge or jury in the earlier case," res judicata does not bar him from bringing them in this action. Pl.'s Opp'n at 15. The Court agrees with the defendant as to Counts VIII and X, but disagrees that res judicata bars Counts XII and XIV.
Two preliminary matters are beyond dispute: the parties in this lawsuit are identical to those in Porter I, and this Court, a court of competent jurisdiction, presided in that litigation, which was resolved by a final judgment on the merits. See, e.g., Porter I, 293 F. Supp. 2d 152, 158 (D.D.C. 2003) (awarding attorneys' fees). Therefore, the only issue that remains as to whether the claims being challenged on res judicata grounds are barred from consideration in this case is whether the claims that the plaintiff now advances were among those claims on which the Court in Porter I rendered a final judgment upon the merits.
Without running afoul of the doctrine of res judicata, there is no question that the plaintiff may advance any retaliation claims which arose from events subsequent to the Court's judgment in Porter I, so long as those claims were not covered by the factual allegations upon which the judgment was based. See Joshi v. Prof'l Health Servs., Inc., 817 F.2d 877, 880-81 (D.C. Cir. 1987). But that is not what the plaintiff attempts to do here. Rather, the plaintiff now contends that the Agency committed acts of discrimination and retaliation against him during the pendency of Porter I, which include the same acts which served as the basis for the plaintiff's post-judgment motion in Porter I alleging that the Agency violated the Court's order enjoining it from further retaliation against the plaintiff. Pl.'s Show Cause Mem. at 1-2, Porter I (D.D.C. June 24, 2003). In those post-judgment proceedings the parties briefed for the Court and litigated whether the Agency's acts of (1) denying the plaintiff a 2001 bonus and (2) providing him with a 2002 "Needs Improvement" assessment constituted retaliation. Compare id. at 2, with Second Am. Compl. ¶¶ 44-53. The question therefore becomes whether the Court's post-judgment orders amounted to a final judgment on these issues.
Part of the relief that the plaintiff sought in Porter I included injunctive relief forbidding the Agency from retaliating against him. Judgment at 2, Porter I (D.D.C. Feb. 3, 2003); Memorandum at 1-2, Porter I (D.D.C. Feb. 3, 2003). The Court awarded the plaintiff this relief following a favorable jury verdict on two counts of his complaint. Judgment at 2, Porter I (D.D.C. Feb. 3, 2003). Seeking to enforce this injunctive relief, the plaintiff fully briefed and offered documentary evidence to support his allegations that the Agency retaliated against him when it denied him a 2001 performance bonus and gave him a "Needs Improvement" performance rating for 2002. Pl.'s Show Cause Mem. at 1-2, Porter I (D.D.C. June 24, 2003). The Agency opposed the motion and offered voluminous evidentiary support of its own position. See Defendant's Response to Order to Show Cause at 1, Porter I (D.D.C. Sept. 5, 2003). Upon considering both parties' evidence, the Court discharged the plaintiff's show cause motion on the grounds that his allegations did not meet the legal standard necessary to establish a retaliation claim. Memorandum & Order ¶¶ 1-2, Porter I (D.D.C. Nov. 25, 2003); see also Order at 1-2, Porter I (D.D.C. May 25, 2005). The Court also denied the plaintiff's request to conduct additional discovery concerning the alleged retaliation. Id. Specifically, that member of this Court stated:
I find no evidence of contempt in the record before me. [The plaintiff] was not entitled to a performance award for 2001 when only 35% of those eligible were given such awards (and when 17 of 25 employees who had received "excellent" performance ratings did not receive awards). Nor was he entitled to an "excellent" performance rating in 2002, from a new supervisor, working in a changed organization, especially when he "actively and deliberatively avoided supervisory feedback."
Memorandum & Order ¶ 2, Porter I (D.D.C. Nov. 25, 2003). In a second order, which addressed the plaintiff's request for permission to conduct discovery regarding the alleged retaliation, the same member of this Court reiterated:
The most startling assertion of the motion -- that "Barbara Turner has brazenly approached Agency employees in an attempt to obtain information that Ms. Turner could -- as described in her own words -- 'use against' Mr. Porter,"... turns out to be supported only by Mr. Porter's declaration about something said to him about something Ms. Turner allegedly said nearly two years ago. What Mr. Porter calls "fresh evidence of the Agency's retaliatory motivations and actions,"... is also uncorroborated hearsay... The injunction [prohibiting the Agency from retaliating against the plaintiff] does not make [the plaintiff's] position a sinecure, or guarantee that he will receive superior performance evaluations or promotions, or forbid anyone to say anything negative about him. Order at 1-2, Porter I (D.D.C. May 25, 2005).
Therefore, after having reviewed the record and the docket entries of the previous lawsuit brought by this plaintiff, this Court is convinced that the plaintiff received the equivalent of a final judgment on the merits of his retaliation claims concerning the 2001 bonus and his 2002 performance review. The record in Porter I reflects that the parties fully briefed and provided evidentiary support on the issue of whether those acts constituted retaliation, and a member of this Court weighed the factual evidence proffered and rendered a judgment on the merits of those matters. The plaintiff having been afforded the opportunity to litigate his retaliations claims as to the 2001 bonus and 2002 performance evaluation on the merits in his 2000 lawsuit against the defendant, and having received the equivalent of a final judgment on the merits rendered by a court of competent jurisdiction on these same claims he seeks to pursue in this case, the Court finds that Counts VIII and X are barred by the doctrine of res judicata.*fn8 However, because the plaintiff has not yet had the opportunity to ...