United States District Court, N.D. Alabama, Southern Division
TRACY O. CRANE, Plaintiff,
ERIC H. HOLDER, JR., Defendant
For Tracy O Crane, Plaintiff: James S Roberts, Jr, LEAD ATTORNEY, JIM ROBERTS LAW FIRM LLC, Gardendale, AL.
For Eric H Holder, Jr, in his Official Capacity as Attorney General of the United States Department of Justice, Defendant: Mercedes C Maynor-Faulcon, UNITED STATES ATTORNEY, Middle District of Tennessee, Nashville, TN.
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS, United States District Judge.
This is a civil action filed by the plaintiff, Tracy O. Crane, against the defendant,
Eric H. Holder, Jr., in his official capacity as the Attorney General of the United States, and head of the United States Department of Justice. (Doc. 16). The Amended Complaint alleges that Federal Bureau of Investigation, a division of the Department of Justice, recruited the plaintiff for a so called " direct hire" position as a " Paralegal Specialist/Asset Forfeiture Investigator," but then " denied [the] [p]laintiff employment even though he was the most qualified applicant." (Doc. 16 at 1). The plaintiff alleges the department's actions violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (" Title VII" ). Specifically, the Amended Complaint sets out the following violations of Title VII: " National Origin Discrimination" (Count One); " Racially Disparate Impact [Discrimination]" (Count Two); and various acts of retaliation (Counts Three, Four, Five, Six, and Seven). The Amended Complaint also alleges that the defendant discriminated against the plaintiff on account of his age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (" ADEA" ) (Count Eight).
The case comes before the court on the cross motions for summary judgment by the parties. (Docs. 68, 70). For the reasons stated herein the plaintiff's motion (doc. 68) will be DENIED, and the defendant's motion (doc. 70) will be GRANTED in part and DENIED in part.
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (" [S]ummary 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." ) (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits -- or by the depositions, answers to interrogatories, and admissions on file -- it must designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact -- that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce " significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.
" The standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party files a motion, but simply requires a determination of whether either of the parties deserves judgment as a matter of law on the facts that are not disputed." S. Pilot Ins. Co. v. CECS, Inc., No. 1:11 CV 3863 AT, 52 F.Supp.3d 1240, 2014 WL 4977805, at *2 (N.D.Ga. Sept. 12, 2014) (citing Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005)). " The Court must consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration." Id. " The Eleventh Circuit has explained that '[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.'" Id. ( quoting United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984)). " Cross-motions may, however, be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts. Id. (quoting Oakley, 744 F.2d at 1555-56).
A. The FBI's Diversity Program
The FBI has a " diversity program" concerning Native Americans (doc. 69-1 at 17), which the plaintiff references in some of his claims. According to its website
[t]he Program is directed at ensuring that all American Indians/Alaskan Natives have the full measure of employment in the federal work force. These rights are protected through Government Treaties.
The goals and objectives of the American Indian/Alaskan Native Program are to:
-- Eliminate discriminatory practices
-- Assure that American Indians/Alaskan Natives are appropriately represented throughout the work force
-- Increase the representation of American Indians/Alaskan Natives in key occupational categories throughout the grade levels (SES, GS, and WGB), and in policy-making positions (particular attention will be focused on increasing representation in the Senior Executive Service)
-- Modify and/or change policy to increase opportunities for all employees to advance to their highest potential[, and]
-- Provide advisory services including: informational programs, training sessions, and counseling
(Doc. 69-1 at 18). Native Americans account for 0.40% of Special Agents (i.e., 55 Special Agents out of 13,766 total agents) and 0.51% of the Professional Staff Employees (i.e., 111 Professional Staff Employees out of 21,863 total employees).
B. The Plaintiff
The plaintiff, Tracy O. Crane, is Native American. He also is a former FBI employee, who was assigned to the Birmingham Division of the FBI. Before he retired, the plaintiff was with the FBI for approximately seventeen (17) years, during which he served part of his time as a Supervisory Intelligence Analyst (SIA) for the FBI's Birmingham Division. In 2008, he retired from the FBI with a pay classification of " GS-14." At the time he retired, he commanded a Field Intelligence Group (" FIG" ).
Crane previously held the Paralegal Specialist/Asset Forfeiture Investigator position at issue in the instant case. After he held the Paralegal Specialist/Asset Forfeiture Investigator, he was assigned to the Birmingham Office as a Supervisory Administrative Specialist at the GS-12 pay grade before becoming the commander of a FIG as a GS-14. The plaintiff states in his affidavit that " a few days prior to my retirement in 2008, the previous [SAC] stated that the Birmingham Office would 'direct hire' me at the GS-12, Step 10, pay grade if I would consider staying on instead of retiring." (Doc. 69-1 at 25, ¶ 12). The plaintiff declined this offer.
Crane's last Performance Evaluation Report (" PAR" ) prior to his retirement gave him an " Excellent" performance rating, and contained comments by the rating official about Crane's skills and resourcefulness. The comments were written by
Acting Special Agent in Charge (" ASAC" ) Charles E. Regan. (Doc. 69-1 at 22, ¶ 5). While the entire report is difficult to read, the following favorable comments are clear:
-- " Crane demonstrated his ability to be flexible and adjust to an ever-changing program."
-- " Crane is well respected within the Birmingham Field Office and with outside agencies."
-- " Crane has an excellent working relationship with the ATAC at the United States Attorney's Office."
-- " Crane . . . has enhanced the prominence of the FIG [with] outside agencies."
-- " Crane has performed in an exceptional manner . . .. He has earned the trust and confidence of Birmingham . . . management."
(Doc. 69-1 at 41). On his ratings of " Critical Elements," Crane received the highest marks of " Outstanding" for " Relating with Others and Providing Professional Service," " and " Maintaining High Professional Standards." (Doc. 69-1 at 40). On a scale of 1-5 (with 5 being the highest rating), out of eight critical elements his average rating was 4.13. (Doc. 69-1 at 40).
C. Norman Odom's Claim of Discrimination
After January of 2009, Division Administrative Officer (" AO" ) Norman Odom filed an EEO complaint alleging mistreatment by his supervisors. (Doc. 74 at 34, ¶ 5). Crane and Odom were friends. In late 2009 or early 2010, Crane provided an affidavit which supported Odom. (Doc. 74 at 35, ¶ 6).
D. The Paralegal Specialist/Asset Forfeiture Investigator Position
The parties agree that, in 2010, the need for a Paralegal Specialist/Asset Forfeiture Investigator occurred. It is also clear that the person holding the position would have been supervised by Raymond Zicarelli, the Chief Division Counsel (" CDC" ) at the FBI office in Birmingham, Alabama. (Doc. 69-1 at 50(13, 16)). However, there are varying accounts of how that position was filled.
1. The Plaintiff's and Stacy Crane's Version
The plaintiff states in his affidavit that, at some point (the affidavit does not say when), Zicarelli called him and " wanted to know if [Crane] was interested in a 'direct hire'" for the position. (Doc. 69-1 at 24, ¶ 10). The parties appear to agree that a " direct hire" occurs when a position is not posted, there is no competition for it, and a
candidate is " directly" contacted and hired by the FBI. In his affidavit, Crane states that Crane told Zicarelli that " [he] might be interested, but [Crane] needed to discuss it with [his] wife." (Doc. 69-1 at 24, ¶ 10). Crane also states that " Zicarelli then contacted my wife to see if I would be willing to accept the ...