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Johnson v. Harvey

December 21, 2006

MICHAEL P. JOHNSON PLAINTIFF
v.
DR. FRANCIS HARVEY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES ARMY DEFENDANT



The opinion of the court was delivered by: Garnett Thomas Eisele United States District Court

MEMORANDUM OPINION AND ORDER GRANTING PARTIAL SUMMARY JUDGMENT

Before the Court is Defendant's Motion for Partial Summary Judgment to which Plaintiff has responded. After reviewing the submissions of the parties and the record in its entirety, the Court concludes that the motion should be granted.

Plaintiff Johnson has filed two claims of discrimination, one for age discrimination and one for retaliation. As to the age discrimination claim, Plaintiff contends that R.E.Rogers discriminated against him on the basis of his age by failing to select Plaintiff for an attorney position. As to the retaliation claim, Plaintiff contends that Ralph Allen, who was chairing a three person committee for an attorney position for which Plaintiff applied, retaliated against him by giving him a low rating in retaliation for Plaintiff's prior involvement in an EEO claim involving a friend of Mr. Allen's.

Defendant seeks summary judgment solely on the claim for retaliation. For the reasons stated below, the Court finds that the Plaintiff has failed to come forward with evidence sufficient to permit a finding in his favor. Accordingly, the retaliation claim will be dismissed.

FACTS WITHOUT MATERIAL CONTROVERSY

Plaintiff Michael P. Johnson, a male, was hired on August 30, 1999, as an employee of the U.S. Army Corps of Engineers ("Corps"), Little Rock District. Mr. Johnson is an attorney. He was initially hired as a term attorney/advisor in the Real Estate Division of the Corps' Little Rock District for a four year appointment. On May 5, 2001, the Plaintiff was transferred to the Corps' Office of Counsel ("OC"). In January of 2001, the Little Rock District announced the position of General Attorney, GS-0905-11/12 in the OC (hereinafter referred to as the "General Attorney position"). A total of nine attorneys -- including Plaintiff Johnson -- applied for the General Attorney position. Plaintiff was not selected for the position. Both of his claims in this lawsuit relate to his application and non-selection for the General Attorney position.

The selecting official for the general attorney position was R.E. Rogers. Mr. Rogers has been the chief of OC since 1980. Mr. Rogers asked Ralph Allen, an OC attorney, to chair a three-member panel for the purpose of reviewing the nine applications for the General Attorney position and referral of a short list of the best qualified candidates. The other two panel members were Kenneth Carter, a non-attorney, and Nancy Brooks, an attorney.

Mr. Rogers provided the panel with evaluation criteria, consisting of five Knowledge, Skills and Abilities (KSA's) criteria. Each KSA had a maximum score of ten points, for a total maximum score of 50 points. The five KSA's used to evaluate the candidates were:

(1) Knowledge and experience in government contract law;

(2) Experience in litigation, either judicial or administrative;

(3) Knowledge and experience in at least some of the following areas: Labor or Employment Law, Procurement Fraud, Civil Works, Administrative Law, Ethics, Fiscal Law, Torts or Admiralty, Real Estate, Environmental Law, and Corps Regulatory Program

(4) Ability to work effectively with others;

(5) Ability to communicate effectively both orally and in writing.

Each panel member ranked each of the nine candidates based on the above five criteria. The panel ranked the applicants by total composite score and by order (ordinal ranking). Mr. Allen ranked the Plaintiff eighth out of the nine candidates for the position. The other two panel members ranked Johnson first and third. Despite the low ranking by Mr. Allen, the Plaintiff's overall ranking placed him fourth among the applicants.

On March 14, 2001, Mr. Allen gave Mr. Rogers a list of the panel's top four candidates in alphabetical order. The four applicants, their ...


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