Robert Guellich held a personal animus against him. In testimony elicited by plaintiff before the MSPB, an administrative technician at FOST testified that Guellich told her plaintiff would never reach permanent status, that plaintiff was a "big problem," and that she should ask the personnel office how plaintiff could be eliminated. Transcript of Hearing, Def. Exh. R, Doc. 14, at 69-70. Again, assuming the truth of this testimony, the court finds that it has no relevance to the question of whether racial animus was involved in plaintiff's discharge from the NPS. While such evidence tends to prove personal animosity, it is not probative of racial tension. In fact, two witnesses called by plaintiff during the administrative hearing, also white males, testified that they did not believe race or racial considerations had anything to do with the elimination of plaintiff's position. Id., at 72. No witness testified otherwise.
Plaintiff's fourth argument is that defendant's failure to offer Plaintiff any alternative employment opportunities is circumstantial evidence that defendant's explanation for the termination is pretextual. The court finds this argument equally unavailing because as a TAPER employee at the time of his separation from the NPS plaintiff had no right to further employment. No one replaced plaintiff in the WG-3 position; the position was eliminated. Under such circumstances, despite the fact that plaintiff was qualified for that or a similar position, defendant had no obligation to offer plaintiff another position. Hence, plaintiff raises no issue of fact regarding racial discrimination with this argument. Indeed, as noted by one court, "proof of general qualifications is less relevant in a reduction-in-force claim because someone has to be let go." Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 235 (4th Cir. 1991) (emphasis in original). In this case, at least seven position were eliminated at FOST between 1987 and 1993. See Jackson Affidavit, attached to Doc. 13, at P 3.
Plaintiff also notes that he was not offered the seasonal WG-1 position that was extended for several months after plaintiff's dismissal. Instead, a black male employee who was already filling the position was kept on until the end of 1987. According to Jackson and Guellich, the position was offered to this employee instead of plaintiff because a WG-1 employee is paid less and is not entitled to health benefits, and because plaintiff did not express interest in the position. Jackson Affidavit, attached to Doc. 13, at P 14; Guellich Affidavit, attached to Doc. 13, at PP 11, 13. Plaintiff further highlights to the court that the black male was kept at the expense of another, more senior white male, who was let go in addition to plaintiff. This argument ignores the fact that the senior employee was unavailable to continue work, since he was returning to school. Jackson Affidavit, attached to Doc. 13, at P 14. Thus, the circumstances of the retention of the seasonal employee through the end of 1987 is neither inconsistent with defendant's proffered rationale nor indicative of racial discrimination.
Finally, plaintiff Points to the existence of an Affirmative Action Plan at FOST as evidence that he was a victim of reverse discrimination. See FOST Affirmative Action Plan, Def. Exh. O, Doc. 14; Memorandum From J.D. Foy to Jackson dated June 29, 1987, Def. Exh. P, Doc. 14. The mere existence of such a plan, however, is not sufficient for plaintiff to meet his burden of identifying a material issue of fact. Plaintiff was not replaced by a minority worker. His position was simply eliminated. Nor can plaintiff claim that he was treated differently than a similarly situated minority employee. There is no evidence tending to indicate that the Affirmative Action Plan had any bearing on plaintiff whatsoever.
In short, the court finds no concrete evidence to rebut defendant's proffered reasons for initiating the RIF that resulted in plaintiff's termination from the NPS. At best, plaintiff's evidence is "merely colorable," which the Supreme Court has held insufficient to withstand a summary judgment motion. Anderson, 477 U.S. at 249-50. Because there is nothing in the record to indicate that race was a motivating factor in plaintiff's release from the NPS, summary judgment is appropriate in this instance, and is hereby granted.
In sum, defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56(c) is granted for the aforementioned reasons. The Clerk of the Court is directed to enter judgment in favor of defendant dismissing the action in its entirety.
It is So Ordered.
Dated: April 27, 1994
Syracuse, New York
HOWARD G. MUNSON
SENIOR UNITED STATES DISTRICT JUDGE