The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge
Plaintiff, Barbara Felder ("Plaintiff") filed the Complaint in this action as Personal Representative of the Estate of her late husband, Marvin Felder ("Felder"),*fn1 against Defendant Mike Johanns, in his official capacity as Secretary of the United States Department of Agriculture ("USDA" or "the Agency"). Plaintiff's Complaint alleges that the Animal and Plant Health Inspection Service ("APHIS") and its operating unit, International Services ("IS," collectively "APHIS-IS"), discriminated against Felder on account of his race asserting disparate treatment and in retaliation for his prior protected EEOC activity, by failing to promote him while promoting a similarly situated IS employee. In 2002, Felder and a fellow USDA employee, Alester van Simmons, prevailed in a jury trial in a race discrimination case against USDA and were subsequently granted equitable relief, including reinstatement to vacancies in IS. Felder now alleges that USDA carried out its obligation to reinstate Felder and Simmons, but subsequently engaged in a separate act of discrimination by "paper promoting" Simmons while failing to similarly "paper promote" Felder.
Currently pending before the Court is Defendant's Renewed Motion  to Dismiss or for Summary Judgment ("Motion"). As Felder has subsequently filed an opposition and USDA a reply, Defendant's Motion is now ripe. After a searching review of the parties' briefing, the exhibits attached thereto, the relevant case law, and the entire record herein, the Court shall GRANT Defendant's Motion for the reasons that follow.
Marvin Felder, an African American male, was an employee of USDA in the APHIS unit from 1978 through his death in March 2005. Defendant's Statement of Material Facts Not In Dispute ("Def.'s Stmt.") ¶ 1.*fn2 In July of 1999, Felder and another USDA employee, Alester van Simmons, filed a civil action in the United States District Court for the District of Columbia, captioned Felder v. Glickman, Civ. A. No. 99-1860 (GK) ("1999 Lawsuit"), alleging violations of Title VII of the Civil Rights Act of 1964. Def. Stmt. ¶ 2. Felder and Simmons, both African Americans, alleged, inter alia, that they had been discriminated against on the basis of race (black) when they were not selected from a 1997 roster of qualified applicants to fill management vacancies in the IS unit of APHIS. Id. At that time, both Felder and Simmons were employees of the USDA in the Plant Protection and Quarantine ("PPQ") unit of APHIS. See Def.'s Stmt. ¶¶ 16-18; see also Pl.'s Opp'n, Ex. S (Decl. Alester van Simmons) ("Simmons Decl."). However, Felder and Simmons were at different grade levels. See Def.'s Stmt. ¶¶ 17, 18.
The 1999 Lawsuit was tried before a jury, with Judge Gladys Kessler presiding. Id. ¶ 3.The jury returned a verdict in favor of Felder and Simmons. Id. By order dated February 4, 2002 ("February 4, 2002 Order"), Judge Kessler awarded Felder and Simmons equitable relief, including "instatement to the first opening or vacancy which becomes available in IS," retroactive to February 1997, as well as "back pay to the dates on which the first and second vacancies in IS were filled after creation of the roster on which each Plaintiff was placed (without regard to whether selections were made from those rosters and without regard to whether selections were made from within or without IS)." Id. ¶ 4; see also Def.'s Mot, Ex. 1 (the February 4, 2002 Order and Memorandum Opinion) ("February 4, 2002 Order").
