Townsend v. United States

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE.

         This four-year-old age-discrimination case concerns a job reassignment that lasted four days and did not take full effect until just hours before the plaintiff, Mark William Townsend, was escorted from the building and ultimately terminated due to his role in a multi-year time-and-attendance fraud against his former employer, the United States Environmental Protection Agency (“EPA”). The plaintiff initiated this action against the EPA, the United States Department of Justice (“DOJ”), and the United States of America (collectively, the “agency defendants”), and ten current and former employees of the EPA and DOJ (collectively, the “individual defendants”). After twenty of the twenty-one counts in a 174-paragraph complaint against the agency defendants were dismissed for failure to state a claim on which relief could be granted, see Townsend v. United States (“Townsend I”), 236 F.Supp.3d 280, 326 (D.D.C. 2017), the plaintiff was granted partial leave to amend his complaint, see Townsend v. United States (“Townsend II”), 282 F.Supp.3d 118, 133 (D.D.C. 2017), leaving, after the opportunity of more than one year of discovery, two claims at issue. In Count I of his Second Amended Complaint (“SAC”), ECF No. 66, the plaintiff alleges that he was constructively demoted due to disparate treatment age discrimination and, in Count II, he alleges a “pattern or practice” of age-based disparate treatment, both in violation of the federal Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. See SAC ¶¶ 48-75.

         Count I is predicated on the plaintiff's allegation that his “putative supervisor, ” Dr. Tala Henry, “illegally pressured the plaintiff [to accept a new position] by telling him to ‘step aside' . . . in order to make room for ‘younger' employees.” Townsend I, 236 F.Supp.3d at 300 (some internal quotation marks and citations omitted).^[1] Count II is predicated on allegations naming three individuals whom the plaintiff alleges were subject to age discrimination as part of the same reorganization leading to the plaintiff's reassignment. See Townsend II, 282 F.Supp.3d at 128. Although the plaintiff's evidence on this claim was deemed “thin, ” id., his “new allegations about older employees [were] sufficient to nudge [his] claim into the realm of the plausible by alleging ‘something more than an isolated, sporadic incident, '” id. (quoting Int'l Bhd. of Teamsters v. United States (“Teamsters”), 431 U.S. 324, 336 n.16 (1977)).

         The defendants now seek summary judgment, under Federal Rule of Civil Procedure 56(a), see Defs.' Mot. Summ. J. (“Defs.' MSJ”), ECF No. 73, contending that, as to Count I, the plaintiff neither suffered an adverse employment action nor can show that age was a factor in his reassignment, and as to Count II, the plaintiff has not demonstrated that age discrimination was EPA's “standard operating procedure, ” id., Ex. 1, Defs.' Mem. Supp. Mot. Summ. J. (“Defs.' Mem.”) at 2, ECF No. 73-1.^[2] For the reasons explained below, the defendants' motion is granted.

         I. BACKGROUND

         The plaintiff is a Caucasian male who began working at the EPA in 1980 and was over the age of 40 when the internal EPA reorganization prompting this suit transpired. Defs.' MSJ, Ex. 2, Defs.' Statement of Material Facts (“Defs.' SMF”) ¶ 1, ECF No. 73-2; id., Ex. 7, Dep. of Mark Townsend (“Pl.'s Dep.”) at 44, ECF No. 73-7.^[3] During his time at the EPA, the plaintiff “shuffled” among divisions as the agency periodically reorganized and consequently he worked in various positions with responsibility for a number of office-wide duties. Pl.'s Dep. at 10-38, ECF No. 73-7 (plaintiff agreeing “[i]t was not unusual to see reorganizations across EPA” and expressing the view that “all [reorganizations] are is a shuffling, all they are is a political game, the shuffling. The staff, once again, do[es] exact[ly] the same work, their assignments do not change. . . . [t]he roles and responsibilities for the people on the teams don't change”); see also Defs.' Mem. at 1 (“As with many federal agencies over the years, EPA's internal structure has changed several times through reorganization of its offices.”).^[4] From December 2005 until the alleged adverse employment action on July 27, 2014, the plaintiff served as Supervisory Biologist (Branch Chief), a GS-15 position, in the High Production Volume Chemicals Branch (“HPVCB”) of the Risk Assessment Division (“RAD”) of the EPA's Office of Pollution Prevention and Toxics. Defs.' SMF ¶¶ 2, 4; Pl.'s Dep. at 20, ECF No. 73-7. The plaintiff describes this position as “mid-level management.” Pl.'s Dep. at 20, ECF NO. 73-7.

