The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant's motion for summary judgment. Upon consideration of the motion, plaintiff's response in opposition, defendant's reply, and the entire record in the case, the Court grants defendant's motion for summary judgment.*fn1
Plaintiff Donald S. Hunter, Sr., an African-American male, is a GS-13 Grants Specialist in the Grants Division of the Department of State's Bureau of Administration. See Defendant's Statement of Material Facts Not in Genuine Dispute ("SMF") ¶ 34, attached to Def. Mot.*fn2 Plaintiff joined the State Department as a GS-4 supply clerk in February 1986 and has since received several promotions. Id. at ¶¶ 2-9. Fannie Allen, an African-American female, is the Chief of the Grants Division and, at all relevant times, she was plaintiff's supervisor. See Complaint ("Compl.") at 2; SMF ¶ 4; Pl. Resp. at 1. Ms. Allen helped facilitate plaintiff's promotions to the GS-11 level and higher. See SMF ¶¶ 16-17, 23-33. She gave him special projects as a way of helping in his training and development as a grants specialist. Id. at ¶¶ 23-24. She also recommended or approved plaintiff for several awards in connection with the special projects she assigned to him. Id. at ¶ 26.
Joyce Love, a GS-13 Grants Specialist, retired from the Department on January 3, 2004. See Compl. at 5; SMF ¶ 35. On February 17, 2004, plaintiff submitted a memorandum requesting that he be promoted non-competitively into what he described as Ms. Love's unoccupied GS-13 level position. Compl. at 7; SMF ¶ 36; Exhibit M to SMF (Feb. 17, 2004 Memorandum from Donald S. Hunter to Acting Executive Director of ECA). Ms. Allen decided to fill the position as a career ladder position at the GS-11/12 level. On March 4, 2004, she requested that Human Resources post a vacancy announcement reflecting the same. See SMF ¶ 38; Def. Mot. at 2. Thereafter, in April 2004, Ms. Allen selected Julie Johnson for the position at a GS-11 level. See SMF ¶ 40. Ms. Johnson is under the age of forty, something plaintiff was aware of at the time Ms. Johnson was selected for the position. See SMF ¶ 42; Compl. at 9.
On May 7, 2004, plaintiff filed a grievance with his union concerning the lack of favorable response to his request for promotion to the GS-13 position formerly occupied by Ms. Love. See SMF ¶ 43. He did not file an EEO complaint concerning his February 17, 2004 request to be promoted. Id. In response to the union grievance, the Department informed plaintiff that Ms. Allen had decided to fill the vacant position at the GS-11/12 level, rather than at a GS-13 level, in order to meet the needs of the organization. Id. at ¶ 44.
In May 2005, Phyllis Swann, a GS-13 Grants Specialist with the Department, received a promotion in another bureau. See Compl. at 6; SMF ¶ 48. Plaintiff did not request to be promoted to Ms. Swann's position. See SMF ¶ 49. In August 2005, Ms. Allen selected Kenyetta Gunther for a GS-9 Grants Specialist position at the Department. Id. at ¶ 50. Plaintiff had not applied for the position for which Ms. Gunther was selected. Id. at ¶ 51. Plaintiff alleges that Ms. Gunther, who is under the age of forty, was hired to replace Ms. Swann. See Compl. at 10. Plaintiff was aware at the time Ms. Gunther was hired that she was under the age of forty. See SMF ¶ 52.
Plaintiff previously unsuccessfully challenged his non-promotion to a GS-13 level position in the Department of State through an accretion of duties as unlawfully discriminatory based on his race and in retaliation for his prior EEO activity. See Hunter v. Rice, 480 F.Supp.2d 125 (D.D.C. 2007), aff'd without opinion, No. 07-5163 (D.C. Cir. Nov. 15, 2007). Plaintiff claims to have only recently discovered during the deposition of Ms. Allen that occurred in June, 2005, that Ms. Allen's promotion decisions were motivated by unlawful discrimination based on age. Six months later, on January 9, 2006, plaintiff sent a letter to the Equal Employment Opportunity Commission ("EEOC") giving notice of an intent to sue the Department of State within 30 days for alleged age discrimination. See SMF ¶ 63. He filed the present action on February 24, 2006. Id. at ¶ 64.
Summary judgment may be granted only if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits [or declarations], 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [his] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hosp. Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations 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). He is required to provide evidence that would permit a reasonable jury to find in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 127 S.Ct. 1769, 1776 (2007) ("where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'") (quoting Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than "a scintilla of evidence to support [his] claims." Freedman v. MCI Telecomm. Corp., 255 F.3d 840, 845 (D.C. Cir. 2001). In an employment discrimination case, "[u]sually, proffering evidence from which a jury could find that the employer's stated reasons were pretextual will be enough to get a plaintiff's claim to a jury." George Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2006) (citing Carpenter v. Fed. Nat'l Mortgage Ass'n, 165 F.3d 69, 72 (D.C. Cir. 1999) (internal quotations omitted).
A. Plaintiff has had Adequate Opportunity to ...