The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This employment discrimination matter is before the Court on defendant's motion to dismiss or, in the alternative, for summary judgment. The plaintiff, Martha Benjamin, brought suit against her employer, the Department of Education ("DOE"), under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., alleging that she was discriminated against on the basis of race (African-American) and gender (female). Ms. Benjamin also alleges that the DOE retaliated against her for engaging in protected activity. After careful consideration of the parties' papers, attached exhibits, and the relevant case law, the Court will grant defendant's motion.*fn2
Plaintiff is an African-American woman. She has worked for the Department of Education since 1995 and has been employed as a GS-13 Financial Management Specialist in the Federal Student Aid ("FSA") office since 1999. See Mot., Defendant's Statement of Material Facts as to Which there is No Genuine Dispute ("Def. Facts") ¶ 1; Opp., Statement of Facts ("Pl. Facts") ¶¶ 1-2. Plaintiff previously participated as an unnamed plaintiff in Grant v. Riley, a class action brought by African-American employees at the headquarters of the DOE who were in the competitive service at grades 11-15 anytime during the period of 1991 to 2000. See Mot., Ex. 3, Deposition of Martha Benjamin at 57-58; Order, Grant v. Riley, Civil Action No. 00-1595, Dkt. No. 4 (D.D.C. July 7, 2000) (preliminarily certifying class pending fairness hearing).
On September 29, 2003, the DOE posted a vacancy announcement for a Management and Program Analyst in the Operational Performance Analysis/Reporting and Intern Review Group for a GS-14 position. See Def. Facts ¶ 7; Pl. Facts ¶ 21. Ms. Benjamin applied for the position. The initial processing of job applications was done by an automated personnel system and computer software called EDHIRES. See Def. Facts ¶ 11; Pl. Facts ¶ 25. The selecting official, Cynthia Reynolds, chose the questions to be used in the EDHIRES system based on the position description and desired qualities of prospective employees. See Def. Facts ¶ 11; Pl. Facts ¶ 24. Through this system, applicants submitted credentials electronically and answered a series of computerized questions. Based on the answers, the EDHIRES system generated a score for each applicant. See Def. Facts ¶ 11; Pl. Facts ¶ 25. Based on their EDHIRES scores nine applicants were identified as qualified, including plaintiff. See Def. Facts ¶ 12; Pl. Facts ¶ 34. Plaintiff received a score of 100, while the applicant who was ultimately selected, Anthony Magro (a white male) received a score of 95.31. See Def. Facts ¶ 12; Pl. Facts ¶¶ 34-35.
Cynthia Reynolds, the selecting official for the vacancy, then interviewed the nine applicants identified as "qualified." See Def. Facts ¶¶ 3, 13; Pl. Facts ¶ 36. Ms. Reynolds asked all nine applicants the same interview questions, although she omitted certain questions during the interview with Mr. Magro, the ultimate selectee, because she had asked him those same questions in an interview conducted the previous day for a different position. See Def. Facts ¶¶ 13-14; Pl. Facts ¶¶ 37-39. Based on the interviews, Ms. Reynolds identified plaintiff, Mr. Magro, and a third applicant, Daniel Pollard (a white male), as the top three candidates for the position. See Def. Facts ¶ 15; Pl. Facts ¶ 41. Ms. Reynolds then spoke with Mr. Magro's supervisor and a former supervisor of plaintiff's before making her decision. See Def. Facts ¶ 5; Pl. Facts ¶¶ 42-43. Ms. Reynolds then chose Mr. Magro for the vacancy. Ms. Reynolds was plaintiff's first line supervisor at the time of the selection. See Def. Facts ¶ 3; Pl. Facts ¶ 51.
In February 2004, plaintiff contacted her second line supervisor, John Fare, to discuss her non-selection and other workplace issues. See Def. Facts ¶ 24; Pl. Facts ¶ 72. Thereafter, for the appraisal period of May 1, 2003 to April 30, 2004, Ms. Reynolds rated plaintiff as "successful" for all categories, the middle score of five possible levels of performance. See Def. Facts ¶ 25; Mot., Ex. 13, Performance Appraisal at 1-2.
On January 7, 2008, plaintiff filed suit in this Court.*fn3 She asserts four claims against the defendant: Count One alleges denial of promotion based on race and color; Count Two alleges denial of promotion based on gender; Counts Three and Four allege retaliation for plaintiff's prior protected activity.*fn4
II. STANDARD OF REVIEW*fn5
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. When a motion for summary judgment is under consideration, "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 Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment, 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. 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; see Scott v. Harris, 550 U.S. at 380 ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.'") (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To defeat a motion for summary judgment, a plaintiff must have more than "a scintilla of evidence to support [her] claims." Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 845 (D.C. Cir. 2001).
A. Plaintiff's Claims of Discrimination on the Basis ...