         A. Reorganization Begins in 2013 and Eventually Dissolves Plaintiff's Branch

         Starting in 2013, the EPA's Office of Pollution Prevention and Toxics (“OPPT”), of which the plaintiff's Branch and Division were a part, began the process of reorganizing. Defs.' SMF ¶ 4; Defs.' MSJ, Ex. 3, Decl. of Tala Henry (“Henry Decl.”) ¶¶ 4-13, ECF No. 73-3. During March and April 2013-while the plaintiff was already under investigation for time-and-attendance fraud, see Townsend I, 236 F.Supp.3d at 291-93-he discussed with his supervisor, Dr. Jeffery Morris, then the acting Director of the RAD, the plaintiff's vision for the reorganization. Defs.' SMF ¶ 3; Defs.' Mem. at 3; Defs.' MSJ, Ex. 5, Decl. of Jeffery T. Morris (“Morris Decl.”) ¶¶ 2-4, ECF No. 73-5. In a March 27, 2013 meeting, Dr. Morris claims that the plaintiff proposed that his branch, the HPVCB, “be dissolved and subsumed into other RAD branches, ” and that the plaintiff “be reassigned from Branch Chief to a RAD immediate office position.” Morris Decl. ¶ 4. Later that same day, Dr. Morris received a follow-up email from the plaintiff, which Dr. Morris says “reiterated [plaintiff's] proposal.” Id. (citing Ex. A to Morris Decl., Email from Plaintiff to Jeffery Morris, dated March 27, 2013 (“Mar. 2013 Email”) at 1, ECF No. 73-6)). The plaintiff's email opens by referring to “our early morning conversation” and indicates that the purpose of the email is “to clarify and probably commit myself.” Mar. 2013 Email. The plaintiff suggests that RAD be reorganized into three branches, with “[o]ne focused on PMNs, ” and “two focused on generic support for toxic chemical review, ” id.; Morris Decl. ¶ 4 (noting that “‘PMNs' stands for pre-manufacture notices and relates to the EPA's responsibility to review chemicals before they are manufactured and enter commerce in the United States”), and the email contains the plaintiff's recommendations as to both the positions needed and employees to fill various roles, Mar. 2013 Email. The closing sentence states, regarding the plaintiff's own role: “Deputy BC [for Branch Chief]-nope. Deputy DD [for Division Director] and sadly, I have suites [sic] and shirts and dress shoes and even scads of ties. I can be pretty when necessary.” Id.^[5] In other words, the plaintiff's “nope” indicates his rejection of maintaining his then-position as a Branch Chief and preference, though “sadly, ” for a more senior position as Deputy Division Director.

         A few weeks later, on April 11, 2013, the plaintiff again wrote Dr. Morris about “perceiv[ing] a significant proposal towards changing [plaintiff's] role and responsibilities” and requesting “a written proposal regarding when (date) [his] current responsibilities will cease and new role will begin.” Ex. B to Morris Decl., Email from Plaintiff to Jeffery Morris, dated April 11, 2013 (“Apr. 2013 Email”) at 5, ECF No. 73-6. The plaintiff goes on to acknowledge that he is to become a “Special Assistant in the Immediate Office of the Risk Assessment Division, ” a position that “does not currently exist.” Id.

