Shea v. Kerry

• Decision Date: 10 May 2013
• Docket Number: No. CIV. 02–577 RCL.,CIV. 02–577 RCL.
• Citation: 961 F.Supp.2d 17
• Parties: William E. SHEA, Plaintiff, v. John F. KERRY, Secretary U.S. Department of State , Defendant.
• Court: U.S. District Court — District of Columbia

961 F.Supp.2d 17

William E. SHEA, Plaintiff,

v.John F. KERRY, Secretary U.S. Department of State ¹, Defendant.

No. CIV. 02–577 RCL.

United States District Court,

District of Columbia.

May 10, 2013.

William E. Shea, Laredo, TX, for Plaintiff.

Darrell C. Valdez, William Mark Nebeker, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Pro se plaintiff William Shea, a white career Foreign Service officer, brought this Title VII reverse discrimination action against the Department of State (“State”). Compl., Mar. 3, 2002, ECF No. 1. When State hired Shea in 1992, State operated an affirmative action program that made qualified minorities eligible for direct placement into mid-level classes of the Foreign Service. Shea claims he would have been eligible for this mid-level placement program but for his race and still feels the effect of his entry at a lower pay grade—each paycheck is less than it would have been if he entered as a mid-level officer.

This case suffered a series of fits and starts, largely attributable to Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007) and the Lilly Ledbetter Fair Pay Act, Pub. L. No. 111–2 (Jan. 29, 2009). Since Shea based his claim on the continuing effects of a discriminatory decision made in 1992, his claim was time-barred until passage of the Lilly Ledbetter Act. The substantive merits are finally ripe for consideration as the Court considers each party's motion for summary judgment. Under Title VII, Shea has the ultimate burden of proving that State's affirmative action plan was unlawful. Shea cannot support an essential element of his claim with admissible evidence. He tries to prove, via his own amateur statistics, that minorities were not significantly under-represented in the Foreign Service mid-levels. Shea needs, and lacks, qualified testimony about the statistical significance of his findings. Therefore, State is entitled to summary judgment on Shea's remaining claims and this case will be dismissed with prejudice.

I. BACKGROUNDA. Factual Background

In 1985, Congress enacted the Foreign Relations Authorization Act, Fiscal Years 1986 and 1987 (“1986–87 FRAA”). Pub. L. 99–93. The 1986–87 FRAA directed State to “develop ... a plan designed to increase significantly the number of members of minority groups and women in the Foreign Service.” Pub. L. 99–93, Title I, § 152(a). Congress further directed that “each plan developed pursuant this section shall ... place particular emphasis in achieving significant increases in the numbers of minority group members and women who are in the mid-levels of the Foreign Service.” Pub. L. 99–93, Title I, § 152(b). Thereafter, State instituted the Mid–Level Affirmative Action Plan (“MLAAP”) under its more general Mid–Level Foreign Service Career Candidate Program (“MLCCP”). See Def.'s Statement of Facts Not in Genuine Dispute ¶ 3 (“Def.'s SMF”), Aug. 17, 2012, ECF No. 120–1; Pl.'s Response to Def.'s Statement of Material Facts Not in Dispute 7–8 (“Pl.'s SMF Resp.”), Aug. 30, 2012, ECF No. 123–4 (only objecting to defendant's statement that MLAAP was “in response” to FRAA). Although white women were not qualified to participate in the MLAAP, State created the “Federal Women Programs” and the Federal Women's Program manager to develop and monitor programs aimed at greater female representation. Def.'s SMF ¶ 4; Pl.'s SMF Resp. (admitting Def.'s SMF ¶ 4).

In 1987, Congress enacted the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (“1988–89 FRAA”). Pub. L. 100–204. In the 1988–89 FRAA Congress found:

[T]hat the Department of State and other Foreign Service agencies have not been successful in their efforts—(1) to recruit and retain members of minority groups in order to increase significantly the numbers of minority groups in the Foreign Service; and (2) to provide adequate career advancement for women and members of minority groups in the senior levels of the Foreign Service.

Pub. L. 100–204, Title I, § 183(a). Congress further required State to “substantially increase their efforts to implement effectively the plans required by” the 1986–87 FRAA and “ensure that those plans effectively address the need to promote increased numbers of qualified women and members of minority groups into the senior levels of the Foreign Service.” Pub. L. 100–204, Title I, § 183(b). State revised the MLAAP in November 1990 and instituted its FY 1990–92 Mid–Level Affirmative Action Plan, which was in effect when Shea applied to, and was hired by, State. Def.'s SMF ¶ 9; Pl.'s SMF Resp. 10 (admitting Def.'s SMF ¶ 9).

