EMMET G. SULLIVAN, District Judge.
Plaintiff Eugene Johnson brings this action against the Secretary
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.
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.
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
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548. 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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, 106 S.Ct. 2548. 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, 106 S.Ct. 2505. "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, 106 S.Ct. 2505.
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.
Defendant argues that plaintiff failed to exhaust his administrative remedies on
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, 111 S.Ct. 1562, 114 L.Ed.2d 1 (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. §§ 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 195. It is the defendant's burden to prove by a preponderance of the evidence that the plaintiff failed to exhaust administrative remedies. Johnson v. Ashcroft, 445 F.Supp.2d 45, 51 (D.D.C.2006).
If the employee elects to follow the EEO administrative process, the procedures governing discrimination complaints brought by employees of the federal government under the ADEA are set forth in 29 C.F.R. Part 1614 (Federal Sector Employment Opportunity). See 29 C.F.R. § 1614.103; see also More v. Snow, 480 F.Supp.2d 257, 269 (D.D.C.2007). An employee may not file a formal discrimination complaint without first "consult[ing] [an EEO] Counselor ... in order to try to informally resolve the matter." 29 C.F.R. § 1614.105(a). This initial contact must be made "within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1).
If the matter is not resolved informally within 30 days of the initial contact, the counselor shall inform the employee in writing of the right to sue, and the employee must, within 15 days, file a formal complaint of age discrimination against the agency. 29 C.F.R. § 1614.105(d); id. § 1614.106(a)-(c). The agency is then obligated to investigate the matter within 180 days. See 29 C.F.R. §§ 1614.108(e). After the agency's investigation has concluded, the employee may either request a hearing and decision from an EEOC administrative judge, or seek to obtain an immediate final decision from the agency. See 29 C.F.R. § 1614.108(f); see also More, 480 F.Supp.2d at 270. Any decision on the matter may be appealed to the EEOC, or challenged through the filing of a civil action in federal district court within 90 days. See 29 C.F.R. § 1614.402; id. § 1614.407(a); see also More, 480 F.Supp.2d at 270; 42 U.S.C. § 2000e-16(c) (setting forth ninety-day time limit for filing suit in Title VII cases); Price v. Bernanke, 470 F.3d 384, 389 (D.C.Cir.2006) (applying Title VII's ninety-day limitations period to ADEA claims). An employee
The D.C. Circuit has held that the timeliness and exhaustion requirements of Section 633a(d) are non-jurisdictional.
The Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111-2, 123 Stat. 5 (2009) ("LLA"), as incorporated into the ADEA, states, in relevant part, that "an unlawful practice occurs, with respect to discrimination in compensation in violation of [the ADEA], when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation or other practice." 29 U.S.C. § 626(d)(3). The LLA was enacted in response to the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), which held that later effects of past discrimination in compensation decisions, such as reduced paychecks, do not restart the clock for filing an EEO charge beyond the statutory time period. See id. at 642-43, 127 S.Ct. 2162. The LLA nullified the Ledbetter decision, and now, under the LLA, "each paycheck resulting from the original `discriminatory compensation decision or other practice' triggers a new filing period, in effect reviving a claim that otherwise would have been time-barred because of a failure to exhaust administrative remedies...." Johnson v. District of Columbia, 632 F.Supp.2d 20, 22 (D.D.C.2009).
As the D.C. Circuit has held, a decision not to promote an employee is not a "discriminatory compensation decision or other practice" under the LLA. Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 375 (D.C.Cir.2010); see also Lipscomb v. Mabus, 699 F.Supp.2d 171, 174 (D.D.C. 2010) (holding that employer's denial of two career ladder promotions on the GS scale was not a "discriminatory compensation decision or other practice," and hence, the LLA did not render timely the plaintiff's allegations of discrimination); Barnabas v. Bd. of Trs. of the Univ. of the Dist. of Columbia, 686 F.Supp.2d 95, 102 (D.D.C.2010).
With respect to the first route for exhaustion, defendant argues that Johnson "has presented no evidence that he ever sent the EEOC notice of his intent to sue." Def.'s Mem. 8. In response, Johnson states that he "provided notice to the EEOC of his intent to proceed on November 25, 2003." Pl.'s SMF ¶ 2. Even assuming, arguendo, that Johnson's letter to the USDA on November 25, 2003 constitutes sufficient notice of intent to sue under 29 U.S.C. § 633a, Johnson still did not exhaust his administrative remedies, as the letter was not sent within 180 days of any of the challenged actions.
On two of Johnson's claims, the failure to grant timely promotions from 1998 through 2001, and the denial of training requests, Johnson clearly did not exhaust his administrative remedies. In particular, Johnson claims that he was eligible for promotions on November 24, 1998, December 6, 1999, and February 13, 2001. Compl. ¶ 8. Because Johnson's initial contact with an EEO counselor was on September 23, 2002 (see AR 34), more than a year after the last alleged failure to timely promote, Johnson failed to exhaust his remedies with respect to the claim for failure to grant timely promotions from 1998 through 2001.