         Dr. Morris understood the plaintiff's recommendation as proposing that his branch, HPVCB, “be dissolved and subsumed into other RAD branches, ” and that the plaintiff “be reassigned from Branch Chief to a RAD immediate office position.” Morris Decl. ¶ 4. Since this was the reassignment that the plaintiff now challenges, the defendants contend this “fact [] casts doubt on his subsequent contention that the reassignment was somehow discriminatory and adverse.” Defs. Mem. at 11. The plaintiff disputes that, in his communications with Dr. Morris, he proposed to eliminate his own Branch or asked to be reassigned to the RAD Immediate Office. Pl.'s Opp'n Defs.' Mot. Summ. J. (“Pl.'s Opp'n”) at 7-9, ¶¶ 2, 4-7, 9, 14, ECF No. 74-1; id., Ex. 4, Dep. of Mark Townsend (“Pl.'s Dep.”) at 3-4, 6-15, ECF No. 74-4.^[6] When confronted with his March 2013 email to Dr. Morris, the plaintiff back-tracked, claiming that he “clarified in later emails” what he meant, and that the March 2013 email was an “off-the-cuff response that [he] disagreed with [Dr. Morris]” and that he “was trying to be polite.” Pl.'s Dep. at 9, ECF No. 74-4. He concedes, however, that the email never said whether he “agreed . . . or disagreed with [Dr. Morris]” but rather “asked lots of questions about what was going through his mind and gave him information about [himself] and the organization.” Id. at 10. He also stated that he “disagreed [with Dr. Morris] in person in public” and “did not think [he] needed to repeat that in writing.” Id. at 11.^[7]

         When the reorganization ultimately took shape, the number of OPPT Divisions was reduced from seven to six. Defs.' SMF ¶ 5; Henry Decl. ¶ 4. OPPT's RAD remained, but all four branches within it, including the plaintiff's, were dissolved and reincorporated, along with staff from two branches of a division that had been eliminated, into five new, multidisciplinary branches, affecting a total of 80 positions. Defs.' SMF ¶¶ 5-6; Henry Decl. ¶¶ 4-5, 13; Defs.' Mem. at 3-4 (characterizing this reorganization as “major”). As a result of the reorganization, the number of leadership positions within OPPT was reduced from 17 to 13. Defs.' SMF ¶ 8; Defs.' Mem. at 4; Henry Decl. ¶ 5; Ex. 2 to Henry Decl., Memorandum Explaining Reorganization (“Reorganization Mem.”), dated Sept. 11, 2013 at 5, 6, 36, ECF No. 73-4 (explaining that “consolidating the [risk-assessment] functions in a single division will significantly improve integration, consistency, coordination, collaboration, decision-making and timeliness among disciplines”). The defendants claim that because the “HPVC Branch in RAD was eliminated, ” the plaintiff's previous role of HPVC Branch Chief “ceased to exist.” Defs.' SMF ¶ 7. The plaintiff maintains, however, that despite this reorganization, the position he previously held “still existed” and “was not eliminated-other than by name.” Pl.'s Dep. at 17, ECF No. 74-4 (“If the branches were one, two, three, four, and five, and I was a branch chief, and nothing was advertised, I would say my position still existed.”); Pl.'s Opp'n at 8 ¶ 10.

         B. Plaintiff's Supervisor Allegedly Encourages Him and Others to “Step Aside” for Younger Employees as Part of Reorganization

         As part of the reorganization, “Dr. Tala Henry became the Director of RAD” and thus the plaintiff's putative supervisor, in which role she “was tasked with developing RAD's reorganization staffing plan, ” was “significantly, but not solely, involved in drafting the mission statement and staffing plan” for the RAD, and met with each manager who would be affected, including the plaintiff. See Defs.' Mem. at 4; Henry Decl. ¶¶ 1, 4, 6, 8.^[8] Dr. Henry consulted with Dr. Morris, the acting RAD Director, “to gain insights on the current manager's roles, responsibilities, management styles and functioning/performance in their management roles, ” Henry Decl. ¶ 7; Morris Decl. ¶ 5, and “convened several meetings with existing managers, ” including the plaintiff, “to discuss options for organizational units within the division, ” Henry Decl. ¶ 8.

