Ward v. Kennard

• Decision Date: 12 December 2000
• Docket Number: No. CIV.A.00-0419(RMU).,CIV.A.00-0419(RMU).
• Parties: Michael R. WARD, Plaintiff, v. William E. KENNARD, Chairman, Federal Communications Commission, Defendant.
• Court: U.S. District Court — District of Columbia

133 F.Supp.2d 54

Michael R. WARD, Plaintiff, v. William E. KENNARD, Chairman, Federal Communications Commission, Defendant.

No. CIV.A.00-0419(RMU).

United States District Court, District of Columbia.

December 12, 2000.

Order Denying Reconsideration January 24, 2001.

Michael R. Ward, Oxon Hill, MD, pro se.

Scott Harris, Assist. U.S. Atty., Washington, DC, for defendant.

MEMORANDUM OPINION

URBINA, District Judge.

Granting the Defendant's Motion for Summary Judgment; Denying the Plaintiff's Motion for Partial Summary Judgment

I. INTRODUCTION

Arriving at the courthouse steps on the parties' cross-motions for summary judgment this dispute involves the plaintiff's allegations that the defendant violated his due process and equal rights, discriminated against him on the basis of his age, sex, and disability, violated merit-system principles, and committed prohibited personnel practices. Specifically, the plaintiff, Michael R. Ward ("the plaintiff" or "Mr. Ward"), brings this 48-count action against the defendant William E. Kennard ("the defendant") in his official capacity as Chairman of the Federal Communications Commission ("FCC"), challenging the defendant's decision to deny the plaintiff's application for a writer-editor position. For the reasons that follow, the court will grant the defendant's motion for summary judgment and will deny the plaintiff's motion for partial summary judgment.

II. BACKGROUND

Pro se plaintiff Michael R. Ward "had worked as a writer-editor and at the GS-12 level for several years." Compl. at 2.¹ In his complaint, Mr. Ward asserts that he had "competitive civil service status" and that he was "a preference eligible candidate, a 10-point compensably [sic] disabled veteran with a service-connected disability rated at 30 percent or more by the Department of Veterans Affairs." Id.

From July 11, 1994 through August 12, 1994, the FCC posted Vacancy Announcement Number ("VAN") 94-128, which sought applications from "all sources" to fill the position of writer-editor, grade GS-13, in its Office of Public Affairs ("OPA"). See Mot. for Summ. J. at 3. Mr. Ward applied for the job, but the FCC did not select him for the position. See Compl. at 2.

Mr. Ward alleges that the FCC's rejection of his application violated his constitutional right to due process and amounted to employment discrimination on the basis of his sex, age, and disability. In addition, he claims that, by denying his application, the FCC violated the merit-system principles embodied in 5 U.S.C. § 2301, and committed personnel practices prohibited by 5 U.S.C. § 2302. See generally Compl. Mr. Ward brings his claims under the Fifth and Fourteenth Amendments to the Constitution, 5 U.S.C. §§ 1302, 2108, 2301, 2302, 3309, 3313, 3314, 3317, and 1318, the Rehabilitation Act of 1973 (§ 501, 29 U.S.C. § 791), the Age Discrimination in Employment Act of 1967 ("ADEA") (29 U.S.C. § 633(a)), 38 U.S.C. § 4214, 42 U.S.C. § 2000(e) et seq. ("Title VII"), and 42 U.S.C. § 1981(a). See Compl. at 2-15.

Mr. Ward charges that because he had competitive civil service status, was preference eligible, and had a disability rated at more than 30 percent, the FCC's selection of another person for the writer-editor position violated both merit-system principles and government personnel practices. Specifically, the plaintiff alleges that the FCC failed to follow proper selection procedures in assessing applicants, intentionally excluded his application from consideration, and manipulated the selection process to appoint the applicant of its choice. See generally Compl. Moreover, Mr. Ward asserts that the defendant committed all these acts with the intent to discriminate against him on the basis of his age, sex, and disability. See id.

Both the plaintiff and the defendant have filed motions for summary judgment, followed by corresponding oppositions and replies. For the reasons that follow, the court will grant the defendant's motion for summary judgment and will deny the plaintiff's motion for partial summary judgment.

