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Green v. Winter

September 24, 2009

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 are two Motions for Summary Judgment. Defendant Donald Winter first filed a Motion for Summary Judgment, Plaintiff David Green subsequently filed a Motion for Summary Judgment, and Winter filed a Cross-Motion for Summary Judgment. For the reasons discussed below, Winter's Motion for Summary Judgement is granted, Green's Motion for Summary Judgment is denied, and Winter's Cross-Motion for Summary Judgment is dismissed.

I. FACTUAL BACKGROUND

A. David Green's Complaint

David Green filed his Complaint alleging that his employer, the United States Navy, violated his civil rights. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (Compl. ¶ 4.) Specifically, Green raises two claims: (1) that he was discriminated against because of his race; and (2) he was discriminated against in retaliation for his filing Equal Employment Opportunity ("EEO") grievances. (Id. ¶ 13.)

Prior to his 2006 termination, Green worked for almost twenty years as an accountant for the Navy at the Naval Inventory Control Point ("NAVCIP") in Philadelphia. (Id. ¶ 8.) Prior to his termination "[i]n 2005, the Navy issued a Notice of Proposed Removal ("NOPR") against plaintiff and subsequently suspended him from employment for 14 days." (Id. ¶ 9.) Green notes that while the Navy claims to have suspended him because he violated the Navy's Transportation Incentive Program ("TIP") -- the Navy's fringe benefit program providing assistance to naval employees using public transportation -- he asserts that he was actually punished "because of his race" as "the Navy subjected him to adverse treatment that was much more severe than the Navy's treatment of similarly situated white employees." (Compl. ¶¶ 10 & 11); (see also Winter's Mot. Summ. J., Ex. 18, Description of Navy's Transportation Incentive Program.)

Green's first count alleges that "after he returned to work, in October of 2005, [he] filed an EEO Complaint asserting that . . . the Navy had discriminated against him on account of his race." (Id. ¶ 12.) Additionally, the Navy "[i]n retaliation against [him] for filing this employment discrimination charged and in discrimination against him on account of his race, plaintiff's employer took several more adverse actions against" him. (Id. ¶ 13.)

Green avers that the Navy's discriminatory and retaliatory actions included:

(1) the Navy's involuntary transfer of plaintiff, an accountant, to a non-accounting position in the Inventory Accuracy Department, (2) the June 30, 2600 issuance of an NOPR against plaintiff, (3) the placement of plaintiff on an administrative leave of 30 days, and (4) the Navy's firing of plaintiff on August 21, 2006. (Id. ¶ 14.)

Reading Green's Complaint, this Court is unable to discern where his discriminatory claims end and his retaliatory claims begin. The Navy, out of an abundance of caution, twice analyzed each of these four, discrete instances - once as a race discrimination claim and once as a retaliation claim. (Winter's Mot. Summ. J. 3 n.2.) Green disagrees with this approach and, in his response to Winter's Motion for Summary Judgment states that:

[i]f defendant had paid attention to the Complaint and accurately summarized plaintiff's action, defendant would have noted that plaintiff was complaining about defendant's racial discrimination against him in connection with false charges related to Transportation Incentive Program ("TIP") and retaliation against him in connection with (1) Navy's December 11, 2005 transfer of Green from the material accounting department to the inventory accuracy department; (2) the Navy's June 30, 2006 issuance of a notice of proposed removal; (3) the Navy's placement of Green on administrative leave for thirty days starting on June 30, 2006; and (4) the Navy's August 31, 2006 termination of Green's employment. (Green's Resp. Winter's Mot. Summ. J. 2.) It appears that Green believes that his punishment for abusing the TIPS program constituted racial discrimination, and that the Navy's four subsequent actions constituted retaliation for his prior EEO filings. Out of an abundance of caution, this Court will examine his punishment for violating TIP as a racial discrimination claim and the four subsequent action as both instances of racial discrimination and retaliation.

Green currently seeks to recover for damages including: "loss of earnings, severe mental and emotional distress, great diminution of the enjoyment of the pleasures of life, great harm to his reputation, and a great embarrassment and humiliation." (Compl. ¶ 20.)

