United States District Court, District of Columbia
DONALD S. JOHNSON, Plaintiff,
ROBERT M. LIGHTFOOT,  Administrator, National Aeronautics and Space Administration Defendant.
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT RE DOCUMENT
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.
Donald S. Johnson brings this action against Defendant Robert
M. Lightfoot, administrator of the National Aeronautics and
Space Administration (“NASA”), for discrimination
under the Age Discrimination in Employment Act
(“ADEA”), as amended, 29 U.S.C. § 633a;
Title VII of the Civil Rights Act of 1964 (“Title
VII”), as amended; 42 U.S.C. § 2000e et
seq.; and the Equal Pay Act of 1963 (“EPA”),
as amended, 29 U.S.C. § 206(d). Mr. Johnson alleges that
NASA refused to promote him and denied him equal pay for both
discriminatory and retaliatory reasons. NASA now moves for
summary judgment. See Def.'s Mot. Summ. J., ECF
No. 13. For the reasons stated below, the Court finds that
NASA is entitled to summary judgment on Mr. Johnson's
ADEA and Title VII claims because Mr. Johnson has not
rebutted NASA's performance-based reasons for not
promoting him. The Court also finds that it lacks
subject-matter jurisdiction over Mr. Johnson's EPA claim
and therefore dismisses it without prejudice.
Johnson is an African-American man who was born in 1947.
Def.'s Statement Material Facts to Which There is No
Genuine Dispute (“Def.'s Statement Facts”)
¶ 1, ECF No. 13-2. He “began working for NASA on
March 8, 1999, as a GS-13 Equal Employment Opportunity
[(‘EEO')] Specialist within NASA's
Complaint's Management Division of the Office of
Diversity and Equal Opportunity (‘CMD').”
Id. ¶ 2. During his time at NASA, Mr. Johnson
never received a promotion to GS-14 and ultimately retired on
December 31, 2010 at the same GS-13 level at which he
started. Id. ¶¶ 3-4, 18.
2008, CMD announced that two identical EEO Specialist
positions were available as career ladder GS-13/14 positions.
Id. ¶ 20. Mr. Johnson and Aisha Moore, a woman
who was under forty years old and had no prior EEO activity,
both applied for the positions. Id. ¶¶ 14,
21; Moore Notification of Personnel Action, ECF No. 13-9.
However, after Mr. Johnson and Ms. Moore applied, it became
apparent that the positions “were incorrectly
advertised as GS-13/14 positions, ” and the
“announcement should have stated that there was
potential to be promoted to the GS-14 grade level.”
Brenda Manuel Aff. (“Manuel Aff.”) ¶ 9, ECF
No. 13-7. Thus, “the vacant positions were revised and
re-advertised as . . . GS-13 [positions] with potential for
advancement to GS-14 status.” Def.'s Statement
Facts ¶ 22. Ultimately, both Mr. Johnson and Ms. Moore
were selected to fill these revised positions. Id.
¶ 25. But shortly thereafter, Ms. Moore also received a
promotion to GS-14. Id. ¶ 27. As EEO
Specialists, both Mr. Johnson's and Ms. Moore's
“work responsibilities included managing EEO cases,
writing Final Agency Decisions (‘FADs'), overseeing
the work of junior EEO Specialists, drafting acceptance or
dismissal letters in response to EEO complaints, and working
with NASA's Office of the General Counsel.”
Id. ¶¶ 6, 15; Linda Jackson Aff.
(“Jackson Aff.”) ¶ 8, ECF No. 13-5.
Mr. Johnson and Ms. Moore maintained similar work
responsibilities, see Def.'s Statement Facts
¶¶ 6, 15, they performed at disparate levels. Ms.
Moore “completed several additional office-wide
projects, including[:] updating the office website,
contributing articles to the ODEO Endeavor newsletter,
editing articles, providing analyses of new court cases,
helping develop NASA's anti-harassment procedures,
managing the ‘I complaints' tracking system, and
creating draft FAD templates to produce uniformity in
office-wide work product” in addition to
“completing the same tasks that [Mr.] Johnson
completed.” Id. ¶ 36. Moreover, during
this time period “Ms. Moore's work product required
significantly fewer corrections and did not warrant the same
level of supervision that [Mr.] Johnson's work
required.” Id. ¶ 35.
Johnson, on the other hand, “routinely received
performance reviews identifying the need for improved written
skills and timeliness.” Id. ¶ 28. Indeed,
Mr. Johnson had many “written submissions . . .
returned with numerous errors identified.” Id.
¶ 29. In some cases, Mr. Johnson failed to complete
assignments at all, such as the “Contingent Worker Desk
Guide” which had been assigned to him in 2008.
Id. ¶ 30. Mr. Johnson's supervisors also
noted that “he needed to improve his written work as
well as the timeliness of his submissions” in both 2009
and 2010. Id. ¶¶ 31-32. Mr. Johnson made
these types of errors repeatedly and those errors persisted
even after they were pointed out to him. See Jackson
Aff. ¶ 10. Mr. Johnson even attended a legal writing
course and proofreading training, but his errors continued.
Id. ¶ 12. Thus, Mr. Johnson's supervisor
“informed [Mr.] Johnson that he was not being promoted
on account of his unexceptional work performance and that
[Mr. Johnson] was therefore aware of the reasons preventing
his promotion.” Def.'s Statement Facts ¶ 33.
