United States District Court, D. Columbia
Andrew Mamantov, Plaintiff: Robert C. Farley, Jr., LEAD
ATTORNEY, LAW OFFICE OF ROBERT C. FARLEY, Washington, DC USA.
Gina Mccarthy, Administrator, United States Environmental
Protection Agency, Defendant: John Cuong Truong, LEAD
ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF
COLUMBIA, Washington, DC USA.
B. WALTON, United States District Judge.
plaintiff claims that he was denied an upgraded position with
the Environmental Protection Agency due to his age and sex in
violation of the Age Discrimination in Employment Act of 1967
(" ADEA" ), 29 U.S.C. § 623 (2006), and Title
VII of the Civil Rights Act of 1964 (" Title VII"
), 42 U.S.C. § 2000e-16 (2006). Amended Complaint
(" Am. Compl." ), ECF No. 13 ¶ ¶ 57-59,
67-69. The plaintiff also claims that the defendant
retaliated against him by refusing to select him for the
upgraded position and by reassigning a work function from him
to another employee after he lodged two discrimination
complaints, in violation of Title VII, 42 U.S.C. §
2000e-3. Am. Compl. ¶ ¶ 60-66, 70-73. Currently
pending before the Court is the defendant's Motion for
Summary Judgment, ECF No. 36. Upon consideration of the
parties' submissions, the Court concludes that the
defendant's motion must be granted in its
The Plaintiff's Non-Selection for the GS-14
following facts are undisputed except where otherwise noted
by the Court. The plaintiff, a male employee of the
Environmental Protection Agency (" EPA" ), who was
sixty-seven years old when he initiated this suit in 2012,
was at all relevant times a GS-13 chemist in the EPA's
Exposure Assessment Branch (" EAB" ). Def.'s
Facts ¶ ¶ 1, 2; Pl.'s Facts ¶ ¶ 1, 2.
The EAB is comprised of two subgroups of employees: (1)
exposure assessors, and (2) fate and transport assessors, and
employees of the EAB are either fate assessors or exposure
assessors. Def.'s Facts ¶ ¶ 4, 5; Pl.'s
Facts ¶ ¶ 4, 5. " Exposure assessment is 
concerned with sources of chemicals[,] chemical releases into
the environment[,] and, with respect to human exposure, how
and how often people come into contact with particular
chemicals." Def.'s Facts ¶ 23; Pl.'s Facts
¶ 23. In contrast, " [a]nalysis of the degradation
of chemicals in waterways, for example, is fate assessment,
which feeds or is a component of the broader exposure
assessment modeling." Def.'s Facts ¶ 24;
Pl.'s ¶ Facts 24. The plaintiff is a fate assessor
whose " primary duties and responsibilities are to
chemicals, new and existing, for abiotic fate," not an
exposure assessor. Def.'s Facts ¶ ¶ 15, 16, 18;
Pl.'s Facts ¶ ¶ 15, 16, 18. And, the
plaintiff's EAB colleagues " regard him as a fate
assessor, not an exposure assessor." Def.'s Facts
¶ 17; Pl.'s Facts ¶ 17. The plaintiff also
served as a " work assignment manager," which
involved " coordinating, tracking, and assigning
chemicals for contractors to review." Pl.'s Facts
plaintiff's first-line supervisor since 1997 has been
Mary C. Fehrenbacher. Def.'s Facts ¶ 3; Pl.'s
Facts ¶ 3. Around September 2009, Fehrenbacher informed
her staff at a branch meeting that she had authority to hire
a GS-14 exposure assessor, Def.'s Facts ¶ 10;
Pl.'s Facts ¶ 10, and on September 14, 2009, she
emailed the EAB staff to inform them of the open GS-14
position, Def.'s Facts ¶ 12 & Def. Ex. 11; Pl.'s
Facts ¶ 12. The email's subject line read "
Heads' Up -- GS-14 Exposure Assessor announcement,"
and the body of the email stated that the " GS-14
Exposure Assessor announcement should be posted soon on
USAJOBS." Def.'s Facts ¶ 12 & Def. Ex. 11;
Pl.'s Facts ¶ 12. Then, in September 2009, the EPA
issued a job announcement, identified as number
RTP-MP-2009-0597, to fill a GS-14-level position titled
" Interdisciplinary Environmental Engineer/Physical
Scientist." Def.'s Facts ¶ 8 & Def. Ex. 8;
Pl.'s Facts ¶ 8. Fehrenbacher was the selecting
official for this GS-14 position. Def.'s Facts ¶ 14;
Pl.'s Facts ¶ 14.
plaintiff applied for the GS-14 position, and based on his
application, including his answers to the application
questionnaire, he was " certified" (i.e., referred)
to Fehrenbacher for consideration. Def.'s Facts ¶
¶ 25, 26; Pl.'s Facts ¶ ¶ 25, 26. The only
other employee whose application was referred to Fehrenbacher
for consideration was Christina Cinalli. Def.'s Facts
¶ ¶ 27, 28; Pl.'s Facts ¶ ¶ 28, 29.
