Felder v. Johanns

• Decision Date: 27 January 2009
• Docket Number: No. 06-910 (CKK).,06-910 (CKK).
• Citation: 595 F.Supp.2d 46
• Parties: Barbara FELDER, as Personal Representative of the Estate of Marvin Felder, deceased, Plaintiff, v. Mike JOHANNS, Secretary, United States Department of Agriculture, Defendant.
• Court: U.S. District Court — District of Columbia

595 F.Supp.2d 46

Barbara FELDER, as Personal Representative of the Estate of Marvin Felder, deceased, Plaintiff, v. Mike JOHANNS, Secretary, United States Department of Agriculture, Defendant.

Civil Action No. 06-910 (CKK).

United States District Court, District of Columbia.

January 27, 2009.

Kim D. Mann, Scopelitis Garvin Light & Hanson, Washington, DC, for Plaintiff.

Alexander Daniel Shoaibi, U.S. Attorney's Office, Washington, DC, Peter Blumberg, Federal Express, Legal Department, Memphis, TN, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Plaintiff, Barbara Felder ("Plaintiff") filed the Complaint in this action as Personal Representative of the Estate of her late husband, Marvin Felder ("Felder"),¹ against Defendant Mike Johanns, in his official capacity as Secretary of the United States Department of Agriculture ("USDA" or "the Agency"). Plaintiff's Complaint alleges that the Animal and Plant Health Inspection Service ("APHIS") and its operating unit, International Services ("IS," collectively "APHIS-IS"), discriminated against Felder on account of his race asserting disparate treatment and in retaliation for his prior protected EEOC activity, by failing to promote him while promoting a similarly situated IS employee. In 2002, Felder and a fellow USDA employee, Alester van Simmons, prevailed in a jury trial in a race discrimination case against USDA and were subsequently granted equitable relief, including reinstatement to vacancies in IS. Felder now alleges that USDA carried out its obligation to reinstate Felder and Simmons, but subsequently engaged in a separate act of discrimination by "paper promoting" Simmons while failing to similarly "paper promote" Felder.

Currently pending before the Court is Defendant's Renewed Motion [28] to Dismiss or for Summary Judgment ("Motion"). As Felder has subsequently filed an opposition and USDA a reply, Defendant's Motion is now ripe. After a searching review of the parties' briefing, the exhibits attached thereto, the relevant case law, and the entire record herein, the Court shall GRANT Defendant's Motion for the reasons that follow.

I. BACKGROUND

A. The 1999 Lawsuit

Marvin Felder, an African American male, was an employee of USDA in the APHIS unit from 1978 through his death in March 2005. Defendant's Statement of Material Facts Not In Dispute ("Def.'s Stmt.") ¶ 1.² In July of 1999, Felder and another USDA employee, Alester van Simmons, filed a civil action in the United States District Court for the District of Columbia, captioned Felder v. Glickman, Civ. A. No. 99-1860(GK) ("1999 Lawsuit"), alleging violations of Title VII of the Civil Rights Act of 1964. Def. Stmt. ¶ 2. Felder and Simmons, both African Americans, alleged, inter alia, that they had been discriminated against on the basis of race (black) when they were not selected from a 1997 roster of qualified applicants to fill management vacancies in the IS unit of APHIS. Id. At that time, both Felder and Simmons were employees of the USDA in the Plant Protection and Quarantine ("PPQ") unit of APHIS. See Def.'s Stmt. ¶¶ 16-18; see also Pl.'s Opp'n, Ex. S (Decl. Alester van Simmons) ("Simmons Decl."). However, Felder and Simmons were at different grade levels. See Def.'s Stmt. ¶¶ 17, 18.

The 1999 Lawsuit was tried before a jury, with Judge Gladys Kessler presiding. Id. ¶ 3. The jury returned a verdict in favor of Felder and Simmons. Id. By order dated February 4, 2002, 2002 WL 193329 ("February 4, 2002 Order"), Judge Kessler awarded Felder and Simmons equitable relief, including "instatement to the first opening or vacancy which becomes available in IS," retroactive to February 1997, as well as "back pay to the dates on which the first and second vacancies in IS were filled after creation of the roster on which each Plaintiff was placed (without regard to whether selections were made from those rosters and without regard to whether selections were made from within or without IS)." Id. ¶ 4; see also Def.'s Mot, Ex. 1 (the February 4, 2002 Order and Memorandum Opinion) ("February 4, 2002 Order").