B. Implementation of the Order
At the outset, the Court notes that this is not a typical failure to promote case. Rather, Felder's claims stem from USDA's efforts to implement a judicial order requiring equitable relief in the form of instatement to a position in the APHIS-IS unit. It is therefore important to make clear what Judge Kessler's February 4, 2002 Order did-and did not-require. As both Felder and USDA concede, the February 4, 2002 Order did not explicitly require that USDA provide either Felder or Simmons with a promotion upon instatement into IS. Def.'s Stmt. ¶ 5; Pl.'s Resp. ¶ 5. Rather, the February 4, 2002 Order provided only that Felder and Simmons must be instated "to the first opening or vacancy that becomes available in IS." See February 4, 2002 Order. Nonetheless, the Agency asserts that it understood the February 4, 2002 Order to require it to determine, as an equitable matter, what positions and FP-grade levels Felder and Simmons would have likely occupied in 2003 had they been selected in 1997 (but for the discrimination as found by the jury in the 1999 Lawsuit). See Def.'s Stmt. ¶ 16. Although Felder disputes this assertion, he has not offered any evidence-other than his own unsupported, conclusory allegations-to contradict Defendant's assertion.*fn3
1. Initial Offers to Felder and Simmons for Instatement in IS
In the fall of 2002, Agency counsel and counsel for Felder and Simmons began participating in discussions regarding Felder's and Simmons' new positions in IS, as mandated by Judge Kessler's February 4, 2002 Order. Def.'s Stmt. ¶ 6. By letter dated September 26, 2002, USDA first notified both Felder and Simmons of their initial "selections"-i.e., what specific positions the Agency was offering Felder and Simmons in IS, in accordance with the February 4, 2002 Order requiring instatement. See Def.'s Mot., Ex. 3 (October 9, 2002 Letter from Kim D. Mann, counsel for Felder and Simmons, to Assistant United States Attorney Marina Utgoff Braswell, trial attorney for USDA in the 1999 Lawsuit) ("October 9, 2002 Letter") (noting that "John Wyss has notified Marvin Felder and Van Simmons of their 'selections' to fill positions in IS by letters dated September 26, 2002"). Significantly, although Felder and Simmons had both been in the PPQ unit of APHIS at the time they applied for (and were denied) the IS vacancies in 1997, they were at different GS-grade levels at that time. Def.'s Stmt. ¶ 16. They were therefore placed on the selection rosters for the IS vacancies in 1997 at different grade levels. Id. In particular, Simmons was on the FS-436-4 (GS-12) roster, while Felder was on the FS-436-3 (GS-13) roster. Id. ¶¶ 17, 18. Accordingly, although Simmons and Felder were both awarded positions in IS as part of the February 4, 2002 Order, they were selected for (and ultimately converted into) IS positions at different FP levels. Specifically, Simmons was notified that he had been selected to fill the position of Plant Protection and Quarantines Officer, Officer in Charge, in Hamilton, Bermuda, which was a GS-12 equivalent, and Felder was notified that he had been selected to fill the position of APHIS Area Director in Seoul, Korea. Id. ¶¶ 17, 18.
As is relevant to the instant lawsuit, in its letter to Felder notifying him of his initial selection, USDA advised Felder that, although the position he was offered was classified as a GS-14 equivalent, he would be "converted at APHIS' maximum lateral entry into the Foreign Service, which is the FP-3 (GS-13 equivalent)."*fn4 Pl.'s Opp'n, Ex. B (September 26, 2002 Letter from Dr. John H. Wyss, Assistant Deputy Administrator with IS, to Felder) ("September 26, 2002 Letter"). IS assured Felder, however, that his salary would be matched. Id. USDA explains that, since 1994, APHIS-IS has operated under an internal policy, referred to as the "lateral entry policy," of bringing individuals into IS at a level no higher than the FP-3 (GS-13 equivalent) level. Def.'s Stmt. ¶ 18; see also Def.'s Mot., Ex. 8 (Wyss Affidavit) ("Wyss Aff."). Prospective employees above the GS-13 grade level are required to sign a statement agreeing to take a downgrade for entry into IS.*fn5 Def.'s Mot., Ex. 13 (Excerpt of Dr. John H. Wyss Deposition) ("Wyss Depo. I") at 33-34; see also Wyss Aff. at 3-4. USDA's internal policy would have therefore required Felder to come into IS at the FP-3 grade level (GS-13 equivalent), assuming Felder had entered IS in 1997, the retroactive date of his instatement. See Wyss Depo.
I at 33-34; Wyss Aff. at 3-4. However, because Felder's salary exceeded the highest salaried step in the FP-3 category, he would have had to accept a downgrade in order to enter into IS in 1997. Pl.'s Opp'n, Ex. K (Felder Rebuttal Affidavit) ("Felder Rebuttal Aff.") ¶ 4. That is, strictly requiring Felder to convert into IS at a FP-3 grade level, as mandated by the lateral entry policy, would have therefore resulted in a decrease in his salary. See id. As stated in the September 26, 2002 Letter, USDA offered Felder a FP-3 position, consistent with its internal lateral entry policy, but provided that his current salary would be matched nonetheless. See September 26, 2002 Letter.
