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November 8, 2005.

RALPH EADS, Plaintiff,
JAMES H. BILLINGTON, Librarian of Congress, Defendant.

The opinion of the court was delivered by: ELLEN HUVELLE, District Judge


Plaintiff Ralph Eads, an employee at the Library of Congress ("LOC"), alleges age and race discrimination, as well as retaliation, by his employer in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Specifically, Eads claims that the LOC failed to inform him of overtime opportunities and to provide necessary training, denied him a promotion, and retaliated against him by assigning him to an undesirable rotation within the LOC. Defendant now moves to dismiss certain of plaintiff's claims, arguing that the Court lacks jurisdiction because plaintiff failed to exhaust his administrative remedies and seeks summary judgment with respect to plaintiff's remaining claims, asserting that plaintiff failed to produce evidence sufficient to permit a reasonable jury to find in his favor. For the reasons discussed below, the Court agrees and will grant defendant's motion.


  Plaintiff is a 56 year-old white male who has worked at the LOC since March 1973. (Comp. ¶¶ 3, 6.) Plaintiff suffers from Benign Idiopathic Splenomegaly, a disability that restricts his ability to lift or push heavy objects. (Def.'s Statement of Material Facts (Def.'s Facts), Ex. 2; Pl.'s Opp'n to Def.'s Mot. to Dismiss or for Summ. J. (Pl.'s Opp'n), Ex. A at 46, 61.) At all times relevant to this action, plaintiff was employed as a GS-7 Copyright Technician (Materials Expeditor) in the Materials Control Section of the Copyright Office of the LOC.*fn1 (Def.'s Facts ¶ 2.) Plaintiff's grievances extend as far back as 1994, when he requested "registration and numbering scanning" training but did not receive such training because of a machine malfunction that prevented anyone from receiving the training. (Id. ¶ 14.) Plaintiff reportedly requested training sometime between 1997 and 1999 and then a third time in late 2000 or early 2001. (Id. ¶¶ 13-16.) Plaintiff cannot identify any employee who received "registration and numbering scanning" training during the relevant time periods. (Id.) Plaintiff also asserts that he was denied "special handling training" in 2000 when other employees in fact received such training. (Pl.'s Opp'n at 7.) Defendant contends, however, that the training was available to him; plaintiff was merely directed by his supervisor to speak with John Smith to schedule the training. (Def.'s Facts ¶ 11.) Smith was in the midst of training another employee and told plaintiff he would receive the training at a later date. (Def.'s Facts ¶ 12; Pl.'s Opp'n at 7, Ex. A at 53.) Plaintiff did not follow up with Smith at any point to reschedule the training. (Def.'s Facts ¶ 12.) In addition to depriving him of training, plaintiff claims the LOC denied him the opportunity to work overtime. (Pl.'s Opp'n at 6.) In March or April 2001, D'Andrea Hamn sent a message to the supervisors within the Materials Control section notifying them of overtime opportunities for staff and requesting that they contact her with the names of interested employees. (Def.'s Facts ¶ 3; Pl.'s Opp'n Ex. A at 55.) Mr. Eads did not learn of the possibility for overtime until September. (Id.) On September 12, 2001, plaintiff sent Ms. Hamn a memorandum indicating his interest in working overtime. (Def.'s Facts ¶ 6, Ex. 3.) Ms. Hamn responded via memo on September 13, 2001, informing