The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Tyrone Perkins ("Plaintiff"), an African-American male and former employee with the Department of Veterans Affairs ("VA"), brings this action against Eric K. Shinseki, the Secretary of Veterans Affairs ("Defendant"). Plaintiff alleges that VA management, in particular James Ramos and Carol Winter, racially discriminated and retaliated against him in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Plaintiff alleges three adverse actions: (1) in 2006, management denied Plaintiff's application for a promotion to the GS-13 Systems Administrator position in favor of two white male candidates; (2) management unfairly charged him AWOL on a number of dates in 2006 and 2009; and (3) in 2009, management demoted him, reassigned him, and suspended him for 10 days without pay. See Pl. Br. at 1; Audio File 6/21/12 at 19:45-21:00 (ECF No. 67). Defendant moves for summary judgment pursuant to Fed. R. Civ. P. 56(c) (ECF No. 53). For the following reasons, Defendant's Motion is DENIED.
II. Summary of Undisputed Facts
The following is a summary of undisputed facts. *fn1
Other facts bearing on the case are in dispute and will
be discussed later in this Memorandum. The Court views all facts and
inferences in the light most favorable to Plaintiff, the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Plaintiff worked for the VA from 1977 until his resignation on August 1, 2009. Def. MUF ¶ 1. At the time of his resignation, Plaintiff held the position of GS-11 Information Technology Specialist in Philadelphia. Id. ¶¶ 56, 64. During Plaintiff's tenure at the VA, and especially between 2002 and 2009, Plaintiff filed numerous EEO complaints against his employer alleging that his supervisors were racially discriminating against him. Id. ¶¶ 7, 11, 73. The complaints specifically named James Ramos and/or Carol Winter as the "responsible management officials" involved. See, e.g., Def. Exh. 14. The details of these complaints need not be recited here; what is important for purposes of this Motion is that one or more of these complaints were pending during all of the alleged adverse actions.
Between 2006 and 2009, the VA rendered a number of unfavorable decisions regarding Plaintiff's employment and job performance. The first incident occurred in May 2006, when Plaintiff applied and interviewed for one of two available GS-13 Systems Administrator positions. At the time of his application, he was working as a GS-12 employee on the Information Technology Help Desk. Def. MUF ¶¶ 7-8. James Ramos and a Mr. John Carr interviewed Perkins and six other candidates for the positions, all of whom were Caucasian. Id. ¶ 9-10. Two of the other six men were chosen. Id. The documents recording the evaluations of the seven candidates reflect that the two selected candidates rated similarly to Plaintiff in every category except in "Experience," where the selectees were rated higher. Def. Exh. 17; Def. Br. at 24-25.
Also in 2006 and then again in 2009, Plaintiff was repeatedly docked pay for being Absent Without Leave ("AWOL"). Def. Exhs. 5-6. The majority of the AWOL charges were ultimately reversed by VA management and Plaintiff was reimbursed for any lost compensation; however, AWOL charges resulting in a loss of slightly less than one day's pay were not reversed. See Audio File 6/21/12 at 21:30-22:30 (ECF No. 67). The unreversed AWOL charges included, among other things, a charge rendered by Mr. Ramos for time on August 29, 2006 that Plaintiff spent meeting with his attorney to prepare for an EEO mediation. That day, Plaintiff left a voicemail with Ramos requesting leave to meet with his EEO attorney more than two hours before the meeting was supposed to take place. Def. Exh. 1 at 71:2-5; Def. Exh. 5. Ramos nevertheless charged him AWOL for the absence.
Finally, on February 18, 2009, Troy Collum, one of Plaintiff's supervisors, proposed terminating Plaintiff. Collum cited three grounds for the termination: first, that Plaintiff had failed to maintain a 90% performance standard after being placed on a probation-like performance improvement plan ("PIP"); second, that Plaintiff had made inappropriate use of government email during December 2008; and third, that Plaintiff was AWOL on January 7, 2009 and had a history of AWOL charges. Def. Exh. 10; see Def. Exh. 9 at 90-99 (copies of the emails). Carol Winter, the decision-maker regarding the proposed termination, decided that in light of Plaintiff's length of service, he would not be terminated. Instead, on April 15, 2009, Plaintiff received a demotion to the GS-11 level, reassignment to a group in which he had previously worked, and a 10-day suspension (of which he was permitted to serve 4 days over the weekend). Def. Exh. 12.
Effective August 1, 2009, Plaintiff resigned from the VA. Def. MUF ¶ 64; Def. Exh. 2.
III. Procedural History in this Court
Plaintiff has filed no less than five complaints in this litigation, with the Fifth Amended Complaint filed on August 29, 2011 (ECF No. 34). According to Plaintiff's counsel, each new complaint added allegations related to Plaintiff's employment at the VA after those allegations were administratively exhausted through resolution of pending EEO matters. Audio File 6/21/12 at 2:00-3:00, 7:00-8:00 (ECF No. 67). Presently, there remain no pending EEO matters related to this case, and there are no other pending litigations raising the claims that Plaintiff brings before the Court. Id. at 10:30-11:30.
On April 11, 2012, Defendant filed a Motion for Summary Judgment (ECF No. 53). The Motion asserts myriad defects in Plaintiff's case, but its most compelling arguments include
(a) that Plaintiff's claims about the VA's denial of the GS-13 promotion fail because he cannot adequately rebut Defendant's legitimate reason for its decision, as required under the McDonnell Douglas burden-shifting framework, and (b) that Plaintiff's claims regarding the AWOL charges and demotion/reassignment/suspension ...