2. Simmons' and Felder's Initial Acceptances of USDA's Offers
On October 9, 2002, Felder sent USDA a letter accepting the position as APHIS-IS Area Director in Seoul, South Korea, "pending all issues being resolved pursuant to the court order dated February 4, 2002." Pl.'s Opp'n, Ex. C (October 9, 2002 Letter from Felder to Dr. Wyss) ("Felder's October 9, 2002 Letter"). By letter dated that same day, Plaintiff's counsel, Kim D. Mann, informed Braswell, trial counsel for USDA during the 1999 Lawsuit, that "Felder has no issues regarding the specific position and location for which he has been selected and assigned." Def.'s Stmt. ¶ 7; see also Def.'s Mot., Ex. 3 (October 9, 2002 Letter from Mann to Braswell) ("Mann's October 9, 2002 Letter"). As to Simmons, Mann stated that he, unlike Felder, did not "believe the position to which he has been assigned conforms with the" February 4, 2002 Order. Mann's October 9, 2002 Letter.Additionally, in relevant part, Mann informed Braswell that both Felder and Simmons believed they were "entitled to in-grade step increases as a matter of law in accordance with the federal regulations governing positions in IS" and would therefore "like an explanation as to the dates on which those in-grade step increases will be deemed to have become effective and how those increases affect their promotion potential and retirement."
Def.'s Stmt. ¶ 7; see also Mann's October 9, 2002 Letter.
3. USDA's Second, More Generous Offers
Thereafter, on December 19, 2002, Dr. John H. Wyss, former Assistant Deputy Administrator of APHIS-IS, wrote a letter to Felder informing him that USDA was now offering him the position of APHIS Area Director in Seoul, South Korea, at the FP-2 (GS-14) grade equivalent, rather than the previous offer at the FP-3 grade level. Def.'s Mot., Ex. 9 (Dec. 19, 2002 Letter from Wyss to Felder) ("December 19, 2002 Letter"). Wyss requested Felder acknowledge acceptance of the assignment so that USDA could being processing the transfer. Def.'s Stmt. ¶ 11; see also December 19, 2002 Letter. Wyss subsequently sent a second letter, dated January 15, 2003, to Felder again stating that Felder had been selected to fill the position of APHIS-IS Area Director in Seoul, Korea, and specifying that Felder would be placed at the FP Class 2, Step 9 level. Def.'s Stmt. ¶ 12; Def.'s Mot., Ex. 10 (January 15, 2003 Letter from Wyss to Felder) ("January 15, 2003 Letter"). The January 15, 2003 Letter repeated Wyss' previous request that Felder acknowledge acceptance of the assignment so that USDA could begin processing the transfer. Def.'s Stmt. ¶ 12; January 15, 2003 Letter.
On February 27, 2003, Wyss sent a similar letter to Simmons, informing Simmons that he had been selected to fill the position of PPQ Officer-in-Charge, in Kingston, Jamaica, at the FP-3 grade level (GS-13 equivalent). Def.'s Stmt. ¶ 15; Def.'s Mot., Ex. 12 (February 27, 2003 Letter from Wyss to Simmons). Noticeably, this second offer, like Felder's second offer, contained an improved grade level, offering Simmons instatement at the FP-3 grade level rather than the FP-4 grade level originally offered.
4. Ongoing Communications Between Felder and USDA Regarding Felder and Simmons' Positions
Neither Felder nor Simmons immediately accepted these positions, but rather continued to communicate with USDA regarding various concerns as to their respective assignments. As is specific to Felder, by letter dated January 31, 2003, he raised for the first time, through his counsel, certain issues with IS concerning his FP-grade level. See Def.'s Stmt. ¶ 14; see also Def.'s Mot., Ex. 11 (January 31, 2003 Letter from Mann to Braswell) ("January 31, 2003 Letter"). In particular, the January 31, 2003 Letter stated that "Felder observes that other IS specialists holding FP-3 positions in 1997 have, by the end of 2002, received two promotions, not just one" and that "Felder requests similar treatment."*fn6 January 31, 2003 Letter. Thereafter, on April 22, 2003, Felder himself sent an email to Ms. Ayoka Campbell, an attorney in USDA's Office of the General Counsel, providing a further list of demands. Def.'s Stmt. ¶ 22; Def.'s Mot., Ex. 18 (April 22, 2003 Email from Felder to Campbell) ("April 22, 2003 Email"). In particular, Felder requested "FP-1 upon entry." Def.'s Stmt. ¶ 22; April 22, 2003 Email.
