Facts

Plaintiff Thuong Do was an Asian-American over the age of 40. He was employed as an associate civil engineer (ACE) with the Department of Public Works (DPW). He applied for a promotion to a civil engineer (CE) position.

After he was denied the promotion and filed several grievances, plaintiff filed a lawsuit alleging age and race discrimination, unlawful harassment and retaliation under the Fair Employment and Housing Act.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that his failure to promote was based on his age, race, and his repeated protests including to the Ombudsman, Civil Service and Personnel regarding his performance evaluations, working conditions, and appraisals of mobility. Do alleged that he was subjected to unlawful harassment and retaliation, including after he refused to lower a rating of a femal subordinate, much to the chagrin of Department management, and was denied training opportunities, transfer requests and meaningful working assignments continuously thereafter, with engineers under 40 rewarded in these regards, instead. In retaliation, Do alleges that despite his documented expertise and credentials, he was repeatedly given the lowest possible AP scores while his supervisor retaliated further after Do successfully protested false statements placed on his evaluation, by said supervisor. Plaintiff further alleged that said supervisor inappropriately degraded him by accusing him of having a militaristic management style and more recently by inferring that the Communist President of Vietnam was plaintiff's president, even though it was well known that plaintiff fought against communism in South Vietnam, up to and including the Fall of Saigon.

Plaintiff also claimed that the promotional process at DPW was infirm and led to a disparate impact against individuals over the age of 40 and also the subclass of Asians over the age of 40, with plaintiff offering a statistical analysis in these regards from Dr. Daniel Biddle.

DEFENDANT'S CONTENTIONS:
Defendants maintained that plaintiff's performance evaluations were based on his performance as an ACE. The defense contended that plaintiff's appraisals of promotability represented plaintiff's ability to perform at the higher level of CE. Neither were based on any protected characteristics.

Defendants claimed that plaintiff was not qualified to receive the promotion to CE, as he lacked the technical knowledge and experience necessary for the sought after position. Further, he received multiple promotions after the age of 40, therefore, there was no causal connection to age. Many of those that received the promotion to CE, were Asian-American, therefore there was no causal connection to race.

With respect to harassment, plaintiff failed to establish that the conduct was severe and pervasive.

Finally, with regard to retaliation, there was no nexus between plaintiff's protected activities and his failure to promote. Both the disparate impact and treatment theories of discrimination were unsupported by the evidence.

Result

Motion for summary judgment granted in favor of defendants.

Other Information

Defendants' motion for attorney fees was denied. Plaintiff has appealed the rulings on summary judgment. FILING DATE: July 23, 2008.