Wilborn v. Ashcroft, 99-CV-26171EGAJB.

• Decision Date: 05 August 2002
• Docket Number: No. 99-CV-26171EGAJB.,99-CV-26171EGAJB.
• Citation: 222 F.Supp.2d 1192
• Parties: Harold WILBORN, Plaintiff, v. John ASHCROFT, in his official capacity, as Attorney General United States of America Department of Justice, Defendant.
• Court: U.S. District Court — Southern District of California

222 F.Supp.2d 1192

Harold WILBORN, Plaintiff, v. John ASHCROFT, in his official capacity, as Attorney General United States of America Department of Justice, Defendant.

No. 99-CV-26171EGAJB.

United States District Court, S.D. California.

August 5, 2002.

COPYRIGHT MATERIAL OMITTED

Harold L. Wilborn, El Cajon, CA, Pro se.

U.S. Attorney CV, U.S. Attorney's Office Southern District of California Civil Division, San Diego, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GONZALEZ, District Judge.

Presently before the Court is defendant's motion for summary judgment.

BACKGROUND

Harold Wilborn ("plaintiff") is an African-American male employed as a Supervisory Law Enforcement Communications Assistant ("SLECA") with the San Diego Sector of the United States Border Patrol, Immigration and Naturalization Service ("INS"). He receives compensation for a service connected disability for which he was honorably discharged from the Navy. Plaintiff began working for the Border Patrol in 1986 as a probationary electronics technician. The Border Patrol terminated plaintiff on June 5, 1987 for unsatisfactory performance. (Df.ex. A2, A12). The Border Patrol then hired plaintiff as a Law Enforcement Communications Assistant ("LECA") in late 1987.

In November, 1997, plaintiff applied for a promotion to Communications Sector Department Head, SLECA, GS-1802-9 (the GS-9 position). On January 20, 1998, the INS informed plaintiff that another applicant, Gordon Markham, had been selected. Markham's selection, however, opened up a vacancy for Shift Supervisor, SLECA, GS-1802-8 (the "GS-8" position). Plaintiff applied for a promotion to this position in January, 1998. Two other applicants— William Kendrick and Darlene Evans— also applied for the GS-8 opening. An interviewing panel composed of Gordon Markham, Jesus Martinez, and Warren Hulst interviewed applicants for the position at some time in early 1998. The interviewing panel unanimously recommended William Kendrick for the promotion. (Markham decl. ¶ 5; Hulst decl. ¶ 5). On February 18, 1998 plaintiff learned that defendant had selected Kendrick. (TAC, ¶ 21). Plaintiff claims that defendant wrongfully denied him both promotions. Specifically, plaintiff claims he was discriminated against on the basis of his race, disability, and veteran status.

Initially, plaintiff sought relief by filing a complaint with the Office of Special Counsel ("OSC"). (TAC ¶ 15). Plaintiff then appealed the non-selections for the two positions to the Merit Systems Protection Board ("MSPB" or "Board") on November 20, 1998. (Id. ¶ 18-19). The Administrative Law Judge issued an initial decision concluding that the Board lacked jurisdiction over any of plaintiff's claims. On June 16, 1999, the full Board denied plaintiff's petition for review and notified plaintiff of his right to appeal to the United States Court of Appeals for the Federal Circuit. Plaintiff appealed to the Federal Circuit, the Equal Employment Opportunity Commission ("EEOC"), and the United States District Court for the District of Columbia. The District of Columbia Court subsequently transferred plaintiff's complaint to this Court. On August 26, 1999, the EEOC denied plaintiff's request for review of the Board's decision on the grounds that plaintiff had filed an appeal with the Federal Circuit. (TAC ¶ 21). On February 16, 2000, the Federal Circuit upheld the Board's determination that it lacked jurisdiction over plaintiff's claims. See Wilborn v. Department of Justice, 2000 WL 194114 (Fed.Cir.2000).

