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Phuc N. Nguyen v. *Fn1 Ray Mabus

September 30, 2012

PHUC N. NGUYEN, PLAINTIFF,
v.
*FN1 RAY MABUS, SECRETARY OF THE NAVY, DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff Phuc Nguyen ("Nguyen"), proceeding pro se, brings this action against the Secretary of the Navy, alleging discrimination on the basis of race, national origin, and retaliation, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2 et seq., as well as discrimination on the basis of age and hostile work environment, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 631 et seq. Pending before the Court is Defendant's Motion for Summary Judgment. Upon consideration of the motion, the opposition and the reply thereto, the applicable law, the entire record, and for the reasons stated below, the Court will GRANT IN PART AND DENY IN PART Defendant's Motion for Summary Judgment.

I.BACKGROUND

A.Factual Background

Plaintiff Nguyen was born on July 4, 1948 in Saigon, Vietnam. Am. Compl. ¶ 4. Nguyen is a GS-13 equivalent grade engineer employed at Naval Sea Systems Command Headquarters ("NAVSEA"). Def.'s Statement of Material Facts ¶ 1 (hereinafter "Def.'s SMF"); see also Def.'s Mot. for Summ. J. (hereinafter "Def.'s MSJ"), Ex. 7, Department of Defense Office of Complaint Investigations, Reporter's Transcript of Proceedings in the Investigation of the Discrimination Complaint of Phuc Nguyen, Agency Docket No. DON-05-00024-0872, Statement of Phuc Nguyen, at 21-22 (Oct. 17, 2005) (hereinafter "2005 Transcript"). Nguyen has worked at the same pay grade since 1986, and in the same position since 1997. Am. Compl. ¶¶ 7, 9; see also 2005 Transcript at 21. During the relevant time period, Nguyen worked in the management group that oversees the Submarine Sensor Program Office ("PMS 435") of the Program Executive Officer for Submarines ("PEOSUB"). Def.'s SMF ¶ 2. PMS 435 designs, develops, and oversees the construction of Electronic Warfare Systems, periscopes, and the Photonics Mast. See Am. Compl. ¶ 9; Def.'s SMF ¶ 4. Within PMS 435 are several branches, including an Imaging Systems Branch, an Electronic Warfare Systems Branch, and the I&EW Branch, which is headed by the Chief Engineer. See Def.'s SMF ¶ 6; see also Def.'s MSJ, Ex. 10, 2007 Report of Investigation at 47 (hereinafter, "2007 ROI"). During the relevant time period, Nguyen worked under the Chief Engineer and had the working title of Assistant Chief Engineer. Def.'s SMF ¶ 9; see also Def.'s MSJ, Ex. 8, 2005 Report of Investigation at 69 (hereinafter, "2005 ROI").

From 1997 through January 2005, Nguyen's direct supervisor was Swarn Dulai, who was the Chief Engineer in PMS 435. Am. Compl. ¶ 10. From 1997 through mid-2008, Paul Gross, Deputy Project Manager, was Nguyen's second level supervisor. Am. Compl. ¶ 11. With respect to Mr. Gross, Plaintiff alleges --without providing any dates -- that Gross has not assigned Nguyen a major area of responsibility, despite other similarly situated engineers having clear and substantive areas of responsibility; that Gross has stripped Nguyen of substantive engineering work relegating him to assignments of stop-gap duties and responsibilities; that under Gross's leadership, Nguyen has received one performance award in contrast to regular annual awards given to similarly situated Caucasian engineers with less experience; and that Gross continues to exclude Nguyen from major acquisition program duties and responsibilities, in favor of other younger, less experienced, Caucasian engineers. See Am. Compl. ¶¶ 14-17. As to Mr. Dulai, Plaintiff alleges that on several occasions, Dulai spoke about the Vietnam War and told Nguyen that "Vietnamese people ought to be grateful for having a job at NAVSEA." Am. Compl. ¶ 19. According to Plaintiff, Dulai also stated that, in contrast to Asians, he considered his racial identity to be more like a Caucasian person, since he is Sikh. Am. Compl. ¶ 20. Plaintiff alleges that on many occasions, Dulai mocked the accent of another Vietnamese employee. Am. Compl. ¶ 21. Finally, Plaintiff states that in late December 2004, Dulai approached Nguyen privately and threatened that the new Chief Engineer would target him with harassment. Dulai purportedly recommended that Nguyen leave the Assistant Chief Engineer position for a position outside PEOSUB, and promised that if Nguyen did so, Dulai would provide a positive reference. Am. Compl. ¶ 28.

