The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Joe Wilson is an accountant with the Federal Highway Administration ("FHWA"). After he was denied a promotion, Mr. Wilson, proceeding pro se, brought suit against the Secretary of Transportation alleging race and age discrimination and retaliation. The Secretary now moves for summary judgment. As explained below, the motion will be granted.
Mr. Wilson has been employed as an accountant with the FHWA since 2003. He started at the grade level GS-9, was promoted to GS-11 in 2005, and was promoted to GS-12 in 2006. He alleges that he is entitled to promotion on a non-competitive basis and that despite being recommended for, and eligible for, promotion since 2006, the Secretary has failed to promote him to grade GS-13. Compl. ¶ 5. Mr. Wilson claims that in December of 2007, he requested a non-competitive promotion to grade GS-13, and he was required to take a "last minute test with no notice covering matters that have never been within [his] job responsibilities." Id. ¶ 53.*fn1
Shortly thereafter, on December 18, 2007, Mr. Wilson contacted an EEO counselor and charged that the Secretary had failed to promote him due to race and age discrimination. Mr. Wilson is an African-American and he was 52 years old in December 2007. Mot. to Dismiss [Dkt. # 6], Ex. 8 (EEO Counselor's Report); id, Ex. 11 (EEO Investigation Report). On January 22, 2008, FHWA sent Mr. Wilson a notice of his right to file a discrimination complaint. Id., Ex. 9 (Notice). On January 30, 2008, Mr. Wilson filed a formal complaint, and the Department of Transportation's Office of Civil Rights ("DOT OCR") accepted Mr. Wilson's complaint for investigation. Id., Ex. 10 (Letter from DOT OCR).
On August 29, 2009, Mr. Wilson again contacted an EEO counselor to file an EEO charge. He alleged that when he requested advanced sick leave, the FHWA retaliated against him due to his prior complaint of discrimination by refusing to grant the advanced sick leave. The FHWA indicated that it would charge him with leave without pay for the advanced sick leave - from August 31, 2009 to September 3, 2009. He also alleged a hostile work environment based on a report from a co-worker, Deera Herron, that she had overheard management making derogatory remarks about him. Id., Ex. 19 (EEO Counselor's Report). On October 2, 2009, Mr. Wilson filed a formal complaint with the DOT OCR based on these two allegations. Id., Ex. 23 (DOT OCR Complaint). DOT OCR dismissed the complaint for failure to state a claim, noting that the allegations did not demonstrate severe or pervasive conduct that actually affected any term or condition of employment. Id. DOT OCR did not comment specifically on the retaliation charge.
On March 24, 2010, Mr. Wilson filed this lawsuit against the Department of Transportation and nine individuals alleging various tort, contract, and discrimination claims. On January 4, 2011, the Court granted a motion for partial dismissal, dismissing all defendants other than the Secretary of Transportation and dismissing all claims other than claims for race discrimination, age discrimination, and retaliation. See Opinion [Dkt. # 22]; Order [Dkt. # 23]. The remaining claims allege: (1) race discrimination based on a December 2007 denial of promotion (Count IV); (2) age discrimination based on the same December 2007 denial of promotion (Count VII); and (3) retaliation based on an alleged decision to charge Mr. Wilson with leave without pay from August 31 to September 3, 2009 (Count V).
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who "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).
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. 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). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. 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).
A. Race Discrimination Generally
Title VII prohibits an employer from discriminating on the basis of race, color, religion, sex, or national origin in hiring decisions, in compensation, terms, and conditions of employment, and in classifying employees in a way that would adversely affect their status as employees. 42 U.S.C. § 2000e-16. To establish a prima facie case of discrimination, a plaintiff must show: 1) that he is a member of a protected class; 2) that he suffered an adverse personnel action; 3) under circumstances giving rise to an inference of discrimination. Royall v. Nat'l Ass'n of Letter Carriers, AFL-CIO, 548 F.3d 137, 144 (D.C. Cir. 2008).
Once a plaintiff establishes a prima facie case, then the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for the employer's action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the defendant meets this burden, then the plaintiff must have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the employer were ...