Porter v. Fulgham

• Decision Date: 09 March 2009
• Docket Number: Civil Action No. 04-1440 (RBW).
• Citation: 601 F.Supp.2d 205
• Parties: Melvin PORTER, Plaintiff, v. Alonzo FULGHAM, Acting Administrator, United States Agency for International Development, Defendant.
• Court: U.S. District Court — District of Columbia

601 F.Supp.2d 205

Melvin PORTER, Plaintiff, v. Alonzo FULGHAM, Acting Administrator, United States Agency for International Development, Defendant.

Civil Action No. 04-1440 (RBW).

United States District Court, District of Columbia.

March 9, 2009.

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David J. Cynamon, Pillsbury Winthrop Shaw Pittman LLP, Susan E. Huhta, Washington Lawyers' Committee for Civil Rights & Urban, Washington, DC, Gerard Martin Babendreier, Financial Industry Regulatory Authority, Rockville, MD, for Plaintiff.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

Plaintiff Melvin Porter brings this action against his employer, the United States Agency for International Development ("Agency"), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3(a), 16(a) (2000) ("Title VII"), alleging that the Agency engaged in discriminatory employment practices against him based upon his race and gender, as well as retaliatory employment practices based on his participation in protected activity, i.e., his 2001 lawsuit against the defendant for illegal employment practices under Title VII and related Equal Employment Opportunity ("EEO") activity. This matter is now before the Court on the defendant's motion for summary judgment, Defendant's Motion for Summary Judgment ("Def.'s Mot."), which the plaintiff opposes, Opposition of Plaintiff Melvin C. Porter to Defendant's Motion for Summary Judgment ("Pl.'s Opp'n").¹ For the following reasons, the Court must award summary judgment to the Agency.

I. BACKGROUND

Viewing the evidence in the light most favorable to the plaintiff, the facts underlying this lawsuit are the following.

The plaintiff, an African-American male, was employed in the Agency's Office of Human Resources from 1985 to 1995, until being transferred to the Agency's Bureau of Policy and Program Coordination where he was assigned when this case was filed. Second Amended Complaint ("Second Am. Compl.") ¶¶ 6, 8. The plaintiff joined the Agency in 1985 as a GS-13 grade level employee, and was elevated to the GS-14 grade level after two years; however, since 1987, his pay grade level has not been increased. Id. ¶ 8.

Since 1988, the plaintiff alleges that the Agency's acts of discrimination and retaliation have stymied his advancement. And, between 1988 and 1991, the plaintiff filed four EEO complaints alleging that the Agency committed various discriminatory and retaliatory acts against him based upon his race and gender, and in response to his complaints against the Agency. Id. ¶¶ 9-10. The Agency settled the plaintiff's first round of complaints in 1992, awarding him monetary damages, a retroactive temporary promotion, training, and attorneys' fees. Id. ¶ 10. Following the settlement, the plaintiff filed three additional EEO complaints over the next several years against the Agency, again alleging discrimination and retaliation. Id. ¶ 11. In 1995, the Agency settled the plaintiff's second round of complaints, agreeing to transfer him from the Office of Human Resources to the Bureau for Policy and Program Coordination, as well as awarding him additional "compensatory damages, a revised performance appraisal, a retroactive merit increase and performance award, and attorneys' fees." Id.

In 2000, the plaintiff, frustrated that he still had not been promoted to the GS-15 level, sought additional relief in this Court. Id. ¶ 13; see generally Complaint ("Compl."), Porter v. U.S. Agency for Int'l Dev. ("Porter I"), Civ. No. 00-1954 (D.D.C. Aug. 11, 2000); First Amended Complaint ("Am. Compl."), Porter I (D.D.C. May 2, 2001). On June 5, 2002, a jury in that case found for the plaintiff on two of the six counts of his amended complaint, specifically finding that the defendant had engaged in "retaliation in connection with the [d]efendant's decision[s] not to select [the plaintiff]" for two positions for which he applied in 1998. Jury Verdict at 2, Porter I (D.D.C. June 5, 2002). The plaintiff requested and the Court entered a judgment in his favor, which, among other things, forbid the Agency from engaging in any further retaliation against the plaintiff. Judgment at 2, Porter I (D.D.C. Feb. 3, 2003); Memorandum & Order at 1-2, Porter I (D.D.C. Feb. 3, 2003).

