The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION TO DISMISS;
GRANTING THE PLAINTIFF'S MOTION TO SUPPLEMENT HIS OPPOSITION;
GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This employment discrimination case comes before the court on the defendant's motion to dismiss or, in the alternative, for summary judgment. The plaintiff, Keith Pierce, brings this action against the defendant, the Department of Veterans' Affairs, alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq.*fn2 Specifically, the plaintiff contends that the defendant discriminated against him on account of race and retaliated against him for engaging in prior protected activity when it did not select him as Lead Patient Advocate and Director of the Office of Patient Advocacy.
Because the plaintiff failed to exhaust his administrative remedies the court grants the defendant's motion to dismiss all but one of the plaintiff's discrimination claims. As to the remaining discrimination claim, because the plaintiff has not met his burden of showing that the defendant's proffered nondiscriminatory reasons are a pretext, the court grants the defendant's motion for summary judgment. Finally, because the plaintiff does not establish a prima facie case for his retaliation claim, the court grants the defendant's motion for summary judgment as to this claim as well.
The plaintiff is an African-American man who has been employed by the Department of Veterans Affairs Medical Center in Washington D.C. ("VAMC-DC") for fourteen years. Compl. ¶ 19; Def.'s Mot. to Dismiss or in the Alternative Mot. for Summ. J. ("Def.'s Mot."), Ex. 38 ("Pl.'s Dep.") 7:10, June 7, 2006. At the time of the events giving rise to this action, the plaintiff was employed as a Patient Advocate, GS-11, a position he had held for "seven or eight years." Pl.'s Dep. 7:19-8:3; 9:9. As a Patient Advocate, the plaintiff was responsible for "tracking, trending, and resolving" patient complaints. Id.at 9:10-19.
In 1999 or 2000, the plaintiff served temporarily as Acting Lead Patient Advocate, and he applied to become the permanent Lead Patient Advocate. Id. at 10:11-14. The VAMC-DC selected another applicant, William Sivley, who then became the plaintiff's direct supervisor. Id. at 10:9-17; 12:19-13:2. Sivley served as Lead Patient Advocate for "a year to a year and a half" when he was called to active military duty in 2002. Id. at 13:3-6. While away on military duty, Sivley remained Lead Patient Advocate, but was on leave without pay. Def.'s Statement ¶ 8; Def.'s Mot., Ex. 1. On January 9, 2004, the Director of the VAMC-DC, Samuel Garfunkel, granted Sively's request to further extend his "leave without pay" status until July 13, 2004 in recognition of his continued military duty. Id. In the same communication, Garfunkel informed Sivley that VAMC-DC needed to fill his position as Lead Patient Advocate due to considerable workload, but assured him that he would receive a position of "like seniority, status, and rate of pay" upon his return to VAMC-DC. Id. When Sivley returned to VAMC-DC, he "indicated he would be just as happy trying something else" and was granted his request to be placed on detail with the VAMC-DC's fiscal office. Garfunkel's Dep. 19:18-21; Def.'s Statement of Material Facts ("Def.'s Statement") ¶ 52. During Sivley's absence, Michelle Spivak, the Director of Office of Public Affairs and Community Relations, served as Acting Lead Patient Advocate. See Pl.'s Opp'n, Ex. 8 ("Ross's Dep. submitted by Pl.") 9:18-10:1, January 17, 2007 (noting that Spivak acted as Lead Patient Advocate beginning at least March 2003 until October 2004).
On January 21, 2004, the VAMC-DC's Executive Officer, Terry Ross, requested and received approval for the creation of a new position, the Director of the Office of Patient Advocacy ("Director"). Def.'s Mot., Ex. 2. A couple of days later, the plaintiff formally requested to be detailed as Acting Lead Patient Advocate. Id., Exs. 3, 20. Ross explained to the plaintiff that management had decided to "abolish [the Lead Patient Advocate position], and begin recruitment for a Director, Office of Patient Advocacy at the GS-13 level." Id., Ex. 4. In the interim, Spivak would continue to serve as Acting Lead Patient Advocate. Id.
