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Bolden v. Winter

March 16, 2009

JAMES O. BOLDEN, PLAINTIFF,
v.
DONALD C. WINTER, SECRETARY OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This case involves a discrimination claim brought under Title VII and the Rehabilitation Act on the basis of sex, race and disability. James O. Bolden ("plaintiff"), a black male with a claimed disability, alleges that the Secretary of the Navy ("defendant")*fn1 failed to promote him from GS-11 to GS-12 but instead promoted a Filipina female employee without a disability. Defendant alleges that plaintiff was not qualified for the promotion and that he is not comparable to a female employee who did receive the promotion. Pending before the court are the parties' cross-motions for summary judgment. This Court DENIES plaintiff's Motion for Summary Judgment and GRANTS defendant's Cross-Motion for Summary Judgment.

I. BACKGROUND

Plaintiff, who represents himself, is a former employee of the Department of Navy, Bureau of Medicine and Surgery ("BUMED"). Compl. at 3. Prior to working at BUMED, Bolden worked as an accountant for the U.S. Department of Justice in the U.S. Marshals Service and the Community Oriented Policing Services as well as for the U.S. Soldiers' and Airmen's House. Compl. at 3-4. Plaintiff holds an ABS degree in Business Administration with an emphasis in accounting. Compl. at 4. He was hired on June 18, 2000, as an operating accountant, GS-0510-11, and was employed by BUMED until June 27, 2003, when he entered into disability retirement. See Compl. Ex. J (Notification of Personnel Action).

Steven Sninsky and Robert Andersson*fn2 were plaintiff's first-and third-level supervisors, respectively. Compl. at 3, 5. While at BUMED, Plaintiff was in a "career ladder" position, which allows for non-competitive promotion between GS grades 9, 11, and 12. Def.'s Mem. at 2 (citing sealed Ex. 13, Dep. of James Bolden at 41). According to the Navy Merit Promotion Procedures Manual, "employees are given grade-building experience and are promoted without further competition when they demonstrate the ability to perform at the next higher grade level, meet regulatory and qualification requirements, and there is enough work at the full performance level for all employees in the group." Def.'s Mot. for Summ. J., Ex. 2 at 1. Vincent Vaccaro, the Navy's Director for Civilian Personnel Programs, stated that promotion is conditioned on an employee meeting the time in-grade requirements and demonstrating the ability to successfully perform the duties and responsibilities of the higher grade level. Id. at Ex. 3 (Aff. of Vincent Vaccaro). Even if an employee has successfully performed at his current level, promotions are not guaranteed, as a supervisor may elect against promotion if s/he feels the employee is not capable of performing successfully at the higher level. Id.

Bolden stated that on June 20, 2000, two days after being hired, he submitted a "Statement of Physical Ability for Light Duty Work" informing the Navy of certain physical limitations. Compl., Ex. B. It is unclear from the evidence presented whether Bolden's supervisors were aware that he filed this statement. Andersson testified that Bolden never requested any accommodation related to a disability and that he was unaware that Bolden was disabled. Def.'s Mot. for Summ. J., Ex. 6 (Aug. 24, 2004 Aff. of Andersson). Sninsky stated that while he did observe that plaintiff walked with a limp, he was unaware of Bolden's status as disabled.*fn3 Id. at 10 (Aug. 19, 2004 Dec. of Sninsky). Sninsky also stated he did not see any impact of Bolden's claimed disability on his ability to do work and that Bolden never asked for any accommodations. Id.

In a performance review of Plaintiff's work from the period of October 1, 2000, through September 30, 2001, plaintiff received a score of "acceptable" indicating his work met all of the critical elements in the review. Compl., Ex. C. To attain a rating of "acceptable" according to the BUMED Civil Performance Management Form, all critical elements must be rated as "met." Compl., Ex. C.

The critical elements and standards are defined as:

(1) REGARD FOR QUALITY Completes objectives and work assignments with a focus on outcomes that reflect improvements for internal and external customers. (2) RESOURCE MANAGEMENT Reduce inefficiencies in the system by planning and goal setting; creating or improving programs, procedures, or systems, displaying persistence and a concern for efficiency by promoting partnering and collaboration among stakeholders. (3) LEADERSHIP AND MANAGEMENT Seizes the opportunity to advance the vision/mission of Navy Medicine. Positions self as the leader and strives to ensure that everyone buys into the mission. (4) DIAGNOSTIC CAPABILITY Seeks information from multiple sources to deal with various situations; is sensitive to the needs, interest, and agendas of others; and, identifies the resolution of issues. (5) INFLUENCE Uses convincing strategies to influence individuals or groups to the organization's views; demonstrates awareness of political sensitivity; displays concern for image.

Compl., Ex. C.