Cinalli, who is younger than the plaintiff, began her career
with the EPA in 1987 as an exposure assessor. Def.'s
Facts ¶ 21; Pl.'s Facts ¶ 21. At the time of
her application, Cinalli was an EAB exposure assessor, and
she is regarded as an exposure assessor by her EAB
colleagues. Def.'s Facts ¶ ¶ 19, 20; Pl.'s
Facts ¶ ¶ 19, 20. Using a weights and screenouts
report, the plaintiff's application was assigned a score
of 92.02, while Cinalli's application received a score of
94.5. Pl. Ex. 16 (Anthony Dep.) at 36:4-20.
Fehrenbacher selected Cinalli for the GS-14 position in
November 2009. Def.'s Facts ¶ 29; Pl.'s Facts
plaintiff " dispute[s] any insinuation that the duties
and responsibilities of [the two EAB employee subgroups,
i.e., exposure assessors and fate assessors] do not overlap,
or that a fate assessor will not also conduct exposure
assessments." Pl.'s Facts ¶ 5 (further stating
that " [b]oth subgroups are required to make a complete
Exposure Assessment, hence the name Exposure Assessment
Branch" ) (internal quotation marks and citations
omitted); see also Pl.'s Facts ¶ 22 (" Both
fate and exposure assessment involve chemistry, and so while
maybe different, they are not 'very different.'"
). The plaintiff contends that the job announcement for the
GS-14 position " was for someone with experience both in
exposure assessment and fate and transport assessment."
Pl.'s Facts ¶ ¶ 4-6. The plaintiff therefore
disputes that the GS-14 position " was solely for an
[e]xposure [a]ssessor." Pl.'s Facts ¶ 9; see
Pl.'s Facts ¶ 11 (stating that the job analysis was
written to indicate that the position was for persons
experienced with fate assessment"
and that " a version of the Weights and Screenouts also
indicated that fate assessment was a major duty of the
position" ) (citing Pl. Exs. 5 & 6)). The plaintiff does
not dispute that he is identified as a fate assessor in the
EAB. Def.'s Facts ¶ ¶ 15, 16, 18; Pl.'s
Facts ¶ ¶ 15, 16, 18. Nonetheless, he represents
that he also has " some exposure assessment"
experience as a result of having conducted " thousands
of exposure assessments," Pl.'s Facts ¶ ¶
4, 5, and by virtue of serving as a " FOCUS group
representative and back-up FOCUS group representative,"
" an interdisciplinary group of scientists" that
" review the hazards, chemistry, exposures assessment[,]
and engineering[,] and [who] make some preliminary decisions
about new chemicals" at meetings to which " the EAB
sends exposure assessors," Pl.'s Facts ¶ 15
(internal quotation marks and citation omitted).
The Plaintiff's Retaliation Allegations
2006, three years before the vacancy at issue here was
announced, the plaintiff " formally requested that the
Human Resources Office conduct a desk audit, because of his
belief that his position warranted upgrading." Pl. Ex.
13 at Mamantov--000279. Classification specialists who
conducted the desk audit " determined that [the
plaintiff's] position supports the classification of
Chemist, GS-1320-14" and that the plaintiff's
supervisor had been notified of this determination.
Id. at Mamantov--000268. At some time around
November 2006, Fehrenbacher, who did not provide input for
the July 2006 desk audit, asked for a meeting to address her
concern " that in the absence of her input as [the
plaintiff's] immediate supervisor regarding his work
assignments, the desk audit findings could not be accurate,
because the findings are based only on information obtained
from the incumbent." Pl. Ex. 14 at Mamantov--000113.
