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Ng v. Lahood

United States District Court, District Circuit

July 5, 2013

PETER NG, Plaintiff,
v.
RAY LAHOOD, SECRETARY, U.S. DEPARTMENT OF TRANSPORTATION, Defendant.

MEMORANDUM OPINION & ORDER

KETANJI BROWN JACKSON, District Judge.

Plaintiff Peter Ng filed this action on October 21, 2011, alleging three counts: discrimination based on race (Count I), discrimination based on national origin (Count II), and retaliation (Count III), all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. Ng's claims stem from actions taken by his employer, the Air Traffic Organization ("ATO"), a division of the Federal Aviation Administration ("FAA"), and, by extension, the Department of Transportation ("DOT"). Before the Court is Defendant's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56, as well as Ng's motion, pursuant to Fed R. Civ. P. 37, to strike certain declarations included in Defendant's summary judgment briefing. For the reasons set forth below, Ng's Motion to Strike is DENIED, and Defendant's Motion for Summary Judgment is GRANTED.

I. BACKGROUND

Ng is an Asian-American male of Chinese national origin. (Defendant's Statement of Undisputed Material Facts ("D-SOF") ¶ 1 [ECF No. 21].) Ng has worked for ATO for over thirty years. (Plaintiff's Statement of Disputed Material Facts ("P-SOF") ¶ 10 [ECF No. 24].) In 2006, Ng took the position of Technical Support Manager in ATO's Communications Services Unit ("Communications Unit"), and remained in that position at all times relevant to this action. As a Technical Support Manager, Ng provided technical expertise in support of the Communications Unit's mission to provide timely and relevant information to ATO employees and to communicate ATO programs and objectives to employees, customers, and stakeholders. (D-SOF ¶ 2.) Although Ng was based in Boston, he was responsible for supervising employees in Washington, D.C. (Complaint ("Compl.") ¶¶ 6-7; D-SOF ¶ 3.)[1]

Prior to the fall of 2008, Ng's immediate supervisor was then-Communications Unit Vice President Sandra Sanchez. (Compl. ¶¶ 8, 9; D-SOF ¶ 6.) In August of 2008, Gerald Lavey replaced Sanchez and became Ng's immediate supervisor. (Compl. ¶ 9.)

Ng's allegations of discrimination arise out of the following acts. The facts are undisputed except where otherwise noted:

Prior to Sanchez's departure in August 2008, she recommended that Ng receive the highest Superior Contribution Increase rating ("SCI") for 2008-called SCI-1.[2] (Compl. ¶ 10.) In October of 2008, two months after Lavey succeeded Sanchez to become Ng's supervisor and before Sanchez's SCI recommendation for Ng was approved, Lavey recommended that Ng receive the second-highest rating, SCI-2. (Compl. ¶ 11.) Lavey's supervisor, John Pipes, chose instead to credit the prior recommendation that Sanchez had made. (Compl. ¶ 13.) As a result, Ng received the highest possible SCI rating for 2008. (Compl. ¶¶ 10-13.)

At the time Lavey became Ng's supervisor, Lavey had four direct reports: Ng, Kimberly Pyle, Edward Braese, and Terry Snyder. (D-SOF ¶¶ 7, 10.) In October of 2008, Lavey undertook to restructure the Communications Unit by trimming the organizational structure from four groups (each headed by one of Lavey's four direct reports) to two groups. (D-SOF ¶¶ 10-12.) As a result of the restructuring, Ng's Technology Information group was subsumed into a newly formed Communications Operations group and Ng began reporting to Braese, one of his former peers, rather than directly to Lavey. (Plaintiff's Brief in Opposition to Summary Judgment ("Pl. Br.") Ex. B [ECF No. 24-2]; D-SOF ¶ 13.) Similarly, Pyle's Congressional Communications group was folded into a newly formed Communications Strategy group, and Pyle began reporting to Snyder rather than directly to Lavey. (D-SOF ¶ 14.) There was no change "on paper" to the number of people Ng supervised, nor were any changes made to Ng's salary and benefits. (D-SOF ¶ 13.) Nevertheless, Ng asserts that the "reality" was different, in that he was "prohibited from" communicating with his subordinates after that point. (Defendant's Brief in Support of Summary Judgment ("Def. Br.") Ex. A (Deposition of Peter Ng) ("Ng Dep.") [ECF No. 21-1] at 22:6-17.) Ng also alleges that, after the restructuring, he was excluded from management meetings. (Compl. ¶¶ 18-19.)

In November of 2008, Ng submitted a request to Lavey to attend a training session about administrative investigation. (Def. Br. Ex. 13 [ECF No. 21-2].) Lavey responded to Ng that a "decision [had been] made" that only one member of the Communications Unit staff should attend the training session. ( Id. ) One of Ng's former colleagues, Terry Snyder, a white male and one of two Communications Unit employees who directly reported to Lavey after the restructuring, attended the training. (Compl. ¶¶ 22-25.)

In the course of his duties, Ng created and managed the technical aspects of a pilot communications project known as the "Vortex Project." (P-SOF ¶ 22.) The Vortex Project was a system designed to convey information to ATO employees. (D-SOF ¶ 24.) Ng asserts that certain Communications Unit employees opposed the project and consistently sought to undermine it. (P-SOF ¶ 24.) Ng claims that sometime around the end of 2008 or the beginning of 2009, his role in supervision of this project was significantly reduced. (Compl. ¶¶ 29-30.) Ng alleges that Braese took over many of Ng's duties with respect to the Vortex, including substituting Braese's name for Ng's as a point of contact for the Vortex Project. (Compl. ¶ 30.) Ng also alleges that his name was removed from the project wall, and many of his other Vortex-related tasks were delegated to Richard Roberts, a lower-ranking member of the Communications Unit. (P-SOF ¶ 25.)

In January 2009, Ng was directed to report to ATO headquarters in Washington, D.C., for a 60-day period, to work on the Vortex Project. (Compl. ¶ 31; D-SOF ¶ 27.) Ng contends that he was required to travel to the District of Columbia on the day after the Presidential Inauguration, making it difficult for him to obtain travel and living accommodations. (Compl. ¶ 32.) Ng also claims that, upon arrival, Ng found that all other employees had been instructed to work from home that day. (Compl. ¶ 33.) Additionally, Ng maintains that, when he arrived in Washington, "there was nothing for [him] to do, " causing him to feel "embarrassed when other employees saw him sitting with nothing to do." (P-SOF ¶ 31.) Ng did not spend the entirety of the 60 days in Washington, instead leaving for at least three weeks for various non-Vortex related events. (D-SOF ¶ 32.)

Finally, while not included in the Complaint or in his Statement of Disputed Material Facts, Ng's summary judgment brief includes allegations that employees in the Communications Unit at times made disparaging comments regarding his accent. (Pl. Br. at 20-22.) Specifically, Ng alleges that Pyle made fun of his accent at a staff meeting; that on several occasions Claudia Bogard (another Communications Unit employee) said that she could not understand Ng; and that Braese consistently made snide comments that Ng alleges were racially motivated. ( Id. )[3]

II. LEGAL PRINCIPLES

A. Standard of Review for ...


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