B. More Detailed Factual Background

For the bulk of his career with the Navy, Green performed his work at a level that was "acceptable." (Winter's Mot. Summ. J., Ex. 13, Decision on Proposed Suspension ¶ 6.) This changed in 2004. In a September 20, 2004 "Notice of Proposed Suspension," Ronald Stein noted that Green "had no prior discipline" before his nearly monthly-long unexcused absence from work in June 2004. (Id. at ¶ 5.) While noting that his was Green's first offense, Stein noted that your record is outweighed by the fact that, even though you were well aware of the rules and regulations, you were absent from the worksite for almost a month and provided no explanation. Even though you were in receipt of a notice of proposed suspension, you continued to disregard the leave regulations. (Id. ¶ 6.) Examining the entirety of the record, Stein determined that Green's actions warranted a two-day suspension. (Id.) Green's failure to follow the Navy's leave policy marked an inauspicious ending to his government service as it was the first of three formal disciplinary infractions, the subsequent two being for: (1) fraudulent certification of funds; and (2) failure to follow the Navy's leave policy and repeated insubordination. (Winter's Mot. Summ. J. 5.) Each time he was cited for an policy infraction, Green was reminded that compliance with naval policy was expected. (See id., Ex. 13, Decision on Proposed Suspension 3) ("In the future, I expect that you will schedule your annual leave usage in advance via an SF-71 and obtain your supervisor's approval."); (id., Ex. 14, September 18, 2005 Notice of Proposed Removal USAO0149) ("this Naval activity has established rules that you will abide by and that any future failure on your part to follow rules, or regulations, or directions, will be cause for more severe corrective action up to and including your removal from Federal Service.").)

As noted previously, Green's second violation of naval policy was based upon his abuse of the Navy's Transportation Incentive Program. (Winter's Mot. Summ. J., Ex. 14, Decision on Proposed Removal.) On September 18, 2005, Captain Thomas Wiechelt, the Deputy Commander for Aviation, issued a "Decision on Proposed Removal" which addressed a proposal to fire Green for a first offense of abusing Transportation Incentive Program (TIP)." (Id. at ¶ 1.)

The Decision examined both allegations and evidence suggesting that Green violated the TIP by accepting a mass-transportation subsidy while regularly driving to work and the contrary arguments made both by Green and his counsel. It concluded that, "you [Green] have ignored warnings about making 'false, fictitious or fraudulent certification' in conjunction with your TIP application and your quarterly subsidy distributions and . . . you did not live up to your responsibilities as you certified you would." (Id. ¶¶ 2(a),(b), & 4(a) .)

Captain Wiechelt noted that Green's prior two-day suspension, "may not have convinced" him "that further serious conduct infractions might lead to your removal from the federal service. However, please make no mistake about the clarity of the warning I am sending to you today." (Id. at ¶ 4(b).) Captain Wiechelt noted that "I have decided to mitigate the proposed penalty of removal to a penalty of suspension for (14) calendar days. I believe that my decision for the penalty of a (14) fourteen calendar suspension is necessary in light of your position and your callous reaction to these infractions." (Id. at ¶ 4(c).) As a result, Green was suspended from September 19 through October 2, 2005, returning to work on October 3, 2005. (Id. at ¶ 5.)

Shortly after returning to work in October 2005, Comptroller Directorate Margaret Klein proposed to Capt. James Davis that Green be transferred from an accounting position in the material accounting department to an accounting position in the inventory accuracy organization. (Winter's Mot. Summ. J. 8, Ex. 17, Reassignment of David Green.) This move was made as a result of internal naval needs as well as in response to Green's abuse of TIP. Specifically, the Navy needed to fill a position requiring "a skilled accountant with a background in the Inventory Data Base Analysis Division," and it was eliminating the billet occupied by Green. (Id., Ex. 17, Reassignment of David Green.) Green's transfer was also predicated upon his improper use of the TIP program, as his "failure to exercise appropriate fiduciary discretion in using this benefit for its intended purpose" made it "inappropriate to allow Mr. Green to certify funds" as he had been doing. (Id.) Green's new position had the same job series, grade, rate of pay, and benefits without loss of career advancement or opportunities. (Id.)

On June 30, 2006, Green's immediate supervisor Richard Dembowski, Deputy Director of the Inventory Accuracy Division, issued Notice of Proposed Removal based upon Green's: (1) second unauthorized absence from work; (2) second offense of failing to follow leave instructions; (3) first offense of failing to follow supervisor's directions; and (4) first offense of demonstrating disrespect to a supervisor's authority. (Winter's Mot. Summ. J., Ex. 23, Notice of Proposed Removal.)

The Notice meticulously addressed each instance of Green's alleged misconduct after his transfer to the Inventory Accuracy Division, culminating in Dembowski's recommendation that Green be terminated from federal service:

* January 20, 2006 (approx. 1500 hours): Green allegedly walked out of a required meeting, exclaimed to Dembowski "you are harassing me" and "physically threatening me," and was recorded as Absent Without Leave (AWOL) as he left the building without being granted permission to do so. (Id., Ex. 23, Notice of Proposed Removal 1.)