Because the Court concludes that plaintiff clearly has not exhausted his administrative remedies with respect to his claims for (1) the failure to grant timely promotions from 1998 through 2001, and (2) the alleged denial of training requests, these claims cannot survive summary judgment. See Barnabas, 686 F.Supp.2d at 102 & n. 3; More, 480 F.Supp.2d at 272-73.
On plaintiff's last claim, the alleged failure to grant his career-ladder promotion to GS-13, Johnson alleges that he was denied the promotion on September 23, 2002, and he "immediately initiated the informal complaint process required by his employment." Pl.'s Opp. 2. In response, defendant argues that Johnson was aware that he was eligible for the promotion to GS-13 as of July 15, 2002, and thus that his initial contact with an EEO Counselor on September 23, 2002 was beyond the requisite 45 days in which Johnson must have contacted a counselor to have exhausted his administrative remedies. See Def.'s Reply Br. 3. The language of 29 C.F.R. § 1614.105(a)(1), however, states that a plaintiff must consult an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1) (emphasis added). Neither party addresses whether the
Defendant argues that it had legitimate, non-discriminatory reasons for its actions, and that plaintiff has failed to show that any of these reasons were a pretext for discrimination. See Def.'s Reply Br. 7. Because the Court concluded above that plaintiff did not point to a single denial of training, the Court analyzes below the remaining three claims: (1) the failure to grant past promotions in a timely manner, (2) the failure to promote Johnson to GS-13, and (3) the less than "Outstanding" rating on his October 2002 performance evaluation. On all of these claims, the Court finds that plaintiff has failed to rebut defendant's proffered legitimate, non-discriminatory explanation for the challenged actions.
The ADEA provides that, for all employees or applicants for employment who are at least 40 years of age, personnel actions "shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a). In cases alleging age discrimination, the court must analyze the ADEA claims under the burden-shifting frame-work set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Barnette v. Chertoff, 453 F.3d 513, 515 (D.C.Cir. 2006) (explaining that the McDonnell Douglas framework applies to ADEA claims); Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C.Cir.2004). Under that framework, the initial burden rests on the plaintiff to establish a prima facie case of discrimination. See Barnette, 453 F.3d at 515. To establish a prima facie case of discrimination, a plaintiff must show that: (1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. Id. (citing Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999)).
Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory explanation for its actions. See Barnette, 453 F.3d at 515-16. In asserting a legitimate, non-discriminatory explanation, an employer "need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citation omitted). After defendant has produced a legitimate, non-discriminatory reason for the action, plaintiff bears the burden of showing either that "the employer's reason is pretextual or ... that it was more likely than not that the employer was motivated by discrimination." Forman v. Small, 271 F.3d 285, 292 (D.C.Cir.2001).
At the summary judgment stage, once the defendant offers a legitimate, non-discriminatory reason for its actions, "the question whether the employee actually
Plaintiff alleges that defendant failed to grant him promotions on his dates of eligibility on two occasions in 1998 and 1999. See Compl. ¶ 8.
Even assuming that plaintiff has made out a prima facie case on this claim, defendant argues that its legitimate, non-discriminatory reasons for failing to grant timely promotions were administrative delays. According to defendant, the USDA occasionally encountered administrative delays for promotions for its employees, and these delays would occur haphazardly and irrespective of an employee's age. Def.'s Mem. 14. The record reflects that, for the four Program Analysts employed in Johnson's division of OBPA during the relevant time period, all four of them experienced at least one administrative delay between 1998 and 2002. See AR 427. For example, Michael Poe, a Caucasian male born in 1964—thus not a member of a statutorily protected age group during the relevant time period—was promptly promoted in 1998, but encountered a four-month administrative delay before he was promoted in 1999. Def.'s Mem. 14-15 (citing AR 427). Julie Hetrick, a Caucasian female born in 1978—also not a member of a statutorily protected age group—encountered a two-week delay before being promoted in 2002. See AR 427. Finally, Maxine Wilson Matthews, an African-American female born in 1953—thus a member of a statutorily protected age group during the same time period—encountered a two-month administrative delay before she was promoted in 2000, and a two-week delay before she was promoted in 2001, but she was promptly promoted in 2002. Id.
The Court finds that defendant has offered a legitimate, non-discriminatory reason
In response to defendant's motion, plaintiff has supplied the Court with nothing more than vague, conclusory allegations. In his Statement of Material Disputed Facts, plaintiff merely states that he "will testify under oath that these delays were not haphazardly handled but were handled purposefully by the Defendant. Plaintiff believes that the Defendant was fully aware of the delays and willfully caused same to occur in the processing of the Plaintiff's promotions." Pl.'s SMF ¶ 4. These assertions do not suffice to rebut defendant's legitimate, non-discriminatory explanation, not only because they are unsupported by the evidence, but also because they fail to assert that any action was taken based on plaintiff's age. While the Court notes that the USDA's administrative delays are unfortunate, the plaintiff has offered nothing to show that the delays were a pretext for discrimination. "[T]he question is never whether the employer was mistaken ... or downright irrational in taking the action for the stated reason, but simply whether the stated reason was his reason: not a good reason, but the true reason." Forrester v. Rauland-Borg Corp., 453 F.3d 416, 418 (7th Cir. 2006). The Court finds that no reasonable jury could conclude that defendant's stated reason for the delays in promotions was instead pretextual.
