The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on defendant's motion for summary judgment ("Mot."), plaintiff's opposition thereto ("Opp."), and defendant's reply ("Reply"). Plaintiff, Ada Gonzales, brought suit against her employer, the United States Department of Justice, alleging retaliation for engaging in protected activity in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. Ms. Gonzales alleges that DOJ retaliated against her when it failed to select her for promotion. DOJ maintains that it is entitled to summary judgment on this claim because it has asserted legitimate, non-retaliatory reasons for not selecting Ms. Gonzales, and because Ms. Gonzales has failed to produce evidence that these reasons are a pretext for retaliation. Upon consideration of the motion, plaintiff's opposition, defendant's reply, and the entire record in the case, the Court grants defendant's motion for summary judgment.
Plaintiff Ada Gonzales, a Hispanic female, has worked in the DOJ Office of Justice Programs ("OJP") since June 1995. See Opp. at 1. Starting as a financial analyst at the GS-12 level, Ms. Gonzales was promoted to a GS-13 position and then a GS-14 position with increasing supervisory responsibilities. Id. In March 2000, Ms. Gonzales was named a branch manager in the Training and Policy Division ("TPD") of OJP's Office of the Comptroller. Defendant's Statement of Material Facts Not in Dispute ("Def.'s Statement") ¶ 1.
On February 27, 2002, while still a branch manager in TPD, Ms. Gonzales contacted her employer's Equal Employment Opportunity Office, alleging that her direct supervisor, then-TPD director Travis McCrory, had discriminated against her and subjected her to a hostile work environment because of her national origin, gender and age in violation of federal law. See Def.'s Statement ¶ 3; Opp., Ex. 11 at 2-3. The director of the Office of the Comptroller, Cynthia Schwimer, became aware of Ms. Gonzales' EEO complaint on April 16, 2002, when she was copied on an email notifying Mr. McCrory of Ms. Gonzales' EEO activity. Def.'s Statement ¶ 4. Ms. Gonzales filed a formal complaint against Mr. McCrory with the EEO Office in June 2002. See Opp., Ex. 11 at 2.
On June 4, 2002, OJP's Office of Personnel announced an opening for the TPD director position, which became vacant when Mr. McCrory accepted a position in another federal agency. Def.'s Statement ¶¶ 6-7. Ms. Schwimer was the selecting official for the position, for which Ms. Gonzales submitted a timely application. Id. ¶¶ 11-12.
Ms. Schwimer received a promotion candidate list that identified four eligible GS-14 OJP employees who were qualified for the position, including Ms. Gonzales and the candidate eventually selected for the promotion, Joanna Suttington, an African American female. Def.'s Statement ¶ 13. At that time, Ms. Suttington was a GS-14 manager of the Financial Services Branch of the Financial Management Division in OJP. See Mot., Ex. 11 at 4. Ms. Schwimer "had known each of the four candidates professionally for at least ten years." See Def.'s Statement ¶ 14. In July 2002, Ms. Schwimer officially selected Ms. Suttington for the open position. Id. ¶ 15. Ms. Gonzales subsequently amended her pending EEO complaint to include a claim of retaliation by Ms. Schwimer. See Mot. at 2.
Ms. Gonzales' discrimination and retaliation claims against the DOJ were considered by an Administrative Judge for the Equal Employment Opportunity Commission in 2005. The Administrative Judge granted DOJ's motion for judgment without a hearing on Ms. Gonzales's discrimination and hostile work environment claims and, after a hearing, ruled in favor of DOJ on her retaliation claim. Mot. at 2. The DOJ Complaints Adjudication Office issued a final agency decision on July 6, 2005, affirming the decision in favor of DOJ, and the EEOC Office of Federal Operations affirmed that decision again on Ms. Gonzales' further appeal. Id. On April 13, 2007, Ms. Gonzales filed a complaint in this Court, alleging that DOJ had deprived her of the promotion to TPD director in retaliation for her contact with the EEO Office.
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 the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). "A fact is 'material' if a dispute over it might affect the outcome of a suit under the governing law; factual disputes that are 'irrelevant or unnecessary' do not affect the summary judgment determination." Holcomb v. Powell, 433 F.3d at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb v. Powell, 433 F.3d at 895.
On a motion for summary judgment, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006). In considering such a motion, the Court must "eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. See FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). She is required to provide evidence that would permit a reasonable jury to find in her favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50. To defeat a motion for summary judgment, a plaintiff must have more than "a scintilla of evidence to support [her] claims." Freedman v. MCI Telecomms. Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).
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).*fn2 Absent direct evidence that an employment-related decision was retaliatory, a retaliation claim must be analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009). To establish a prima facie case of retaliation under that framework, the plaintiff must first show "(1) that [she] engaged in statutorily protected activity; (2) that [she] suffered a materially adverse action by [her] employer; and (3) that a causal link connects the two." Jones v. Bernanke, 557 F.3d at 677; see also Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006). "Such a showing raises a rebuttable presumption of unlawful [retaliation] and shifts to the defendant the burden to rebut the presumption by asserting a legitimate, non-discriminatory [or non-retaliatory] reason for its actions." Smith v. District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005) (citation and internal quotation marks omitted). Once the defendant has done so, the burden-shifting framework "disappears," and the Court "must decide whether a reasonable jury could infer" illegal retaliation from all available evidence, whether related to the prima facie showing, plaintiff's attempts to show that the defendant's proffered reason is pretextual, or other aspects of the case. Murray v. Gilmore, 406 F.3d 708, 713 (D.C. Cir. 2005) (citing Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (D.C. Cir. 2002)); see also Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 493-94 (D.C. Cir. 2008).
Once an employer has asserted a legitimate, non-retaliatory reason for the adverse action taken against the plaintiff, the Court "need not - and should not - decide whether the plaintiff has actually made out a prima facie case" under the burden-shifting framework described above. Brady v. Office of Sergeant at Arms, 520 F.3d at 494. The Court must instead "proceed to the question of retaliation vel non." Taylor v. Solis, 571 F.3d 1313, 1320 n.4 (D.C. Cir. 2009). In resolving that question on summary judgment, the Court may find for a defendant if the plaintiff has failed either (1) to rebut the legitimate, non-retaliatory reason offered by the employer for the employment action at issue, or (2) to adduce evidence supporting a necessary element of her case, such as her employer's commission of a materially adverse act against her. Id. "[T]he district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to ...