In response, Campbell sent Mann a letter, dated May 9, 2003, in which Campbell acknowledged Felder's demand that he receive an FP-1 grade level upon entry, but stated that Felder would be instated at the FP-2 grade level, and would not be given a promotion to the FP-1 grade level. Def.'s Stmt. ¶ 14; Def.'s Mot., Ex.14 (May 9, 2003 Letter from Campbell to Mann) ("May 9, 2003 Letter"). Specifically, Campbell stated:
The Agency has agreed to place Felder into a FP-2 position equivalent to his current salary. The record is clear that most individuals working in IS in 1997 at the FP-3 level remain at the FP-2 level today. Therefore, the Agency has offered Felder a FP-2 position. Felder will be eligible for promotions to the FP-1 level and will be subject to IS promotion rules and regulations. USDA is unable to give Felder preferential treatment with regard to the FP-1 level after one year of service.
May 9, 2003 Letter.The letter also requested that Felder and Simmons unequivocally accept or deny, in writing, the offered positions at APHIS-IS by May 30, 2003, or USDA would assume the positions had been denied. Def.'s Stmt. ¶ 23; May 9, 2003 Letter.
By letter dated May 19, 2003, Mann responded on behalf of Felder and Simmons, stating that "I have been authorized by my clients to express their acceptance of the offers of employment in International Services." Def.'s Stmt. ¶ 24; Def.'s Mot., Ex. 19 (May 19, 2003 Letter from Mann to Campbell) ( "May 19, 2003 Letter"). In a subsequent email from Mann to Braswell, dated June 4, 2003, Mann reconfirmed that "Mssrs. Felder and Simmons did accept positions in IS unequivocally. They are not particularly satisfied with their FP- and grade levels . . . but decided to accept the offers. Felder will continue to seek a meeting with the head of IS to discuss his future in IS." Def.'s Stmt. ¶ 25; Def.'s Mot., Ex. 20 (June 4, 2003 Email from Mann to Braswell) ("June 4, 2003 Email").
Thereafter, Felder continued his efforts to meet with IS officials about his desire to be promoted to the FP-1 grade level upon instatement. Pl.'s Stmt. ¶¶ 36-38; see also Pl.'s Opp'n, Ex. E (September 25, 2003 Email from Felder to Ralph Iwamoto) (seeking a meeting with Iwamoto to discuss, inter alia, the "[d]ifference in handling the particulars of my case in comparison with the handling of Simmons' case (promotion)."). In particular, while attending orientation for his new IS position in Washington D.C. in October of 2003, Felder met with several IS management officials and discussed his concerns regarding his instatement into IS at the FP-2 grade level. See Pl.'s Stmt. ¶¶ 37-38; see also Pl.'s Opp'n, Ex. J (November 18, 2003 Email from Nick Guiterrez to Felder). Such discussions, however, were ultimately unsuccessful. As reconfirmed by Wyss in a letter to Felder dated December 5, 2003:
[P]ursuant to Judge Gladys Kessler's February 4, 2002 Order, you are assigned to the Animal and Plant Health Inspection Service (APHIS), International Services, Foreign Service. Your position is that of APHIS Area Director, Seoul, South Korea. The position is classified as an Agriculturist, FP-401-2 (GS-14 equivalent).
On December 23, 2008, at the beginning of Pay Period 26, you will be converted retroactively into the APHIS Foreign Service at the FP-2 level (GS-14 equivalent), effective February 14, 1997. * * * At the time of your conversion to the Foreign Service, you will be an FP-2, step 9. . . .
Your reporting date is January 6, 2004.
See Pl.'s Opp'n, Ex. G (December 5, 2003 Letter from Wyss to Marvin Felder) ("December 5, 2003 Letter").
On November 4, 2003, Felder contacted USDA's EEO counselor, and, on December 19, 2003, he filed formal charges with USDA alleging race-based discrimination in connection with IS' failure to promote him to the FP-1 grade level while promoting Simmons to the FP-3 grade level. First Amended Complaint, Docket No. , ("Am. Compl.") ¶ 15. Felder also alleged that USDA's decision to promote Simmons but not to promote Felder constituted reprisal for Felder's role in the 1999 Lawsuit. Id. In particular, Felder noted that Judge Kessler, in ruling on post-trial motions in the 1999 Lawsuit, characterized Felder as "the person who first initiated the EEO activity and in general played a leadership role." Pl.'s Opp'n, Ex. A (February 4, 2002 Memorandum Opinion and Order, Civ. No. 99-1860, Kessler, J) at 9 n.3.*fn7
2. USDA's Proffered Nondiscriminatory, Legitimate Reasons
In response to the EEO investigation that followed, USDA provided a more in-depth description of its basis for instating Felder into IS at the FP-2, rather than the FP-1, grade level. Specifically, USDA stated that, in order to comply with the February 4, 2002 Order, the Agency sought to place Felder and Simmons in the FP-grade levels they would have likely occupied in 2003 had they been selected in 1997. Def.'s Stmt. ¶ 16. Accordingly, Agency counsel directed the Director of the Personnel and Travel section of IS, Ms. Frieda Skaggs, to "please track Felder & Simmons as to where they were in 1997 and would possibly be today if in IS." Def.'s Stmt. ¶ 7; Pl.'s Resp. ¶ 7; see also Def.'s Mot., Ex. 4 (October 31, 2002 email from Campbell to Skaggs) ("October 31, 2002 Email").
