The opinion of the court was delivered by: Paul L. Friedman United States District Judge
Plaintiff Cristian Brown brings suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., against his employer, the Broadcasting Board of Governors ("BBG").*fn1 He claims that the BBG (1) retaliated against him for prior protected activity, and (2) discriminated against him based on his race (African American) when it failed to hire him for two positions for which he applied in 2001. See Complaint ¶¶ 7-35 ("Compl."). The matter is now before the Court on the BBG's motion for summary judgment ("Mot."), Mr. Brown's opposition ("Opp."), and the BBG's reply ("Reply"). For the reasons stated below, the Court will grant the BBG's motion for summary judgment, enter judgment for the BBG on all of Mr. Brown's claims, and dismiss the case.
Mr. Brown has worked at the BBG since 1988 and has held a variety of positions during that time. He is currently employed as an Internet News Writer/Editor for the Voice of America, a component of the BBG. See Defendant's Statement of Material Facts Not In Dispute ¶ 2 ("DSMF"). In that position, he "writes and edits articles and other forms of news pieces that are posted on [Voice of America's English-language] website." Mot., Ex. F, Record of Investigation at 5 (Nov. 15, 2002) ("ROI"). "Mr. Brown also operates a side business developing and designing websites for small businesses . . . , and during the latter half of 2001 was in the process of completing a certification in web development and design." ROI at 5.
In 1996, Mr. Brown filed an Equal Employment Opportunity complaint in which he claimed that the component of the BBG for which he worked at the time had discriminated against him on the basis of his race and gender when it denied his request to telecommute. See DSMF ¶ 14; ROI at 5. Ultimately, that EEO complaint was settled and Mr. Brown was permitted to telecommute. See Mot., Ex. A, Affidavit of Cristian Brown at 1 (Oct. 8, 2002) ("First Brown Aff."). None of the officials who made the hiring decisions at issue in this case were named in or implicated by Mr. Brown's 1996 EEO complaint, nor were any of those officials aware of Mr. Brown's 1996 EEO complaint when they made the hiring decisions at issue in this case. See DSMF ¶¶ 15, 16.
In or about June 2001, Mr. Brown applied for the position of Assistant Internet Development Coordinator (Vacancy Announcement No. M/P 01-119), a position within Voice of America's newly created Office of Internet Development ("OID"). See First Brown Aff. at 2.*fn3
OID Director Connie Stephens, OID Internet Design Coordinator Rich Mathews, and OID Internet Development Coordinator Peter Vaselopulos made up the selection panel for this position. Ms. Stephens was the ultimate decisionmaker. See DSMF ¶ 5.
The BBG's Office of Personnel places all qualified candidates for vacant positions on "certificates of eligibility," Mot. at 5 n.1, organized according to the candidates' "grade level, experience, and whether or not they [are] federal employees." ROI at 6. These certificates are then forwarded to selecting officials, who choose which certificates -- that is, which slates of candidates -- they wish to interview. To be clear, BBG policy does not require that selecting officials interview all of the individuals on all of the certificates of eligibility forwarded to them. But "if the selecting official[s] interview one candidate on a certificate, [they] must interview all other candidates on that certificate." Mot. at 7.
At the time he applied for position M/P 01-119, Mr. Brown was employed as a GS-12-level Service Coordinator. On August 12, 2001 -- that is, well after submitting his application -- he was promoted to his current position, which is a GS-13-level position. See Mot., Ex. M, Notification of Personnel Action (Aug. 12, 2001). That promotion made him eligible, it seems, to be placed on a certificate for which he was not eligible before he was promoted: the "Non-Competitive for GS-13 Level" certificate. See Compl. ¶¶ 17, 18; see also Mot. at 13 n.16. Nevertheless, when it subsequently created the certificates of eligibility for position M/P 01-119, the BBG's Office of Personnel did not place Mr. Brown on that certificate. Instead, it placed him on two other certificates: the "Promotion for GS-13 Level" certificate and the "Non-Competitive for GS-12 Level" certificate. See Mot., Ex. E, Certificates of Eligibility for Vacancy Announcement No. M/P 01-119 at 3, 4 (Oct. 1, 2001). Ms. Stephens, Mr. Mathews and Mr. Vaselopulos chose not to interview candidates from the two certificates on which Mr. Brown was listed. Rather, they chose to interview candidates from the "Delegated Competitive Examining Unit for GS-12 Level" certificate and the "Non-Competitive for GS-13 Level" certificate. As a result, Mr. Brown was not interviewed for position M/P 01-119. Interviews for the position took place over the course of two weeks in October 2001. On or about November 13, 2001, the BBG selected Martha Townes, a Caucasian woman whose name appeared on the "Non-Competitive for GS-13 Level" certificate. See DSMF ¶ 8.*fn4
In or about August 2001, Mr. Brown applied for the position of Assistant Internet Design Coordinator (Vacancy Announcement No. M/P 01-151), another position within the OID. See First Brown Aff. at 3. Once again, Ms. Stephens served as the ultimate selecting official and Mr. Mathews and Mr. Vaselopulos rounded out the selection panel. See DSMF ¶ 10.
This time Mr. Brown was listed on one of the certificates from which the selection panel chose to interview: specifically, the "Non-Competitive for GS-13 Level" certificate. See Mot., Ex. O, Certificates of Eligibility for Vacancy Announcement M/P 01-115 at 1 (Jan. 4, 2002). Mr. Brown was interviewed on January 18, 2002, but he was not selected for the position. Rather, it was offered to a non-BBG employee named Susan Kim. Ms. Kim, an Asian American woman, declined the offer. The BBG then offered the position to a Caucasian man named Robert Duckwall, who accepted it. See Mot. at 19-20; see also DSMF ¶¶ 12, 13.
After exhausting his administrative remedies, see Brown v. Tomlinson, 462 F. Supp. 2d 16 (D.D.C. 2006), Mr. Brown filed this lawsuit on June 24, 2003. He argues that the BBG retaliated against him for filing his 1996 EEO complaint, and discriminated against him on the basis of his race, when it failed to select him for positions M/P 01-119 and M/P 01-151. The BBG has moved for summary judgment, arguing (1) that Mr. Brown cannot make out a prima facie case of retaliation (or, in the alternative, that Mr. Brown has conceded his retaliation claim by failing to contest the BBG's arguments for summary judgment on that claim); (2) that the agency has set forth legitimate, non-discriminatory reasons for not selecting Mr. Brown; and (3) that Mr. Brown has failed to identify evidence from which a reasonable jury could conclude that the BBG's asserted reasons for not selecting him are pretexts for discrimination.
Title VII makes it unlawful for an employer to retaliate against an employee for engaging in protected activity such as filing a charge of discrimination. See 42 U.S.C. § 2000e-3(a). Title VII also provides, in pertinent part, that "[a]ll personnel actions affecting employees or applicants for employment . . . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16.
Summary judgment may be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any material fact and that ...