Mid-level hiring allowed State to hire a Foreign Service candidate directly into a higher grade, rather than into an entry-level grade. Under the general mid-level hiring program, a candidate with the requisite experience could enter as a mid-level hire if State received a “certification of need” that State required an outside hire at that grade and with those qualifications. The Mid–Level Affirmative Action Plan dispensed with the “certification of need” requirement in favor of self-identification as American Indian, Alaskan Native, Asian and Pacific Islander, Hispanic, or African American. State required all candidates for mid-level hiring—both minority and non-minority—to (a) have substantial professional experience, (b) receive a passing grade on an oral examination, and (c) pass a background check. In February 1993, State ended the mid-level affirmative action program, but kept in place its more general mid-level hiring program. Def.'s SMF ¶¶ 10, 12–17; Pl.'s SMF Resp. 10–11 (admitting in all relevant respects Def.'s SMF ¶¶ 10, 12–17).

In September 1990, William Shea—a white male of Irish descent—submitted an application to the Foreign Service. Shea never applied for mid-level placement through the general Mid–Level Foreign Service Career Candidate Program. In May 1993, State hired Shea as an entry-level career Foreign Service Officer; he came in at grade FS–05, step 5.² Shea knew at the time he was hired that qualified minorities could start at higher grades, and that two people in his introductory class were starting at mid-level grades due to their participation in a minority mid-level hiring program. Shea did not file an administrative grievance until July 11, 2001—nine years after he entered the Foreign Service. Def.'s SMF ¶¶ 20–23, 26, 37; Pl.'s SMF Resp. 13–16 (admitting Def.'s SMF ¶¶ 20–23, 26, 37).

In his Complaint, Shea alleged that he would have passed the screening process of the MLAAP, but was excluded from consideration solely because of his race. Specifically, Shea alleged harm because his hiring at entry-level rather than mid-level grade has subjected him to lower pay and fewer promotion opportunities than members of minority groups admitted under the MLAAP, in violation of his rights under Title VII. See Compl. ¶¶ 1–2.

B. Procedural Background

On July 11, 2001, Shea filed a grievance with the State Department asserting, among other things, racial discrimination in violation of Title VII because of the disparate pay he was receiving. See Def.'s SMF ¶ 37; Pl.'s SMF Resp. 11 (admitting Def.'s SMF ¶ 37); Compl. ¶¶ 1–2. On January 30, 2002, Shea received the decision of the Foreign Service Grievance Board dismissing Shea's complaint for lack of jurisdiction. Compl. ¶ 2. Having exhausted his administrative remedies, Shea filed suit in this Court on March 26, 2002. His Complaint raised a Title VII challenge to the MLAAP, claiming he was injured by continuing to receive a lower paycheck than he would had he been eligible for mid-level placement though the MLAAP.

The case was initially assigned to Judge James Robertson, who granted State's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) because Shea's complaint and administrative grievance were untimely. Mem. & Order, Sept. 30, 2003, ECF Nos. 15 & 16. He found Shea's “complaint amounted to no more than allegations of discrimination in May 1992, when he started at a lower pay grade.” Mem. 4, ECF No. 16. Judge Robertson held that each allegedly-diminished paycheck did not amount to a new, discrete discriminatory act that reset the clock for filing an administrative complaint. Id. at 3–4. Shea tried to rely on Anderson v. Zubieta, 180 F.3d 329 (D.C.Cir.1999) and Bazemore v. Friday 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986) “for the proposition that, every time he received a paycheck for less than it would have been had he not been discriminated against, he was ‘discriminated against anew.” Id. at 4. However, Judge Robertson found that these cases were “inapposite,” because there was not a “ ‘discriminatory system in place,” akin to those in Bazemore and Anderson. Id. ( quoting Niedermeier v. Office of Baucus, 153 F.Supp.2d 23, 29 (D.D.C.2001)). Furthermore, Judge Robertson dismissed Shea's constitutional claims and his request for declaratory and injunctive relief. Id. at 4–5.

Shea then appealed the district court's ruling. See Notice of Appeal, Nov. 11, 2003, ECF No. 17. “While the district court dismissed all of his allegations on the pleadings—finding none stated a viable claim—Shea [sought] review of only one: i.e., that his pay and benefits are discriminatorily low because the State Department set his pay grade pursuant to a diversity program that disadvantaged him on account of his race (white) and ethnicity (Irish), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Equal Protection component of the Fifth Amendment, U.S. CONST. amend V.” Shea v. Rice, 409 F.3d 448, 449 (D.C.Cir.2005). The court of appeals found that “Bazemore holds that an employee may recover for discriminatorily low pay received within the limitations period because each paycheck constitutes a discrete discriminatory act,” id. at 455, reversed the district court's dismissal, and remanded for further...