The opinion of the court was delivered by: James E. Boasberg United States District Judge
Pro se Plaintiff Sheila Parker-Darby is a black woman over the age of forty who was employed by Defendant Department of Homeland Security's Federal Emergency Management Agency. After the expiry and non-renewal of her term appointment, Plaintiff filed this suit claiming Defendant had discriminated against her because of her race and age. DHS has now filed a Motion for Summary Judgment. Because no reasonable jury could find that Defendant's asserted legitimate, nondiscriminatory reason for her non-renewal was pretextual, the Court will grant the Motion.
Plaintiff was employed as a GS-12 and GS-13 Grants Management Specialist in FEMA's Grants Management Division (GMD) between May 5, 2002, and February 19, 2009. See Def.'s Stat. Undis. Mat. Facts (SUMF), ¶¶ 2-5, 9. In February 2005, Plaintiff received a four-year term appointment with a "Not to Exceed" (NTE) date of February 19, 2009. See id., ¶ 4. After passage of the Post-Katrina Emergency Reform Act of 2006 (PKEMRA), FEMA took responsibility for many DHS preparedness-grants programs. See id., ¶ 10. In 2008, GMD management began notifying employees of this situation, explaining that it would be unable to convert term employees to permanent full-time (PFT) positions without their going through the competitive hiring process, and that it would be unable to renew expiring terms of term-appointed employees. See id., ¶¶ 11-13. In January 2009, Defendant gave Plaintiff notice that her term appointment would expire on February 19, 2009, and advised her that she could apply for competitive PFT positions if she wished. See id., ¶¶ 14-15. On February 19, 2009, Plaintiff's term appointment indeed did expire and she was released. See id., ¶¶ 16-17.
In late February 2009, after Plaintiff's release, GMD management received additional direction from FEMA Human Resources, specifying that term-appointed employees whose positions were expiring could be transferred to other term positions in order to fill the remainder of terms that had been vacated prior to term expiration. See id., ¶ 18. Subsequent to Plaintiff's release and pursuant to FEMA's amended directives, two term-appointed employees whose terms were expiring gained additional employment without going through the competitive hiring process. See id., ¶ 19; Reply, Exh. 2 (Notif. Personnel Action, Ext. Appt. NTE 09/30/10, Stevens) at 1; Opp. at 7. First, in April 2009, Grants Management Specialist Lawrence White's term appointment expired. See SUMF, ¶ 19. Upon his release, White -- a black man under the age of forty -- was selected to fill the remainder of a vacant term position in a different branch. See id. Second, in February 2010, Webb Stevens -- a white man over forty who was nearing retirement -- was granted a seven-month extension, after which time he retired. See Ext. Appt. NTE 09/30/10, Stevens at 1; Reply, Exh. 3 (Notif. Personnel Action, Retirement Voluntary, Stevens) at 1.*fn1 In addition, another term employee, Jane Early, and a regular employee, Sherry Wilder (both white women over 40), applied for and received PFT positions through the competitive application process. See Reply, Exh. 1 (Notif. Personnel Action, Early) at 1 (citing Selection From AN-09-CRS-0415050) ; Exh. 3 (Notif. Personnel Action, Wilder) at 2 (citing Selection From AN-09-CRS-0411580).
Plaintiff filed the instant Complaint on November 22, 2011, claiming that she had been discriminated against on the bases of her race and age. On March 5, 2012, Defendant filed the dispositive Motion that the Court now addresses.
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. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1)(A).
The party seeking summary judgment "bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). When a motion for summary judgment is under consideration, "the evidence of the non-movant[s] is to be believed, and all justifiable inferences are to be drawn in his favor." Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). 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). The non-movant is required to provide evidence that would permit a reasonable jury to find in its 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. Liberty Lobby, Inc., 477 U.S. at 249-50.
Plaintiff contends that Defendant's non-renewal of her term appointment violated the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA). Title VII makes it unlawful for an employer, including a government agency, "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. §§ 2000e-2(a), -16; see also Holcomb, 433 F.3d at 895. Similarly, the ADEA makes it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C § 623(a)(1). Individuals forty years of age and older are included in the protected class. Id. § 631(a).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court established the familiar three-step "burden-shifting approach to employment discrimination claims in cases where the plaintiff lacks direct evidence of discrimination." Chappell-Johnson v. Powell, 440 F.3d 484, 487 (D.C. Cir. 2006). "[W]here an employee has suffered an adverse employment action and an employer has asserted a legitimate, nondiscriminatory reason" for its employment decision, however, the Court need ...