The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Plaintiff Subhash Madan, an Asian born in India, alleges race and national origin discrimination, as well as retaliation, by the defendant, the Department of Labor's Bureau of Labor Statistics ("BLS" or "Bureau"), in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Plaintiff, who is proceeding pro se, claims that the Bureau had a discriminatory motive for failing to hire him when he applied for available positions as an economist in 1993 and in 1997, and that it retaliated against him in 1997 for complaints he had made about the 1993 hiring process. Defendant has moved for summary judgment, arguing that plaintiff failed to exhaust his administrative remedies for the 1993 nonselection, and that he cannot make out a claim of pretext for the 1997 claim. It also argues that he cannot establish a prima facie case of retaliation. For the reasons set forth below, the Court grants defendant's motion.
Plaintiff applied for numerous entry level Grade 9 Economist positions at BLS in 1993 and for one additional position in 1997. He complains that the two interviews he had on October 13, 1993 were superficial in that he was not asked any questions about his qualifications. He believes that he was better qualified than the other candidates. (Compl. ¶¶ 4-6.) When defendant rejected him for both positions, he contacted Mr. Steve DeCuir in the Personnel Department of BLS to "quietly complain" about the hiring process. ( Id. ¶ 7.; see Pl.'s Ex. 8 (Letters dated Dec. 27, 1993 and Nov. 24, 1993).) After receiving no response from BLS, plaintiff requested contact information for an Equal Employment Opportunity ("EEO") representative, and BLS told him to direct his complaint to the Bureau instead. (Compl. ¶ 8.) Plaintiff did not take any further action, but he alleges that he did not know the procedural requirements for filing an EEO complaint. ( Id.)
On June 24, 1997, BLS held a job fair at its Washington, DC headquarters. Plaintiff submitted his application for a Grade 9 Economist position. ( Id. ¶¶ 10-11; see Pl.'s Ex. 12 (Recruiter's Briefing for BLS Job Fair).) He was informed that he was not selected on November 18, 1997. (Compl. ¶14.) He initiated EEO counseling on February 24, 1998 and filed a complaint. (Am. Answer ¶ 15.) After an EEOC hearing, the Commission found no discrimination on February 27, 2002, and subsequently denied his request for reconsideration on July 11, 2002. (Compl. Attach. 1 "Denial of Request for Reconsideration.") Plaintiff alleges that the BLS scoring and ranking process for job applicants generally and as applied to his application was discriminatory.
Ms. Darlene Armstrong was assigned to implement the BLS rating and ranking pursuant to the guidelines of BLS' Delegated Examining Unit Operations Handbook and her own judgment. (Def.'s St. of Material Facts (hereinafter "Def.'s Facts") ¶ 7.) Each applicant is ranked by a numerical value of two, four or six based on five different factors. (Def.'s Ex. 9 (Rating Schedule); Def.'s Ex. 5 (Vacancy Announcement).) The candidates are then ranked according to their total numerical score. If there are any ties, BLS enters the candidates' social security numbers into a computer system, which ranks the candidates randomly. (Pl.'s Ex. 18 (Tr. of EEOC Proceeding) at 157.)
Ms. Armstrong rated plaintiff with a score of 90 and the computerized ranking placed him second out of the seven applicants who had received this score. Ultimately, he landed at position number 10 of the 43 applicants on the certificate of eligibles. (Pl.'s Ex. 13 (Certificate of Eligibles).) Once applicants are rated and ranked by the examiner, the certificate is circulated among BLS managers to ensure that they have the opportunity to interview applicants. The list of names is "worked" in groups of three starting from the "highest three eligibles" pursuant to 5 CFR § 332.404. (Def.'s Ex. 7 (Response to Interrogatories) at 9-10.) This "rule of three" precludes an agency from skipping down the list and choosing among those who have a lesser score. ( Id.) The first ranked applicant did not respond to BLS' offer. The chosen candidate, Patricia Ryle, was second on the list with a score of 94. BLS manager, David Hile interviewed her and was impressed by her experience in writing for publications. (Def.'s Ex. 13 (Tr. of EEOC Proceeding) at 225.) In addition, the data his office received and analyzed came directly from state governments. Ryle had worked for state agencies, and Hile found this experience to be particularly significant. ( Id.) Once she was selected, the next group of candidates for consideration were the third, fourth and fifth ranked candidates. Since no manager at BLS expressed an interest in these next three candidates, the certificate had to be closed with no additional hires made. Another manager was interested in the ninth and eleventh ranked candidates, but was not able to hire either candidate because of the rule of three. ( Id. at 181.)
Plaintiff argues that he was better qualified than Ms. Ryle. Particularly, he challenges the rating of two factors: Factor 2: Knowledge of mathematics and/or statistics and Factor 3: Knowledge of Computer Programming. (Pl.'s Opp'n at 21.) Although Ms. Ryle received either the same or better score for these factors, plaintiff compares semester credit hours, teaching, and practical experience in both areas to prove that he was better qualified. ( Id.) He also contends that the top six candidates, with the exception of the selectee Ms. Ryle, are of foreign national origin. ( Id. at 20.) He claims that this non-selection was retaliatory for his previous attempt to complain about his experience in 1993.
Under Fed. R. Civ. P. 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255; see also Wash. Post Co. v. United States Dep't of Health and Human Serv., 865 F.2d 320, 325 (D.C. Cir. 1989).
The non-movant's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-movant must provide evidence that would permit a reasonable jury to find in her favor. Laningham v. United States Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). "While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of [his] obligation to support [his] allegations by affidavits or other competent evidence showing that there is a genuine issue for trial." Calhoun v. Johnson, 1998 WL 164780, at *3 (D.D.C. Mar. 31, 1998), aff'd, 1999 WL 825425 (D.C. Cir. Sept. 27, 1999) (citation omitted). The Court must also bear in mind that pro se complaints, "'however inartfully pleaded,' are held to 'less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 10 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).
I. Count I: Discrimination
A. Plaintiff's 1993 Claim
Defendant moves to dismiss plaintiff's Title VII claim for events occurring in 1993 on the basis that he failed to exhaust the available administrative remedies before bringing suit. Lodging a timely administrative charge is a prerequisite to filing a Title VII claim in district court. See Jarrell v. United States Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985). An employee complaining of discrimination must consult an EEO counselor within 45 days of the date of the allegedly discriminatory action in order to try to informally resolve the matter. See 29 C.F.R. § 1614.105(a)(1). As a general rule, discrimination claims alleging conduct that occurred more than 45 days prior to ...