case. The plaintiff, Michael Powers, is an employee of the
Federal Aviation Administration (FAA) of the United States
Department of Transportation (DOT). The defendant, Elizabeth
H. Dole, is the Secretary of the DOT. For the reasons stated
herein, defendant's motion is granted and plaintiff's motion
Michael Powers has been employed by the FAA continuously
since August 30, 1981. During 1981, Powers participated in the
FAA Academy's training program for air traffic controllers. He
was notified on December 14, 1981, that he had failed Phase IV
of the training program. He was thereafter assigned to another
position within the FAA at a lower rate of pay.
On December 30, 1981, Powers filed a formal grievance within
the FAA alleging that he had failed the training program for
air traffic controllers because his training class had
received inadequate instruction. He requested that he be
"recycled," i.e., permitted to undergo air traffic controller
On February 23, 1982, the FAA grievance examiner responsible
for the initial review of Powers' grievance, Elmer Loudermilk,
recommended that Powers' request for recycling be granted.
Kenneth C. Patterson, the grievance official to whom the
grievance examiner submitted his recommendation in accordance
with the FAA's grievance procedures, rejected the examiner's
recommendation and concluded that Powers' grievance should be
denied. In an affidavit submitted in support of defendant's
motion for summary judgment, Patterson stated that he found
insufficient evidence to substantiate Powers' claim of
inadequate instruction. In addition, he stated that he did not
base his decision on the fact that Powers is a white male.
Paul K. Bohr, Director of the Great Lakes Region of the FAA,
subsequently reviewed Powers' grievance pursuant to FAA
grievance procedures and concluded that it should be denied.
In his affidavit, Bohr stated that he found no merit in
Powers' claim that inadequate instruction was the cause of his
training failure. In addition, he stated that he did not base
his decision on the fact that Powers is a white male. In
response to Powers' letter of May 19, 1982 challenging his
decision, Bohr denied Powers' request for reconsideration of
his grievance in a letter dated June 23, 1982.
On May 18, 1982, the day before he wrote to Bohr requesting
reconsideration of his grievance, Powers lodged an informal
discrimination complaint with Henry T. Rogers, the Equal
Employment Opportunity Counselor for the DOT in Chicago. On
June 29, 1982, Powers timely filed a formal complaint of
discrimination with the FAA. He cited as the basis for his
discrimination complaint the "[i]mproper and unfair handling
of an FAA Agency Grievance. . . ." In addition, he alleged:
"Minorities that show good reason to be recycled are given the
opportunity. It appears, that in this case there is good
reason, and I am being denied the right to be recycled because
I am a white male, rather than part of a minority group."
On April 6, 1984, the DOT issued its finding of no
discrimination in Powers' case. On May 1, 1984, Powers filed
his complaint in this case, alleging that the defendant
discriminated against him because of his "race (white) and sex
(male) in that minorities and females who show cause to be
recycled through the Federal Aviation Administration Academy
are so recycled, although he having shown cause to be recycled
Supported by affidavits of defendant's employees, FAA
records reveal that eleven individuals who failed the FAA air
traffic controller training program filed FAA grievances
seeking recycling during 1980 through 1983. Only one of those
eleven was recycled. The one individual who was recycled
through the grievance procedure was a nonminority male.
In addition, individuals who feel they have been
discriminated against in the course of their training for air
positions may file discrimination complaints. According to
regional FAA records, from 1980 through December 11, 1981,
seven individuals who filed successful complaints of
discrimination with the Great Lakes Region of the FAA were
recycled through the training program. Of those seven, six
were black females and one was a white female. During the same
period, an additional 15 individuals filed unsuccessful
complaints of discrimination seeking to be recycled. Among
those 15 individuals were five females, of whom at least two
were white females, and ten males, of whom at least six were
white; the racial identification of two of the females and one
of the males is not indicated by the records.
Powers does not allege that he was discriminated against in
the course of his training or instruction for the position of
air traffic controller. Rather, he alleges discrimination in
the FAA's rejection of his grievance claiming that he failed
his training course because of poor instruction.
1. Plaintiff's Motion and Local Rule 12(e)
Rule 12(e) of the General Rules of the United States
District Court for the Northern District of Illinois provides:
With each motion for summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure
the moving party shall serve and file, in
addition to the affidavits (if any) and other
materials referred to in Rule 56(e) and a
supporting memorandum of law, a statement of the
material facts as to which the moving party
contends there is no genuine issue . . .
including with that statement references to the
affidavits, parts of the record and other
supporting materials relied upon to support such
statement. Failure to submit such a statement
constitutes grounds for denial of the motion.