* January 20, 2006 (approx. 1530 hours): Green called Naval Support Activity (NSA) security stating that his supervisor loses his time sheets and yells at him. (Id. at 2.) Green also reportedly contacted the Philadelphia Police Department. Green told security that there was no physical contact. Dembowski concluded that "[i]t was wholly inappropriate to raise those concerns before the very security agents who represent a vital organization having the responsibility for the protection of the entire Naval compound against life threatening breaches of security." (Id.)

* February 10, 2006 (approx. 1440 hours): While discussing a leave request with Dembowski Green "became visibly upset over being asked questions and became very loud and disruptive." (Id.) Green got up to leave and was instructed by his supervisor "to sit back down" and explain his "thinking regarding [the] leave request." (Id.) Instead, he walked out of the office leaving work for the day.

* March 9, 2006 (approx. 0900 hours): Green refused to meet with Dembowski for required work performance counseling. Green stated that he would not attend the meeting absent representation. When informed that the meeting was mandatory and that he was "not entitled to have representation at work," Green responded that he "'would take it under advisement.'" (Id. at 3.)

* March 16, 2006 (approx. 0900 hours) and March 20, 2006 (approx. 1410 hours): Dembowski instructed Green to address deficiencies in his work product. Instead, Green listed tasks he would prefer to do instead of his assigned project. "Green repeatedly failed to follow [] instructions." (Id.)

* March 17, 2006 (approx 0800 hours): Green called Dembowski stating that he was not coming to work and was taking annual leave for the day. During the call, Green was informed that "annual leave needs to be requested and approved in advance," and that his unscheduled annual leave request was not going to be approved. (Id.) At that time, Green hung up on Dembowski. Subsequently, Green claimed that he was absent because he needed to have urgent car repairs made, but Dembowski found these statements "lacking in specific details and as such were not convincing as to the necessity of your absence." (Id.) Dembowski asked for "documentation to substantiate the urgency" for his absence from work. (Id.) Green failed to produce any documentation even after several reminders, and was recorded as AWOL.

* May 4, 2006 (approx. 0900 hours): After discussing Green's leave requests, Dembowski sought "a private discussion" with him. Green ignored Dembowski's requests and his annual leave forms were returned to him unresolved.

* May 10, 2006 (approx. 0835 hours): Green arrived thirty-five minutes late for mandatory training. At that time, Green requested "that annual leave be granted," but his request was denied and he was recorded as thirty-five minutes AWOL. (Id. at 4.)

* May 11, 2006 (approx. 1415 hours): Green refused to meet with Dembowski for his mandatory performance appraisal. Dembowski noted that Green "stood at my door with a distant stare . . . and in a loud agitated manner started chanting loudly, 'I rebuke you in the name of Jesus!'" (Id.)

* May 11, 2006 (approx. 1432 hours): Green again called Naval Security claiming that Dembowski "was either a security and/or police concern" due to his alleged hollering, finger pointing, and door slamming. (Id.)

* May 22, 2006 (approx. 1410 hours): Green walked out of a mandatory meeting with Dembowski about leave and attendance policy. Green requested an immediate grant of leave which was denied. Green left the building for roughly one hour, and upon returning refused to meet with Dembowski to conclude their prior meeting and discuss his absence. (Id. at 5.)

* June 14, 2006 (approx. 0915 hours): Green walked out of a required meeting with Dembowski. Again, Dembowski directed Green to return. Green refused to do so unless Dembowski said "please." (Id.) Because of his absence from the meeting, Dembowski listed Green as AWOL and sent Green an email confirming this status. Dembowski also provided Green with a hard copy of the email. Upon receiving this email, Green "crushed the memo into a ball and threw it into the trashcan with a quick and exaggerated motion." (Id.) Green turned to Dembowski and "smiled defiantly" before leaving his workstation for the remainder of the day. (Id.) Green was listed as AWOL for seven-and-a-half hours.

* June 28, 2006 (approx. 1035 hours): Dembowski called a disciplinary meeting with Green and Ronald Switzer, a Employee and Labor Relations Specialist. (Id. at 6.) The meeting was scheduled for 1000 hours, but Green, although at work, refused to attend. Eventually, he entered the meeting at 1035 hours. Dembowski started the meeting, but Green interrupted saying "'slow down(!)' or 'what was that against(!)' or 'say that again(!)'." (Id. at 2(a).) After reviewing Green's "history of misconduct" since his reassignment to the unit, Dembowski noted Green's "ongoing refusal to recognize lawful authority or accept direction." (Id. at 2(b).) Dembowski stated that he was proposing Green's removal from federal service based on a clear and convincing record of refusing to follow the rules, regulations and lawful orders of your employer." (Id.)

