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Adair v. Solis

September 30, 2010

PAUL C. ADAIR, PLAINTIFF,
v.
HILDA SOLIS, SECRETARY OF THE DEPARTMENT OF LABOR, DEFENDANT.*FN1



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

MEMORANDUM OPINION

Plaintiff Paul Adair, pro se, was employed as a Trial Attorney by the United States Department of Labor, Office of the Solicitor, Division of Plan Benefits Security from 1995 to 2003. Plaintiff claims that defendant unlawfully discriminated against him on the basis of his race (African-American) and disability (depression) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. Plaintiff also seeks review of the decision of the Merit System Protection Board ("MSPB") affirming his termination by defendant for (i) failure to complete certain assignments, (ii) insubordination, and (iii) making statements to supervisors and co-workers that resulted in anxiety and disruption in the workplace. Plaintiff argues that the MSPB's decision is unsupported by substantial evidence, does not promote the efficiency of the federal service, and was rendered in violation of his due process rights. Defendant has moved for summary judgment on all of plaintiff's claims, and plaintiff has filed cross-motions for summary judgment as to his non-discrimination claims. Upon consideration of the motions, the responses and replies thereto, the applicable law, the entire record, and for the reasons set forth below the Court GRANTS defendant's motion for summary judgment and DENIES plaintiff's cross-motions for partial summary judgment.

I. BACKGROUND

Plaintiff, an African-American male, was employed as a trial attorney for the Plan Benefits Security Division ("PBSD") of the Office of the Solicitor of Labor from April 1995 through March 29, 2003. Def.'s Statement of Material Facts ("Def.'s SMF") ¶¶ 1-2. His principal responsibility at PBSD was conducting litigation under the Employees Retirement Income Security Act ("ERISA") on behalf of the Secretary of Labor. Def.'s SMF ¶ 2. During his tenure at PBSD, one of the cases that Mr. Adair was assigned to was known as the "Employers Mutual" case. Def.'s SMF ¶ 3. Senior trial attorney William Scott was the supervising attorney assigned to the Employers Mutual case. Def.'s SMF ¶ 3.

In 2002, certain issues began to arise between Mr. Adair and Mr. Scott regarding Mr. Adair's work on the Employers Mutual case. Specifically, on April 24, 2002, Mr. Scott sent Mr. Adair a detailed email directing plaintiff to make certain changes to a contempt motion that was to be filed in the case. See AR [Docket Entry 7-10 at 20], Email from Scott to Adair dated April 24, 2002; AR [Docket Entry 7-8 at 5-12], Declaration of G. William Scott dated July 3, 2003 ("2003 Scott Decl.") ¶ 4. By email dated April 29, 2002, Mr. Adair responded to Mr. Scott stating that he thought the motion was "fine." AR [Docket Entry 7-8 at 13-14], Ex. A to 2003 Scott Decl., Email from Adair to Scott dated April 29, 2002. Mr. Scott responded by renewing his request for Mr. Adair to make the suggested changes, explaining that without revision it was unclear what actions constituted contempt. AR [Docket Entry 7-8 at 13-14], Ex. A to 2003 Scott Decl., Email from Scott to Adair dated May 1, 2002; 2003 Scott Decl. ¶ 6. Mr. Scott also indicated that the motion should propose a remedy. By email dated May 2, 2002, Mr. Adair responded by stating that "[t]he proof is obvious" and "I would live [sic] the relief to the court." AR [Docket Entry 7-8 at 13-14], Ex. A to 2003 Scott Decl., Email from Adair to Scott dated May 2, 2002. Mr. Scott then, once again, explained his concerns with plaintiff's approach, and asked Mr. Adair to "finalize the motion papers today and give a copy to me[.]" AR [Docket Entry 7-8 at 13-14], Ex. A to 2003 Scott Decl., Email from Scott to Adair dated May 2, 2002. Mr. Adair failed to revise the motion on May 2, 2002 as requested. 2003 Scott Decl. ¶ 8.*fn2