         On August 8, 2013, Dr. Henry sent an email to the plaintiff and six other employees explaining that six “management (i.e. supervisory)” positions and one “Sr. Science Advisor (non-supervisory)” position would be available following the reorganization and asking the employees to provide their top three preferences among those positions. Ex. 1 to Henry Decl., Email from Tala Henry to Plaintiff and Others, dated Aug. 8, 2013 (“August 2013 Email from Henry”) at 2, ECF No. 73-4; Henry Decl. ¶ 8. Dr. Henry describes both the management and senior advisor positions as “senior level” roles in the newly constituted RAD, Henry Decl. ¶ 8, but does not dispute that her August 2013 email characterized the “Sr. Science Advisor” position as “non-supervisory, ” August 2013 Email from Henry at 2.

         On September 6, 2013, Dr. Henry met with the plaintiff and informed him that “the proposed reorganization plan would eliminate the HPVC Branch and that his position would no longer exist.” Defs.' Mem. at 5; Henry Decl. ¶ 10. Dr. Henry also told the plaintiff that he would eventually be reassigned from Supervisory Biologist (Branch Chief, GS-15, Step 10) in the HPVCB to Senior Advisor (Biologist, GS-15, Step 10) in the RAD Immediate Office. Defs.' SMF ¶¶ 9, 10; Henry Decl. ¶ 10; Pl.'s Dep. at 36, ECF No. 73-7.^[9] Most significantly for his age discrimination claim, the plaintiff alleges that, at this meeting, Dr. Henry asked him to “do [her] a favor, ” to “step aside” and “move up to the front office, [to] give up [his] branch chief role for the younger staff that just went through training at American University.” Pl.'s Dep. at 5-6, 19- 20, ECF No. 74-4; Pl.'s Opp'n at 7-8 ¶ 3.

         Dr. Henry categorically denies having made such a request and asserts that age played no role in her decision to reassign the plaintiff. Henry Decl. ¶ 12 (“Plaintiff's age was never a factor in my decision to reassign him. Nor did I ever make any statements that Plaintiff would be reassigned from Branch Chief to a Senior Advisor position in order to make positions available to younger staff.”). She contends that the plaintiff was “uniquely qualified-from both educational and experience perspective[s]” for the Division-wide role to which he was reassigned, id. ¶ 10, based on his experience with several Division-level responsibilities such as budget formulation assistance, contracts, and information technology, id. ¶ 11, and that, because the reorganized RAD would have 80 rather than 50 full-time equivalent employees, the need for the types of activities the plaintiff would be assigned would be increasing, id.; see also Pl.'s Dep. at 20-34, ECF No. 73-7 (the plaintiff describing his experience in information technology, budgeting, contracting, and negotiating); Defs.' SMF ¶ 13 (referring to these excerpts); Defs.' Mem. at 15 (describing plaintiff's reassignment to “front office” with “Division-level responsibilities that Plaintiff . . . had already been performing as a Branch Chief, and . . . he was the best qualified employee within RAD to perform them at the Division-level”). The plaintiff concedes that no witnesses were present at this meeting in which Dr. Henry asked him to “step aside” “for the younger staff, ” Pl.'s Dep. at 39, ECF No. 73-7, that he did not record it, id. at 39- 40, and that he did not take contemporaneous notes while speaking with Dr. Henry, id. at 40; Defs.' SMF ¶ 12.

