The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
This case was referred to me by Judge Huvelle for all purposes including trial pursuant to LCvR 73.1(a). I herein resolve Defendant's Partial Motion to Dismiss Plaintiff's Second Amended Complaint and/or, in the Alternative, for Summary Judgment ("D. Mot."). For the reasons set forth below, defendant's motion will be denied in part and granted in part.
In this action, plaintiff alleges employment discrimination on the basis of race and retaliation for engaging in statutorily protected activity. Defendant has moved for partial dismissal of plaintiff's claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or in the alternative, for partial summary judgment.
Cynthia Bowie, a black female, has been employed by the Department of Justice ("DOJ") from 1984 to the present. Since September 1997, she has held the position of a GS-14 Supervisory Senior Policy Analyst (Regional Supervisor) in the Department's Office of Community Oriented Policing Services ("COPS"). Plaintiff's claim centers upon a series of incidents occurring over a two-year period, which she contends are evidence of her employer's discriminatory or retaliatory animus. The following incidents are the basis of plaintiff's claims of discrimination or retaliation:
A. Non-Selection for COPS Program Compliance Officer
On June 11, 1999, plaintiff applied for the position of COPS Program Compliance Officer, Vacancy Announcement # 99-24-24001, a grade 14 position with promotion potential to grade 15. After interviewing for the position on September 2, 1999, plaintiff received notification on January 11, 2000 that she had not been selected. The successful candidate was Tracy Mock, a white female. Second Amended Complaint, ¶ 10.
B. Cancellation of Job Vacancies
The following vacancy announcements were cancelled by the DOJ after plaintiff submitted an application and was found to be qualified.
1. Assistant Director, Intergovernmental and Public Liaison Division. Vacancy Announcement # 00-12-24001, GS-301–14/15. Date of plaintiff's application, April 21, 2000; date of cancellation, September 21, 2000. Plaintiff further states that the position was ultimately re-posted under Vacancy Announcement # 00-17-24001 in April 2001 and filled by a white female employee after being held open for applications for only four days. Id. ¶ 15.
2. Assistant Director of the Grants Monitoring Division. Vacancy Announcement # 00-21-24001, GS-301-15. Date of plaintiff's application, June 9, 2000; date of cancellation, September 26, 2000. Id. ¶ 16. This position was never filled.
3. Regional Assistant Director, Grants Monitoring Division. Vacancy Announcement # 00-39-24001, GS-301-14/15. Date of plaintiff's application, October 10, 2000; date of cancellation, March 2001. Id. ¶ 20. This position was never filled.
4. Assistant Director, Grants Monitoring Division (second posting). Vacancy Announcement # 01-08-24001, GS-301-15. Date of plaintiff's application, March 8, 2001; date of cancellation, July 19, 2001. Id. ¶ 21. This position was later subsumed under another employee's position.
C. Failure to Assign to Temporary, "Acting" Management Positions
In the following instances, plaintiff's co-workers were temporarily detailed to serve in an "acting" capacity for positions that plaintiff describes as "senior management."*fn1
1. On March 28, 2000, plaintiff was notified that Carolyn Perrygo, a white female, had been assigned to serve as Acting Assistant Director of the Grants Monitoring Division. Id. ¶ 18.
2. On July 1, 2002, plaintiff learned that another white female, Shelly Longgruth, was assigned to serve as Acting Assistant Director of ...