B. Implementation of the Order

At the outset, the Court notes that this is not a typical failure to promote case. Rather, Felder's claims stem from USDA's efforts to implement a judicial order requiring equitable relief in the form of instatement to a position in the APHIS-IS unit. It is therefore important to make clear what Judge Kessler's February 4, 2002 Order did—and did not— require. As both Felder and USDA concede, the February 4, 2002 Order did not explicitly require that USDA provide either Felder or Simmons with a promotion upon instatement into IS. Def.'s Stmt. ¶ 5; Pl.'s Resp. ¶ 5. Rather, the February 4, 2002 Order provided only that Felder and Simmons must be instated "to the first opening or vacancy that becomes available in IS." See February 4, 2002 Order. Nonetheless, the Agency asserts that it understood the February 4, 2002 Order to require it to determine, as an equitable matter, what positions and FP-grade levels Felder and Simmons would have likely occupied in 2003 had they been selected in 1997 (but for the discrimination as found by the jury in the 1999 Lawsuit). See Def.'s Stmt. ¶ 16. Although Felder disputes this assertion, he has not offered any evidence—other than his own unsupported, conclusory allegations—to contradict Defendant's assertion.³

1. Initial Offers to Felder and Simmons for Instatement in IS

In the fall of 2002, Agency counsel and counsel for Felder and Simmons began participating in discussions regarding Felder's and Simmons' new positions in IS, as mandated by Judge Kessler's February 4, 2002 Order. Def.'s Stmt. ¶ 6. By letter dated September 26, 2002, USDA first notified both Felder and Simmons of their initial "selections"—i.e., what specific positions the Agency was offering Felder and Simmons in IS, in accordance with the February 4, 2002 Order requiring instatement. See Def.'s Mot., Ex. 3 (October 9, 2002 Letter from Kim D. Mann, counsel for Felder and Simmons, to Assistant United States Attorney Marina Utgoff Braswell, trial attorney for USDA in the 1999 Lawsuit) ("October 9, 2002 Letter") (noting that "John Wyss has notified Marvin Felder and Van Simmons of their `selections' to fill positions in IS by letters dated September 26, 2002"). Significantly, although Felder and Simmons had both been in the PPQ unit of APHIS at the time they applied for (and were denied) the IS vacancies in 1997, they were at different GS-grade levels at that time. Def.'s Stmt. ¶ 16. They were therefore placed on the selection rosters for the IS vacancies in 1997 at different grade levels. Id. In particular, Simmons was on the FS-436-4 (GS-12) roster, while Felder was on the FS-436-3 (GS-13) roster. Id. ¶¶ 17, 18. Accordingly, although Simmons and Felder were both awarded positions in IS as part of the February 4, 2002 Order, they were selected for (and ultimately converted into) IS positions at different FP levels. Specifically, Simmons was notified that he had been selected to fill the position of Plant Protection and Quarantines Officer, Officer in Charge, in Hamilton, Bermuda, which was a GS-12 equivalent, and Felder was notified that he had been selected to fill the position of APHIS Area Director in Seoul, Korea. Id. ¶¶ 17, 18.

As is relevant to the instant lawsuit, in its letter to Felder notifying him of his initial selection, USDA advised Felder that, although the position he was offered was classified as a GS-14 equivalent, he would be "converted at APHIS' maximum lateral entry into the Foreign Service, which is the FP-3 (GS-13 equivalent)."⁴ Pl.'s Opp'n, Ex. B (September 26, 2002 Letter from Dr. John H. Wyss, Assistant Deputy Administrator with IS, to Felder) ("September 26, 2002 Letter"). IS assured Felder, however, that his salary would be matched. Id. USDA explains that, since 1994, APHIS-IS has operated under an internal policy, referred to as the "lateral entry policy," of bringing individuals into IS at a level no higher than the FP-3 (GS-13 equivalent) level. Def.'s Stmt. ¶ 18; see also Def.'s Mot., Ex. 8 (Wyss Affidavit) ("Wyss Aff."). Prospective employees above the GS-13 grade level are required to sign a statement agreeing to take a downgrade for entry into IS.⁵ Def.'s Mot., Ex. 13 (Excerpt of Dr. John H. Wyss Deposition) ("Wyss Depo. I") at 33-34; see also Wyss Aff. at 3-4. USDA's internal policy would have therefore required Felder to come into IS at the FP-3 grade level (GS-13 equivalent), assuming Felder had entered IS in 1997, the retroactive date of his instatement. See Wyss Depo. I at 33-34; Wyss Aff. at 3-4. However, because Felder's salary exceeded the highest salaried step in the FP-3 category, he would have had to accept a downgrade in order to enter into IS in 1997. Pl.'s Opp'n, Ex. K (Felder Rebuttal Affidavit) ("Felder Rebuttal Aff.") ¶ 4. That is, strictly requiring Felder to convert into IS at a FP-3 grade level, as mandated by the lateral entry policy, would have therefore resulted in a decrease in his salary. See id. As stated in the September 26, 2002 Letter, USDA offered Felder a FP-3 position consistent with its internal lateral entry policy, but provided that his current salary would be matched nonetheless. See September 26, 2002 Letter.

2. Simmons' and Felder's Initial Acceptances of USDA's Offers

On October 9, 2002, Felder sent USDA a letter accepting the position as APHIS-IS Area Director in Seoul, South Korea, "pending all issues being resolved pursuant to the court order dated February 4, 2002." Pl.'s Opp'n, Ex. C (October 9, 2002 Letter from Felder to Dr. Wyss) ("Felder's October 9, 2002 Letter"). By letter dated that same day, Plaintiff's counsel, Kim D. Mann, informed Braswell, trial counsel for USDA during the 1999 Lawsuit, that "Felder has no issues regarding the specific position and location for which he has been selected and assigned." Def.'s Stmt. ¶ 7; see also Def.'s Mot., Ex. 3 (...