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WILLIAMS v. PERRY

February 17, 1995

JACOB S. WILLIAMS, Plaintiff
v.
WILLIAM F. PERRY, Secretary of Defense, Defendant



The opinion of the court was delivered by: CALDWELL

 We are considering the Defendant's motion to dismiss, or in the alternative, motion for summary judgment. Because the parties have submitted affidavits, depositions, and exhibits outside the pleadings, we will treat the motion as one for summary judgment.

 I. Background

 This case arises from Plaintiff's employment at the Defense Distribution Region East ("DDRE") as a GS-4 Security Officer. Plaintiff, who is black, alleges that he was discriminated against during the course of his employment because of his race. The Defendant, William F. Perry, is the Secretary of the United States Department of Defense. *fn1"

 In the interim, Plaintiff contacted an EEO counselor with a pre-complaint containing additional allegations of discrimination. In his second complaint, he alleged that he was passed over for training for the position of Desk Sergeant, denied the opportunity to go to the health clinic during work hours, accused of leaving open a gate at the DDRE, and that someone put superglue in his personal lock, all because of his race. [Exh. 27 to Pl.'s Br. in Opp'n to S.J]. Plaintiff's complaints were consolidated and an investigator was assigned to explore all issues involved in both complaints. On January 18, 1994, he issued a report on his investigation. After no action was taken, this suit was initiated on March 28, 1994.

 Plaintiff contends that during the course of his employment, he "has been the victim of a continuous pattern of racial discrimination and harassment . . ." through: 1) the incident with Richard Nornhold; 2) the denial of training and promotion to the position of Desk Sergeant; 3) the refusal to allow him to have his blood pressure screened during duty hours; 4) the superglue in Plaintiff's personal lock and the alleged failure of his supervisor to adequately investigate the incident; 5) the failure of the EEO Office to investigate Plaintiff's complaints; and 6) a staged a confrontation with Plaintiff by the EEO manager in retaliation for filing the EEO complaint, which resulted in a one day disciplinary suspension. [Pl.'s Amended Compl. at P 8 (a)-(f)]. Plaintiff advances three distinct claims of discrimination under Title VII: racial discrimination for nonpromotion; retaliatory discrimination; and hostile work environment racial discrimination.

 II. Law and Discussion

 A. Standard for Summary Judgment

 Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." F.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In reviewing the evidence, facts and inferences must be viewed in the light most favorable to the nonmoving party. Matsushita Electric Industrial Co., Ltd., et al v. Zenith Radio Corp., et al, 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 553 (1986).

 When a moving party has carried his or her burden under Rule 56, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial'", and summary judgment must be entered in favor of the moving party. Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted).

 B. Racial Discrimination: Non-Promotion

 In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court established the basic framework and burdens of proof in Title VII pretext actions. First, the plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence. Id. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677. A prima facie case for failure to hire or promote is accomplished "by showing that [the plaintiff] is a member of a protected class; that [the plaintiff] was qualified for and rejected for the position; and that nonmembers of the protected class were treated more favorably." Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992) (citation omitted), cert. denied, U.S. , 114 S. Ct. 88, 126 L. Ed. 2d 56 (1993). If the plaintiff succeeds in proving a prima facie case, the employer must "articulate some legitimate, nondiscriminatory reason" for its action. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). If the employer carries its "relatively light burden by articulating a legitimate reason for the unfavorable employment decision, the burden of production rebounds to the plaintiff, who must now show by a preponderance of the evidence that the employer's explanation is pretextual (thus meeting the plaintiff's burden of persuasion)." Id. (parenthetical in original). To defeat a motion for summary judgment when the defendant has offered legitimate, nondiscriminatory reasons for its actions, the plaintiff

 
must submit evidence which: 1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication; or 2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.

 Id. at 764.

 In this case, Plaintiff contends that he "was not selected for training and/or permanent promotion to the Desk Sergeant position, despite his seniority status and despite qualifications equal to, or greater than those trained and/or selected for promotion to Desk Sergeant." [Pl.'s Amended Compl. at P 8(b)]. In February, 1993, Chief Richard H. Snyder, who was in charge of hiring the new Desk Sergeant, announced that five officers, including Plaintiff, would be temporarily promoted to the position of Acting Desk Sergeant. Each officer, all of whom had previously applied for the promotion, was to assume the position on a forty-five day rotating basis, with Plaintiff's rotation being fifth. The Defendant contends that Plaintiff declined to accept his rotation because Chief Snyder would not assign someone to train him. ...


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