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Norvel R. Wright v. Secretary of Defense Robert Gates

January 25, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court is defendant's "Motion to Dismiss and/or For Summary Judgment" (Dkt. No. 44), which came before the court for hearing on the undersigned's law and motion calendar on July 8, 2010 (Dkt. No. 48). Assistant United States Attorney Bobbie J. Montoya appeared on behalf of defendant. Plaintiff, who is proceeding without counsel, appeared on his own behalf. Although the undersigned was prepared to rule on defendant's motion at the time of the hearing as a result of plaintiff's fatally flawed written opposition, the undersigned, out of an abundance of caution, provided plaintiff until August 16, 2010, to file a supplemental or revised written opposition to defendant's motion. (See Order, July 9, 2010, Dkt. No. 49.) Plaintiff did not file a supplemental or revised written opposition, and the undersigned submitted this matter. (Order, Aug. 24, 2010, Dkt. No. 50.) Having reviewed the briefs and record in this case and considered the parties' respective arguments, the undersigned recommends that defendant's Motion to Dismiss and/or For Summary Judgment be granted and that judgment be entered in defendant's favor.


Plaintiff filed his complaint on July 15, 2008, and defendant filed his Motion to Dismiss and/or For Summary Judgment on June 10, 2010, after the parties had conducted discovery in this case. Defendant's motion includes a statement of undisputed facts. (Def.'s Memo. In Supp. of Mot. to Dismiss and/or for Summ. J. ("Def.'s Memo.") at 2-7, Dkt. No. 44, Doc. No. 44-2.) Defendant's statement of undisputed facts ("Def.'s SUF"), with citations to admissible evidence and a declaration in the record, provides the basis for the factual recitation set forth below. As discussed below, plaintiff filed only a two-page opposition brief that attaches inadmissible or non-relevant evidence, and he did not file a statement of disputed facts or his own statement of undisputed facts.

A. Plaintiff's Complaint

Briefly stated, plaintiff is a GS-12 level Administrative Contracting Officer ("ACO"), who works for the Defense Contract Management Agency ("DCMA"), an agency or division within the Department of Defense. Although his form employment discrimination complaint barely alleges any facts, it alleges that: (1) defendant failed to promote plaintiff; (2) "verbal abuse"; (3) "Retaliation/reprisal"; and (4) "Racism." (Compl. at 1-2, Dkt. No. 1.) Plaintiff's complaint alleges that the alleged discrimination took place in "2003 / 2008" and that plaintiff filed charges with the Federal Equal Employment Opportunity Commission ("EEOC") or the California Department of Fair Employment and Housing on or about "2006." (Id. at 2-3.) Plaintiff's complaint also alleges that plaintiff received a Notice-of-Right-to-Sue letter from the EEOC on April 28, 2008. (Id. at 3.)

B. Undisputed Facts

Plaintiff is an African American male who, since approximately 1996, has been employed by DCMA as an ACO, at the GS-12 level. (Def.'s SUF ¶¶ 1-2.) Plaintiff began his work with DCMA in Sunnyvale, California, and in or around January 2004, plaintiff's office was relocated to Lathrop, California. (Id. ¶ 2.) Plaintiff works for DCMA Northern California in the Lathrop office. (Id.)

In or around April 2005, DCMA Northern California was reorganized or realigned and, as a result, plaintiff and Craig Studley were assigned as ACOs to the Navy 2 Team and were supervised by Team Supervisor Janet Lopez. (Def.'s SUF ¶ 3.) In or around July 2005, DCMA performed a review of the realignment and determined that the Defense Logistics Agency ("DLA") Team needed to be restructured and created a second DLA team. (Id. ¶ 4.) Because the Navy 2 Team had two ACOs, plaintiff was reassigned as the ACO on the new DLA team, and Robert Armstrong was plaintiff's supervisor. (Id.)

In Spring of 2006, management at DCMA Northern California conducted a review of all of its employees' position descriptions to ensure that those descriptions were accurate and reflected current job duties. (Def.'s SUF ¶ 5.) Group Chiefs and Team Supervisors were assigned to review the position descriptions and make recommendations about accuracy. (Id. ¶ 6.) Janet Lopez, who is a Team Supervisor and former ACO, was assigned to review the ACO position descriptions. (Id. ¶ 7.)