In June 2002, Mr. Adair submitted a request for extended Annual Leave to Karen Handorf, Deputy Associate Solicitor for PBSD. See AR Tab 4gg(2), Ex. A to Declaration of Karen Handorf, Letter from Handorf to Adair dated July 5, 2002 ("Handorf Letter"). Ms. Handorf denied Mr. Adair's leave request, citing Mr. Adair's heavy workload and unfinished assignments for the Employers Mutual case. See Handorf Letter ("On June 17, 2002, you requested annual leave and this leave was denied because of your heavy workload. Specifically, for the Employers' Mutual Case, you had not sent the contempt letter, had not revised and filed the default motions and had not submitted a discovery plan, as requested by your supervisor on that case."). Mr. Adair then requested extended medical leave and was told that the request would be considered after medical documentation was provided. See Handorf Letter. On June 28, 2002, Mr. Adair left a prescription paper from his doctor on Ms. Handorf's chair, which states: "Paul Adair was seen and a treatment plan is provided for therapy." See AR [Docket Entry 7-15 at 8], Prescription from Dr. William D. Lawson, M.D., Department of Psychiatry, Howard University Hospital; see also Handorf Letter. Ms. Handorf then informed Mr. Adair that the prescription paper was "inadequate to justify extended sick leave because it does not state that you will be unable to come to work because of medical treatment nor does it state that you are incapable of performing the duties of your job." Handorf Letter. Ms. Handorf further advised Mr. Adair that "if your doctor is unwilling to provide a statement that you are not able to perform the duties of your job, we will consider a letter detailing the symptoms of your condition which we will then evaluate to determine whether to grant you extended sick leave." Handorf Letter. Mr. Adair failed to produce any additional documentation from any health care professionals and returned to work. See AR Tab 4gg at 1, Declaration of Karen Handorf ("Handorf Decl.") ¶ 3.

On July 17, 2002, Mr. Scott sent an email to Mr. Adair (the "July 17th Email"), which instructed him to complete five assignments related to the Employers Mutual case with a deadline of July 23, 2002. See AR Tab 4cc2, Ex. A to Declaration of G. William Scott dated Nov. 13, 2002 ("2002 Scott Decl."), Email from Scott to Adair dated July 17, 2002. On July 23, 2002, Mr. Scott sent Mr. Adair an email, which stated: "Paul: I asked you to see me before you left today, but I see you have gone without doing so. Please tell me whether you have completed these tasks; today is the due date. There is a lot to do in this case." AR [Docket Entry 7-15 at 11], Email from Scott to Adair dated July 23, 2002. After receiving no response, Mr. Scott sent another follow-up email on July 26, 2002, which stated: "Paul: Please tell me whether you have done the assignments listed below. I have not reassigned these tasks. As you know, Peter, Ben and I are doing some of the work that was previously assigned to you, but we can't do it all at this point given our other responsibilities. No one has informed me that you are on sick leave or annual leave. If you are simply refusing to do these tasks, please inform me. If you don't respond to this e-mail, I will have no choice but to assume that you refuse to do this work. Please communicate with me!!" AR [Docket Entry 7-15 at 12], Email from Scott to Adair dated July 26, 2002. By emails dated August 1, 2002, August 2, 2002, and August 7, 2002, Mr. Scott extended the due date for the assignments contained in the July 17th Email to August 19, 2010, and indicated that Mr. Adair no longer needed to complete two of the five assignments. See AR Tab 4cc2, Emails from Scott to Adair dated Aug. 1, 2002, Aug. 2, 2002, and Aug. 7, 2002.

On August 8, 2002, Mr. Adair met with his supervisor Leslie Perlman. They discussed, among other things, the assignments that Mr. Scott had given Mr. Adair on July 17, 2002. On August 9, 2002, Ms. Perlman sent Mr. Adair an email with the assignments contained in the July 17th Email, and stated: "Paul: As I told you yesterday, I am sending you the following assignments for the [Employers Mutual] case even though you told me yesterday that you would not do the assignments and would accept your punishment (short of a trip to the employment office). I urge you to reconsider your position. You must complete the assignments below on the schedule Bill proposed which has a [revised] deadline of August 19." AR Tab 4cc3, Ex. B to 2002 Scott Decl., Email from Perlman to Adair dated Aug. 9, 2002. By email dated August 28, 2002, Mr. Scott sent an email to Mr. Adair asking if had performed any of the tasks assigned on July 17, 2002. AR Tab 4cc3, Ex. B to 2002 Scott Decl., Email from Scott to Adair dated Aug. 28, 2002.*fn3

