Nguyen v. Mabus

Decision Date30 September 2012
Docket NumberCivil Action No. 09–1349 (EGS).
Citation895 F.Supp.2d 158
PartiesPhuc N. NGUYEN, Plaintiff, v. Ray MABUS, Secretary of the Navy, Defendant.
CourtU.S. District Court — District of Columbia

OPINION TEXT STARTS HERE

Phuc N. Nguyen, Springfield, VA, pro se.

Rhonda C. Fields, United States Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Plaintiff Phuc Nguyen (Nguyen), proceeding pro se, brings this action against the Secretary of the Navy, alleging discrimination on the basis of race, national origin, and retaliation, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e–2 et seq., as well as discrimination on the basis of age and hostile work environment, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 631 et seq. Pending before the Court is Defendant's Motion for Summary Judgment. Upon consideration of the motion, the opposition and the reply thereto, the applicable law, the entire record, and for the reasons stated below, the Court will GRANT IN PART AND DENY IN PART Defendant's Motion for Summary Judgment.

I. BACKGROUNDA. Factual Background

Plaintiff Nguyen was born on July 4, 1948 in Saigon, Vietnam. Am. Compl. ¶ 4. Nguyen is a GS–13 equivalent grade engineer employed at Naval Sea Systems Command Headquarters (“NAVSEA”). Def.'s Statement of Material Facts ¶ 1 (hereinafter “Def.'s SMF”); see also Def.'s Mot. for Summ. J. (hereinafter “Def.'s MSJ”), Ex. 7, Department of Defense Office of Complaint Investigations, Reporter's Transcript of Proceedings in the Investigation of the Discrimination Complaint of Phuc Nguyen, Agency Docket No. DON–05–00024–0872, Statement of Phuc Nguyen, at 21–22 (Oct. 17, 2005) (hereinafter 2005 Transcript). Nguyen has worked at the same pay grade since 1986, and in the same position since 1997. Am. Compl. ¶¶ 7, 9; see also 2005 Transcript at 21. During the relevant time period, Nguyen worked in the management group that oversees the Submarine Sensor Program Office (“PMS 435”) of the Program Executive Officer for Submarines (“PEOSUB”). Def.'s SMF ¶ 2. PMS 435 designs, develops, and oversees the construction of Electronic Warfare Systems, periscopes, and the Photonics Mast. See Am. Compl. ¶ 9; Def.'s SMF ¶ 4. Within PMS 435 are several branches, including an Imaging Systems Branch, an Electronic Warfare Systems Branch, and the I & EW Branch, which is headed by the Chief Engineer. See Def.'s SMF ¶ 6; see also Def.'s MSJ, Ex. 10, 2007 Report of Investigation at 47 (hereinafter, 2007 ROI). During the relevant time period, Nguyen worked under the Chief Engineer and had the working title of Assistant Chief Engineer. Def.'s SMF ¶ 9; see also Def.'s MSJ, Ex. 8, 2005 Report of Investigation at 69 (hereinafter, 2005 ROI).

From 1997 through January 2005, Nguyen's direct supervisor was Swarn Dulai, who was the Chief Engineer in PMS 435. Am. Compl. ¶ 10. From 1997 through mid–2008, Paul Gross, Deputy Project Manager, was Nguyen's second level supervisor. Am. Compl. ¶ 11. With respect to Mr. Gross, Plaintiff alleges—without providing any dates—that Gross has not assigned Nguyen a major area of responsibility, despite other similarly situated engineers having clear and substantive areas of responsibility; that Gross has stripped Nguyen of substantive engineering work relegating him to assignments of stop-gap duties and responsibilities; that under Gross's leadership, Nguyen has received one performance award in contrast to regular annual awards given to similarly situated Caucasian engineers with less experience; and that Gross continues to exclude Nguyen from major acquisition program duties and responsibilities, in favor of other younger, less experienced, Caucasian engineers. See Am. Compl. ¶¶ 14–17. As to Mr. Dulai, Plaintiff alleges that on several occasions, Dulai spoke about the Vietnam War and told Nguyen that “Vietnamese people ought to be grateful for having a job at NAVSEA.” Am. Compl. ¶ 19. According to Plaintiff, Dulai also stated that, in contrast to Asians, he considered his racial identity to be more like a Caucasian person, since he is Sikh. Am. Compl. ¶ 20. Plaintiff alleges that on many occasions, Dulai mocked the accent of another Vietnamese employee. Am. Compl. ¶ 21. Finally, Plaintiff states that in late December 2004, Dulai approached Nguyen privately and threatened that the new Chief Engineer would target him with harassment. Dulai purportedly recommended that Nguyen leave the Assistant Chief Engineer position for a position outside PEOSUB, and promised that if Nguyen did so, Dulai would provide a positive reference. Am. Compl. ¶ 28.