The genesis of Green's Complaint begins with his July 15, 2006, Formal Complaint of Discrimination, which alleges that upon returning from his fourteen-day suspension, he was retaliated against for 'speaking out about the injustice" he faced at NAVCIP. (Winter's Mot. Summ. J., Ex. 7, Formal EEO Complaint.) Specifically, Green asserts that he was retaliated against for speaking out about the injustice I faced at NAVCIP, upon my return to work on 10/3/2005, I exercised my right and filed EEO Complaint 10/12/2005, and the retaliation and harassment began, and intensified (From 10/2005 through 7/14/2006). For exercising my rights, Captain James Davis involuntarily re-assigned me to P015 effective 12/11/2005. In retaliation and filing my EEO complaint Mr. Ronald Switzer and Mr. Richard Dembowski took adverse actions against me. On June 30, 2006, Richard Dembowski issue NOPR in which he made several false accusation. He also place me on administrative leave for 30 days, and prohibited me from coming to my place of employment. After Dembowski issued this NOPR, Mr. Ronald Switzer and Captain James Davis took steps designed to prevent me from having a fair opportunity to reply to Mr. Dembowski NOPR.

(Id.)

Shortly thereafter, on August 31, 2006, Captain James Davis, Comptroller, issued a Decision on Proposed Removal, concluding that, "I find that removing you from employment will promote the efficiency of the service." (Winter's Mot. Summ. J., Ex 15, Decision on Proposed Removal.) Captain Davis' Decision evaluated Green's allegations that the Notice of Proposed Removal contained "'many false statements.'" Davis concluded that the Notice contains very specific and serious specifications that are supported by written documentation on the record. Your assertion that many of these statements are false does not identify which of the statements you claim to be false or provide your version of the events. Similarly, your summary denial of the charges does not provide any alternative explanation for the events described in the proposal notice, nor have you offered any evidence to support your challenges of the charges. (Id. ¶ 6(a).) Davis noted Green's two prior suspensions remarking that, "[o]ne incident of failure to follow direct orders from your supervisor would be discouraging to me. However, the pattern that you have repeated by your failure to follow orders and by your demonstrated disrespect for your supervisor's authority is unacceptable and cannot be tolerated." (Id. at 6(c).) Further, Captain Davis noted that,

[a]s a grade eleven Accountant, you hold a professional position with fiduciary responsibilities and significant prominence within the NAVCIP command. Your repeated pattern of failure to follow the directions of your supervisor and your displays of disrespect for his authority lead me to believe that you cannot contribute effectively to the NAVCIP's mission. Allowing your conduct to continue would be irresponsible. I found that some of your incidents of defiance were witnessed by other employees in your department and that constitutes an exacerbating circumstance. Such disobedience threatens to seriously undermine your supervisor's authority. (Id. ¶ 6(c).)

On September 8, 2006, Green Filed a formal Equal Employment Opportunity ("EEO") complaint with the Navy's EEO office. (Winter's Mot. Summ. J., Ex. 8, Formal EEO Complaint.) This Complaint was largely identical to his July 15, 2006, Complaint with an additional amendment stating that: "[d]isregarding his own conflict of interest, which should have kept him from making any decision, Captain Davis fired me on 8/31/2006. He did so in retaliation against me and in a shameful attempt to hinder my efforts to pursue my race discrimination and retaliation case before the EEOC." (Id.)

II. LEGAL STANDARD

Summary judgment is proper "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." FED. R. CIV. P. 56(c). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For there to be a "genuine" issue, a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. (Id.)

On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. County of Allegheny, PA, 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Del. Co. Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987)). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

Although the moving party bears the initial burden of showing an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden by "pointing out . . . that there is an absence of evidence to support the nonmoving party's claims." (Id. at 325). Once the movant has carried its initial burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec., 475 U.S. at 586. "There must be sufficient evidence for a jury to return a verdict in favor of the non-moving party; if the evidence is merely colorable or not significantly probative, summary judgment should be granted. Arbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994), abrogated on other grounds, Showalter v. Univ. of Pittsburgh Med. Center, 190 F.3d 231 (3d Cir. 1999).

III. ANALYSIS

A. Winter's Motion for Summary ...


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