On October 17, 2002, Elizabeth Hopkins, a supervisor at PBSD, asked Mr. Adair to attend a mid-year performance review (hereinafter, the "October 17th Meeting"). AR Tab 4ee, Declaration of Elizabeth Hopkins ("Hopkins Decl."). In attendance at the October 17th Meeting were plaintiff, Ms. Hopkins, Mr. Scott, Ms. Perlman, and another supervisor, Risa Sandler. Def.'s SMF ¶ 11. During the meeting, after Ms. Perlman and Ms. Hopkins praised Mr. Adair for his performance on the cases that they were supervising, Mr. Scott raised his dissatisfaction with Mr. Adair's performance on the Employers Mutual case. AR Tab 4dd, Declaration of Risa Sandler ("Sandler Decl.") ¶¶ 4, 5. While the details of the meeting are disputed, it is undisputed that at some point during the meeting Mr. Adair stated that he had been disrespected by Mr. Scott, and that he "would rather see everyone dead and the whole world destroyed" than suffer disrespect. See AR Tab 4aa, Declaration of Paul Adair dated Dec. 6, 2002 ("2002 Adair Decl.") ¶ 32 ("As the meeting drew to a close I said I felt strongly about dignity and respect and that my 'philosophy' was that I 'would rather see everyone dead and the whole world destroyed' than suffer indignity and disrespect. I then said 'that's it.'"); see also AR Tab 4ff, Declaration of Leslie Perlman ("Perlman Decl.") ¶ 6; Sandler Decl. ¶ 8; Hopkins Decl. ¶ 2; 2002 Scott Decl. ¶ 13. Mr. Adair also stated that he had been "feeling violent," and had sought counseling as a result. Sandler Decl. ¶ 8; Perlman Decl. ¶ 10; Hopkins Decl. ¶ 2; see also 2002 Adair Decl. ¶ 30.*fn4 When asked if he could continue to work with Mr. Scott, Mr. Adair likened it to finding a peaceful solution in the Middle East. Sandler Decl. ¶ 10; Hopkins Decl. ¶ 2; 2002 Adair Decl. ¶ 31.

After the meeting, each of plaintiff's supervisors reported feeling shocked and upset. See Sandler Decl. ¶¶ 12-14 ("I was very alarmed by Mr. Adair's demeanor and his comments. I was concerned that he might pose a danger to Mr. Scott or to others.

. . . I was particularly alarmed by Mr. Adair's comments mentioning killing and death. Although it appeared that his anger was directed primarily towards Mr. Scott, his comments mentioning killing and death were directed towards people in general. . . . Based on Mr. Adair's conduct and remarks at the meeting, I am concerned that anyone in this office (or, for that matter, anyone in this building) could be a target of Mr. Adair's anger."); Perlman Decl. ¶ 11 ("I was and continue to be seriously concerned about the safety of our employees where a co-worker has said that he would rather see everyone dead than be disrespected. That statement upset me and made me feel that Mr. Adair might present a serious threat to Mr. Scott and others in this office.").*fn5 Indeed, each of the supervisors sent an email to Timothy Hauser, Associate Solicitor at PBSD, expressing their concerns regarding plaintiff's behavior.*fn6 Mr. Scott also contacted security at the Department of Labor. See AR Tab 4cc4, Ex. C. to 2002 Scott Decl., Email from Scott to Robert Rouse dated Oct. 18, 2002 (discussing the October 17th Meeting, and concluding: "Mr. Adair's statements made me uncomfortable and afraid of what he might do, and I believe he intended to make me feel that way. Please do what you can to preserve the safety of the DOL employees around Mr. Adair."). On October 18, 2002 -- after interviewing Mr. Scott, Ms. Perlman, Ms. Hopkins, and Ms. Sandler -- Mr. Hauser contacted Mr. Adair at his home,*fn7 and informed Mr. Adair that he was being placed on administrative leave and was barred from the PBSD building. See AR Tab 4kk, Email from Hauser to Adair dated Oct. 18, 2002 ("I am writing to confirm our conversation. As I indicated, you are on administrative leave and will not be allowed into the building. I am concerned about the statements you made at the October meeting, and about the fear and disruption caused by those statements.").