1.2005 EEO Complaint

Dulai announced his plan to retire in early 2004. Am. Compl. ¶ 18. The PMS 435 staffing charts reflect that up to Dulai's retirement, only two individuals were permanently assigned to the Chief Engineer Branch: Nguyen and Dulai. Def.'s SMF ¶ 10; see also Def.'s MSJ, Ex. 12. From about September 20, 2004 to September 11, 2005, Dr. Robert LaFreniere*fn2 was detailed to the branch from the Naval Undersea Warfare Center, Newport Division, which is a field activity to NAVSEA. Def.'s SMF ¶¶ 11-12; see also 2005 ROI at 53; Def.'s MSJ, Ex. 12, at 4-7. LaFreniere's working title while initially on detail was Deputy Chief Engineer/Field Support. Def.'s SMF ¶ 13; 2005 ROI at 69.

Upon Dulai's retirement on January 5, 2005, LaFreniere was designated Acting Chief Engineer. Def.'s SMF ¶ 14; 2005 ROI at 53. LaFreniere served in that position until about April 2005, when the position was permanently filled upon the selection of Steven Stump. See Def.'s SMF ¶ 14; 2005 ROI at 53. Nguyen made initial contact with an EEO counselor on February 11, 2005,*fn3 after learning that his name had been omitted from a group award nomination. Def.'s SMF ¶ 15; see also 2005 ROI at 1, 6, 14-18, 82; 2005 Transcript at 89-91 ("I found out about this [award] just by mere coincidence after I received an e-mail from management showing the letter of recommendation . . . sometime around that timeframe when I was thinking about complaining about LaFreniere's assignment as acting chief engineer. I saw this e-mail, so I said this is it. I mean this is the last straw . . . so I need to go forward with this complaint.").

In his initial EEO contact, Nguyen alleged discrimination on the basis of his race, age, national origin, and reprisal because of protected activity. See Def.'s SMF ¶ 16; 2005 ROI at 15. Nguyen alleged the following claims:

1. On February 11, 2005 he was denied recognition for his contribution to PMS 435 programs (such as initiating Patriot radar program and serving as systems engineer on it);

2. As of January 5, 2005 he was denied Chief Engineer lead systems engineering assignments;

3. As of January 2005 he was denied the Acting Chief Engineer position;

4. As of January 5, 2005 the Acting Chief Engineer excluded him from Advanced Submarine Support Equipment Program ("ASSEP") budget management deliberations;

5. As of January 5, 2005, the Acting Chief Engineer "kept [Nguyen] in the dark and excluded [Nguyen] from all his communications and meetings with co-workers, field activities and support contractors."

See Def.'s SMF ¶ 16; 2005 ROI at 15--16. Nguyen also alleged the following claims in support of a "continuing hostile environment":

1. On January 5, 2005, Dulai suggested that Nguyen leave his job and look for another position to avoid future adverse action;

2. On January 5, 2005 and continuing to the present, Management continues to manipulate position qualifications and deny Nguyen's job experience to deny him assignments and advancement opportunities in favor of less experienced engineers;

3. Management encourages the community to exclude Nguyen from important program reviews, the latest of which was the ISIS kick-off meeting at Kollmorgen on February 9, 2005.

See Def.'s SMF ¶ 16; 2005 ROI at 15-16.

