Richardson v. National Rifle Ass'n

• Citation: 871 F. Supp. 499
• Decision Date: 19 December 1994
• Docket Number: Civ. A. No. 94-1977 (PLF).
• Parties: Percy RICHARDSON, Plaintiff, v. NATIONAL RIFLE ASSOCIATION, Defendant.
• Court: United States District Courts. United States District Court (Columbia)

871 F. Supp. 499

Percy RICHARDSON, Plaintiff, v. NATIONAL RIFLE ASSOCIATION, Defendant.

Civ. A. No. 94-1977 (PLF).

United States District Court, District of Columbia.

December 19, 1994.

Sol Zalel Rosen, Washington, DC, for plaintiff.

Stephen N. Shulman and Stephanie Meltzer, Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER

FRIEDMAN, District Judge.

Percy Richardson is an African American male who was employed by the National Rifle Association as an Assistant Manager from August 1989 until his discharge in March 1992. He alleges that the NRA engaged in racial discrimination by paying him a lower salary than similarly situated co-workers, unfairly placing him on probation after he was promoted to a new position, unjustifiably subjecting him to three performance evaluations between June and August 1992 and placing him on probation three times, subjecting him to unjust criticism in reference to his work and management style, and retaliating against him by terminating his employment after he complained of discriminatory treatment. Complaint, Count I, ¶ 4. In a three-count complaint, plaintiff alleges that his discharge was racially motivated and retaliatory. Count I alleges a violation of 42 U.S.C. § 1981, Count II a violation of the Human Rights Law of the District of Columbia, and Count III unlawful discharge. Defendant has moved to dismiss Counts II and III of the complaint and for summary judgment on all counts. The Court grants the motion for summary judgment.

A. Summary Judgment Standard

Under Rule 56, Fed.R.Civ.P., summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. at 2514; see also Washington Post Co. v. U.S. Dept. of Health and Human Services, 865 F.2d 320, 325 (D.C.Cir.1989). But the non-moving party's opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. at 2511.

In discrimination cases, summary judgment must be approached with special caution, and the Court "must be extra-careful to view all the evidence in the light most favorable" to plaintiff. Ross v. Runyon, 859 F.Supp. 15, 21-22 (D.D.C.1994). Nevertheless, a plaintiff is not relieved in a discrimination case of his obligation to support his allegations by affidavits or other competent evidence showing that there is a genuine issue for trial. If defendant provides evidence that plaintiff was terminated because of poor performance, as it has here, plaintiff "must then bring forward evidence of the pretextual nature of the legitimate non-discriminatory purpose posited by defendant.... Evidence of discrimination that is `merely colorable', or `not significantly probative' cannot prevent the issuance of summary judgment." Johnson v. Digital Equipment Corp., 836 F.Supp. 14, 15 (D.D.C.1993) (citation omitted). Plaintiff's response to defendant's motion fails to meet this test, and defendant's motion therefore will be granted.

Preliminarily, the Court addresses plaintiff's contention, raised for the first time at oral argument, that he is entitled to discovery before the Court rules on defendant's motion for summary judgment. Plaintiff did not file a motion under Rule 56(f), Fed.R.Civ. P., to seek postponement of the Court's consideration of the motion until after discovery, but instead filed an opposition to the summary judgment motion on the merits. Under Rule 56(f), the Court upon request may defer ruling on a summary judgment motion and allow the non-moving party an opportunity through limited discovery to obtain information relevant to an issue of material fact he maintains is in dispute. The party opposing summary judgment and seeking deferral, usually but not invariably by motion and affidavit, must (i) alert the Court to the need for further discovery and (ii) demonstrate, either through an affidavit or other documents such as opposing motions and outstanding discovery requests, how additional discovery will enable it to rebut the movant's allegations of no genuine issue of fact. First Chicago International v. United Exchange Co., LTD., 836 F.2d 1375, 1380 (D.C.Cir. 1988); Exxon Corp. v. FTC, 663 F.2d 120, 128 (D.C.Cir.1980). A Rule 56(f) affidavit or other material supporting the motion must provide reasons why the non-moving party cannot present facts in opposition and how additional discovery will provide those facts, not simply assert that "certain information" and "other evidence" may exist and may be obtained through discovery. Keebler Co. v. Murray Bakery Products, 866 F.2d 1386, 1389 (Fed.Cir.1989).

The Court cannot glean from plaintiff's opposition to defendant's motion, from plaintiff's declaration in support of his opposition, or from counsel's statements in open court what additional evidence might be discovered that will provide the support plaintiff needs to raise genuine issues of material fact. Plaintiff has not identified any information or types of information that he may discover that might support the argument that defendant's discharge of plaintiff for poor performance was a mere pretext for an intentional race-based or retaliatory decision. At best, plaintiff has shown that he has some explanations for some of his conduct that defendant says constituted poor performance, but he has identified nothing that might be discovered regarding pretext. Indeed, until oral argument, both parties seemed content to await a decision on the motion before commencing any discovery. The papers filed by plaintiff do not meet the Rule 56(f) test, and the Court cannot conclude that his last-minute plea for discovery of an undefined character is anything more than an attempt to delay the inevitable grant of defendant's motion.

B. Racial Discrimination

The methods and order of proof applicable to a claim of disparate treatment under Title VII apply equally under Section 1981. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Randle v. LaSalle Telecommunications, Inc., 876 F.2d 563, 568 (7th Cir.1989). The McDonnell Douglas burden shifting scheme also applies to a claim of retaliatory dismissal. McKenna v. Weinberger, 729 F.2d 783, 790 (D.C.Cir.1984). Plaintiff must first prove a prima facie case, which in a case of disparate treatment is established when the plaintiff demonstrates that (1) he is a member of a protected class, (2) he was terminated from his position, and (3) he was replaced by a member of a non-protected class of equal or lesser qualifications or that non-members of the protected class were treated more favorably. In order to show a prima facie case of retaliation, a plaintiff must establish that (1) he engaged in protected behavior, (2) he was subject to an adverse action by his employer, and (3) there is a causal link between the adverse action and the protected activity. Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985); McKenna v. Weinberger, 729 F.2d at 790. If the plaintiff succeeds in making a prima facie case, the burden shifts to the defendant to provide evidence of a legitimate non-discriminatory reason for the termination or other adverse action. Once the defendant has substantiated the legitimate non-discriminatory reason, the burden shifts back to the plaintiff to provide evidence that the legitimate non-discriminatory reason for the employment decision was merely a pretext for illegal race-based discrimination or retaliation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Defendant does not dispute that plaintiff has made out a prima facie case with respect to his discrimination claim; Richardson is an African-American male who was terminated from his position and replaced by a white female.¹ Rather, the NRA argues that it had a legitimate non-discriminatory reason for terminating plaintiff. In its statement of undisputed facts, defendant demonstrates that its treatment and discharge of plaintiff was a justified business decision motivated and justified by Mr. Richardson's poor performance and not by racial or retaliatory animus. Mr. Richardson's declaration,...