At the time of the review, there were eleven ACO positions at job level GS-1102-12. (Def.'s SUF ¶ 8.) Lopez determined that two of the ACO position descriptions for the ACO positions held by Craig Studley and John Palmer did not accurately reflect current job duties. (Id.) The ACO position held by Studley was reclassified from a GS-12 level to GS-13 level because the position imposed additional duties beyond the GS-12 level, and had done so since approximately fiscal year 2002.*fn1 (Id. ¶ 9.) The ACO position held by Palmer was reclassified from a GS-12 level to GS-13 level because the position imposed additional duties beyond the GS-12 level, and had done so since approximately fiscal year 2003.*fn2 (Id. ¶ 10.) All of the position descriptions were reviewed with assistance from DCMA Headquarters Human Resources Division and Army Civilian Personnel Office Center classification specialists. (See Def.'s SUF ¶¶ 11-14.)

In or around November 2006, DCMA Northern California management met with Human Resources, senior management from DCMA's Carson Division, and DCMA's Western Headquarters to discuss reclassifications, promotions based on an accretion of duties,*fn3 and promotions through the competitive process. (Def.'s SUF ¶ 15.) Human Resources provided the following criteria to accrete positions:

(1) the employee will continue to perform the duties of the former position and the new duties assigned; (2) the addition of new duties and responsibilities will not adversely affect the grade of another occupied position (e.g., result in the position being downgraded); (3) the additional duties and responsibilities do not change a former non-supervisory position into a supervisory position; (4) there are no other employees at the same grade level performing the same work in the organization where the employee is located who qualify for the reclassified position; (5) for an employee to be considered for an accretion of duties, the employee must meet all OPM qualification requirements, including time-in-grade; and (6) the employee has performed the higher level duties for a significant period of time.

(Def.'s SUF ¶ 16.) Ultimately, after review of the review recommendations, some position descriptions remained unchanged, some were updated in minor respects, and others were revised to reflect current duties. (Id. ¶ 15.)

After a further review process, ten non-competitive promotions for DCMA Northern California were approved. (See Def.'s SUF ¶¶ 17-20.) In December 2006, the results of the position description review were announced by email to all DCMA Northern California employees. (Id. ¶ 21.)

At the time of the position description review process and accretions effectuated in 2006, plaintiff was an ACO assigned to the DLA Team. (Def.'s SUF ¶ 22.) At this same time, Craig Studley was the only ACO on the Navy 2 Team, and John Palmer was the only ACO on the TAG Team. (Id. ¶¶ 23-24.) Accordingly, under the relevant criteria, it was concluded that plaintiff was not eligible to compete for the GS-13 level positions at issue because, in 2006, plaintiff was in a different organizational unit or team.*fn4 (Id. ¶ 25.)

On December 7, 2006, plaintiff initiated contact with an EEO counselor. (Def's SUF ¶ 26.) On February 7, 2007, plaintiff filed an EEO complaint alleging discrimination based on race, color, age, and sex, as well as retaliation.*fn5 (Id. ¶ 27.) DCMA accepted for investigation plaintiff's claims that when individuals within DCMA Northern California had received non-competitive promotions to GS-13 level positions as a result of an accretion of duties, plaintiff was denied the opportunity to compete for the GS-13 level positions and that management allegedly manipulated the selection process. (Id.) On or about July 6, 2007, an EEO Report of Investigation was issued. (Id. ¶ 28.)

On March 31, 2008, the EEOC Administrative Judge, Terrie Brodie, issued a decision adverse to plaintiff. (Def.'s SUF ¶ 29.) On April 23, 2008, DCMA issued a final order adopting Administrative Judge Brodie's decision, and, on May 28, 2008, plaintiff appealed the decision to the Office of Federal Operations. (Id. ¶ 30.) On March 6, 2009, the Office of Federal Operations affirmed DCMA's decision. (Id. ¶ 31.) Meanwhile, on July 15, 2008, plaintiff filed a complaint in this court.

C. Plaintiff's Opposition to the Motion

Plaintiff filed only a two-page opposition to defendant's motion. (Pl.'s Opp'n to Def.'s Mot. to Dismiss and/or For Summ. J. ("Pl.'s Opp'n"), Dkt. No. 46.) Plaintiff's opposition does not rebut any of defendant's legal arguments. It also does not specifically dispute any of the facts alleged in defendant's statement of undisputed facts, and does not include a statement of disputed facts.*fn6 It only alleges that: (1) AUSA Montoya "is grossly misstating the truth," (2) defendant's statement of undisputed facts "is false," and (3) "[t]here is documented evidence to support the facts." (Opp'n at 1.) Plaintiff offers no substantive explanation or documentary support in this regard.

Plaintiff's opposition also attaches documents that are either: (1) inadmissible evidence, or (2) immaterial. The undersigned briefly addresses these documents before turning to the merits of the pending motion and sustains defendant's objections to some of the ...

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