1. Vacancy Announcement 04-23
Recruitment for the Director position began on March 8, 2004 under vacancy announcement 04-23, and was open only to candidates already employed by VAMC-DC. Def.'s Mot., Ex.6. The plaintiff applied for this position, but on April 1, 2004, the Human Resources Department determined that he had not fulfilled the requisite time at his grade level to move to a higher grade. Id., Ex. 9. After the announcement closed on March 26, 2004, Human Resources informed Ross that there were no qualified applicants for the vacancy. Id., Ex. 7.
2. Vacancy Announcement 04-35
Ross opened the position to all Federal Government employees on April 2, 2004 under vacancy announcement 04-35. Def.'s Mot., Ex. 10. The plaintiff applied once again for the Director position, but this time was found eligible for preferential hiring status as a 30% or more disabled veteran.*fn3 Id., Ex. 11. After the announcement closed on April 23, 2004, Ross received a list of six eligible candidates, all of whom were then interviewed by a five-member panel. Id., Ex. 11; 12. The panel recommended that the two highest scoring applicants, including the plaintiff, be invited for a second round of interviews with Ross and Garfunkel. Id., Ex. 12; Pl.'s Dep. 39:12-18. After this second round of interviews, Ross found the plaintiff lacked experience both in "running a major program" and "using any kind of graphs and charts," Def.'s Mot., Ex. 39 ("Ross's Dep.") 16:10-21, January 17, 2007, and Garfunkel felt that the plaintiff did not have satisfactory answers to most questions, including what issues existed with the program and how he would improve it, Def.'s Mot., Ex. 36 ("Garfunkel's 2005 Dep.") 8:8-13, June 1, 2005. Ross, the selecting official, offered the position to the other finalist who ultimately declined. Def.'s Mot., Ex.11.
3. Vacancy Announcement 04-35A and Sivley's Return
After the finalist turned down the position, Ross reposted the Director position for the third and final time on September 7, 2004 under vacancy announcement 04-35A. Def.'s Mot., Ex. 16. On September 9, 2004, the plaintiff learned of his nonselection for 04-35 when a co-worker informed him about the Director position's reposting under 04-35A. Id., Ex. 17. Human Resources informed the plaintiff that, as a prior applicant, he would receive automatic reconsideration for the reposted Director position. Id. On September 14, 2004, the plaintiff asked Ross why the position had been reposted, and Ross responded that she wanted a larger pool of applicants. Id., Ex. 18. Ross cancelled the announcement, however, before the scheduled September 13, 2004 close date. Id., Ex. 16; Ross's Dep. 32:9-16.
Ross claims the cancellation was prompted by Sivley's decision to return to the Lead Patient Advocate position from his detailed position. Ross's Dep. 30:6-13. Since returning from military duty, Sivley had been detailed to another VAMC-DC office but remained on record as the Lead Patient Advocate. Ross's Dep. 30:6-13; 34:2-11. Around the time of the third posting for the Director position, Sivley expressed a desire to return to his duties as Lead Patient Advocate and to increase his job responsibilities to include working with graphs and charts, an area with which he had experience. Ross's Dep. 32:17-33:3. Ross and Garfunkel decided "not [to] go forward with establishing the Director [position]," instead, opting to "maintain the Lead Patient Advocate [position]" and "put [Sivley] back in the position." Ross's Dep. 34:2-11; Garfunkel's Dep. 20:1-4. Under Ross's recommendation, Garfunkel "made the ultimate decision" to reinstate Sivley as Lead Patient Advocate. Garfunkel's Dep. 20:16-21. On October 27, 2004, Ross e-mailed the plaintiff that Sivley would be returning to his position as Lead Patient Advocate. Def.'s Mot., Ex. 20.
4. The Plaintiff's EEOC Activity
On January 5, 2005, the plaintiff filed a retaliation claim stemming from Equal Employment Opportunity Commission ("EEOC") activity predating the alleged discrimination in the instant action. The plaintiff filed his first EEOC complaint in August 1999 for race discrimination. Def.'s Mot., Ex. 26. After exhausting his administrative remedies, the plaintiff filed a complaint with this court, which the parties settled on May 1, 2002. Id., Ex. 27, 28. On November 2, 2001 and April 5, 2002, the plaintiff filed two additional complaints with the EEOC for retaliation, harassment, and hostile work environment allegedly arising out of the 1999 claim. Id., Ex. 31. The Department of Veteran's Affairs' Office of Resolution Management ("ORM")*fn4 consolidated ...