Plaintiff was "rated" by Sninsky and "reviewed" by Andersson. Id. The performance review for October 2000 through September 2001 states, under the heading of "Strengths & Accomplishments," that "Mr. Bolden has continued to play an important role in the daily operations of the Accounting Division. Never afraid to get involved in new endeavors, gather and analyze required information, or think outside of the box, Mr. Bolden is a valued member of the Accounting Operations Division team." Id. Under the heading, "Area(s) of Focus and Emphasis," the review states that Bolden "worked tirelessly with [BUMED] codes to develop standards for data collections to meet other reimbursable billable requirements," "[s]pearheaded the NAVTRANS led effort to update all BUMED field activity Department of Defense Address Activity Codes," and "[a]ggressively researched and reconciled prior year account balances to free up funds for return to TMA." Id. Plaintiff was also recognized in this review for having presented at the summer session of the NSHS Financial and Material Management Training Course ("FMMTC") class. Id. In his performance review for the period of October 1, 2001, through September 30, 2002, Bolden again received an assessment of "acceptable" as rated by Sninsky and reviewed by Maureen Queenan-Flores. Id.

In January 2002, approximately eighteen months after plaintiff commenced work at BUMED, Sninsky submitted the names of Bolden and his co-worker Jenny Carlos to Andersson for promotion to the GS-12 level. Pl.'s Reply and Opp'n, Ex. 1 (email). Sninsky stated that at the time that he submitted plaintiff's name, he thought promotion was automatic upon reaching the time-in-grade requirement and independent of the employee's skill or ability. Def.'s Mot. for Summ. J., Exh. 11 (Jan 7, 2008 Aff. of Sninsky). He stated that had he known the actual requirements, he would not have recommended Bolden's promotion to GS-12. Id. According to Andersson, the same certificate referred Bolden, Carlos (female of Filipino origin) and Wanda Creech (Black female) for promotion.*fn4 Id. at Ex. 6.

Within two or three weeks of recommending Bolden and Carlos for promotion, Andersson told Sninsky that he wanted both of them to attend the FMMTC, a twelve-week training in fiscal and material management. Id. at Ex. 5 (Jan. 7, 2008 Aff. of Andersson), Ex. 10. According to Andersson, this course is a general requirement for new employees and something that he viewed as specifically necessary for Bolden to get his skills and performance up to the GS-12 level. Id. at Ex. 6 at 3-4. Andersson stated that, in addition to Bolden attending the FMMTC training, he wanted Sninsky to work with Bolden for an additional six months prior to promoting him. Id.

In March 2002, plaintiff learned that Carlos had been promoted to GS-12 and inquired with Sninsky as to the status of his own promotion. Pl.'s Reply and Opp'n, Ex. 1. Sninsky informed plaintiff that Andersson wanted him to complete the FMMTC as a "prerequisite to promotion." Def.'s Mot. for Summ. J., Ex. 8 (email). Evidence on the record reflects that Bolden was enrolled in the FMMTC class commencing on July 8, 2002 and ending on September 28, 2002. Id. at Ex. 13. Plaintiff did attend a spring 2002 FMMTC for approximately one week but did not return to class. Id. at Ex. 10. Bolden claims that he was unable to attend the classes because he had to go on medical leave in early May 2002. Def.'s Mem., Ex. 9.

On April 18, 2002, Plaintiff contacted an Equal Employment Opportunity ("EEO") Counselor at the Department of the Navy. See 29 C.F.R. § 1614.105(a)(1). On July 3, 2002, plaintiff filed a formal administrative complaint of discrimination based on race, color, disability, sex, and reprisal. Def's Mot. to Dismiss, Ex. 4 (Formal Complaint of Discrimination). That complaint was dismissed as untimely by the Department of the Navy on August 23, 2002. Id. at Ex. 5 (Aug. 23, 2002 Letter from Isaac Oliver to James O. Bolden). Plaintiff appealed the dismissal to the Equal Employment Opportunity Commission ("EEOC"). See Bolden v. England, Appeal No. 01A30279 (E.E.O.C. Mar. 24, 2004) (Decision). On March 24, 2004, the EEOC reversed the Department of the Navy's determination, and the complaint was remanded to the agency for investigation of the allegations. Id.

The agency sent a letter to plaintiff on June 17, 2004, detailing what issues were accepted for investigation, how "[t]he scope of the investigation will be limited" to these issues, that "the EEO investigator is not authorized to inquire into any other matters," and if plaintiff had other matters he wished to complain about, he had to see an EEO Counselor immediately.

Def.'s Mot. to Dismiss, Ex. 7. (Memo. from Chief of Staff to Mr. James O. Bolden, June 17, 2004). The agency identified two issues that plaintiff complained were evidence of discrimination: (1) Plaintiff alleged that his supervisor discriminated against him when he held up his promotion to GS-12 by imposing additional requirements on him but not on a female co-worker who received her promotion; and (2) Plaintiff alleged that recent scrutiny of his work performance caused him undue stress, tension, and anxiety resulting in him receiving medical treatment and medication. The EEO counselor acknowledged Bolden's claim that the alleged ...


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