Soon thereafter, on November 14, 2002, Ms. Perlman sent Mr. Adair a notice of a proposal to remove him from his position as a trial attorney at PBSD (the "Notice of Proposed Removal"). See AR Tab 4bb, Notice of Proposed Removal. This seven-page notice informed Mr. Adair, among other things, that his proposed removal was based on the following charges: (1) "[m]aking statements to supervisors and co-workers that resulted in anxiety and disruption in the workplace"; (2) "[f]ailure to follow instructions"; and (3) "[i]nsubordination." See generally Notice of Proposed Removal; Def.'s SMF ¶ 19. The notice also contained detailed specifications setting forth the specific conduct that each charge was based upon. As is relevant to this case, the anxiety and disruption charge is based upon the statements that plaintiff made during the October 17th Meeting, including that he "had been feeling violent" and "would rather see everyone dead and the whole world destroyed" than be disrespected; the failure to follow instructions charge is based upon plaintiff's alleged failure to revise the contempt motion as requested and to complete the assignments contained in the July 17th Email; and the insubordination charge is based upon plaintiff's alleged statement to Ms. Perlman that he refused to work on the Employers Mutual case during their meeting on August 9, 2010, as well as a similar statement that he allegedly made during the October 17th Meeting.*fn8 See Notice of Proposed Removal. Mr. Adair submitted a 32-page response to the agency's notice, in which he argued, among other things, that "the Notice fails to provide a just basis for the proposed action, it does not promote efficient operation of the Federal Service, and is disproportional to the reasons alleged[.]" AR Tab 4d at 1.*fn9

On March 26, 2003, Mr. Hauser issued a memorandum upholding the Notice of Proposed Removal (the "Agency Decision"). Def.'s SMF ¶ 20; see AR Tab 4a, Agency Decision at 1 ("This memorandum constitutes my decision on the proposal to remove you from your position for making statements that resulted in anxiety and disruption in the workplace, insubordination, and failure to follow supervisors' instructions."). In his decision, Mr. Hauser found that the reasons set forth in the Notice of Proposed Removal were supported by a preponderance of the evidence, and that the severity of plaintiff's conduct warranted removal. See Agency Decision at 1; see also Agency Decision at 6 ("After consideration of all of the evidence, I conclude that it is appropriate to terminate your employment as proposed, particularly in light of the seriousness of the offenses and the sensitivity of your position. . . . PBSD cannot effectively discharge its responsibilities if employees refuse to follow the directions of their supervisors, and supervisors cannot do their jobs if they have to worry about the potential for unwarranted, provocative, and possibly dangerous responses when they issue proper directions to an employee."). Accordingly, plaintiff was removed from federal service effective March 29, 2003. Def.'s SMF ¶ 21.

Plaintiff then appealed the Agency Decision to the MSPB on April 14, 2003, and the matter was referred to Administrative Judge Sherry Armstrong (the "ALJ"). Def.'s SMF ¶ 22. On August 11, 2003, Judge Armstrong issued a 48-page opinion (the "MSPB Decision") upholding the Agency Decision and concluding that the agency-imposed penalty of termination "supports the efficiency of the service and was reasonable." AR [Docket Entry 7-1 at 4-23, 7-2 at 1-25], MSPB Decision at 26; Def.'s SMF ¶ 24. Specifically, with regard to the agency's charges, the ALJ found that: (1) "[t]he agency established its charge of making statements to supervisors and co-workers that resulted in anxiety and disruption in the workplace by preponderant evidence";

(2) "[t]he agency established its charge of failure to follow instructions by preponderant evidence"; and (3) "[t]he agency established its charge of insubordination by preponderant evidence." MSPB Decision at 8-31. The ALJ also found that:

(i) plaintiff failed to establish an entitlement to sick leave or leave under the FMLA due to his refusal to submit documentation to the agency in support of his request; (ii) plaintiff failed to establish race or gender discrimination as the agency had proffered a legitimate, non-discriminatory reason for plaintiff's termination and there were no similarly-situated individuals that were treated differently; (iii) plaintiff failed to establish disability discrimination as he did not present any evidence to establish that he had a physical or mental impairment that substantially limited one or more major life activities; and (iv) plaintiff failed to establish a harmful procedural error. MSPB Decision at 3-8, 31-43.

Plaintiff subsequently appealed Judge Armstrong's opinion to the full MSPB. Def.'s SMF ¶ 25. This appeal was denied on May 13, 2004. See Adair v. Dep't of Labor, 97 M.S.P.R. 605 (2004) (concluding that the "administrative judge made no error in law or regulation that affects the outcome," and holding that "[t]he initial decision of the administrative judge is final"). Plaintiff then sought review of the MSPB Decision to the Equal Employment Opportunity Commission (the "EEOC"). Def.'s SMF ¶ 26. The EEOC also denied plaintiff's appeal, finding that "the MSPB's decision constitutes a correct interpretation of the laws, rules, regulations, and policies governing this matter and is supported by the evidence in the record as a whole." Def.'s SMF ¶ 26.

Accordingly, on August 30, 2004, plaintiff filed suit in this Court alleging (i) race discrimination, (ii) sex discrimination, (iii) interference with and denial of family and medical leave, (iv) disability discrimination, and (v) violations of due process. He also sought review of the MSPB Decision. Thereafter, plaintiff voluntarily dismissed his claims for sex discrimination and interference with and denial of family and medical leave. See Pl.'s Opp'n Br. at 3 n.2 ("Plaintiff is no longer pursuing a claim of gender discrimination."); Order Dated March 16, 2006 ("[A]t plaintiff's request, it is FURTHER ORDERED that plaintiff's claim under the Family and Medical Leave Act is DISMISSED."). Pending before the Court, therefore, are plaintiff's remaining discrimination claims, his allegation of due process violations, and his petition for review of the MSPB Decision.*fn10 Defendant has moved for summary judgment on all claims, and plaintiff has filed a cross-motion as to his non-discrimination claims. These motions are now ripe for determination by the Court.

II. STANDARD OF REVIEW

Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). "A fact is material if it 'might affect the outcome of the suit under the governing law,' and a dispute about a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The party seeking summary judgment bears the initial burden of demonstrating an absence of genuine issues of material fact. Celotex, 477 U.S. at 322. In determining whether a genuine issue of material facts exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597 (1986); Keyes v. Dist. of Columbia, 372 F.3d 434, 436 (D.C. Cir. 2004). Likewise, in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. St. Michael's Med. Ctr. v. Sebelius, 648 F. Supp. 2d 18, 25 (D.D.C. 2009) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975)).

The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. If the evidence favoring the non-moving party is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 250. Moreover, "although summary judgment 'must be approached with special caution in discrimination cases, a plaintiff is not relieved of [his] obligation to support [his] allegations by affidavits or other competent evidence showing that there is a genuine issue for trial.'" Bolden v. Winter, 602 F. Supp. 2d 130, 136 (D.D.C. 2009) (quoting Morgan v. Fed. Home Loan Mortgage Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001)).

Summary judgment will be granted, therefore, if the plaintiff fails to submit evidence that creates a genuine factual dispute or entitlement to judgment as a matter of law. Wada v. Tomlinson, 517 F. Supp. 2d 148, 181 (D.D.C. 2007); see also Marshall v. James, 276 F. Supp. 2d 41, 47 (D.D.C. 2003) (special caution "does not eliminate the use of summary judgment in discrimination cases" (citing cases)).