In the present case, the Court finds that the plaintiff's
motion for summary judgment and supporting memorandum and his
reply memorandum do not meet the requirement of Rule 12(e).
The memoranda outline the procedural history of plaintiff's
administrative complaint and refers to evidence from the FAA
records discussed above in statistical support of his reverse
discrimination argument. They do not contain any affidavits
from plaintiff or others in support of his reverse
discrimination claim. It is clear that nothing contained in
plaintiff's memoranda approaches the type of statement
contemplated by Rule 12(e). In fact, plaintiff attempts in his
reply memorandum to argue the specific facts contained in
defendant's response memorandum. Therefore, since plaintiff
failed to submit a statement complying with Rule 12(e), his
motion for summary judgment is denied in accordance with the
2. Defendant's Motion for Summary Judgment
Defendant Secretary Dole argues that plaintiff Powers cannot
prove that he received treatment which differed from that of
others who were similarly situated or that, if different
treatment existed, it was not based on his race and/or sex.
Defendant concludes that Powers cannot make out a prima facie
case in order to get him past a motion for summary judgment.
Plaintiff counters with statistical evidence gleaned from FAA
records. He offers no affidavit in support of his
To create a question of fact, an adverse party responding to
a properly made and supported summary judgment motion must set
forth specific facts showing that there is a genuine issue for
trial. Rule 56(e), Fed.R.Civ.P.; Posey v. Skyline Corp.,
702 F.2d 102, 105 (7th Cir. 1983). A party may not rest on mere
allegations or denials of his pleadings; similarly, a bare
contention that an issue of fact exists is insufficient to
raise a factual issue. Id. Rule 56 of the Federal Rules of
Civil Procedure clearly requires that an adverse party set
forth specific facts showing a genuine issue for trial. Id.
As part of its motion for summary judgment, defendant
submitted two affidavits
and other exhibits, which contain FAA statistics, to support
its two contentions: (1) that the decision not to recycle
Powers was not based on the fact that he was a white male, and
(2) that a group of others denied recycling contained white
and minority males and females. Powers filed no affidavit in
response and submits only statistical evidence in support of
his claim. Even considering the plaintiff's affidavit
submitted in his formal complaint filed with the DOT, the
Court finds that the plaintiff presents only conclusory
allegations derived from the statistical evidence based on FAA
records. Powers submits no other evidence which suggests that
the DOT denied his request to be recycled because he is a
Applying the previously discussed principles of summary
judgment, the Court concludes that Powers' pleadings and
previous affidavit are insufficient to create a question of
fact concerning whether the DOT denied his recycling request
on discriminatory grounds. They merely refer to an inference,
drawn from FAA records, that more minority males and females
and nonminority females are granted recycling requests than
nonminority males. Plaintiff points to no specific facts from
which reverse discrimination can be proven, i.e., articulated
DOT quotas. In addition, defendant points out that, unlike
plaintiff, many of the minority and nonminority females who
were granted recycling had complained of inadequate training
due to discrimination.
There is a close distinction between the inference which the
plaintiff seeks to draw from mere statistics and specific
facts which could provide a basis for comparing his recycling
request with those of others whose requests were granted.
However, the Court is compelled to make this distinction in
light of the strict requirements of Rule 56. Posey v. Skyline
Corp., supra, at 106. Although it is true that a court should
give to the party opposing a summary judgment motion the
benefit of all reasonably drawn inferences, Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d
142 (1970), the mere possibility that a factual dispute may
exist, without more, is an insufficient basis upon which to
justify denial of a motion for summary judgment. Posey v.
Skyline Corp., supra, at 106; see also Quinn v. Syracuse Model
Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980).
Powers' previous affidavit and pleadings at best hint that
a question of fact may exist in this case. However, Rule 56
demands that Powers show specific facts indicating that a
genuine issue does exist for trial. Posey v. Skyline Corp.,
supra, at 106. This requirement has not been met. The Court has
no obligation to hypothesize or speculate about the various
implications of Powers' factual presentation. Id. Unsupported
by other evidence, Powers' inference of reverse discrimination
fails to go far enough to rebut the defendant's unambiguous
affidavits. Plaintiff Powers has failed to show that there
exists a genuine issue of material fact and therefore summary
judgment in favor of the defendant Secretary Dole is
appropriate in this case.
Plaintiff's motion for summary judgment is denied for
failure to comply with Rule 12(e) of the General Rules of the
U.S. District Court for the Northern District of Illinois.
Defendant's motion for summary judgment is granted.
IT IS SO ORDERED.
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