plaintiff that she had issued the overtime notice to supervisors in March or April and received a list of 16 people interested in working overtime. (Pl.'s Opp'n Ex. A at 55.) Of the people who had worked overtime between March and September, some were Caucasian and some were African-American. (Def.s Facts ¶ 4, Ex.1 at 62.) Plaintiff followed up on September 24, 2001, asking to see a list of the people who worked overtime. (Pl.'s Opp'n Ex. A at 55.) Attached to plaintiff's September 24 memo was another memo dated September 13, 2001, containing the signatures of two other employees who had not been informed of the overtime opportunity. (Id.; Def.'s Facts Ex. 5.) Those two employees, Ben Littlejohn and Herman Lewis, are African-American. (Def.'s Facts Ex. 1 at 61-62.) Ms. Hamn notified plaintiff via memo on September 25, 2001, that his name had been added to the overtime list and that he would need a brief training session to prepare him for the work that needed to be done. (Def.'s Facts Ex. 6.) She also alerted him to the fact that the physical demands of the overtime work included lifting items weighing 25 pounds or more. (Id.) Mr. Eads never followed up with Ms. Hamn regarding the required training. (Def.'s Facts Ex. 2 at 2.) Plaintiff's third allegation of discrimination involves his non-selection for a GS-9 position as a Copyright Area Specialist. In July 2001, plaintiff applied for the position in response to a posted vacancy announcement. (Def.'s Facts ¶ 20, Ex. 7.) Three vacancies for the Area Specialist position existed.*fn2 (Def.'s Facts ¶ 19.) Two supervisors, John Smith and Renaldo Spivey, were responsible for filling those positions. (Def.'s Facts ¶ 18.) Four applicants were deemed minimally qualified by the Office of Personnel Management and were interviewed by Mr. Smith and Mr. Spivey.*fn3 (Def.'s Facts ¶¶ 23-24.) In addition to plaintiff, the applicants interviewed were Chris Steve, Sylvester Simpkins and Juanita Jackson. (Def.'s Facts ¶ 21.) Mr. Steve, Mr. Simpkins and Ms. Jackson are all African-American. (Pl.'s Opp'n Ex. A at 4-5.) Like plaintiff, each was a GS-7 Material Expeditor. (Def.'s Facts ¶ 21.) Mr. Smith and Mr. Spivey, who had directly supervised each of the candidates to some extent, determined that Mr. Steve, Mr. Simpkins and Ms. Jackson performed better in the interview than did plaintiff. (Def.'s Facts ¶ 24, Ex. 11 at 1.) Mr. Eads disputes their evaluation, claiming that he "provided as much information as the other applicants and Smith did not record all of the information" he provided. (Pl.'s Opp'n ¶ 24.) In support he cites to notes taken during the interviews by one of the interviewers.*fn4 (Pl.'s Opp'n Ex. A at 231-70.) The most recent performance evaluations for each of the candidates was as follows: Ms. Jackson, "outstanding;" Mr. Simpkins, "outstanding;" Mr. Steve, "excellent;" Mr. Eads, "satisfactory." (Def.'s Facts ¶¶ 25-28.) Plaintiff concedes that he was given a "satisfactory" performance rating, but argues that it was based on inaccurate information. (Pl.'s Opp'n ¶ 25, Ex. A at 51.) He further notes that Mr. Steve received a counseling memorandum regarding a violent incident with a fellow employee that occurred on May 7, 2001. (Pl.'s Opp'n ¶ 26, Ex. A at 227.) Mr. Steve, Mr. Simpkins and Ms. Jackson were hired for the three available Area Specialist positions. (Def.'s Facts ¶ 29.) Plaintiff was informed on October 15, 2001 that he had not been selected for the GS-9 position. (Pl.'s Opp'n Ex. A at 47.)