III. ANALYSIS

As noted above, defendant has moved for summary judgment as to plaintiff's race and disability discrimination claims on the grounds that it had legitimate, non-discriminatory reasons for Mr. Adair's claims for removal, and that Mr. Adair failed to produce evidence that a discriminatory reason motivated defendant's decision or that defendant's proffered reasons are a pretext for discrimination. Defendant also seeks summary judgment as to plaintiff's alleged "due process violations," and argues that the MSPB Decision upholding plaintiff's removal was not arbitrary, capricious, or otherwise in derogation of the law and therefore should be upheld. Plaintiff filed a cross-motion for partial summary judgment as to his non-discrimination claims. The Court will begin by addressing defendant's motion for summary judgment as to plaintiff's discrimination claims.

A. Plaintiff's Discrimination Claims

1. Race Discrimination

i. Legal Framework

Discrimination claims under Title VII have traditionally been analyzed under the McDonnell Douglas burden shifting framework. The D.C. Circuit recently held, however, that when considering a motion for summary judgment in an employment discrimination case, a district court need not consider whether a plaintiff has actually satisfied the elements of a prima facie case if the defendant has offered a legitimate, non-discriminatory reason for its actions. Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Instead, "the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?" Id. In other words, a court must determine whether "all the evidence, taken together, [is] insufficient to support a reasonable inference of discrimination." Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (citing Brady, 520 F.3d at 494-95); see also Holcomb v. Powell, 433 F.3d 889, 896-97 (D.C. Cir. 2006) ("'[T]he plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory reason.'" (quoting Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003))). "[A]ll of the evidence," in turn, means "any combination of (1) evidence establishing the plaintiff's prima facie case; (2) evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff, such as independent evidence of discriminatory statements or attitudes on the part of the employer." Holcomb, 433 F.3d at 897; see also Washington v. Chao, 577 F. Supp. 2d 27, 39 (D.D.C. 2008) ("[I]n all instances where a defendant has asserted a legitimate, non-discriminatory reason for its conduct, the Court shall evaluate all of the evidence in the record, including that which would be used to establish a prima facie case (but not for the purpose of evaluating whether a prima facie case has been established), to address the ultimate question of discrimination vel non."). "A plaintiff may show discrimination either directly or indirectly." Evans v. Holder, 618 F. Supp. 2d 1, 8 (D.D.C. 2009). Evidence is direct if it shows that a "'discriminatory reason more likely motivated the employer.'" Id. (quoting George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005)). Evidence is indirect if it shows that "'the employer's proffered explanation is unworthy of credence.'" Id. (quoting George, 407 F.3d at 413).

There are at least two ways to demonstrate that a nondiscriminatory explanation is false. First, a plaintiff may show that "the employer is making up or lying about the underlying facts that formed the predicate for the employment decision." Brady, 520 F.3d at 495. Second, a plaintiff may show that a similarly situated employee outside plaintiff's protected class was treated more favorably. Id.

ii. Analysis

In this case, defendant has proffered a legitimate, non-discriminatory reason for plaintiff's termination. Specifically, defendant asserts that "[p]laintiff's own conduct is the legitimate, non-discriminatory reason for Plaintiff's removal from federal service." Def.'s Mot. for Summ. J. at 9. Citing the agency's determination that plaintiff had (1) made statements to supervisors and co-workers that resulted in anxiety and disruption in the workplace; (2) failed to complete certain assignments; and (3) acted insubordinately, defendant argues that "[e]ach of these [reasons] alone is a legitimate, non-discriminatory reason for Plaintiff's removal that is not pretextual and entitles Defendant to judgment as a matter of law[.]" Def.'s Mot. for Summ. J. at 9-10. The issue before the Court, therefore, is whether plaintiff has produced sufficient evidence for a reasonable jury to find that defendant's asserted non-discriminatory reasons were not the actual reasons for the adverse employment action, and that the employer's actions were discriminatory.

For the reasons discussed below, the Court finds that plaintiff has failed to meet this burden. Although plaintiff purports to provide the Court with both direct and indirect evidence of defendant's alleged discriminatory intent and animus, plaintiff's "evidence" is provided in the form of either conclusory allegations or mischaracterizations of the record. Because "[s]elf-serving testimony does not create genuine issues of material fact," Fields v. Office of Johnson, 520 F. Supp. 2d ...


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