On February 17, 2005, Nguyen was given, and he initialed, a notice of his rights and responsibilities. This notice included the requirement to contact an EEO counselor within 45 days of an alleged discriminatory action, and information on how to allege a violation of the ADEA, including use of the ADEA "bypass" provision.*fn4 See Def.'s SMF ¶ 17; 2005 ROI at 20-29. On March 24, 2005, Nguyen's attorney filed a formal EEO complaint alleging the same claims raised in Nguyen's initial EEO contact. See Def.'s SMF ¶ 18; 2005 ROI at 2-4.

Plaintiff alleges that, on April 15, 2005, Defendant again failed to promote him to Chief Engineer; instead Defendant selected Stephen Stump, who is Caucasian and seventeen years younger than Nguyen. Am. Compl. ¶¶ 37, 39.

2.2007 EEO Complaint

In about November 2006, Stump vacated the Chief Engineer position, and the Deputy Program Manager, Paul Gross, initiated the selection process for a new Chief Engineer. See Def.'s SMF ¶ 19; 2007 ROI at 130. Gross asked Nguyen and two other individuals assigned to PMS 435, Riad Sayegh*fn5 and Michael Patton, to update their resumes electronically, and Gross provided their names to Human Resources as individuals qualified and interested in the Chief Engineer position. 2007 ROI at 131. Nguyen and Sayegh were the only two candidates interviewed for the position. Def.'s SMF ¶ 20; 2007 ROI at 131. The interview panel consisted of three individuals: Gross, Dr. Bradley Binder, and Scott Greenberg. Def.'s SMF ¶ 21; see also 2007 ROI at 131. Binder, the Chief Engineer for Surface Electronic Warfare Systems, worked outside of the Team Sub organization and had no prior knowledge of any of the applicants. Greenberg had served as the Chief Engineer for Towed Systems. See Def.'s SMF ¶¶ 22-23; 2007 ROI at 131. The panel members reviewed Nguyen's and Sayegh's resumes and interviewed both applicants. All three panel members believed Sayegh to be the better candidate, and he was selected for the position. See Def.'s SMF ¶¶ 24-25; 2007 ROI at 132, 134, 136.

Nguyen made initial contact with an EEO counselor via email on April 24, 2007. See Def.'s SMF ¶ 26; 2007 ROI at 5, 13-18. In his initial contact, Nguyen alleged discrimination on the basis of race, national origin, age, and reprisal due to the "[c]ontinuing failures by PMS 435 to promote [Nguyen] to PMS 435 Chief Engineer position between Jan[uary] 2005 [and] the present." 2007 ROI at 18. On July 27, 2007, Nguyen filed a formal administrative complaint, again alleging discrimination based on Defendant's continuing failure to promote him to Chief Engineer; in particular, Nguyen complained of his non-selection for the Chief Engineer position on three occasions: (1) January 4, 2005, (2) April 15, 2005, and (3) March 19, 2007. Def.'s SMF ¶ 27; 2007 ROI at 2-3. On August 28, 2007, the EEO Officer sent Nguyen a notice of acknowledgment for investigation and partial dismissal. The EEO Officer informed Nguyen that his claim of non-selection for the Chief Engineer position on March 19, 2007 was accepted for investigation. Def.'s SMF ¶ 27; 2007 ROI at 40. However, Nguyen was informed that the EEO Officer was dismissing his other two non-selection claims: the April 15, 2005 non-selection claim was dismissed for failure to contact an EEO counselor within 45 days, and the January 2005 claim was dismissed because the same claim was pending before an EEO administrative judge. See Def.'s SMF ¶ 27; 2007 ROI at 41-42.

