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Eugene E. Johnson v. Tom Vilsack

September 30, 2011


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


Plaintiff Eugene Johnson brings this action against the Secretary*fn1 of the United States Department of Agriculture ("USDA"), alleging discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., based on alleged race, age and sex discrimination related to his employment with the Office of Budget and Program Analysis ("OBPA"). This Court previously dismissed plaintiff's Title VII claims and several of his ADEA claims. See Johnson v. Veneman, 569 F. Supp. 2d 148 (D.D.C. 2008) (hereinafter, Johnson I). Plaintiff's surviving claims for discrimination under the ADEA relate to the following four actions by the USDA: (1) the failure to grant plaintiff's career-ladder promotion to GS-13 on September 23, 2002; (2) the failure to grant prior promotions in a timely manner from 1998 through 2001; (3) the denial of requests for training since 1997; and (4) plaintiff's rating of less than "Outstanding" on his performance evaluation dated October 17, 2002. Pending before the Court is defendant's motion for summary judgment, in which defendant argues that plaintiff failed to exhaust his administrative remedies and that his claims fail on the merits. Upon consideration of the motion, the opposition and the reply thereto, the applicable law, the entire record, and for the reasons stated below, defendant's motion for summary judgment is hereby GRANTED.


Plaintiff Eugene Johnson is an African-American male born in 1957. Compl. ¶ 6. In November 1997, Johnson began working for the USDA as a GS-7 Program Analyst on the Legislative and Regulatory Staff of OBPA. Id. ¶ 8; see also Def.'s Statement of Material Facts as to Which There is No Genuine Dispute ¶ 1 (hereinafter, "Def.'s SMF"). Johnson alleges that while he was working for OBPA, he was denied training and tuition assistance for job-related coursework at the University of Maryland, despite the fact that white female employees received tuition assistance. Compl. ¶¶ 10, 28.*fn2 Johnson also alleges delays of weeks and months in receiving promotions for which he was eligible. See id. ¶ 8. In particular, Johnson alleges that he was eligible for promotion to the GS-9 level on November 24, 1998, but he was not promoted until December 6, 1998; that he was eligible for promotion to the GS-11 level on December 6, 1999, but he was not promoted until February 13, 2000; and that he was eligible for promotion to the GS-12 level on February 13, 2001, but he was not promoted until July 15, 2001. Id. Finally, Johnson alleges that he was eligible for promotion to the GS-13 level on July 15, 2002, but he never received that promotion, despite the fact that he received a "Fully Successful" performance rating for the relevant rating period from October 1, 2001 to September 30, 2002. Id. ¶¶ 8, 21.

On September 23, 2002, Johnson filed an informal Equal Employment Opportunity ("EEO") complaint against the USDA in response to the denial of the GS-13 promotion. Id. ¶ 22. On February 12, 2003, Johnson filed a formal EEO complaint alleging claims of race, age and sex discrimination under Title VII and the ADEA. Id. ¶ 3; see also Administrative Record ("AR") 25. Johnson's formal EEO complaint, as amended on April 8, 2003, alleges discrimination relating to: (1) the failure to grant Johnson's career-ladder promotion to GS-13 on September 23, 2002; (2) the failure to grant prior promotions in a timely manner; (3) the denials of training requests and tuition assistance for work-related courses; and (4) the failure to give him an "Outstanding" rating on his October 17, 2002 performance appraisal. See AR 25-30.*fn3

Johnson alleges that on April 7, 2003, he was put on a Performance Improvement Plan ("PIP"). Compl. ¶ 22. At the conclusion of the PIP, on July 11, 2003, he received a letter stating that his performance during the PIP was unacceptable and denying him a within-grade increase from GS-12, step 2 to GS-12, step 3. Id. ¶ 24. Johnson requested reconsideration of the USDA's refusal to grant him the within-grade increase, but his request was denied on August 12, 2003. Id. ¶ 25. Johnson appealed that denial to the Merit System Protection Board ("MSPB") on September 5, 2003. Id. ¶ 26.