1. 2005 EEO Complaint

Dulai announced his plan to retire in early 2004. Am. Compl. ¶ 18. The PMS 435 staffing charts reflect that up to Dulai's retirement, only two individuals were permanently assigned to the Chief Engineer Branch: Nguyen and Dulai. Def.'s SMF ¶ 10; see also Def.'s MSJ, Ex. 12. From about September 20, 2004 to September 11, 2005, Dr. Robert LaFreniere 2 was detailed to the branch from the Naval Undersea Warfare Center, Newport Division, which is a field activity to NAVSEA. Def.'s SMF ¶¶ 11–12; see also 2005 ROI at 53; Def.'s MSJ, Ex. 12, at 4–7. LaFreniere's working title while initially on detail was Deputy Chief Engineer/Field Support. Def.'s SMF ¶ 13; 2005 ROI at 69.

Upon Dulai's retirement on January 5, 2005, LaFreniere was designated Acting Chief Engineer. Def.'s SMF ¶ 14; 2005 ROI at 53. LaFreniere served in that position until about April 2005, when the position was permanently filled upon the selection of Steven Stump. See Def.'s SMF ¶ 14; 2005 ROI at 53. Nguyen made initial contact with an EEO counselor on February 11, 2005,3 after learning that his name had been omitted from a group award nomination. Def.'s SMF ¶ 15; see also 2005 ROI at 1, 6, 14–18, 82; 2005 Transcript at 89–91 (“I found out about this [award] just by mere coincidence after I received an e-mail from management showing the letter of recommendation ... sometime around that timeframe when I was thinking about complaining about LaFreniere's assignment as acting chief engineer. I saw this e-mail, so I said this is it. I mean this is the last straw ... so I need to go forward with this complaint.”).

In his initial EEO contact, Nguyen alleged discrimination on the basis of his race, age, national origin, and reprisal because of protected activity. See Def.'s SMF ¶ 16; 2005 ROI at 15. Nguyen alleged the following claims:

1. On February 11, 2005 he was denied recognition for his contribution to PMS 435 programs (such as initiating Patriot radar program and serving as systems engineer on it);

2. As of January 5, 2005 he was denied Chief Engineer lead systems engineering assignments;

3. As of January 2005 he was denied the Acting Chief Engineer position;

4. As of January 5, 2005 the Acting Chief Engineer excluded him from Advanced Submarine Support Equipment Program (“ASSEP”) budget management deliberations;

5. As of January 5, 2005, the Acting Chief Engineer “kept [Nguyen] in the dark and excluded [Nguyen] from all his communications and meetings with coworkers, field activities and support contractors.”

See Def.'s SMF ¶ 16; 2005 ROI at 15–16. Nguyen also alleged the following claims in support of a “continuing hostile environment”:

1. On January 5, 2005, Dulai suggested that Nguyen leave his job and look for another position to avoid future adverse action;

2. On January 5, 2005 and continuing to the present, Management continues to manipulate position qualifications and deny Nguyen's job experience to deny him assignments and advancement opportunities in favor of less experienced engineers;

3. Management encourages the community to exclude Nguyen from important program reviews, the latest of which was the ISIS kick-off meeting at Kollmorgen on February 9, 2005.

See Def.'s SMF ¶ 16; 2005 ROI at 15–16.

On February 17, 2005, Nguyen was given, and he initialed, a notice of his rights and responsibilities. This notice included the requirement to contact an EEO counselor within 45 days of an alleged discriminatory action, and information on how to allege a violation of the ADEA, including use of the ADEA “bypass” provision.4See Def.'s SMF ¶ 17; 2005 ROI at 20–29. On March 24, 2005, Nguyen's attorney filed a formal EEO complaint alleging the same claims raised in Nguyen's initial EEO contact. See Def.'s SMF ¶ 18; 2005 ROI at 2–4.

Plaintiff alleges that, on April 15, 2005, Defendant again failed to promote him to Chief Engineer; instead Defendant selected Stephen Stump, who is Caucasian and seventeen years younger than Nguyen. Am. Compl. ¶¶ 37, 39.

2. 2007 EEO Complaint

In about November 2006, Stump vacated the Chief Engineer position, and the Deputy Program Manager, Paul Gross, initiated the selection process for a new Chief Engineer. See Def.'s SMF ¶ 19; 2007 ROI at 130. Gross asked Nguyen and two other individuals assigned to PMS 435, Riad Sayegh 5 and Michael Patton, to update their resumes electronically, and Gross provided their names to Human Resources as individuals qualified and interested in the Chief Engineer position. 2007 ROI at 131. Nguyen and Sayegh were the only two candidates interviewed for the position. Def.'s SMF ¶ 20; 2007 ROI at 131. The interview panel consisted of three individuals: Gross, Dr. Bradley Binder, and Scott Greenberg. Def.'s SMF ¶ 21; see also 2007 ROI at 131. Binder, the Chief Engineer for Surface Electronic Warfare Systems, worked outside of the Team Sub organization and had no prior knowledge of any of the applicants. Greenberg had served as the Chief Engineer for Towed Systems. See Def.'s SMF ¶¶ 22–23; 2007 ROI at 131. The panel members reviewed Nguyen's and Sayegh's resumes and interviewed both applicants. All three panel members believed Sayegh to be the better candidate, and he was selected for the position. See Def.'s SMF ¶¶ 24–25; 2007 ROI at 132, 134, 136.

Nguyen made initial contact with an EEO...

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