  Mr. Eads' final allegation is that Mr. Spivey retaliated against him for filing an EEO complaint by reassigning him to the assembly area in October 2002. (Pl.'s Opp'n at 18, Ex. A at 46.) Mr. Spivey argues that his policy was to rotate all material expediters through the assembly area to provide experience helpful to them in performing their usual job. (Def.'s Facts ¶ 31.) Plaintiff asserts that the transfer resulted in him having to lift or carry boxes in excess of the weight restrictions in place to accommodate his disability. (Pl.'s Opp'n Ex. A at 46.) The LOC counters that not only was Mr. Spivey aware of the lifting restrictions in place to protect plaintiff, but he specifically instructed plaintiff in writing not to lift anything over 25 pounds. (Def.'s Facts ¶ 32, Ex. 6 at 88-9; Ex. 15.) Mr. Spivey provided plaintiff with a scale to enable him to ensure that he did not carry items exceeding the weight limit and instructed other assembly area employees to place heavy boxes on the table where plaintiff was working so that he would not have to lift them. (Def.'s Facts ¶¶ 32-33.) Mr. Eads never complained to Mr. Spivey during his time in the assembly room about having to lift more than the restricted amount. (Def.'s Facts Ex. 6 at 89.)

  Plaintiff sought EEO counseling on September 28, 2001, and filed a formal complaint on April 16, 2002. (Def.'s Facts ¶ 34.) The complaint raised both his concerns regarding the assignment of overtime within the Materials Control division and his non-selection for the GS-9 vacancy. (Def.'s Facts ¶ 34, Ex. 16.) Plaintiff filed this lawsuit on February 17, 2004, and upon the completion of discovery, defendant filed this dispositive motion.


  I. Legal Standard

  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. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).

  The non-moving party'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-moving party must provide evidence that would permit a reasonable jury to find in the non-moving party's favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (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 (internal citations omitted). "While summary judgment must be approached with special caution in discrimination cases, a plaintiff is not relieved of her obligation to support her 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. March 31, 1998) (internal citation omitted), aff'd, 1999 WL 825425, at *1 (D.C. Cir. Sept. 27, 2000).

  To decide a summary judgment motion in a discrimination case, the Court applies the McDonnell Douglas three-part "shifting burdens" test. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiff has the initial burden of proving a prima facie case of discrimination. Id. at 802. To do so, plaintiff must establish: (1) that he is a member of a protected class; (2) that he suffered an adverse employment action; and (3) that the unfavorable action gives rise to an inference of discrimination. Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). If he succeeds, the burden shifts to defendant to articulate some legitimate, nondiscriminatory reason for its actions. McDonnell Douglas Corp., 411 U.S. at 802. Its burden is only one of production, and it "need not persuade the court that it was actually motivated by the proffered reasons." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) ("[T]he determination that a defendant has met its burden of production (and has thus rebutted any legal presumption of intentional discrimination) can involve no credibility assessment."). If defendant is successful, then "the McDonnell Douglas framework — with its presumptions and burdens — disappear[s], and the sole remaining issue [is] discrimination vel non." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000) (internal citations and quotation marks omitted). At that point, plaintiff has the burden of persuasion to show that defendant's proffered nondiscriminatory reason was not the true reason for the employment decision. Burdine, 450 U.S. at 256; see also Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 2003) ("Although the McDonnell Douglas framework shifts intermediate evidentiary burdens between the parties, [t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.") (internal citations and quotation marks omitted). "At this stage, if [plaintiff] is unable to adduce evidence that could allow a reasonable trier of fact to conclude that [defendant's] proffered reason was a pretext for discrimination [or retaliation], summary judgment must be entered against [plaintiff]." Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23, 27-28 (D.C. Cir. 1997).

  II. Denial of Training Opportunities

  Plaintiff's first claim relates to the training opportunities allegedly denied him by the LOC. As detailed above, plaintiff claims to have sought and not received "registration numbering scanning" training three times between 1994 and early 2001. (Def.'s Facts ¶¶ 13-16.) In addition, plaintiff did not receive "special handling training" in 2000. (Def.'s Facts ¶¶ 10-11.) Defendant asserts that these claims are barred by Title VII's exhaustion requirement.

  Lodging a timely administrative charge is a prerequisite to filing a Title VII claim. See Jarrell v. U.S. 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 to try to informally resolve the matter. See 29 C.F.R. § 1614.105(a)(1). Discrimination claims alleging conduct that occurred more than 45 days prior to the initiation of administrative action are generally time-barred in a subsequent court action. See Valentino v. U.S. Postal Serv., 674 F.2d 56, 65 (D.C. Cir. 1982). These procedural requirements governing plaintiff's right to bring a Title VII claim are not mere technicalities, but "part and parcel of the congressional design to vest in the federal agencies and officials engaged in hiring and promoting personnel `primary responsibility' for maintaining nondiscrimination in employment." Kizas v. Webster, 707 F.2d 524, 544 (D.C. Cir. 1983) (citations omitted). "Exhaustion is required in order to give federal agencies an opportunity to handle matters internally whenever possible and to ensure that the federal courts are burdened only when reasonably necessary." Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985). The deadlines allow an employer to investigate promptly before evidence becomes stale. See Del. State Coll. v. Ricks, 449 ...

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