Plaintiff makes several more allegations of discriminatory actions that occurred between February 2001 and October 2002. First, plaintiff alleges that his promotion to GS-12 was delayed approximately five months: he was eligible for promotion on February 13, 2001, but he was not promoted until July 15, 2001. Compl. ¶ 8. In addition, plaintiff alleges that on July 15, 2002, he was eligible for promotion to the GS-13 level, but despite meeting the eligibility requirements, he was denied the promotion. Id. Finally, plaintiff alleges that for the rating period from October 1, 2001 to September 30, 2002, he received a performance rating of "Fully Successful," rather than "Outstanding."
In response, defendant alleges that its legitimate, non-discriminatory reasons for these actions were based on plaintiff's poor
Def.'s Mem. 15-16 (citing AR 428-29 (emphasis in original)). Ms. Broadway met with Johnson on February 23, 2001, explained to him that she would not be recommending a promotion at that time, and informed him of steps he needed to take in order to be considered for a promotion. See AR 429. On March 15, 2001, Ms. Broadway sent Johnson a letter, placing him on an informal PIP and detailing the improvements needed in his current performance. See AR 433-35. Defendant states that through the informal PIP, Johnson improved his performance and eventually received a promotion to GS-12 on July 15, 2001. Def.'s Mem. 16 (citing AR 437).
However, according to defendant, after Johnson was promoted to the GS-12 level, Ms. Broadway had renewed concerns about Johnson's performance. See Def.'s Mem. 16 (citing AR 59-69; AR 291-96). In a witness statement prepared during the USDA's EEO investigation, Ms. Broadway stated that Johnson was performing "below satisfactory in at least one of his critical performance elements," during the performance period ending October 2002. Def.'s Mem. 16 (citing AR 60 ¶¶ 1-3). In addition, Johnson rated "satisfactory or below satisfactory in the `most important critical element for a Program Analyst,' the critical element of Legislative Reports Tracking and Analysis." Def.'s Mem. 16 (quoting AR 60 ¶ 3). Ms. Broadway described Johnson's inaccurate and incomplete data entries, stating that he "continuously failed to provide the required summary information," despite her repeated instructions and reminders. Def.'s Mem. 16 (citing AR 61-62 ¶¶ 4-5). Ms. Broadway also asserted that Johnson was unable to lead legislative database user meetings, for which he was responsible, because plaintiff "was unprepared to answer the questions and concerns of database designers," and that Johnson's second-line supervisor, Jacquelyn Chandler, would have to take over the meetings in such instances. Def.'s Mem. 16 (citing AR 65 ¶ 13).
Ms. Chandler also described Johnson's performance as "sub-par" in her witness statement provided as part of the EEO investigation. Def.'s Mem. 17 (quoting AR 72 ¶ 5). Ms. Chandler stated that she convinced Ms. Broadway to give Johnson a "Fully Successful" rating on his October 2002 performance evaluation, rather than an "Unacceptable" rating, despite his poor performance, because she hoped that the
The Court finds that defendant has produced legitimate, non-discriminatory reasons for the challenged actions. See Paquin v. Fed. Nat'l Mortg. Ass'n, 119 F.3d 23, 29-30 (D.C.Cir.1997); see also Dews-Miller v. Clinton, 707 F.Supp.2d 28, 52 (D.D.C.2010) (defendant's assertion that it gave plaintiff two "minimally successful" performance ratings because her supervisors were dissatisfied with her work constituted a legitimate, non-discriminatory reason). At least some of the evidence relied on by defendant was contemporaneous documentation of plaintiff's performance issues, and plaintiff was notified of the issues with his performance at the time they arose. Accordingly, plaintiff now bears the burden of showing that "the employer's reason is pretextual." Forman, 271 F.3d at 292.
Johnson has wholly failed to do so. In his opposition, Johnson has not made a single allegation that the challenged actions were a pretext for discrimination. Indeed, in his opposition brief, plaintiff does not address defendant's arguments on the merits whatsoever, instead solely raising arguments as to the exhaustion issues discussed above.
Accordingly, and having considered the allegations in the complaint, plaintiff's opposition to the motion for summary judgment, and the evidence upon which plaintiff has relied, the Court concludes that Johnson's claim of discrimination under the ADEA cannot survive summary judgment.
For the foregoing reasons, defendant's motion for summary judgment is hereby