III. DISCUSSION

A. Legal Standard

Summary judgment is appropriate when a court concludes that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The substantive law on which a claim rests determines which facts are "material." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If a fact bears on an essential element of the legal claim, then it is material; otherwise, it is not. See id.; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Only disputes over facts that can establish an element of the claim, and thus that might affect its ultimate resolution, can create a "genuine issue" sufficient to preclude summary judgment. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

To prevail on a motion for summary judgment, the moving party bears the burden of establishing that there are no genuine issues of material fact and that the non-moving party has failed to offer sufficient evidence to support a valid legal claim. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 325, 106 S.Ct. 2548. In ruling on the motion, the court must accept the evidence of the nonmoving party as true and must draw all justifiable inferences in favor of the nonmoving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. It is not sufficient, however, for the non-moving party to establish "the mere existence of a scintilla of evidence in support of the [non-moving party's] position ...; there must be evidence on which the jury could reasonably find for the [non-moving party]." See id. at 252, 106 S.Ct. 2505. If the evidence in favor of the non-moving party "is merely colorable, or is not significantly probative, summary judgment may be granted." See id. at 249-50, 106 S.Ct. 2505 (internal citations omitted).

B. Analysis

1. The Plaintiff's Non-Title VII and Non-ADEA Claims of Discrimination

The defendant argues that the court should dismiss many of the complaint's 48 counts because the plaintiff is essentially asserting Title VII and ADEA discrimination claims under alternative and impermissible statutes, or as constitutional claims. See Mot. for Summ. J. at 10-11. Specifically, the defendant asserts that because the Supreme Court has ruled that Title VII is the exclusive remedy for claims of sex and race discrimination in federal employment, the plaintiff may not allege sex discrimination by the defendant under any alternative statute. See Brown v. General Serv. Admin., 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). The Court's holding in Brown is clear and well-settled, and the D.C. Circuit has applied it on numerous occasions. See, e.g., Ramey v. Bowsher, 915 F.2d 731, 734 (D.C.Cir. 1990); Ethnic Employees of the Library of Congress v. Boorstin, 751 F.2d 1405, 1414-15 (D.C.Cir.1985) ("Allowing federal employees to recast their Title VII claims as constitutional claims would clearly threaten" the policies underpinning the rigorous administrative exhaustion requirements and time limitations of Title VII.). The same principle applies to claims of discrimination based on age or disability — the ADEA and the Rehabilitation Act, respectively, are the exclusive remedies for such claims. See Chennareddy v. Bowsher, 935 F.2d 315, 318 (D.C.Cir.1991); Rattner v. Bennett, 701 F.Supp. 7, 9 (D.D.C.1988).

Moreover, after considering the defendant's argument, the plaintiff himself concedes these points while arguing that his other counts should survive the defendant's motion for summary judgment: "As it relates to this complaint, Title VII is the exclusive remedy for employment discrimination cases based on sex (Complaint counts 17, 19-27); the ADEA is the exclusive remedy for employment discrimination cases based on age (Complaint counts 28-38) neither precludes plaintiff's other actions." Pl.'s Opp'n to Mot. for Summ. J. ("Pl.'s Opp'n") at 3 (emphasis added).

Indeed, a substantial number of the counts in the plaintiff's complaint are discrimination claims asserted under statutes other than Title VII or the ADEA. Count 18 is a claim of sex discrimination asserted under 42 U.S.C. § 1981(a). See Compl. at 8. Counts 19 through 24 are claims of sex discrimination asserted under 5 U.S.C. §§ 1302, 3309, 3313, 3314, 3317 and 3318. See id. at 8-9. Count 25 is a claim of sex discrimination asserted under 38 U.S.C. § 4214. See id. at 9. Counts 26 and 27 are claims of sex discrimination, but lack any statutory reference. See id. Accordingly, because the plaintiff fails to assert these sex-discrimination claims under Title VII, the court will dismiss counts 18-27.

The same reasoning applies to the age-discrimination claims asserted under statutes other than the ADEA. Count 29 is an age-discrimination claim asserted under 42 U.S.C. § 1981(a). See Compl. at 10. Counts 30 through 35 are age-discrimination claims asserted under 5 U.S.C. §§ 1302, 3309, 3313, 3314, 3317 and 3318. See id. at 10-11. Count 36 is an age-discrimination claim asserted under 38 U.S.C. § 4214. See id. at 11-12. Counts 37 and 38 are age-discrimination claims that lack any statutory reference. See id. at 12. Accordingly, because the plaintiff fails to assert these age-discrimination claims under the ADEA, the court will dismiss counts 29-38.

2. The Plaintiff's Title VII and ADEA Counts

The plaintiff's complaint does assert one count of sex discrimination under Title VII (count 17) and one count of age discrimination under the ADEA (count 28). See Compl. at 7, 10. In assessing claims of employment discrimination, a court must follow the burden-shifting scheme laid out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas framework, the initial burden lies with the plaintiff to establish a...