         The plaintiff claims that he later heard about a similar conversation Dr. Henry allegedly had with Dr. Jennifer Seed, another employee who was reassigned during the reorganization. Pl.'s Dep. at 39, ECF No. 73-7; Pl.'s Opp'n at 9 ¶ 12; id., Ex. 2, Decl. of Dr. Jennifer Seed (“Seed Decl.”) ¶¶ 3-5, 7, ECF No. 74-2. Seed, while represented by the same counsel as the plaintiff here, has also sued the EPA for alleged age discrimination in another case pending before another Judge of this Court. See Seed v. EPA, No. 16-cv-748 (TSC). In a declaration filed in this instant litigation, Seed reiterates her claims from her own case that Dr. Henry “discouraged [her] from applying for certain branch chief positions because EPA was hoping to fill those positions with younger people who had just been through the leadership training program.” Seed Decl. ¶ 3 (internal quotation marks and alterations omitted). Dr. Seed asserts, based on her own experience and conversations with the plaintiff, that “it appears that EPA was openly engaging in age discrimination as a matter of policy, ” id. ¶ 5, and that the similarity of the statements made to her and the plaintiff “show that age was a factor in EPA policy decisions, ” id. ¶ 7; see also Pl.'s Opp'n, Ex. 3, Dep. of Jennifer Seed (“Seed Dep.”) at 2-3, ECF No. 74-3 (Dr. Seed alleging that Dr. Henry told her “[w]e were hoping to fill those [branch chief positions] with younger people who had just been through the leadership training program”). Despite alleging a pattern of discrimination against himself, Dr. Seed, and two other EPA employees, Dr. Kay Austin and Dr. Phillip Sayre, see SAC ¶¶ 59-75, the plaintiff concedes that no documentation or witnesses corroborate his belief that age was a factor in reassigning any employee other than himself and Dr. Seed. Pl.'s Dep. at 43-46, ECF No. 73-7; Defs.' SMF ¶¶ 15, 16; but see Pl.'s Opp'n at 10-11 ¶ 23 (contending that “[b]ased upon the questions asked by the government during the deposition, ” plaintiff “has ‘no doubt at all' that he, Dr. Jennifer Seed, Dr. Phillip Sayre and Dr. Kay Austin were discriminated against based on their age(s).” (emphasis in original) (quoting Pl.'s Dep. at 29, ECF No. 74-4)).^[10]

         C. Plaintiff is Reassigned for Four Days Before Being Placed on Paid Leave and Ultimately Terminated

         The plaintiff's reassignment from Supervisory Biologist (Branch Chief) of the High Production Volume Chemicals Branch of the RAD to Senior Advisor (Biologist) of the RAD became effective on July 27, 2014. Defs.' SMF ¶ 10; Henry Decl. ¶¶ 3, 13; Ex. 3 to Henry Decl., Email from Bobby Moore, dated July 15, 2014 at 38, ECF No. 73-4 (noting that “[t]his is the [second] phase of the reorganization process and the effective dates . . . provided do[] not make this reorganization final”); Ex. 4 to Henry Decl., Notification of Personnel Action, dated July 27, 2014 (“Notification of Personnel Action”) at 40, ECF No. 73-4 (reassigning plaintiff from “Supervisory Biologist” in the HPVCB of the RAD to “Biologist” in the RAD). According to the plaintiff, however, he was not made aware that his reassignment had been completed until the day he was removed from the building on July 31, 2014. Pl.'s Dep. at 50, ECF No. 73-7; Defs.' Reply at 9 n.3. Indeed, he asserts that “Dr. Tala Henry had obviously not decided what [the plaintiff] was going to do [or] when [he] was going to do it” and that “[n]o one ever” “[came] in and [said], ‘Mark, you are no longer a branch chief. I am taking off your stripes and you're now something else.'” Pl.'s Dep. at 53, ECF No. 73-7. In fact, when asked in his deposition whether he “ever serve[d] as a senior advisor at the EPA at the RAD Immediate Office, ” the plaintiff replied, “No. No.” Id. at 37; but see Id. at 36 (“I became a biologist for one day before I was no longer with the reorganization [sic].” (emphasis added)).