Plaintiff's complaint alleges violations of Title VII of the Civil Rights Act of 1964, the Rehabilitation Act, the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301, and the due process and equal protection clauses of the United States Constitution. By order dated May 14, 2001, this Court dismissed plaintiff's constitutional and USERRA claims. Plaintiff's Title VII claims are as follows: (1) defendant denied plaintiff both promotions, in part, because of his race in violation of 42 U.S.C. § 2000e-16; (2) defendant maintained a hostile work environment; (3) defendant retaliated against plaintiff for appealing his non-selections to the MSPB by failing to provide him timely notice of his right to file an EEO complaint in violation of 42 U.S.C. § 2000e-3(a). Plaintiff alleges that defendant violated the Rehabilitation Act, 29 U.S.C. § 791, by failing to reasonably accommodate his purported disability and by denying him the GS-9 promotion, in part, because of his disability.

Defendant moves for summary judgment on the following grounds: (1) plaintiff fails to establish a prima facie case of racial discrimination with respect to the GS-9 position because he was not qualified; (2) defendant proffers a legitimate, non-discriminatory reason for plaintiff's non-selection for the GS-8 position, which plaintiff fails to show is pretextual; (3) plaintiff fails to establish a prima facie case of a hostile work environment; (4) plaintiff fails to establish a prima facie case of retaliation because he can produce no evidence of an adverse employment decision or of a causal connection between his engagement in protected activities and an adverse employment action; (5) plaintiff fails to establish a prima facie case under the Rehabilitation Act because he is not disabled within the meaning of the Act and he never requested any accommodation.

DISCUSSION

A. Legal Standard

Summary judgment is proper where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A material issue of fact is present when a factual determination must be made by a jury to determine the rights of the parties under the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir.1993). A dispute is only "genuine" when "the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant." Anderson, 477 U.S. at 255, 106 S.Ct. 2505. In deciding a motion for summary judgment, the Court must examine all the evidence in a light most favorable to the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

A moving party who bears the burden of proof at trial is entitled to summary judgment only when the evidence indicates that no genuine issue of material facts exists. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 325, 106 S.Ct. 2548. If the moving party does not bear the burden of proof at trial, he may discharge his burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The moving party is not required to produce evidence showing the absence of genuine issue of material fact on such issues, nor must the moving party support its motion with evidence negating the nonmoving party's claim. Lujan v. National Wildlife Fed'n, 497 U.S. 871, 885, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert. denied, 493 U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989). Instead, "the motion may, and should, be granted so long as whatever is before the District Court demonstrates that the standard for the entry of judgment, as set forth in Rule 56(c), is satisfied." Lujan, 497 U.S. at 885, 110 S.Ct. 3177 (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548).

Once the moving party meets the requirement of Rule 56 by either showing that no genuine issue of material fact remains or that there is an absence of evidence to support the non-moving party's case, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). It is not enough for the party opposing a properly supported motion for summary judgment to "rest on mere allegations or denials of his pleadings." Id. Genuine factual issues must exist that "can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S.Ct. 2505. To make such a showing, the nonmoving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Such evidence need not be in a form admissible at trial to avoid summary judgment. Id. The moving party is entitled to judgment as a matter of law if the nonmovant fails to make a sufficient showing of an element of its case with respect to which it has the burden of proof. Id.

B. Title VII Claims

Plaintiff alleges that he was denied both promotions, in part, on the basis of his race in violation of 42 U.S.C. § 2000e-16, which proscribes racial discrimination in federal employment. Plaintiff's claim is governed by the burden-shifting standard first articulated by the Supreme Court in McDonnell Douglas Corp. v. Green.¹ Under this standard, a plaintiff first must first establish "a prima facie case sufficient to give rise to an inference of discrimination.²" To establish a prima facie case, a plaintiff must show that: (1) he belongs to a racial minority; (2) he applied for and was qualified for the position that he was denied; (3) he was rejected for the position despite his qualification; and (4) the employer filled the position with a person not of plaintiff's racial group, or continued to seek applicants of similar qualifications. Tarin v. County of Los Angeles, 123 F.3d 1259, 1264 (9th Cir.1997). Once the plaintiff makes a prima facie case, the burden of production then shifts to the defendant to articulate a legitimate, non-discriminatory...