The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Greta Faison, sixty-one years of age, complains that the District of Columbia twice discriminated against her on the basis of her age in violation of the D.C. Human Rights Act ("DCHRA"), D.C. Code § 2-1401 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., when it failed to promote her in January and September of 2005 and awarded the positions to younger women. Ms. Faison's claims under the DCHRA will be dismissed due to her failure to provide notice to the Mayor of the District of Columbia within six months of the alleged discrimination as required by D.C. Code § 12-309. Ms. Faison's claim that her non-selection for a promotion in January 2005 violated the ADEA also will be dismissed because she failed to timely file an EEOC charge. However, the Court finds that Ms. Faison timely filed an EEOC charge with respect to her claim of non-selection in September 2005 and, furthermore, that she has presented sufficient evidence for a jury to find that the District's reasons for her non-selection were a pretext for discrimination. Therefore, for reasons set forth below, Ms. Faison may proceed with her claim of discriminatory non-selection in September 2005.
Ms. Faison is employed as a Child Support Enforcement Specialist at the DS-11 level in the Child Support Services Division ("CSSD") of the D.C. Office of Attorney General. Am. Compl. [Dkt. # 23] ¶ 5. She has held this position since November 1999. Id. She completed college in 1970 and has completed many graduate level courses. Id. Her position was in the Customer Service Unit. See id. ¶ 8.
On December 28, 2004, Ms. Faison applied for two DS-12 level positions in the CSSD: a Supervisory Management Analyst (Intake), CB-05-59, and a Supervisory Management Analyst (Customer Service Unit), CB-05-60. Id. ¶ 6. Roscoe Grant, Jr., the former Deputy Director of Operations of the Division, had written a letter recommending her for a supervisory position, due in part to her "Outstanding" evaluations and service. See Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") [Dkt. # 29] at 3. On January 4, 2005, Ms. Faison was told that she was not selected for either position because she had no directly-related experience and she did not have experience working in the units where the positions were located. Am. Compl. ¶ 7. The Supervisory Management Analyst (Intake) position was awarded to Renee Worley, a woman in her twenties, who did not have a college degree. Id.
Ms. Faison filed a protest with the CSSD concerning her exclusion from the Supervisory Management Analyst (Customer Service Unit), CB-06-60, because she was working in that very unit and had experience in it. Id. ¶ 8. The vacancy announcement was thereafter cancelled and the position continued to be occupied, on the basis of a temporary detail, by Rocelia Johnson. Id. ¶ 6. Ms. Johnson, who was thirty-seven, had been detailed non-competitively to the position in August 2004. Id.
The Supervisory Management Analyst (Customer Service Unit) position was re-posted in June 2005 under Vacancy Number 1312. Id. ¶ 10. Both Ms. Faison and Ms. Johnson applied. Id. ¶¶ 11, 12. Each was interviewed by a panel that made a recommendation to the final selecting official. See Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem.") [Dkt. # 27] at 2-3. The panel was composed of Glenna Ellis, Joseph Allen, and Michael Hailey. Ms. Ellis and Mr. Allen work directly for Benidia Rice, the Division Director. Pl.'s Opp'n. at 5. The panel recommended that Ms. Johnson be awarded the position, based in significant part on her year's experience in the job and her superior answers to their questions. See Def.'s Mem. at 9-10; Pl.'s Opp'n at 19-20. Ms. Rice adopted the recommendation and awarded the position to Ms. Johnson in September 2005. Am. Compl. ¶ 12.
Ms. Faison filed a Charge of Discrimination with the Equal Employment Opportunity Commission on December 5, 2005, which was cross-filed with the D.C. Office of Human Rights. She complained of discrimination based on her age, in violation of the ADEA and the DCHRA. The EEOC issued a Right to Sue letter on May 9, 2007, and Ms. Faison filed this suit on August 10, 2007. She seeks a promotion, backpay, compensatory damages, litigation expenses and reasonable attorney fees. At the end of discovery, the District filed a Motion for Judgment on the Pleadings and/or Motion for Summary Judgment [Dkt. # 27] which is now ripe for resolution.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56 (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). Moreover, summary judgment is properly granted against a party that "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson, 477 U.S. at 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
Pursuant to the ADEA, it is illegal for an employer to terminate, fail to hire or promote, or otherwise discriminate against any individual "because of" such individual's age. 29 U.S.C. § 623. The Supreme Court recently held that "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action." Gross v. FBL Fin. Servs., 129 S.Ct. 2343, 2352 (2009). "Unlike Title VII, the ADEA's text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor." Id. at 2349. An individual who wishes to challenge an employment practice under the ADEA must first file a charge with the EEOC. 29 U.S.C. § 626(d)(1). In the District of Columbia, where there is a local anti-discrimination agency, this charge must be filed within 300 days of the occurrence of the allegedly unlawful practice. See id. If the employee does not timely file an EEOC charge, she may not challenge the allegedly discriminatory employment practice in court. See Washington v. Wash. Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C. Cir. 1998).
The DCHRA makes it unlawful for an employer to discharge or refuse to hire an individual "wholly or partially for a discriminatory reason based upon the actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation of any individual." D.C. Code § 2-1402.11(a)(1). An individual who wishes to challenge an employment practice under the DCHRA must file a charge with the D.C. Office of Human Rights within one year after the occurrence of the discriminatory practice. Id. § 2-1403.04(a).
This Circuit applies the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to cases brought pursuant to the ADEA and DCHRA. See Paquin v. Fannie Mae, 119 F.3d 23, 26, 26 n.1 (D.C. Cir. 1997); Mianegaz v. Hyatt Corp., 319 F. Supp. 2d 13, 20 (D.D.C. ...