Fehrenbacher then " submitted a detailed package
regarding her views and assessments of [the plaintiff's]
work assignments and products." Id. at
Mamantov--000114. Thereafter, upon further review, the
EPA's human resources office found " no supporting
information for changing [its] initial evaluation that [the
plaintiff's] position supports classification at the
GS-14 grade level." Id. In March 2007, the
acting director of the " Headquarter Operations
Division" reviewed the desk audit's results and
stated in a memorandum to Fehrenbacher that she was " in
concurrence with the preliminary and final findings submitted
by the classifiers that determine that [the plaintiff was]
performing work supportable at the GS--14 level.
Specifically, the work he conduct[ed] developing fate
assessments [was] characteristic of the GS--14 level."
Pl. Ex. 15 at EPA0000469. However, the plaintiff's
position was never upgraded. See Pl.'s Opp'n at 5. In
July 2009, more two years after the desk audit was completed,
the plaintiff " filed an administrative complaint of
discrimination with the [EPA's Equal Employment
Opportunity] office regarding the failure to implement the
classification specialists' recommendations" (the
" July 2009 EEO complaint" ). Pl.'s Opp'n
support for his retaliation claim, the plaintiff provides
" a version of [a weights and screenouts
questionnaire]" for the GS-14 position, which asked
applicants to " [c]hoose the response which best
describes your training and experience in applying models of
the environmental fate and transport of pesticides or other
environmental contaminants." Pl. Ex. 6 at 5. The
plaintiff provides another version of a weights and
screenouts questionnaire, " signed and dated . . .
[August 31, 2009, in which] the question regarding experience
with environmental fate and transport is no longer included,
and the numerical value assigned to questions regarding
assessment were doubled." Pl.'s Opp'n at 6 & Pl.
Ex. 8. According to the plaintiff, " [t]his occurred
just one month after" he filed his July 2009 EEO
complaint. Pl.'s Opp'n at 6-7. The defendant disputes
the plaintiff's characterization of the two versions of
the weights and screenouts questionnaire, noting that
plaintiff's Exhibit 6 is an " undated and unsigned
draft" of the weights and screenouts questionnaire, and
representing that any changes between the two versions of the
questionnaire reflected Fehrenbacher's intention to hire
an exposure assessor. See Def.'s Reply at 12 (citing Def.
Ex. 1 (Fehrenbacher Dep.) at 94:11-97:8) (testimony regarding
the job announcement for the GS-14 position)). The plaintiff
subsequently applied for and was denied the GS-14 position.
See supra Part I.A.
plaintiff filed a second administrative complaint in February
2010 after he was not selected for the GS-14 position (the
" February 2010 EEO complaint" ). Pl.'s
Opp'n at 18. The defendant states that in March 2010,
Fehrenbacher assigned an " administrative tracking
task" that had been performed by the plaintiff to
another employee. Def.'s Facts ¶ 30. According to
the defendant, this was an " administerial [sic] task
that did not require any technical knowledge or
expertise," and that the reassignment of this task did
not affect the plaintiff's core duties and
responsibilities. Id. ¶ ¶ 31-32, 34. The
plaintiff, on the other hand, describes the task as "
assigning  contactor's reports [of chemicals]" to
" other assessors within the [EAB] to review the
contractors' work," which required " technical
knowledge of the chemicals that were reviewed as well as
knowledge of the assessors' experience with the various
chemicals." Pl.'s Facts ¶ ¶ 30-32. Thus,
" if a chemical came across [the plaintiff's] desk
for review and a certain assessor had previous experience
with the chemical, [the plaintiff] would use his knowledge
and judgment to adjust the assignment process and assign the
chemical to the experienced assessor." Id. The
plaintiff adds that he was relieved of this task and it was
reassigned to the EAB's associate chief, who was a female
GS-14-level employee, and later to a younger, male,
GS-15-level employee. Id. ¶ 34. The parties
agree that the task required only fifteen to thirty minutes
quarterly, and that the reassignment did not affect the
plaintiff's grade, salary, or benefits as a GS-13
employee. Def.'s Facts ¶ ¶ 33, 35; Pl.'s
Facts ¶ ¶ 33, 35.
STANDARD OF REVIEW
motion for summary judgment, Federal Rule of Civil Procedure
56 requires the Court to find 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).
Summary judgment must be granted against a party " who
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,
323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A material fact
is one that " might affect the outcome of the suit under
the governing law." Anderson v. Liberty Lobby,477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
And, " a dispute is 'genuine' if 'the
evidence is such that a reasonable jury could ...