The opinion of the court was delivered by: James E. Boasberg United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Taft Kelly is a black man who has worked for the Department of Transportation for more than twenty years. He maintains in this suit that, in a series of incidents beginning with a poor performance appraisal in 2006 and culminating in his involuntary transfer in 2009, DOT discriminated against him on the basis of race and retaliated against him for attempting to vindicate his rights. DOT has now filed a Motion for Summary Judgment. Because the Court finds that Kelly has failed to exhaust his administrative remedies with regard to certain claims and that no reasonable jury could find DOT's stated reasons for other actions were pretextual, it will grant the Motion in those parts. As Plaintiff, however, has produced evidence sufficient for a jury to find discrimination or retaliation with respect to his 2008 rating and subsequent involuntary transfer, the Court will deny the Motion as to that claim alone.
At the time of his 2009 transfer, Kelly had been employed as the Division Administrator of the D.C. Division of the Federal Motor Carrier Safety Administration (FMCSA), a distinct administration within DOT, since 2001. See Def.'s Statement of Undisp. Mat. Facts (SUMF) at 1 (citing Mot., Exh. 6 (Pl.'s Dep.) at 29). In that role, Kelly was responsible for managing DOT's enforcement functions within the District, administering federal grants, and supervising the staff assigned to the division. See Def.'s SUMF at 1-7. In 2006, Kelly's former first-line supervisor retired and was replaced by Robert Miller. See Mot., Exh. 7 (Dep. of Rose McMurray) at 9; id., Exh. 8 (Dep. of Robert Miller) at 11. The incidents at issue in this case began shortly thereafter.
June 30, 2006, marked the end of the appraisal period for performance year (PY) 2006.
Pl.'s Decl., ¶ 5; Mot, Exh. D (PY 2006 Performance Appraisal). Because Miller had had little opportunity to work with Kelly - or any other division administrator - during PY 2006, Miller relied on feedback from other employees in evaluating Kelly's performance. See Mot., Exh. 10 (Dep. of Danny Swift) at 85-92; see generally PY 2006 Performance Appraisal. Specifically, Miller met with Danny Swift, who had briefly overseen Kelly's work prior to Miller's appointment, to obtain information regarding Kelly's performance. See Swift Dep. at 7-8, 85-86. Based on criticisms elicited from Swift and on his own analysis of data regarding the productivity of the D.C. Division, Miller gave Kelly only an "Achieved Results" rating for PY 2006. See Miller Dep. at 15-16; PY 2006 Performance Appraisal at 7-9; Swift Dep. at 85-92.
Between October 23 and November 13, 2006, DOT announced that it was seeking to fill the position of Service Center Director for the Eastern Services Center (ESC). See Miller Aff., ¶ 3; id., Attachment A (Announcement No. FMCSA.RC-2007-0002). Seven candidates, including Kelly, applied for the position. Id., ¶ 3; id., Attachment B (Applicant Score Sheet). Miller, who served as the selecting official, reviewed the candidates' application packages and assigned each a numerical rating for writing skills, past work experience, direct program knowledge, and relevance and importance of past achievements. See id., ¶¶ 3-5; Applicant Score Sheet. He gave the highest score to Scott Poyer, a mixed-race male, and ranked Kelly's application third. See Applicant Score Sheet; Mot., Exh. 9 (Dep. of Scot Poyer) at 11.
Following this initial numerical scoring, Miller convened a three-person panel to interview all seven applicants and make a recommendation. Miller Aff., ¶ 4. The panel was comprised of three white individuals who interviewed the candidates using a set of standardized questions and guidelines provided by Miller. See id., ¶ 6; id., Attachment C (ESC Service Center Director Interview Questions); Pl.'s Decl., ¶ 18. Following the interviews, the panel unanimously recommended Poyer to fill the position. See id., ¶ 8; id., Attachment C (Email from Darrell Ruban, Jan. 16, 2007); Applicant Score Sheet; Poyer Dep. at 11-12. Combining Miller's initial scores with the panels', Kelly remained the third best candidate, scoring a total of 65 points compared to Poyer's 85 points. See Miller Aff., ¶ 8; Applicant Score Sheet. Miller subsequently appointed Poyer to the position. See Miller Aff., ¶ 8; id., Attachment D (Memorandum from Rovert Miller, Jan. 19, 2007).
During his mid-year review for PY 2007, Miller informed Kelly that his performance had been only "Minimally Satisfactory" so far that year and provided him with a document detailing specific areas in which he would be expected to improve. See Mot., Exh. G (PY 2007 Performance Appraisal) at 6-14. At the close of the PY 2007 evaluation period, Miller determined that Kelly had failed to demonstrate improvement, and he accordingly received a rating of "Minimally Satisfactory" on his final PY 2007 performance appraisal. See id. at 1. Again, Miller provided Kelly with a detailed explanation of the areas in which his performance had been lacking. Id. at 16-17. In particular, Miller emphasized that Kelly "did not provide sufficient leadership and supervision to . . . staff," had been "non-supportive and/or non-responsive to program issues raised by . . . staff," and did not "accept program guidance and direction without challenge." Id. at 16.
