The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff Kathleen Hines filed this action alleging that her employer, defendant Federal Deposit Insurance Corporation ("FDIC"), had retaliated against her by refusing to promote her, and denying her request to transfer to another division with her slot.*fn2 At the close of discovery, defendant moved for summary judgment. Because plaintiff did not pursue timely her administrative remedies with respect to her non-promotion claim, and she has not rebutted defendant's legitimate non-retaliatory reason for denying plaintiff's request to transfer her with her slot, defendant's renewed motion for summary judgment will be granted.
Plaintiff, a legal technician in the FDIC's Legal Division, filed her first administrative equal employment opportunity ("EEO") complaint, designated as FDIC 93-03, with the FDIC on January 22, 1993, alleging that she had been denied a promotion in June 1992 on the basis of her race.*fn3 On April 8, 1993, Peggy Coates, the Discrimination Complaint Adjudication Manager for the FDIC Office of Equal Opportunity ("OEO"), met with plaintiff and her EEO representative and asked whether plaintiff would settle the FDIC 93-03 complaint if she received a GC-6 promotion. (Def.'s Mem. of P. & A. in Supp of Def.'s Renewed Mot. for Summ. J. ("Def.'s Mem."), Ex. 12 ("Coates Decl.") at ¶ 4; Pl.'s Mem. Of P.& A. in Opp'n to Def.'s Renewed Mot. for Summ. J. ("Pl.'s Opp'n") at 3.) Coates also contacted Lauck Walton, plaintiff's second-level supervisor, to discuss a settlement between plaintiff and the FDIC, but Coates was unable to negotiate a settlement between plaintiff and Walton. (Coates Decl. at ¶ 4.) The next working day, plaintiff met with her first-level supervisor, Floyd Robinson, who told her that he had not recommended plaintiff for a promotion to GG-6, but that he would consider doing so. (Def.'s Mem., Ex. 4 ("Sherman Decl.") at Ex. A ("Sept. 21, 1993 EEO Compl.") at 1.)
On April 29, 1993, plaintiff met with Walton. (Sept. 1993 EEO Compl. at 2.) According to the plaintiff, during this meeting, Walton "stated that he would be willing to promote me to the GG-6 if I dropped the EEO complaint. He went on to say that if I decided to go on with the EEO complaint I would remain a GG 5."*fn4 (Id.) (emphasis in original). Plaintiff declined Walton's offer at the meeting, and asked that he transfer her with her slot to another division within the FDIC. (Sept. 21, 1993 EEO Compl. at 2.) Walton stated that he would approve of a lateral transfer, but not a transfer with her slot because Walton's supervisor, Associate General Counsel John Thomas, did not want the division to lose the slot. (Id.)
On May 13, 1993, plaintiff sent Walton an e-mail with the subject heading "Settlement Update." In it, plaintiff wrote:
I tried to reach you today concerning your proposal to settle my EEO complaint. Your offer was for me to drop my complaint in exchange for a promotion to the Grade 6 level, effective immediately. As you know, I am currently under consideration for a career ladder promotion to the Grade 6 level, which in my view is separate from the claim for a promotion I have advanced in the EEO complaint. As I indicated to you, I am willing to accept your offer but only if the Legal Division further agrees to allow me to transfer myself and the slot (at the Grade 5/6 level) to another Division or Office of the FDIC. You advised me the other day that this additional condition is unacceptable to you. Please let me know if you've change[d] your mind about this additional condition. (Pl.'s Mem. in Opp'n to Def.'s Mot. to Dismiss, Ex. C ("May 13, 1993 E-Mail").)
On May 21, 1993, Walton sent plaintiff a memorandum with the subject heading "Your E-Mail 16:37:35 May 13, 1993," acknowledging that the "EEO complaint is completely separate from your present situation in which you are under consideration for a career ladder promotion by Mr. Robinson." (Sherman Decl. at Ex. G ("May 21, 1993 Mem.").) Walton also noted in the memorandum that he would not recommend a transfer of the slot and that he was withdrawing his previously-extended settlement offer in order to "clear the decks" for future settlement discussions with plaintiff's new representative, Chris Conanan. (Id.)
Plaintiff contacted an EEO counselor through her representative, Chris Conanan, Counsel in the FDIC Legal Division, on June 24, 1993, alleging that Walton's offer to promote her in exchange for dropping her EEO complaint constituted retaliation. (Def.'s Stmt. of Mat. Facts at ¶ 9.) Plaintiff filed a second administrative complaint of discrimination with the FDIC, designated FDIC 93-60, on September 21, 1993, in which she alleged that Thomas, Walton and Robinson were retaliating against her by conditioning her promotion on dropping her EEO complaint. (Sept. 21, 1993 EEO Compl. at 3.)
Coates sent a letter dated October 19, 1993, with the subject line of "Identification of Issues and Request for Clarification," to plaintiff's EEO representative and plaintiff. The letter identified the following issue for the complaint designated FDIC 93-60: "That her career ladder promotion to Legal Technician, Grade 6, was denied on May 21, 1993, by management of the Legal Division's, [sic] Professional Liabilities Section." (Pl.'s Opp'n to Def.'s Mot. to Dismiss, Ex. 1 ("Hines Decl.") at Ex. D ("October 19, 1993 Letter") at 1.) Coates sent a second letter dated November 18, 1993, with a subject line of "Identification of Issue for Investigation and Assignment of Investigator." In that letter, Coates identified the issue for the complaint designated FDIC 93-60 as follows: "Whether in reprisal for her prior participation in the complaint process on April 29, 1993, Mr. Lauck Walton told Ms. Hammond that he would promote her to the GG-6 grade level, if she would drop her prior complaint." (Sherman Decl. at Ex. F ("Nov. 18, 1993 letter").) The November 18, 1993 letter also stated that plaintiff's representative should notify Coates within five calendar days if the issue as described had not been correctly identified. Id. Plaintiff did not object to the identification of the issue in the November 18, 1993 letter. The investigation conducted by the FDIC focused on Walton's offer to promote plaintiff on April 29, 1993. ("Sherman Decl. at ¶ 22.)
Plaintiff filed a third EEO complaint, designated FDIC 94-65, on November 21, 1994, alleging that in retaliation for her September 1993 claim, defendant denied "her request for a written statement [from] the Legal Division that if she was offered another position in the agency, that the Legal Division would agree to reassign her together with her slot." (Am. Compl. at ¶ 16.) According to plaintiff, she began seeking a transfer with her slot out of the legal division prior to the April 29, 1993 meeting with Walton.*fn5 (Pl.'s Dep. at 78.) Plaintiff was never transferred out of the legal division. (Def.'s Stmt. of Material Facts at ¶ 23; Pl.'s Dep. at 75-76.)
Plaintiff's amended complaint alleges that Walton "retaliated against plaintiff and her activities in pursing her complaint of discrimination by refusing to promote her to the next grade of her career ladder position until she dropped her complaint of discrimination." (Am. Compl. at ¶ 11.) The amended complaint also alleges that she was denied a transfer with her slot in retaliation for filing her second EEO complaint. (Id. at ¶ 16.) The defendant seeks summary judgment.
"Summary judgment is appropriate when the pleadings and the evidence demonstrate that '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.'" Feirson v. Dist. of Columbia, 506 F.3d 1063, 1065 (D.C. Cir. 2007) (quoting Fed. R. Civ. P. 56(c)); see also Nails v. England, 311 F. Supp. 2d 116, 121 (D.D.C. 2004). "Not all alleged factual disputes represent genuine issues of material fact which may only be resolved by a jury. Material facts are those that might affect the outcome of the suit under governing law, and a genuine dispute about material facts ...