Burke v. Gould

• Decision Date: 12 April 2002
• Docket Number: No. 00-5359.,00-5359.
• Citation: 286 F.3d 513
• Parties: Kenneth M. BURKE, Appellant v. William B. GOULD IV, Chairman, National Labor Relations Board and National Labor Relations Board, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 513

286 F.3d 513

Kenneth M. BURKE, Appellant v. William B. GOULD IV, Chairman, National Labor Relations Board and National Labor Relations Board, Appellees.

No. 00-5359.

United States Court of Appeals, District of Columbia Circuit.

Argued February 19, 2002.

Decided April 12, 2002.

Appeal from the United States District Court for the District of Columbia (No. 98cv01795).

Michael P. Deeds argued the cause for appellant. With him on the brief was James L. Kestell.

Scott S. Harris, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney and R. Craig Lawrence, Assistant U.S. Attorney.

Before: HENDERSON, RANDOLPH and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Opinion dissenting in part filed by Circuit Judge RANDOLPH.

ROGERS, Circuit Judge:

Kenneth M. Burke appeals the grant of summary judgment to the National Labor Relations Board in his reverse discrimination and retaliation case, on the principal ground that the district court failed to draw all reasonable inferences in his favor and instead made factual findings on disputed issues. In suing the Board for violations of Title VII, 42 U.S.C. § 2000e et seq., as well as § 1981, Burke challenged his performance evaluations for 1996 and 1997, the removal of his supervisory responsibilities in January 1997, and his nonselection for the position of Deputy Chief of the Information Technology Branch in November 1997. We affirm the grant of summary judgment on Burke's discrimination claims and reverse the grant of summary judgment on two of his retaliation claims.

I.

Burke began working for the Board in 1974 as a computer systems analyst at the GS-12 compensation level. As the result of a series of promotions, he became Chief of the Office Systems Section serving as a supervisory computer systems analyst in 1988, and by the following year attained the GS-15 compensation level. Throughout this period, Burke received exemplary performance evaluations, resulting in performance awards or cash bonuses in nearly every year. During the period relevant to this appeal, Burke's immediate supervisor was Samuel Markman, Chief of the Management and Information Systems Branch ("MISB"), who reported to Frank Battle, the Deputy of the Administration Division. Battle reported to Gloria Joseph, the Director of the Administration Division, who in turn reported to the General Counsel of the Board through Joseph Frankl, the Assistant General Counsel. In July 1997, Louis Adams, who had worked for the General Services Administration for twenty years, replaced Markman; Adams reorganized the MISB, and selected Larry Thompson as his Deputy Chief. Except for Joseph and Thompson, who are African Americans, all persons mentioned by name in this opinion are white males.

This litigation arose out of the Board's decision to award its Fiscal Year 1996 computer maintenance contract to Dynatech Integrated Systems ("Dynatech"). In 1995, Burke had recommended Dynatech, a minority-owned company, for a short-term contract to test its capabilities. Based on Dynatech's impressive performance, Burke recommended that Dynatech be awarded the computer maintenance contract. Burke served as the agency's contracting officer technical representative ("COTR") to Dynatech. As the result of Burke's performance as COTR, Joseph, Battle, and Adams took various personnel actions affecting Burke. Although at all times he retained his GS-15 compensation level, Burke's performance evaluation for the 1996 (covering the period July 1, 1995 to June 30, 1996) was downgraded from his usual "Outstanding" rating to "Commendable," and his performance evaluation for the 1997 (covering the period July 1, 1996 to June 30, 1997) was downgraded to "Fully Successful," one level below "Commendable." After Burke voluntarily surrendered his COTR responsibilities in June 1996 (before learning that Joseph had instructed Markman to relieve him of these responsibilities), Burke was denied direct access to the network password in July 1996. Then, in February 1997, with the concurrence of the Board's General Counsel, Burke was relieved of his supervisory responsibilities as section chief and assigned to unspecified duties. Burke was passed over in October 1997 for the newly-created position of Deputy Chief to Adams; an independent panel rated Burke lowest of the four best-qualified applicants, while Thompson (whom Adams selected) ranked highest.