On September 21, 2007, Poyer sent an email to all DAs requesting that they submit proposed annual performance ratings and award recommendations for their staff members. See Mot., Exh. J (Email from Scott Poyer, Sept. 21, 2007). The email emphasized that the proposed ratings were "not to be shared with . . . staff until . . . they become final." Id. (emphasis in original). After Kelly submitted his proposed ratings, which Miller subsequently adjusted downward, he violated this directive by delivering his initial ratings to each of his employees. See Miller Aff., ¶¶ 16, 18; Mot., Exh. L (Performance Appraisals for Dave Price, Bernard McWay, and Ellise Griffin). After discovering this, Miller instructed Kelly to issue the ratings he had approved. Miller Aff., ¶ 18; Pl.'s Decl., ¶ 27. Instead of correcting the ratings, however, Kelly circled, dated, and initialed his original ratings. See Performance Appraisals for Price, McWay, and Griffin; Pl.'s Decl., ¶ 27. Kelly admits to having disregarded Miller's instructions and issuing his initial ratings instead of the amended ones, testifying that he did so because he did not believe the amended ratings were "correct, fair, and equitable." Pl.'s Dep. at 95; see also Pl.'s Decl., ¶ 27.
Following this incident, on December 6, 2007, Miller proposed that Kelly be suspended for failing to follow instructions and improper conduct. Miller Aff., ¶ 18. Miller's supervisor, Daniel Hartman, sustained the charges of failure to follow instructions and imposed a five-day suspension; he declined to sustain the charge of improper conduct. See Mot., Exh. M (Memorandum from Daniel Hartman, Jan. 17, 2008); Miller Aff., ¶ 19. Hartman issued Kelly a five-page letter explaining his decision on January 17, 2008. See Hartman Memorandum, Jan. 17, 2008. Kelly was suspended for five calendar days beginning January 28, 2008. See id.; Pl.'s Decl., ¶ 27.
On September 3, 2008, Miller informed Kelly that, because his performance continued to be unacceptable, he would be placed on a Performance Improvement Plan (PIP) in lieu of receiving an "Unsatisfactory" rating for PY 2008. See Mot., Exh. C (Memorandum from Robert Miller, Sept. 3, 2008). Consistent with the PIP, Kelly's PY 2008 rating period would be extended through December 12, 2008. See id. Kelly was notified that if his performance did not improve by then he could be reassigned, reduced in grade, or terminated. See id. Miller described in great detail the areas in which Kelly's performance remained unsatisfactory and provided specific standards that Kelly would be expected to meet. See id. Miller informed Kelly that Poyer would administer the PIP and would meet regularly with him to evaluate his progress. See id.; Poyer Dep. at 22.
Having met regularly with Kelly during the PIP period, Poyer issued a detailed report on Kelly's performance after the conclusion of Kelly's extended 2008 appraisal period. See Mot., Exh. N (Report of the PIP of Taft Kelly) at 1-2. Poyer suggested that Kelly had not met the performance goals set out in the PIP and had not improved his performance to a satisfactory level. See id. After reviewing this report and discussing it with Poyer, Miller issued Kelly an "Unsatisfactory" rating for PY 2008 and determined that he was unable "to effectively and satisfactorily perform the duties of a Division Administrator." Mot., Exh. O (PY 2008 Performance Appraisal) at 1, 8-11.
Following this appraisal, Miller, along with several of his supervisors, ultimately determined that reassigning Kelly to another office within the DOT would best solve the performance issues that had emerged over the previous years. See McMurray Dep. at 35;
Hartman Dep. at 62-63. On February 6, 2009, Hartman issued Kelly a letter explaining that he had been reassigned to Office of Civil Rights (OCR). See Mot., Exh. P (Directed Reassignment, Feb. 6, 2009).
Kelly first initiated contact with an EEO counselor on October 30, 2006, claiming that Miller was subjecting him to a hostile work environment and that his PY 2006 rating was discriminatory. See Pl.'s Dep. at 42; Mot., Exh. Q (Formal Complaint of Discrimination, Jan. 1, 2007). He filed a formal complaint on January 7, 2007, requesting a hearing before an EEOC administrative law judge. See Formal Complaint of Discrimination, Jan. 1, 2007. He voluntarily withdrew this request, however, and the EEOC action was dismissed on January 13, 2009. See Mot., Exh. R (Order of Dismissal). Kelly again initiated contact with an EEO counselor on February 2009, claiming he had been subjected to discrimination and retaliation when he received the PY 2008 "Unsatisfactory" rating and when he was involuntarily reassigned to the OCR. See Mot., Exh. S (Report of Investigation, No. DOT-2009-22632-FMCSA-02); Pl.'s Dep. at 132, 135. In addition, he claimed he had been subjected to a hostile work environment. See Report of Investigation.
On April 16, 2009, Kelly initiated the instant action. His First Amended Complaint charges DOT with having discriminated against him on the basis of race when it issued his PY 2006 Performance Appraisal and with having both discriminated and retaliated against him when it issued his appraisals for PYs 2007 and 2008, suspended him, declined to promote him, and transferred him involuntarily to another position. See First Am. Compl., ¶¶ 27-28. Defendant - technically, Secretary of DOT Ray LaHood, but referred to throughout simply as "DOT" - has now moved for summary judgment.
Summary judgment may 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); 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 it is capable of affecting the substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at 248. A dispute 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); Liberty Lobby, Inc., 477 U.S. at 248; Holcomb, 433 F.3d at 895. ...