The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Mary E. Hammond filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII"), alleging that defendant Elaine L. Chao, Secretary of the U.S. Department of Labor ("defendant" or "DOL"), discriminated against her on the basis of her race and sex when it selected a white male applicant to fill the position of Lead Manpower Development Specialist. Plaintiff also alleges that defendant retaliated against her when it failed to submit a supervisory assessment for plaintiff, which was a prerequisite to acceptance into the Employment Training Administration's Excellence in Leadership Program. Defendant has moved to dismiss plaintiff's Complaint, or in the alternative, for summary judgment. For the reasons set forth below, defendant's motion for summary judgment will be granted.
The following facts are uncontroverted, excepted as noted. Plaintiff is an African-American female who has been employed by defendant as a Senior Manpower Development Specialist at the GS-13 level since 1991. Pl. Ex. 1, Hammond Application for Federal Employment ¶ 10. On June 5, 2000, defendant announced a vacancy for a Lead Manpower Development Specialist, GS-142-14, position in the National Emergency Grants Division of the Employment and Training Administration ("ETA"). See Def. Ex. 1, Vacancy Announcement ETA-00-115 ("Vacancy Announcement"). Plaintiff applied for the position on June 15, 2000. See Pl. Ex. 2, Hammond EEOC Affidavit. The selecting official was George Shephard, Jr., an African-American male, who was at that time the Chief of the Division of National Emergency Grants in ETA. Def. Ex. 9, Declaration of George Shephard, Jr. ("Shephard Decl.") ¶¶ 1-2. Mr. Shephard interviewed a total of eight candidates, including both plaintiff and the selectee, Richard Praeger, a white male. Def. Ex. 2, Certificate of Eligibles. After reviewing applications and conducting interviews, Mr. Shephard concluded that Mr. Praeger was best qualified for the position. Shephard Decl. ¶¶ 3-8, 11. On November 15, 2000, Mr. Shephard offered the position to Mr. Praeger and informed plaintiff that she had not been selected. See Def. Ex. 5, Notice of Non-Selection. Plaintiff filed an administrative complaint with the DOL Civil Rights Center on January 19, 2001, alleging that her non-selection was the result of discrimination based on her race, age and sex. Pl. Ex. 14, Administrative Complaint.
In May or June of 2002, plaintiff and a co-worker, Thaddeus Roberts, applied for the DOL Excellence in Leadership Program ("ELP"). Shephard Decl. ¶ 12. ELP enables participants who successfully complete the program to receive a two-year Certificate of Eligibility for one noncompetitive promotion within ETA to the next higher grade supervisory position. Def. Ex. 7, Excellence in Leadership Program Description. Both plaintiff and Mr. Roberts asked Mr. Shephard to complete a supervisory assessment form that was required to be submitted with the ELP applications. Id. Mr. Shephard did not complete the forms for either employee. Id. As a result, both plaintiff and Mr. Roberts were denied admission to the program. Plaintiff then amended her administrative complaint on September 30, 2003, to include an allegation that she was retaliated against when Mr. Shephard failed to complete the supervisory assessment for her ELP application. Def. Ex. 8, Amended Administrative Complaint.
On July 29, 2003, Equal Employment Opportunity Commission ("EEOC") Administrative Judge Wallace Lew issued a decision dismissing all of plaintiff's claims. Def. Ex. 10, EEOC Administrative Judge Decision. Defendant adopted the EEOC's decision on August 20, 2003, and sent plaintiff a right-to-sue letter reflecting that decision. Def. Ex. 11, Agency Final Action. Defendant mailed plaintiff's right-to-sue letter on August 20, 2003 via Federal Express, and designated an August 21, 2003 delivery. Def. Ex. 15, Federal Express envelope label. The date upon which the letter arrived at plaintiff's home is a point of contention. According to defendant, the right-to-sue letter was delivered to plaintiff's residence on August 21, 2003. Id.; Def. Ex. 12, Declaration of Naomi Barry-Perez ("Barry-Perez Decl.") and attachments (Federal Express receipts). On the other hand, plaintiff states that the letter did not arrive at her home until August 22, 2003. Pl. Ex. 21, Second Declaration of Mary E. Hammond ("Hammond Decl.") ¶ 11; see also Pl. Ex. 22, Declaration of Constantin Nkesela ("Nkesela Decl.") ¶¶ 4-6.
Plaintiff commenced the instant action against defendant on November 20, 2003. Defendant moved for dismissal of or, in the alternative, summary judgment on plaintiff's claims on March 3, 2004, arguing, inter alia, that plaintiff's action should be dismissed because she failed to comply with the Title VII 90-day statute of limitations for filing a civil action in federal court. The Court denied defendant's motion, but explained that defendant could renew the motion following discovery on the limited issue of when plaintiff received her EEOC right-to-sue letter. See October 29, 2004 Order. After completion of discovery, defendant renewed its motion to dismiss or, in the alternative, for summary judgment. Defendant again argues that plaintiff's action should be dismissed as untimely. Defendant also claims that if plaintiff's action is timely, it is nonetheless entitled to summary judgment because plaintiff is unable to show that defendant's explanation for non-selection was a pretext for discrimination. Defendant also asserts that plaintiff cannot establish a prima facie case on her retaliation claim because she was not subjected to an adverse employment action and because she cannot show a causal connection between her EEOC activity and the complained of denial of ELP admission.
I. Summary Judgment Standard
Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed.R.Civ.P. 56(c)).
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.
II. The McDonnell Douglas Framework
The Court analyzes plaintiff's discrimination and retaliation claims based on race and sex pursuant to the familiar burden-shifting analysis set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, a plaintiff has the burden of establishing a prima facie case of discrimination or retaliation by a preponderance of the evidence. Id. at 802; Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). In order to make out a prima facie case of discrimination a plaintiff must show that "(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). To establish a prima facie case of retaliation, a plaintiff must show: "(1) that she engaged in statutorily protected activity, (2) that the employer took an adverse personnel action; and (3) that a causal connection existed between the two." Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985) (quoting McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984)); accord Brown v. Brody, 199 F.3d at 452.
If the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. The employer's burden, however, is merely one of production. Burdine, 450 U.S. at 254-55. The employer "need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the ...