The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
Upon consideration of defendants' Motion for Summary Judgment on all counts , plaintiff's Opposition , defendants' Reply , the applicable law and the record herein, the Motion for Summary Judgment will be granted.
Dorothy Chappell-Johnson has been an employee of the Federal government for over 15 years. She is currently an employee with the Federal Deposit Insurance Corporation ("FDIC") as a CG-9 level employee. Prior to reorganization in 1996, Ms. Chappell-Johnson spent over a year as a CG-11 level employee, making her eligible for promotion to a position with a classification of CG-12 or lower. (Pl.'s Compl. ¶ 6). In 1999, the FDIC posted a vacancy for a position which was classified as a CG-13 position, meaning Ms. Chappell-Johnson was ineligible to apply for it.
Ms. Chappell-Johnson alleges that she had asked her superiors to lower the classification of the position so that she would be eligible to apply for it, but that they refused to do so. She claims that their refusal was motivated by her race and age. Defendants deny this and claim that the classification was made as a legitimate, non-discriminatory business decision.
Ms. Chappell-Johnson filed an Equal Employment Opportunity claim on December 16, 1999. Her claim was subsumed into a class action suit but later severed and reconsidered as an EEO claim in April 2003. Ms. Chappell-Johnson filed this suit on July 21, 2003, and in its original form it included a claim for retaliation as well as for the allegedly discriminatory job-posting classification. Defendants moved for dismissal or, in the alternative, summary judgment on both claims. Summary judgment was granted on both, but reversed on appeal as to the discrimination claim; it was upheld as to the retaliation claim, which is no longer part of this suit. See Chappell-Johnson v. Powell, 440 F.3d 484 (D.C. Cir. 2006). A second summary judgment motion was filed November 21, 2006 and denied. Discovery commenced and defendants again moved for summary judgment on December 8, 2008.
When considering a motion for summary judgment, the court must take the facts in the light most favorable to the non-moving party, granting them "all justifiable inferences," and then determine if there remains a genuine issue of material fact upon which a jury could hold either way. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In determining whether or not such an issue exists which could determine the outcome of the suit, the primary consideration is the substantive law on the claim (Anderson, 477 U.S. at 248) but mere unsupported allegations or denials will not create a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
In order to make out a prima facie case of discrimination, Plaintiff must show that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. Chappell-Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006) (citing Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). The Brody elements, as a substitute for the McDonnell-Douglas elements, do not supplant the use of the McDonnell-Douglas framework, which allows the defendant an opportunity to provide a non-discriminatory justification for the behavior, which the plaintiff must show to be a pretext in order for the suit to proceed. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973). The Court of Appeals recently summed-up the issue this way:
In considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?
Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). As the Brady opinion made clear, once the court has reached the stage of determining pretext, the original basis for the discrimination is no longer the issue, the plaintiff must attack the justification as pretext and demonstrate why it is not the actual reason for the contested action, regardless of how the court may feel about the logic or reasonableness of that reason. Fischbach v. District of Columbia Dep't of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996). If the plaintiff is unable to demonstrate that the explanation is a pretext, then a motion for summary judgment will succeed.
There is no dispute that Ms. Chappell-Johnson satisfies the first of the Brody elements; she is black and was over the age of 40 at the time of the posting of the position in question. On the second element, defendants dispute that their actions constitute an 'adverse employment action'. They also ...