On November 12, 2003, at an MSPB appeal status hearing, Johnson and the USDA entered into an agreement to settle the pending claims and all other claims Johnson may have had against the USDA. See Johnson I, 569 F. Supp. 2d at 151-52. On November 17, 2003, the judge who presided over the MSPB appeal status hearing issued an Initial Decision dismissing Johnson's MSPB appeal based on the settlement. Id. at 152. The Initial Decision included a section titled, "NOTICE TO APPLICANT," which stated that the decision would become final on December 22, 2003 and included information on filing a petition for review. Id. at 152-53. On November 25, 2003, Johnson sent a letter to the USDA under his EEO complaint caption, in which he stated that he had not agreed to settle the case, and that the letter was "to inform you that I Eugene Johnson, will continue to go forward with my EEO Complaint." Id. at 153. Johnson subsequently took the 60 days' administrative leave provided for in the settlement agreement and then resigned on March 15, 2004, though he states that he was "forced to terminate his employment." Pl.'s SMF ¶ 13; see also Johnson I, 569 F. Supp. 2d at 153.

On September 17, 2004, plaintiff filed his complaint in the above-captioned case. On August 6, 2008, this Court granted in part and denied in part defendant's motion to dismiss or, in the alternative, for summary judgment. See Johnson I, 569 F. Supp. 2d at 159. In particular, this Court denied defendant's motion with respect to the ADEA claims alleged in plaintiff's EEO complaint, and granted defendant's motion with respect to (1) plaintiff's Title VII claims, which had been waived in the MSPB settlement; (2) plaintiff's remaining ADEA claims, which he failed to exhaust via the MSPB's appeal process; and (3) plaintiff's claim of retaliation. See id. at 155-59. The Court also dismissed the two individually-named defendants, Geraldine Broadway and Jacquelyn Chandler, leaving as the sole defendant the Secretary of the USDA in his official capacity. Id. at 159. On March 26, 2010, the Court denied plaintiff's motion for reconsideration, finding it "a rehash of the arguments previously argued and rejected by the Court." Defendant filed its motion for summary judgment on August 13, 2010. The motion is now ripe for determination by the Court.


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(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Waterhouse v. District 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 moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. See Celotex, 477 U.S. at 325. 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, 587 (1986); Keyes v. District of Columbia, 372 F.3d 434, 436 (D.C. Cir. 2004).

The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials; rather, it 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(c)(1); Celotex, 477 U.S. at 324. If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson, 477 U.S. at 249-50. "The mere existence of a scintilla of evidence in support of the [non-movant]'s position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.


Plaintiff's surviving claims arise under the ADEA, which provides that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in executive agencies . . . shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a). Defendant makes two arguments in support of its motion for summary judgment. First, defendant argues that, on three of plaintiff's four claims, plaintiff failed to exhaust his administrative remedies under 29 U.S.C. § 633a. Second, defendant argues that, on all four claims, plaintiff has failed to rebut defendant's proffered legitimate, non-discriminatory explanation for its actions. The Court analyzes these arguments in turn.

A.Failure to Exhaust Administrative Remedies

Defendant argues that plaintiff failed to exhaust his administrative remedies on three of his four claims: (1) the alleged failure to grant plaintiff's career-ladder promotion to GS-13 on September 23, 2002; (2) the alleged failure to grant prior promotions from 1998 through 2001 in a timely manner; and (3) the alleged denial of plaintiff's requests for training since 1997.*fn4 In his opposition, Johnson contends that all of his claims were timely presented to the EEOC. See generally Pl.'s Opp. Johnson invokes the Lilly Ledbetter Fair Pay Act in support of his arguments.

1.Legal Standard for Exhaustion Under the ADEA

Under the ADEA, a federal government employee has two alternative avenues to judicial redress. See Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003). "First, the employee may bring a claim directly to federal court so long as, within 180 days of the allegedly discriminatory act, he provides the EEOC with notice of his intent to sue at least 30 days before commencing suit." Id. (citing 29 U.S.C. §§ 633a(c), (d)); see also Stevens v. Dep't of Treasury, 500 U.S. 1, 5-7 (1991). "Second, the employee may invoke the EEOC's administrative process, and then sue if dissatisfied with the results." Rann, 346 F.3d at 194 (citing 29 U.S.C. ยงยง 633a(b), (c)). Failure to adhere to at least one of these alternatives will bar claims in the district court. See Rann, 346 F.3d at ...

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