The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on a motion filed by the defendant, Secretary of the Navy Donald Winter, to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or, in the alternative, for summary judgment under Rule 56.*fn1 Plaintiff Nadine D. Mills, who appears pro se, alleges that defendant discriminated against her on the basis of race and sex and that defendant has retaliated against her. Upon consideration of defendant's motion, plaintiff's opposition, defendant's reply and the entire record herein, the Court will grant the motion and enter judgment for the defendant.
Plaintiff Nadine Mills, an African-American female, brings this employment discrimination case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff works as a management analyst at the GS-12 grade level in the Facilities Management Division ("SEA 102") at the Naval Sea Systems Command ("NAVSEA") Headquarters ("HQ"), Department of the Navy. See First Amended Complaint ("Compl.") ¶¶ 2, 7, 27; Mills Dep. at 77. When the incidents set forth in the First Amended Complaint occurred, plaintiff was employed in a different GS-12 management analyst position, serving as a division director in the SEA 09A division, the predecessor to SEA 102. See Compl. ¶ 8; Pl.'s Opp. at 2.
Plaintiff describes a number of allegedly discriminatory actions taken by her supervisors prior to January 2002, including (1) the non-promotion of plaintiff to a GS-13 position while other division directors had been promoted to positions at the GS-13 grade level or higher, see Compl. ¶¶ 8-10; (2) the delay in providing plaintiff with replacements for four employees under plaintiff's supervision that had stopped working for her, see id. ¶ 11; and (3) the reassignment of plaintiff's employees to other divisions and of plaintiff's duties to another division director during a NAVSEA-wide reorganization. See id. ¶¶ 15, 17-18.
On January 22, 2002, plaintiff sought Equal Employment Opportunity counseling for her grievances, alleging discrimination based on sex and race. See EEO Counselor's Report of Nadine D. Mills (Jan. 22, 2002) ("First EEO Report") at 2, Def.'s Ex. B. The EEO counselor interviewed plaintiff's first-level supervisor, Mary Lou Rakosky, and plaintiff's second-level supervisor, Mike Davis, and subsequently, issued a right to file a formal complaint on March 14, 2002. See id. at 1, 3. On March 21, 2002, plaintiff filed a formal complaint with the Department of Navy, which the Navy later dismissed. See Defendant's Statement Of Material Facts As To Which There Is No Genuine Dispute ("Def.'s Statement of Facts") ¶ 45. Plaintiff appealed the dismissal to the Equal Employment Opportunity Commission. See id. The EEOC denied the appeal on September 5, 2002. See id. Plaintiff sought reconsideration, which the EEOC denied on May 18, 2004. See id.
There was another NAVSEA-wide reorganization for fiscal year 2004 ("FY 2004"). See Compl. ¶¶ 20-26. The reorganization contemplated reductions of eighteen percent or greater in the Command's civilian employee positions and required the majority of civilian employees to compete for lateral reassignment into the positions that remained.
See Pl.'s Opp. at 3; Davis Decl. ¶¶ 5-6. In particular, the reorganization required SEA 102 to eliminate four positions. See Pl.'s Opp. at 3; Davis Decl. ¶ 8. Furthermore, the reorganization imposed "grade controls" on the remaining SEA 102 positions: SEA 102 was permitted to have only one GS-15 position, one GS-14 position, two GS-13 positions, one GS-12 position, five GS-11 positions and two GS-7 positions. See Davis Decl. ¶ 9.
At the time, plaintiff's division employed only two persons in GS-12 positions: plaintiff and Lynn Paige, who is also an African-American female. See Compl. ¶ 21; Pl.'s Opp. at 3. On May 8, 2003, Mr. Davis told plaintiff that the FY 2004 staffing plan for SEA 102 eliminated the management analyst position held by plaintiff and called for only one position at the GS-12 position, a position that would be in the area of facilities management. See Compl. ¶ 21; Davis Decl. ¶ 17. As a result, Mr. Davis stated that plaintiff and Ms. Paige would have to compete for lateral reassignment into the facilities management position. See Compl. ¶ 21. The GS-12 facilities management position, however, subsequently was cancelled. See Pl.'s Opp. at 3.
Instead, Mr. Davis had a non-supervisory GS-13 facilities management position created and laterally reassigned Ms. Paige, who had served in a GS-13 position in another agency, into the new position. See Compl. ¶ 24; Pl.'s Opp. at 3; Mills Dep. at 65. Mr. Davis states that if the GS-13 facilities management position had not been created and the GS-12 facilities management position had not been cancelled, he would have selected Ms. Paige for the GS-12 facilities management position and not plaintiff. See Davis Decl. ¶ 26.
On June 11, 2003, plaintiff was placed in the NAVSEA Placement Program ("NPP"), a list of employees who had not been laterally reassigned to permanent positions during the FY 2004 organization. See Compl. ¶¶ 26-27; Pl.'s Opp. at 4. While in the NPP, plaintiff remained at the GS-12 grade level and continued to perform the same responsibilities and to work in the same office as she had prior to the reorganization. See Mills Dep. at 72-73. Plaintiff also received the same pay and reported to the same supervisors as prior to the reorganization. See id. 72-73. After a year, plaintiff was reassigned to her present GS-12 management analyst position in SEA 102. See Compl. ¶ 27; Pl.'s Opp. at 4. Plaintiff performs the same responsibilities, works in the same office, receives the same pay and reports to the same supervisors as she did prior to the reorganization. See Mills Dep. at 74.
On May 28, 2003, plaintiff again sought EEO counseling. See EEO Counselor's Report of Nadine D. Mills (Aug. 8, 2003) ("Second EEO Report") at 2, Def.'s Ex. B. Plaintiff filed a formal complaint with the agency on July 25, 2003, alleging that she was being discriminated against based on sex and race, and in retaliation based on her earlier EEO activities, when she "had to compete for a position that was already occupied, therefore it was a pre-selection." See Agency Docket No. 03-0024-003, Def.'s Ex. B. On September 5, 2003, plaintiff amended the complaint to include a claim of discrimination based on age. See id. Plaintiff requested a hearing before an EEOC administrative judge. See Def.'s Statement of Facts ¶ 48. After the administrative judge indicated she would issue a decision without a hearing, both plaintiff and the agency filed motions for summary judgment. See id. The administrative judge granted the agency's motion. See id. Plaintiff appealed to the EEOC. See id. ¶ 49. The EEOC denied plaintiff's appeal on September 15, 2005. See id. This action followed.