December 8, 2010, Mr. Johnson “contacted a NASA EEO
counselor to lodge his complaints of non-promotion and
unequal pay.” Id. ¶ 16; see also
EO Counselor's Report ¶ 3, ECF No. 13-10. Following
that contact, Mr. Johnson filed a formal complaint on March
23, 2011. EEO Complaint of Discrimination (“EEO
Compl.”), ECF No. 13-3. Mr. Johnson's complaint
alleged that from September 28, 2008, through December 31,
2010, he faced discrimination because of his age, sex, and
race, and also claimed that he was subjected to retaliation
for “filing a prior [discrimination]
complaint.” Id. Mr. Johnson asserted
“that the discrimination and retaliation took the form
of non-promotions and unequal compensation” because he
was paid less than his female colleagues. Def.'s
Statement Facts ¶ 19; Def.'s Mem. at 3-4; see
also EEO Compl. The Equal Employment Opportunity
Commission (“EEOC”) granted summary judgment for
NASA on both claims, finding that NASA had shown legitimate,
non-discriminatory, non-retaliatory reasons sufficient to
defeat Mr. Johnson's claims. EEOC Decision at 5, ECF No.
13-12. Furthermore, the EEOC ruled that Mr. Johnson's EPA
claim failed because he failed to show that he received
“less pay for the same work.” Id.
(internal quotations omitted).
September 8, 2015, Mr. Johnson filed the present action
seeking relief under the ADEA, Title VII, and the EPA. Mr.
Johnson contends that NASA denied him a promotion and
subjected him to disparate pay because of his sex, age, and
as a reprisal for previously filing an informal EEO
complaint. Compl. ¶¶ 36-48. Among other relief, Mr.
Johnson seeks “back pay, wages, and benefits in an
amount to be shown at trial.” Compl. at 8. Although Mr.
Johnson does not seek damages in an amount sum certain, he
does allege that “the amount in controversy exceeds
$10, 000.” Compl ¶ 3.
October 17, 2016, NASA moved for summary judgment on all of
Mr. Johnson's claims. See generally Def.'s
Mot. Summ. J., ECF No. 13. Mr. Johnson was to file his
opposition on or before November 16, 2016, see
Minute Order (Sept. 12, 2016), yet no opposition was filed on
that date. Two days later, the Court received a consent
motion for an extension of time nunc pro tunc.
See generally Pl.'s Consent Mot. Extension Time,
Nunc Pro Tunc, ECF No. 14. The Court granted the
motion, ordering that Mr. Johnson file his opposition on or
before January 30, 2017. See Minute Order (Nov. 18,
2016). But that date, too, came and went without any
opposition. Thus, the Court ordered that the parties submit a
joint status report. See Minute Order (Feb. 1,
2017). The parties' status report indicated that Mr.
Johnson would file a consent motion on February 6, 2017,
which would ask this Court to allow Mr. Johnson until March
3, 2017 to file his opposition. Joint Status Report ¶ 2,
ECF No. 17. But no such motion was ever filed. Nonetheless,
the Court graciously deemed the request in the Joint Status
Report to be a motion for extension of time and ordered that
Mr. Johnson file his opposition by March 3, 2017. Minute
Order (Feb. 13, 2017). But on that date, instead of filing an
opposition, Mr. Johnson filed yet another consent motion for
extension of time, nunc pro tunc, now asking that
the Court allow him to file his opposition by March 30, 2017.
Pl.'s Consent Mot. Extension Time, Nunc Pro
Tunc, ECF No. 18. The Court reluctantly granted the
motion. Minute Order (Mar. 6, 2017). However, Mr. Johnson
again failed to file an opposition or any other
document with the Court. Accordingly, the Court ordered that
the parties appear for a status conference to discuss Mr.
Johnson's persistent failure to meet the repeatedly
extended deadline. See Minute Order (Apr. 19, 2017).
The Court specifically required the attendance of Mr. Johnson
to ensure that he was aware of his counsel's failure to
file a timely opposition. Following that status conference,
the Court gave Mr. Johnson one final extension of time to
file a response to Defendant's motion- until May 29,
2017. Minute Order (May 8, 2017). But no such opposition or
any other filing from Mr. Johnson was forthcoming. Now, more
than nine months after NASA initially filed its motion for
summary judgment, having granted Mr. Johnson four extensions,
and having held a status conference specifically to address
the issue, the Court has still received no opposition or
other response from Mr. Johnson. The Court will wait no
longer for Mr. Johnson to address the motion.
may grant summary judgment when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A “material” fact is one
capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is “genuine” if
there is enough evidence for a reasonable jury to return a
verdict for the non-movant. See Scott v. Harris, 550
U.S. 372, 380 (2007).
principal purpose of summary judgment is to streamline
litigation by disposing of factually unsupported claims or
defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986). The movant bears the initial burden of
identifying portions of the record that demonstrate the
absence of any genuine issue of material fact. See
Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323.
In response, the non-movant must point to specific facts in
the record that reveal a genuine issue that is suitable for
trial. See Celotex, 477 U.S. at 324. In considering
a motion for summary judgment, a court must “eschew
making credibility determinations or weighing the evidence[,
]” Czekalski v. Peters, 475 F.3d 360, 363
(D.C. Cir. 2007), and all underlying facts and inferences
must be analyzed in the light most ...