Johnson v. Lightfoot, Civil Action No.: 15–1465 (RC)

• Court: U.S. District Court — District of Columbia
• Writing for the Court: RUDOLPH CONTRERAS, United States District Judge
• Citation: 273 F.Supp.3d 278
• Docket Number: Civil Action No.: 15–1465 (RC)
• Decision Date: 10 August 2017
• Parties: Donald S. JOHNSON, Plaintiff, v. Robert M. LIGHTFOOT, Administrator, National Aeronautics and Space Administration, Defendant.

273 F.Supp.3d 278

Donald S. JOHNSON, Plaintiff,
v.
Robert M. LIGHTFOOT,¹ Administrator, National Aeronautics and Space Administration, Defendant.

Civil Action No.: 15–1465 (RC)

United States District Court, District of Columbia.

Signed August 10, 2017

273 F.Supp.3d 279

John Wesley Davis, Law Offices of John W. Davis, Washington, DC, for Plaintiff

April Denise Seabrook, Scott Leeson Sroka, U.S. Attorney's Office for the District of Columbia, Washington, DC, Brian J. Field, U.S. Attorney's Office, Washington, DC, for Defendant

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiff 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

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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.

II. BACKGROUND

Mr. 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.

In 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.

Though 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.

Mr. 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

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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.

On 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."² 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).

On 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.

On 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

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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...