The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge
REPORT AND RECOMMENDATION*fn1
Defendant's Motion for Summary Judgment (Document No. 14) is pending for consideration by the undersigned. Upon consideration of the motion; the Memorandum of Points and Authorities in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Opposition") (Document No. 27); the Reply Memorandum of Law in Support of Defendant's Motion for Summary Judgment ("Defendant's Reply") (Document No. 30) and the entire record herein, the undersigned recommends that Defendant's motion be granted.
Plaintiff is an employee of Defendant United States Department of Transportation who holds a GS-14 Attorney-Advisor position in the Office of the Chief Counsel's Regulatory Division of the Federal Motor Carrier Safety Administration (hereinafter "FMCSA"). In the complaint by which Plaintiff commenced this action, she alleges that Defendant discriminated against her because of her gender and her race (African-American), and retaliated against her for engaging in protected activities, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991 (hereinafter "Title VII"). Complaint (Document No. 1), ¶ 1. More specifically, Plaintiff alleges that Defendant (1) discriminated against her on the basis of her gender "by denying her promotions, training, and other employment opportunities and subjecting her to other adverse and disparate treatment" (id., ¶ 45) (hereinafter "Count I"); (2) discriminated against her on the basis of her race "by denying her promotions, training and other employment opportunities and subjecting her to other such adverse and disparate treatment" (id., ¶ 47) (hereinafter "Count II"); and retaliated against her for her opposition to Defendant's unlawful employment practices and her participation in protected activity and the EEO process[,] [and] [a]s a result[,] . . . has been denied promotions, training, other employment opportunities and subjected to other such adverse and disparate treatment (id., ¶ 49) (hereinafter "Count III"). Common to each count are Plaintiff's allegations that Defendant denied her a "career ladder promotion to the GS-15 level" (id., ¶¶ 12, 16-17, 23-24, 26, 28, 39); that FMCSA engaged in disparate treatment of the female attorneys with respect to "telecommuting[,]" leave policies, participation in training and special programs, the award of bonuses, and the grades at which male attorneys are hired (id., ¶¶ 18-22, 34-35); that her supervisor "refused to give [her] an 'outstanding' rating for her 2003 Performance Evaluation" (id., ¶¶ 32-33, ); that Defendant selected a less qualified Caucasian male for the GS-15 Assistant Chief Counsel position for which she applied (id., ¶¶ 36-38), and retaliated against her by "[taking] actions against her that have affected the terms, conditions and privileges of her employment" and "by perpetuating its refusal to promote her and by making false assertions about her performance to justify the promotion denial" (id., ¶ 40).
With respect to the issue of exhaustion of administrative remedies, Plaintiff alleges that (1) on or about February 12, 2004, she contacted an EEO counselor "regarding FMCSA's denial of her career ladder promotion and other discriminatory treatment" (Complaint, ¶ 30);*fn2 further, (2) "[s]eeking to redress [the alleged acts of discrimination] and to protect her rights under the law, [she] "filed administrative complaints" (id., ¶ 40). Finally, Plaintiff alleges that the "adverse actions" she alleges in her Complaint, "and other adverse actions[,]" "constitute a continuing violation of her rights under Title VII of the Civil Rights Act of 1964." Id., ¶ 41.
Defendant, in his motion for summary judgment, maintains that (1) Plaintiff failed to exhaust her administrative remedies with respect to her claims of (a) retaliatory non-selection for the GS-15 Assistant Chief Counsel position, (b) retaliatory cancellation of training, © absence of awards and bonuses in FY 2002, allegedly on account of discrimination based on her race and gender, and (d) discrimination with regard to leave and "telecommuting" policies; (2) Plaintiff can offer no evidence to support her claims of discriminatory denial of a career-ladder promotion to GS-15 and retaliatory rating of "meets or exceeds" rather than "outstanding" for FY 2003; (3) Plaintiff can offer no evidence of pretext with respect to Defendant's decisions not to nominate Plaintiff for a special program, denial of funding for a course and canceling another, and (4) Plaintiff's claim of retaliatory designation of an agency representative to mediate her administrative complaint is not actionable. Defendant's Memorandum of Points and Authorities in Support of Motion for Summary Judgment ("Defendant's Memorandum") at 2-3. More broadly, Defendant submits that Plaintiff's "evidentiary and legal support for each [of her claims] is fatally lacking[,]" and that "she cannot state a prima facie case and/or refute the Agency's legitimate, non-discriminatory reasons for its actions." Id. at 3.
Plaintiff, in the introductory paragraphs of her opposition to Defendant's motion, states that "Defendant grossly misstates Plaintiff's claims and asserts that Plaintiff is seeking damages for issues which, while central to her case, constitute only background information on the pervasive discriminatory environment in the Chief Counsel's Office." Memorandum of Points and Authorities in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Opposition") (Document No. 27) at 2; see also id. at 3, n.1 ("The other adverse personnel actions which comprise Ms. Walls' EEO complaints, and which are not part of her claim for damages, are nonetheless relevant and provide crucial context to [Plaintiff's] case."). Plaintiff states:
To be clear, [Plaintiff's] claims in this action relate to the discriminatory denial of a career ladder, non-competitive promotion to the GS-15 level for her Attorney Advisor position in the Chief Counsel's Office for FMCSA because of her race and sex.
Id. at 2. Plaintiff adds that "[i]n addition to failing to provide [her] with a career ladder promotion,"
Defendant also denied her a competitive promotion to the Assistant Chief Counsel position in the Office of the Chief Counsel, GS-15, in retaliation for her participation in protected activities.
Id. at 3. Plaintiff submits that her "initial contact" with an EEO counselor regarding her non-selection for a career ladder promotion to a GS-15 position occurred on February 12, 2004, and that she filed her "formal EEO Complaint" on April 2, 2004. Plaintiff's Opposition at 4. Plaintiff further submits that on September 14, 2004, after she learned of the selection of another candidate for the competitive promotion to the GS-15 Assistant Chief Counsel position, she amended her EEO complaint to add her claim of retaliatory non-selection for promotion to that position. Id. at 5.
With respect to the merits of Defendant's motion for summary judgment, Plaintiff submits that she can establish a prima facie case of race and sex discrimination for Defendant's failure "to give her the career ladder promotion that she earned and deserved[,]" and that she can rebut the reasons offered by Defendant for Defendant's denial of the career ladder promotion. Plaintiff's Opposition at 20-33. In like manner, Plaintiff submits that she can establish a prima facie case of retaliatory non-selection for the GS-15 Assistant Chief Counsel position, and that she can rebut the reasons offered by Defendant for Defendant's selection of another candidate. Id. at 33-52.*fn3
Defendant, in his reply, submits that "Plaintiff's failure to attain a GS-15 position on either a competitive or non-competitive basis is not rooted in discrimination or retaliation, but rather in a fair, unbiased assessment of Plaintiff's strengths and weaknesses under the FMCSA's high standards for promotion to GS-15." Reply Memorandum of Law in Support of Defendant's Motion for Summary Judgment ("Defendant's Reply") (Document No. 30) at 2.*fn4 Defendant further submits that Plaintiff's claims that she was qualified ...