The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge,
Upon consideration of defendant's Motion for Summary Judgment , plaintiff's Opposition , defendants' Reply , the applicable law and the record herein, for the reasons set forth below, the Motion for Summary Judgment will be DENIED as to all claims pertaining to the GS-14 position, and GRANTED as to all claims pertaining to the GS-15 position, articulated in paragraph 10 of the Complaint, for which plaintiff failed to exhaust administrative remedies.
Plaintiff Roger Pederson, then a 52-year-old white male, applied for a GS-14 Examiner position for which he was qualified in the Investment Division of the Small Business Administration ("the Position"), and the Position went to Lourdes Gatell, a significantly younger Hispanic woman of comparable qualifications ("Selectee"). The Position included duties as acting Director of Examinations-a GS-15 position-in the Director's absence, and Selectee later applied for and was promoted to that position permanently. Based on these facts, plaintiff brings claims of race and sex discrimination under Title VII of the Civil Rights act of 1964, as amended, codified at 42 U.S.C. § 2000e, et seq. ("Title VII"), and age discrimination under the Age Discrimination in Employment Act of 1967, as amended, codified at 20 U.S.C. § 623, et seq. ("ADEA"), in his non-selection for both the Position and the higher GS-15 position.
Plaintiff has produced evidence to establish a prima facie case in the Title VII and ADEA claims pertaining to the GS-14 position. Defendant has asserted a legitimate, non-discriminatory basis for the hiring decision (that plaintiff did not get along with co-workers), and now seeks summary judgment by alleging that plaintiff cannot provide evidence of discriminatory intent or prove that defendant's legitimate reason was pretext. Plaintiff has responded by providing evidence of possibly discriminatory remarks made by the deciding official and two interviewing officials in his non-selection, and by alleging that defendant's proffered reason is beyond belief.
Summary judgment is appropriate upon a showing that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must point to an absence of material evidence in the record, and then the burden shifts to the non-movant to show the existence of a dispute for trial. Bias v. Advantage Intern, Inc., 905 F.2d 1558, 1561 (D.C. Cir. 1990). In reviewing disputed facts, the Court must draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party must, however, provide more than a "scintilla of evidence," and summary judgment is appropriate where the evidence could not persuade a reasonable jury to find for the non-movant. Id. at 252. Conclusory allegations by the non-movant are not enough to survive summary judgment. Exxon Corp. v. F.T.C., 663 F.2d 120, 127 (D.C. Cir. 1980).
In the context of employment discrimination claims (under both Title VII and the ADEA) such as those here, courts apply the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), to summary judgment evaluations. See Pardo-Kronemann v. Jackson, 541 F. Supp. 2d 210, 214 (D.D.C. 2008) (Title VII case); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 140 (2000) (ADEA case). In McDonnell Douglas, the Supreme Court established that, in discrimination cases, the plaintiff must first bring a prima facie case of discrimination which the employer may then sufficiently rebut by articulating a legitimate, non-discriminatory reason for its employment decision. 411 U.S. at 804. The plaintiff must then have an opportunity to present evidence that the employer's legitimate reason is pretext and that the real reason for its decision was discriminatory. Id. at 805.
At the summary judgment stage, the McDonnell Douglas framework dissolves once the defendant proffers a legitimate reason, and to avoid dismissal "the plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory reason." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003). This showing may involve the strength of the plaintiff's prima facie case*fn2 , direct evidence of discrimination, and circumstantial evidence indicating that the proffered legitimate reason is pretext. Pardo-Kronemann, 541 F. Supp. 2d at 215; Waterhouse v. District of Columbia, 298 F.3d 989, 993 (D.C. Cir. 2002).
a. Discrimination in Non-Selection for the GS-15 Director of Examinations Position
Defendant seeks dismissal of all claims related to the GS-15 Director of Examinations position, which position plaintiff claims Selectee acquired as a foreseeable result of her appointment to the GS-14 position at issue in this case. Defendant rightly notes that a plaintiff must exhaust administrative remedies through the EEOC before bringing a claim to federal court, Battle v. Rubin, 121 F. Supp. 2d 4, 7 (D.D.C. 2000), and that each alleged incident of discrimination ...