The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff, an African American woman employed as a public trust officer with the U.S. Department of Housing and Urban Development (HUD), brings this action against defendant Alphonso R. Jackson, Secretary of HUD, alleging that defendant discriminated against her by refusing to hire her based on her race, sex, and age. Plaintiff seeks damages pursuant to Title VII, 42 U.S.C. § 2000e-2(a) (Count I), and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 (Count II). Defendant has moved for summary judgment based on plaintiff's alleged failure to exhaust administrative remedies under § 2000e-2(a) and § 621, and failure to carry her prima facie case burden for race, sex, or age discrimination. For the reasons explained below, the Court will grant defendant's motion for summary judgment in part and deny it in part.
Plaintiff is an African American female who was born on January 16, 1946. See Pl.'s Opp'n at 2. She was employed from September 1999 until January 2005 as a public trust officer at HUD, which included work on a task force overseeing government-sponsored enterprises (GSEs). See id. at 2-3; see also Def.'s Stmt. at ¶ 1. In May 2002, HUD advertised one vacancy for a GS-14 Senior Compliance Specialist, a position subordinate to Ms. Sandra Fostek (the Director of GSE Oversight in the Office of Housing) in an office with a small staff of less than five. See Pl.'s Opp'n at 3; see also Def.'s Stmt. at ¶ 6; Def.'s Mem. Supp. at 8. Plaintiff applied for the position in June 2002 under both the internal announcement (which only considered federal employees) and the external announcement (which considered all applicants). See Pl.'s Opp'n at 4; see also Def.'s Stmt. at ¶ 8. Three other individuals applied under the external announcement: Ms. Stacy Riggin-Stephen, a 34-year-old Caucasian female; Ms. Suzanne McQueen, a 56-year-old Caucasian female; and Mr. Michael Nixon, a 40-year-old Caucasian male. See Pl.'s Opp'n at 4; see also Def.'s Stmt. at ¶ 10.
Fostek personally interviewed all candidates, including Mr. James Austin, an African American male who applied under the internal announcement. See Pl.'s Opp'n at 4; see also Def.'s Stmt. at ¶ 11. Based on the strength of their applications and interview performance, Fostek received permission to extend offers to all three external applicants. See Def.'s Stmt. at ¶ 12. Ultimately, HUD did not actually offer a position to Riggin-Stephen, however, because she was unable to begin by the required date. See Def.'s Stmt. at ¶ 12. Fostek did not thereafter offer the position that had been created for Riggin-Stephen to plaintiff. See Pl.'s Opp'n at 5; see also Def.'s Stmt. at ¶ 12. McQueen and Nixon were recommended for hire on July 30, 2002, and offers of employment were formally extended on August 14, 2002. See Def.'s Mem. Supp. at 7.
On October 9, 2002, plaintiff received an e-mail from Fostek announcing the additions of McQueen and Nixon to the GSE regulatory staff. See Def.'s Stmt. at ¶ 21. Specifically, the communication stated that Fostek was "pleased to introduce two new staff members to the GSE regulatory staff, Suzanne McQueen and Michael Nixon. Please add their names to your e-mail and routing mail lists." Def.'s Ex. 13 (emphasis in original). Fostek then briefly outlined McQueen and Nixon's professional backgrounds, but did not mention the specific capacities in which they would be employed at HUD (beyond the general statement that they would be "GSE regulatory staff"). Id. The e-mail also did not mention the GS-14 Senior Compliance Specialist position. When plaintiff received the e-mail, her "first inclination" was that McQueen and Nixon had been "chosen for her job." Def.'s Exh. 2 at 102: 12-20. She then contacted HUD's Human Resources Department to inquire as to the status of her application for the GS-14 Senior Compliance Specialist position. See Pl.'s Opp'n at 10. Human Resources ignored plaintiff's e-mail for more than five months, finally informing her on March 12, 2003 that McQueen and Nixon had been hired to fill the vacancy. See id.; see also Def.'s Ex. 14. Plaintiff contacted an Equal Employment Opportunity ("EEO") counselor regarding her claims of discrimination on April 24, 2003, and filed her formal administrative complaint on May 16, 2003. See Def.'s Stmt. at ¶ 24.
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 that no genuine dispute of material fact exists. 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)).
To determine whether there is a genuine issue of material fact sufficient to preclude summary judgment, a court must regard the non-moving party's statements as true, and further accept all evidence and make all inferences in the non-moving party's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Nevertheless, a non-moving party must establish more than the "mere existence of a scintilla of evidence" in support of its position, id. at 252, although the moving party need only point to the absence of evidence proffered by the non-moving party, Celotex, 477 U.S. at 322. Summary judgment is appropriate if the non-moving party fails to offer "evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252; see also Holbrook v. Reno, 196 F.3d 255, 259-60 (D.C. Cir. 1999).
II. Substantive Legal Framework
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), establishes the burden of proof for Title VII employment discrimination cases and ADEA claims in which the plaintiff lacks direct evidence of discrimination. See Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (citing Hall v. Giant Food, Inc., 175 F.3d 1074, 1077 (D.C. Cir. 1999)); see also O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996). Under this framework, the plaintiff has the burden of establishing a prima facie case of discrimination or retaliation by a preponderance of the evidence. McDonnell Douglas, 411 U.S. at 802; see also Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). If the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory or non-retaliatory 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 defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Id.
If the employer successfully articulates a nondiscriminatory or non-retaliatory basis for its actions, the burden shifts back to the plaintiff to show that the employer's stated reason was a pretext for discrimination or retaliation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). The plaintiff may attempt to establish that she was the victim of intentional discrimination "by showing that the employer's proffered explanation is unworthy of credence." Id. (quoting Burdine, 450 U.S. at 256). But "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination." Id. at 147. Thus, the trier of fact may also "consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Id. (quoting Burdine, 450 U.S. at 255 n.10). As the Reeves Court explained:
Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors . . . includ[ing] the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case ...