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Green v. Winter

December 19, 2008

DAVID L. GREEN, PLAINTIFF,
v.
DR. DONALD C. WINTER, DEFENDANT.



The opinion of the court was delivered by: Buckwalter, S. J.

MEMORANDUM

Presently before this Court is Defendant Dr. Donald C. Winter's Motion to Dismiss Complaint and/or for Summary Judgment. For the reasons discussed below, Defendant's Motion to Dismiss is granted.

I. PROCEDURAL BACKGROUND

On November 9, 2007, Defendant filed a Motion to Dismiss Complaint and/or for Summary Judgment. (Doc. Nos. 11 & 12.) On September 19, 2008, this Court granted Defendants Motion due to Plaintiff's failure "to respond to defendant's motion to dismiss and/or for summary judgment (Doc. No. 12)." (Doc. No. 26.) The Order noted that Local Rule 7.1(g) provides for filing of Motions for Reconsideration "within ten days after entry of judgment." (Id.)

On October 2, 2008, Plaintiff filed a Motion for Reconsideration. (Doc. No. 27.) This Court granted Plaintiff's Motion for Reconsideration, and provided that "defendant is granted leave to file its reply brief to plaintiff's opposition on or before October 30, 2008." (Doc. No. 29.) Defendant filed a Response Motion on October 30, 2008, and Plaintiff filed a Reply in Opposition to Defendant's Motion on November 5, 2008. (Doc. Nos. 30 & 31.)

II. FACTUAL BACKGROUND

Plaintiff states in his Complaint, filed on June 23, 2007, that he "submitted employment application for Department of Navy accounting position (GS-12 Supervisor Accountant, PHL-OC-0024) on 9-3-2003, but the Navy refuse to acknowledge or accept plaintiff application, due to plaintiff race/ color/ sex/ reprisal, etc; agency actions caused plaintiff to suffer employment discrimination." (Doc. No. 1.)

Plaintiff's allegations arise from not being considered for an accounting position posted by his then employer, the United States Navy, at his place of employment: the Naval Inventory Control Point in Philadelphia, Pennsylvania. Plaintiff alleges that he was not considered due to discrimination caused by his race (African-American), national origin (Afro-American), color (black), sex (male), religion (Christian), and age (D.O.B. 10/26/1962).*fn1 (Id., Ex. 1.) Plaintiff also asserts a due process claim. (Id., Ex. 1.) ("The agency injured me, and they are trying to deny me due process!") Defendant avers that Plaintiff was not considered for the accounting position, as his resume, which he submitted electronically, expired nine months prior to the posting of the position in question. (Def.'s Mot. to Dismiss 3.)

Plaintiff uploaded his resume onto a computer human resources system used by the Naval Inventory Control Point on January 25, 2002. (Id.) This system has a one year resume policy and, as a result, Plaintiff's resume expired on January 25, 2003. (Id.) On September 6, 2003, Plaintiff sought to use his January 25, 2002, resume to apply for Vacancy Announcement PHL-OC-04-0024, but because his "resume had expired, his application was not considered for the supervisory accountant position." (Id. at 4.)

During a Department of Defense On Site Investigation into his allegations, Plaintiff stated that he learned, in December 2003, that another person had been selected for position PHL-OC-04-0024. (Id., Ex. 3, Department of Defense, Office of Complaint Investigation, On Site Investigation In the Matter of David L. Green ("On Site Investigation") 19:4-18.) In January 2003, a co-worker asked Plaintiff if he had applied for the position, as she had heard that "there was no one African American on the list at all, that was considered for the job." (Id., Ex. 3 On Site Investigation 20:13-24, 22:9-13.)

Plaintiff emailed Michelle Ferrante, on January 20, 2004, inquiring why he was not selected. On February 20, 2004, he contacted Celeste Washington an Equal Employment Opportunity ("EEO") Specialist, as he had not heard back from Ms. Ferrante. (Id. at 4.) In a Declaration dated October 29, 2008, Ms. Washington asserts that "on February 20, 2004, Mr. Green contacted me, regarding not receiving a response from the staffing division of Human Resources about his resume." (Def.'s Rep. Mot., Ex. C ¶ 3.) Ms. Washington asked Plaintiff if he wanted EEO counseling, to which he replied "[n]o, I'm trying to get a someone in staffing regarding my resume and chart." (Id. at ¶ 4.) Ms. Washington states that she twice offered to help Plaintiff file an EEO Complaint, which he declined each time. (Id. at ¶ 5.)

On March 12, 2004, Virginia Calabrese, a Supervisory Human Resource Specialist, explained to Plaintiff that his resume had expired on January 25, 2003. (Id.) On April 2, 2004, Plaintiff met with Rachel Green, a Navy EEO Counselor, to discuss his resume expiration and subsequent non-selection for the supervisory position. (Id.) Plaintiff filed a Formal Complaint of Discrimination on May 18, 2004, postmarked May 19, 2004, and received by the Navy EEO on May 24, 2004. (Pl.'s Compl., Ex. 1.)

On October 28, 2004, The Department of Defense's Office of Complaint Investigation conducted an on site examination of Plaintiff's complaints, during which Plaintiff described his concerns in detail. (Def.'s Mot. to Dismiss, Ex. 3.) On January 26, 2006, an Administrative Judge at the United States Equal Employment Opportunity Commission ("EEOC") issued a decision finding no discrimination. On February 28, 2006, the Department of Navy issued a Final Order noting that the Administrative Judge issued a finding of "no discrimination" and held "[s]ince you are not a prevailing party you are not entitled to payment of attorney's fees, costs, or compensatory damages." (Id., Ex. 4.) This Final Order noted that "[y]ou may file a Notice of Appeal with the Equal Employment Opportunity Commission at any time up to thirty (30) calendar days after receipt of this Final Order." (Id.) The Navy's Final Order was mailed on March 2, 2006, and provided five days for arrival by mail. In order to be timely, Plaintiff EEOC appeal was to have been filed by April 5, 2006. Plaintiff filed his appeal on April 12, 2006, noting that his "letter is my official notice requesting the Equal Employment Opportunity Commission that I'm appealing the decision of the EEOC Administrative Judge for my case. Therefore, I do not agree with agency or Administrative Judge." (Id., Ex. 5.)

On September 8, 2006, the EEOC affirmed the Department of Navy's Final Order and Decision, and on March 20, 2007, denied Plaintiff's motion for reconsideration. (Id. at 5.) Plaintiff filed his Complaint in the Eastern District of Pennsylvania on June 26, 2006.

III. LEGAL BACKGROUND

1. Motion to ...


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