The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Ronald R. Wiley filed suit against Stephen L. Johnson, in his official capacity as Administrator of the United States Environmental Protection Agency ("EPA"), alleging that the EPA discriminated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, when it failed to assign him to a detail as a Program Acquisition Coordinator ("PAC"). The EPA has moved for summary judgment. As explained below, the Court will grant the EPA's motion because Mr. Wiley failed to exhaust his administrative remedies and failed to timely file this suit.
Mr. Wiley is an EPA employee who was employed as a contract specialist within the EPA's Office of Acquisition Management, an office within the EPA's Office of Administration and Resources Management. On April 26, 2001, Mr. Wiley filed with the EPA's Office of Civil Rights a written claim of discrimination, alleging race, color, and sex discrimination due to the EPA's failure to assign him to a PAC detail. He later amended the claim to include a charge of retaliation.
The EPA accepted the claim, designated complaint number 2001-0041-HQ (the "Administrative Claim"), for investigation. After the investigation was completed, on February 21, 2002, Mr. Wiley requested a hearing before the Equal Employment Opportunity Commission ("EEOC"). Harderman Decl. ¶ 6, Att. 3. Then, before the hearing could take place, on January 7, 2003, Mr. Wiley's counsel wrote a letter to the EEOC, which stated:
I am representing Mr. Ronald Wiley on [sic] his discrimination suit in Federal Court. Mr. Wiley no longer wishes to proceed with the EEOC. I respectfully request that you review the attached motion and sign the proposed order so that Mr. Wiley can go forward in Federal Court.
Id. ¶ 6, Att. 4. On January 27, 2003, the EEOC granted the request for dismissal of the Administrative Claim explaining, "[b]ecause the parties have filed a civil action in this matter, the above-captioned case is hereby dismissed and returned to the Agency for further processing pursuant to 29 C.F.R. § 1614.109 (2002)." Id. Under section 1614.109, the administrative claim is returned to the Agency and "[i]f an agency does not issue a final order within 40 days of receipt of the administrative judge's decision . . . then the decision of the administrative judge shall become the final action of the agency." 29 C.F.R. § 1614.109(i). The EPA did not further address the claim. Mr. Wiley did not file suit in federal court until October 16, 2003. On July 6, 2004, Mr. Wiley filed his First Amended Complaint.
The EPA now has filed a motion for summary judgment, arguing that Mr. Wiley failed to timely file this suit within the applicable ninety-day period and that the EPA's failure to appoint Mr. Wiley to the PAC position was not an adverse employment action.*fn1 In response to the Motion, Mr. Wiley contests these two issues.
A. Federal Question Jurisdiction and Standing
Federal district courts have original jurisdiction over civil actions arising under federal statutes. 28 U.S.C. § 1331. Here, Mr. Wiley brought suit under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. As this case presents a question of federal law, this Court has original jurisdiction.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, ...