3.Post-April 24, 2007 Allegations

Nguyen alleges that Sayegh, as Chief Engineer, has transferred management duties and responsibilities for the Small Business Innovative Research ("SBIR") projects away from Nguyen. Am. Compl. ¶ 48. Further, Nguyen alleges that Sayegh has not assigned new SBIR projects to Nguyen as other projects reach their successful ends, and thus, Sayegh has virtually eliminated Nguyen's duties and responsibilities in this area. Am. Compl. ¶ 49. In November 2008, Nguyen was made Acting Chief Engineer. However, according to Nguyen, Mr. Gross split the duties normally carried out by one Chief Engineer among three different Acting Chief Engineers, two of whom had not previously served under a Chief Engineer. Am. Compl. ¶ 50. Finally, Nguyen asserts that in November 2008, November 2009, and July 2009, Defendant failed to promote him to the high-grade PMS 435 Imaging Sensor Assistant Program Manager position; instead, Defendant selected three different Caucasian applicants who were substantially younger than Nguyen.*fn6 Am. Compl. ¶¶ 51, 55-57. Plaintiff does not dispute that he never contacted an EEO counselor or filed an EEO complaint regarding these post-April 24, 2007 allegations.

B.Procedural Background

Nguyen filed his initial Complaint in this action on July 21, 2009. He filed an Amended Complaint on December 31, 2009. In the Amended Complaint, Nguyen alleges that Defendant's failure to promote him constitutes discrimination on the basis of race, national origin, and age, in violation of Title VII and the ADEA. See Am. Compl. ¶¶ 59-79. In addition, Nguyen alleges that after he contacted an EEO counselor in 2005, Defendant retaliated against him by cutting ASSEP funding from Nguyen's programs and continuing to prohibit Nguyen from participating in ASSEP funding decisions, which stripped Nguyen of substantive job responsibilities. Am. Compl. ¶¶ 80-85. Nguyen filed a separate action on June 18, 2010. Compl., Nguyen v. Mabus, No. 10-1030 (June 18, 2010), Docket No. 1. The three-page complaint in that action makes largely similar claims but provides much less detail. Without alleging separate causes of action, Plaintiff claims:

This action arises out of the Agency continually discriminating against Phuc N. Nguyen, based on race (Asian Pacific), national origin (Viet Nam), and retaliat[ing] against Nguyen based on prior Equal Employment Opportunity (EEO) activity in violation of Title VII . . . . In addition, the Defendant discriminated against Nguyen and created a hostile work environment based on age (57 years as of January 2005) in violation of the [ADEA].

Id. at 2. On January 4, 2011, the Court consolidated case number 10-1030 with this action. See Minute Order, Nguyen v. Mabus, No. 10-1030 (Jan. 4, 2011). On October 17, 2011, Defendant filed a Motion for Summary Judgment. That motion is 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(a); 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 moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. See Celotex, 477 U.S. at 323. In determining whether a genuine issue of material fact 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. Dist. 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. 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." Adair v. Solis, 742 F. Supp. 2d 40, 50 (D.D.C. 2010), aff'd, 473 F. App'x 1 (D.C. Cir. 2012) (internal quotation marks and citations omitted). "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]." Anderson, 477 U.S. at 252.

Where, as here, a plaintiff is proceeding pro se, "the Court must take particular care to construe the plaintiff's filings liberally, for such [filings] are held 'to less stringent standards than formal pleadings drafted by lawyers.'" Cheeks v. Fort Myer Constr. Co., 722 F. Supp. 2d 93, 107 (D.D.C. 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520--21 (1972)).

III.ANALYSIS

A.Claims of Discrimination Under Title VII and ADEA

1.Exhaustion of Administrative Remedies

a.Legal Standard for Exhaustion

Before bringing suit under either Title VII or the ADEA, an aggrieved party is required to timely exhaust his or her administrative remedies. See Harris v. Gonzales, 488 F.3d 442, 443 (D.C. Cir. 2007); Washington v. Wash. Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998). These exhaustion requirements are not jurisdictional, but rather operate as a statute of limitations defense. Artis v. Bernanke, 630 F.3d 1031, 1034 n.4 (D.C. Cir. 2011) (citation omitted). "Because untimely exhaustion of administrative remedies is an affirmative ...


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