The personnel actions were based on events that followed Dynatech's decision in March 1996, on advice of counsel, to replace its on-site program manager, Dwight Whitted, who had developed a close personal friendship with Burke, in order to avoid potential violation of federal contracting requirements. Thereafter, in the view of Burke's supervisors and others, including Dynatech officials, Burke grew increasingly critical and unprofessional in his dealings with Dynatech. On April 29, 1996, Burke sent an agency-wide e-mail survey soliciting feedback from regional office managers on Dynatech's performance that Joseph and Sunderlin viewed as biased and intended to encourage negative feedback. On May 3, 1996, during a meeting with Joseph, Markman, Battle, and Frankl, Burke described Dynatech as being "screamingly out of compliance" with its contractual obligations. According to Joseph, this was the first time she had heard Burke express such a negative assessment of Dynatech's performance and represented a dramatic departure from his prior representations to her and Burke's other superiors. Sunderlin also reported to Joseph that during an April 15, 1996, meeting with Dynatech officials, Burke exhibited "offensive and unprofessional" behavior, including "disparaging remarks designed to embarrass and belittle Dynatech officials."

On August 16, 1996, Burke filed an anonymous request for the Board's Inspector General to review Dynatech's performance. After Burke's name was revealed to the General Counsel on August 22, Joseph, on August 27, asked the Inspector General to investigate whether Burke's personal friendship with Whitted, Dynatech's former project manager, was unethical and influenced Burke's performance of his official duties. In November 1996, Burke filed an informal complaint with the Equal Opportunity Office ("EEO"); Joseph learned of this complaint on November 26, 1996. Burke filed a formal EEO complaint on February 12, 1997. On February 28, 1997, he filed a second request for the Inspector General to investigate alleged reprisals taken against him by Joseph because of his prior complaint to the Inspector General and his efforts to obtain contractual compliance by Dynatech.

Burke filed his lawsuit on July 20, 1998, alleging that the Board's personnel actions constituted unlawful discrimination and retaliation under Title VII and 42 U.S.C. § 1981. (His complaint included a claim under the Privacy Act, 5 U.S.C. § 552a(b), which was dismissed and is not at issue on appeal.) The Board filed a motion for summary judgment, attaching a Statement of Material Facts Not In Genuine Dispute ("Statement") referring to declarations and affidavits from Joseph, Battle, Sunderlin, and Adams, as well as Burke's deposition. The Board also attached exhibits, including three memoranda written by Burke (including the e-mail survey), agency letters to Dynatech, and the declarations of Joseph, Battle, Sunderlin, and Adams. In response, Burke filed a memorandum in opposition to summary judgment, attaching his affidavit (with attachments) and a redacted report of the Inspector General. His opposition memorandum contained a twenty-five page section titled "Facts" that included some references to the record. Burke also filed two "Statement of Material Facts Which Are Genuinely in Dispute" ("Statement"), the first admitting or denying the facts alleged by the Board in its Statement and containing one reference to the record, and the second making factual assertions without any references to the record. The Board responded to Burke's opposition, arguing that: (1) several of Burke's claims were not "adverse employment actions" and were therefore barred under the recently-issued decision in Brown v. Brody, 199 F.3d 446 (D.C.Cir. 1999); (2) Burke's Statement, by failing to comply with Local Rule 56.1, admitted virtually all of the facts set forth in the Board's Statement; (3) Burke effectively conceded his discrimination claims because he failed to allege any conduct, much less offer any proof, that his employer had taken personnel actions "because of [Burke]'s race, color, ... [or] sex....," 42 U.S.C. § 2000e-2(a)(1); and (4) Burke virtually abandoned his claim of non-selection as Deputy Chief because he only argued that he was more qualified than Thompson.

The district court granted summary judgment to the Board on all of Burke's claims. Not invoking the requirements of Local Rule 56.1, the district court reviewed the exhibits provided by the parties, and found that Burke failed to meet his burden of showing under Brown, 199 F.3d at 455, 458, that his 1996 and 1997 performance evaluations constituted adverse employment actions. The district court also found, in view of the record evidence, that Burke's "Commendable" rating in 1996 "reasonably reflected [his] performance as COTR under the circumstances," and that his "Fully Successful" rating in 1997 was "justified" because it "reasonably reflected the level of [Burke]'s performance during the relevant time period." Regarding the removal of his supervisory responsibilities, the district court ruled that Burke failed to show an adverse employment action, and, assuming an adverse action, that Burke failed to show that all of the reasons proffered by the Board for relieving him of his supervisory responsibilities were a pretext for discrimination or retaliation. The district court ruled that Burke also failed to offer evidence from which to infer that the Board's...