At this point, it is useful to briefly explain the normal procedure for promotions in IS. Generally, all IS officers' performance evaluations are automatically reviewed on an annual basis by an intermediate selection board to determine promotions and all other types of incentives. See Def.'s Mot., Ex. 6 (Skaggs Affidavit) ("Skaggs Aff.") at 4-5; see also Wyss Aff. at 3. The board considers the evaluations of all candidates of the same class level and series,*fn8 and then ranks them. Wyss Aff. at 3. There is a forced ranking of the employees, such that one employee is ranked number "1" and the next employee is ranked number "2." Id. If there are one or more promotional opportunities, the top ranked employees would be the ones recommended for the positions. Id. IS has no discretion in who is recommended-i.e., the number "1" employee must be recommended for the first promotion. Id. The board makes the recommendations to the IS Deputy Administrator, who in turns makes the recommendations to the APHIS Administrator, who makes the final decision whether to accept the recommendation. Id. The employees are thus competing against each other for promotion. Def.'s Stmt. ¶ 19. As neither Felder nor Simmons was in IS prior to 2003, neither, quite obviously, went through the general promotion process described above. Therefore, USDA states that it decided to determine Felder's and Simmons' class levels, salary and conditions by extrapolating what would have happened if they had entered IS in 1997. Wyss Aff. at 1. USDA did so in two specific ways, described below.
Before turning to the particular methods USDA used in determining which FP-grade level to place Felder and Simmons at upon instatement, the Court notes that USDA concedes that it did not follow the Agency's established policy regarding promotions and lateral entries in this instance, given the atypical nature of Felder's and Simmons' instatement. See, e.g., Wyss. Aff. at 3 ("I believe the policy was followed as close as possible, but being a court ordered settlement case there may have been some deviation in favor of the Complaint [sic]."); Pl.'s Opp'n, Ex. P (Excerpt of Wyss Deposition) ("Wyss Depo. II") at 50-51 (acknowledging that USDA did not follow its lateral entry policy when it permitted Felder to enter into IS at the FP-2, rather than FP-3, grade level). The final decision to place Felder at the FP-2 grade level was made by the Office of General Counsel for USDA, with input provided by Wyss and Skaggs. See Wyss Aff. at 5.
First, Agency counsel, Campbell, asked Skaggs to determine if any individual had been converted to IS during the designated time period, which was defined as June 9, 1997 to December 9, 1998, and to consider any step increases or promotions that Felder or Simmons might have received had they, like those individuals, been converted into the system in 1997. Skaggs Aff. at 3; October 31, 2003 Email. As Skaggs explained, the 1997 to 1998 time frame was chosen because it encompassed the same roster that Felder and Simmons would have been on at the time they applied for the IS vacancy positions.*fn9 See Def.'s Mot., Ex. 5 (Excerpt from Skaggs Deposition) ("Skaggs Depo.") at 41-42. USDA concedes that nothing in the IS policy manuals suggests using a comparator for purposes of determining the likelihood of promotions. See id. at 32-33.
Skaggs determined that only one individual, Ken Nagata, had entered APHIS-IS in 1997. Skaggs Aff. at 3; Skaggs Depo. at 43-44. Nagata had entered IS at the FP-5 grade level and had received a promotion to the FP-4 grade level in November of 2001. Skaggs Aff. at 3. Although Nagata entered APHIS-IS at one grade level lower (FP-5) than Simmons (FP-4), USDA determined that Nagata was sufficiently similar to Simmons and therefore determined that Simmons would likely follow, or "parallel," the same career ladder. Def.'s Stmt. ¶ 9; Skaggs Aff. at 3-4. Consequently, because Nagata had received a promotion in the time period at issue (1997-2002), USDA concluded that Simmons should be brought in at a higher level as well. Def.'s Stmt. ¶ 9. For that reason, USDA offered to ...