The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The plaintiff brings this action alleging racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (2000) et seq. ("Title VII"). Complaint ("Compl.") ¶¶ 12-15. Currently before the Court is the defendant's Motion for Summary Judgment and the plaintiff's opposition thereto.*fn1 For the reasons set forth below, this Court grants in part and denies in part the defendant's motion.
The plaintiff, an African American women, commenced her employment with the Federal Aviation Administration ("FAA") in July 1987, as a professional air traffic controller. Compl. ¶ 6. On June 11, 2002, the FAA announced that it was accepting applications for a Traffic Management and Central Altitude Reservation Function ("CARF") Specialist at the FAA's Air Traffic Control System Command Center. Pl.'s Mot., Ex. 1 (Notice of Position Vacancy). The position was a temporary one-year detail, with a possible extension to up to two years. Id. The position was an MSS-1 level job, which according to the plaintiff, would have entitled her to a four percent pay raise because of the controller-in-charge ("CIC") pay connected with the position. Compl. ¶ 7. The plaintiff, who at the time was serving as a Traffic Management Specialist at the same grade level as the CARF Specialist position, applied for the position. Id. However, on July 31, 2002, she was notified that she was not selected. Id. Rather, Dana Whitman, a white female, was selected for the position. Id. ¶ 8. According to the plaintiff, she was more qualified for the position than Whitman. Id. The plaintiff suggests that her nonselection for the position amounted to racial discrimination in violation of Title VII. Id. ¶¶ 12-13. To support this assertion, the plaintiff contends that both Thomas Paccione, the official who recommended that Whitman be selected for the temporary detail, and Mark Libby, the official who actually selected Whitman for the position, based their decision on factors not published in the vacancy announcement. Id. ¶ 9.
Following her nonselection for the CARF position, the plaintiff timely sought Equal Employment Opportunity ("EEO") counseling believing that her nonselection amounted to racial discrimination. Compl. ¶ 10. According to the plaintiff, since seeking EEO counseling she has been subjected to "an ongoing series of incidents in which FAA management officials have sought to interfere with and otherwise inhibit her from taking advantage of career enhancing assignments and successfully moving to [other air traffic controller] positions [at] other FAA facilities." Id. ¶ 10. The plaintiff claims that these actions have been in retaliation for her allegations of unlawful racial discrimination and constitute further Title VII violations. Id.
On May 27, 2004, the plaintiff commenced this action alleging that the FAA's actions amount to racial discrimination and retaliation, both of which violate Title VII. Compl. ¶¶ 12-15. The defendant has now filed a motion for summary judgment, which is the subject of this opinion. In his motion, the defendant contends that he is entitled to an award of summary judgment because (1) the plaintiff has failed to exhaust her administrative remedies with respect to her retaliation claim, and (2) the plaintiff has failed to establish a prima facie case of racial discrimination because she did not suffer an adverse employment action.*fn2 Pl.'s Mot. at 1.
This Court will grant a motion for summary judgment under Rule 56(c) "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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). When ruling on a summary judgment motion, this Court must draw "all justifiable inferences" in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). However, the plaintiff must establish more than "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position," because "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 252, 247-48 (emphasis in original). A "genuine" dispute exists "'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 650 (D.C. Cir. 2003) (quoting Anderson, 477 U.S. at 248). Therefore, the party opposing summary judgment "'may not rest upon the mere allegations or denials of [the] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 248 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968) (quoting Fed. R. Civ. P. 56(e)). Under Rule 56(c), if "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof," summary judgment is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
(A) The Plaintiff's Retaliation Claim
Title VII protects employees from retaliation for having "opposed any practice made an unlawful employment practice by this title" or for having "made a charge, testified, assisted, or participated in any manner in an investigation, preceding, or hearing under this title." 42 U.S.C. § 2000e-3(a) (2000). "It is well-established that a federal employee may assert a Title VII claim in federal court only after a timely complaint has been presented to the agency involved." Norriddin v. Goldin, 382 F. Supp. 2d 79, 92 (D.D.C. 2005) (citing 29 C.F.R. § 1614.105(a) (2005); Brown v. Gen. Servs. Admin., 425 U.S. 820, 832 (1976)). The purpose of this exhaustion requirement is to "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). Thus, a plaintiff's failure to bring a complaint to an EEO counselor within 45 days of the alleged incident will result in the plaintiff losing the right to bring that claim before a federal court. See, e.g., Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997); Siegel v. Kreps, 654 F.2d 773, 776 (D.C. Cir. 1981); 29 C.F.R. § 1614.105(a)(1).
Here, the defendant claims that the plaintiff's retaliation claim must be dismissed for failure to exhaust her administrative remedies because she did not file a complaint with an EEO counselor alleging retaliation. Def.'s Mem. at 5-6; Def.'s Mem., Ex. 2 (Wright Decl.) ¶¶ 3-4. It is undisputed that the plaintiff failed to file a complaint with an EEO counselor alleging retaliation. Rather, she contends that she did not need to exhaust her administrative remedies as to the retaliation claim. Pl.'s Opp'n at 3-4. Specifically, the plaintiff claims that a claimant need not exhaust her administrative remedies for a claim based on retaliation when that retaliation claim arises after an administrative complaint has already been filed. Id. Thus, the only question for this Court is whether the plaintiff was required to exhaust her administrative remedies by filing another complaint alleging retaliation with an EEO counselor.
In 2002, the Supreme Court issued its decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which "effected fundamental changes to the doctrine allowing administratively unexhausted claims in Title VII actions." Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003). In Morgan, the Supreme Court held that a claimant must exhaust her administrative remedies for each discrete incident of discrimination which constitutes an "unlawful employment practice." Morgan, 536 U.S. at 110-13. "Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'" Id. at 114. Thus, the Supreme Court refused to endorse the Circuit's application of the "continuing violations theory" to what the Circuit Court had "termed 'serial violations'" of discrimination, which had allowed plaintiffs to maintain court actions for discrete acts of discrimination or retaliation that had not been separately exhausted but were "sufficiently related" to a properly exhausted claim. Id. In doing so, the Supreme Court emphasized that "'strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.'" Id. at 108 (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)). The result of the holding in Morgan was to prohibit the plaintiff from pursuing claims of discrete incidents of discrimination unless he had first filed a complaint with an EEO counselor within the proscribed time period. Id. at 122.
Before the Supreme Court issued its decision in Morgan, courts had routinely held that a plaintiff need not exhaust her administrative remedies before filing a claim of retaliation which arose after the filing of an administrative complaint. See, e.g., McKenzie v. Ill. Dep't of Transp., 92 F.3d 473, 482-83 (7th Cir. 1996); Gupta v. East Tex. State Univ., 654 F.2d 411, 414 (5th Cir. 1981); Sussman v. Tanoue, 39 F. Supp. 2d 13, 21 (D.D.C. 1999); Webb v. District of Columbia, 864 F. Supp. 175, 184 (D.D.C. 1994). As the Fifth Circuit explained, It is the nature of retaliation claims that they arise after the filing of the EEO charge. Requiring prior resort to the EEOC would mean that two charges would have to be filed in ...