After receiving the partially favorable jury verdict in Porter I and the issuances of an accompanying order from the Court which forbid the Agency from retaliating against him, on June 24, 2003, in post-trial proceedings, the plaintiff filed a motion requesting that the Agency show cause why it should not be found in violation of the Court's 2003 order enjoining the Agency from retaliating against him based on what the plaintiff characterized as "two adverse employment actions." Plaintiff's Memorandum in Support of His Motion for an Order to Show Cause Why Defendant Should Not be Held in Contempt and Authorizing Plaintiff to Take Discovery ("Pl.'s Show Cause Mem.") at 2, Porter I (D.D.C. June 24, 2003). Namely, that the plaintiff claimed that the Agency's decision not to grant him a 2001 performance bonus and his receipt of a "Needs Improvement" assessment for his 2002 performance amounted to retaliation. Id. While the Court granted the motion to the extent that it compelled the Agency to respond, Order, Porter I (D.D.C. June 27, 2003), after reviewing the evidentiary support offered by both parties, the Court discharged the show cause order on the merits and denied the plaintiff's request to conduct discovery with regards to the two purported adverse employment actions, Order ¶ 2, Porter I (D.D.C. Nov. 25, 2003); see also Order at 1, Porter I (D.D.C. May 25, 2005).

Meanwhile, throughout the pendency of Porter I, the plaintiff continued to apply for GS-15 grade level positions for which he was not selected by the Agency. Second Am. Compl. ¶¶ 15-22. He now challenges those actions of the Agency alleging that he was denied the promotions for discriminatory and retaliatory reasons. Specifically, the plaintiff contends that several days after he initiated Porter I, he applied for a Supervisory Labor Relations Specialist position at the GS-15 grade level. Id. ¶ 15. And in 2001, while Porter I was still pending, the plaintiff also applied for an Administrative Officer position at the GS-15 grade level, id. ¶ 18, as well as a Deputy Chief position in the Personnel Operations Division at the GS-15 grade level, id. ¶ 21. In each case, the Agency did not select the plaintiff for the positions. Id. ¶¶ 15-22.

On August 24, 2004, the plaintiff instituted this action under Title VII alleging that, with respect to these non-selections, as well as other employment actions, the Agency engaged in discriminatory employment practices because of the plaintiff's race and gender, and retaliatory employment practices due to the plaintiff's participation in a protected activity, i.e., his 2001 lawsuit against the defendant and related EEO complaints. See Compl. ¶¶ 22-30; see also Second Am. Compl. ¶¶ 29-63. In addition, the plaintiff asserts the following claims arising from four additional incidents of alleged discrimination and retaliation: (1) the denial of a performance bonus award for the work he performed in 2001, despite his overall rating of "Excellent,"² id. ¶ 24; (2) his supervisor's "Needs Improvement" evaluation in February 2003, with respect to his 2002 job performance, id. ¶ 25; (3) the mid-year "borderline unacceptable" oral assessment he received with respect to his 2003 job performance, id. ¶ 27; and (4) his receipt of an interim "Unacceptable" assessment in September 2004, with respect to his 2004 job performance, id. ¶ 28.

On July 21, 2006, the defendant filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 stating that there are no genuine issues of material facts in this case, and the defendant is entitled to judgment as a matter of law. Def.'s Mot. at 1. Specifically, the defendant contends: (1) as to Counts I-VI of the second amended complaint,³ which challenge the Agency's promotion decisions, each claim should be dismissed because the individuals selected were more qualified for the positions than was the plaintiff, Memorandum of Points and Authorities in Support of Defendant's Motion for Summary Judgment ("Def.'s Mem.") at 2; (2) Counts III, IV, VII, IX, and X should be dismissed because the plaintiff failed to exhaust his administrative remedies as to these claims, id. at 2, 4, 7-9, 22-24; (3) Counts VII-XIV, which challenge the Agency's "denial of a bonus award and certain performance appraisals," should be dismissed because they are "unmeritorious," and allege "nothing more than personality disputes, complaints about management style or the normal trials and tribulations of any workplace," id. at 2; and (4) Counts VII-XIV are barred by res judicata, id. at 3-4.

In response, the plaintiff contends that summary judgment is improper because: (1) as to each claim he has made out a prima facie case that the defendant's actions amounted to unlawful discrimination or retaliation based on his race or gender, or in response to his prior protected activity, and any non-discriminatory or non-retaliatory reasons offered by the Agency for its decisions not to select him are merely pretextual, Pl.'s Opp'n at 14, 16, 22, 26, 33, 54; (2) the existence of genuine issues of material fact regarding whether his performance rating was an adverse employment action precludes summary judgment, id. at 31; (3) the acts alleged in his Counts VII-XIV relate to events that occurred after the verdict in Porter I was rendered and therefore are not barred by res judicata as they "were not pled, litigated or adjudicated" in Porter I, id. at 14; and (4) he has exhausted his administrative remedies with respect to Counts III, IV, and X,⁴ id. at 52, 68.

II. STANDARD OF REVIEW

To grant a motion for summary judgment under Rule 56(c), this Court must find that "the pleadings, the discovery...