         At any rate, the plaintiff's reassignment did not change his job series or pay grade, nor did it reduce his pay, benefits, or working hours. Defs.' SMF ¶ 11; Pl.'s Dep. at 51-55, ECF No. 73-7; Notification of Personnel Action at 40.^[11] Although his “staff were being picked up by other people periodically to do things, ” he “was still being held accountable to get certain projects done.” Pl.'s Dep. at 57, ECF No. 73-7. Consequently, the plaintiff testified that he was “still a branch chief” and “was still managing brominated flame retardants, . . . still managing other projects, . . . [and] still being asked by Tala Henry to attend management meetings” until the day of his removal, and that he “lost no projects . . . and actually picked up extra projects.” Pl.'s Dep. at 36-37, 51-53, 57, ECF No. 73-7; Defs.' SMF ¶ 14.^[12] Thus, the plaintiff states that “after the reorganization, [he] was still floating-[he] was still a branch chief doing [his] work . .. until [it] was the last day at EPA, and then [he got notice] saying [he] was a biologist and then [he] was walked out the door.” Pl.'s Dep. at 36, ECF No. 73-7 (emphasis added)

         At the same time, for the four days he was present after the reorganization, the plaintiff states in his opposition brief that he was “stripped of all supervisory [and] managerial responsibilities.” Pl.'s Opp'n at 10 ¶ 20. While his “pay stayed the same, ” the plaintiff complains that his “responsibilities were significantly less, ” Pl.'s Dep. at 51, ECF No. 73-7, because he was no longer responsible for “checking staff's work, telling staff what to do, solving staff problems, [or] working with other branch chiefs, ” id. at 52, but instead was apparently asked to scan documents, Pl.'s Dep. at 18, ECF No. 74-4, a task which he suggests would ordinarily be assigned to library staff at the GS-11, GS-12, or GS-13 level, id. at 28; Pl.'s Opp'n at 8-10 ¶¶ 11, 20, 21, and which he describes as “bullshit tasks, ” Pl.'s Dep. at 18, ECF No. 74-4, “busy work, ” id. at 26, “make believe, ” id., “make work, ” id., “not real, ” id., and “below-grade-level, ” id. at 28. The plaintiff's starkly differing characterizations of his tasks in his reassigned position for the four days between July 27 and 31, 2014, are difficult to reconcile, except perhaps to include scanning as among the new assignments he was given.^[13]

         On July 31, 2014, four days after the reorganization was put into effect, the plaintiff was removed from the building and placed on paid administration leave in connection with his role in time-and-attendance fraud at the EPA. See Defs.' Mem. at 2 n.1; Defs.' Reply at 9 n.3; Townsend I, 236 F.Supp.3d at 295; SAC ¶ 43. The plaintiff was formally terminated from the EPA on October 7, 2014 for his role in this fraudulent activity. Defs.' SMF ¶ 17; Townsend I, 236 F.Supp.3d at 291-95.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 56 provides that 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). “A genuine issue of material fact exists ‘if the evidence, viewed in a light most favorable to the nonmoving party, could support a reasonable jury's verdict for the nonmoving party.'” Figueroa v. Pompeo, 923 F.3d 1078, 1085 (D.C. Cir. 2019) (internal quotation marks omitted) (quoting Hairston v. Vance-Cooks, 773 F.3d 266, 271 (D.C. Cir. 2014)). The moving party bears the burden to demonstrate the “absence of a genuine issue of material fact” in dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), while the nonmoving party must present specific facts, supported by materials in the record, that would be admissible at trial and that could enable a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477 U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on summary judgment, the appropriate inquiry is “whether, on the evidence so viewed, ‘a reasonable jury could return a verdict for the nonmoving party'”) (quoting Liberty Lobby, 477 U.S. at 248); see also Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (“[S]heer hearsay . . . counts for nothing on summary judgment.” (internal quotation marks and citation omitted)); Fed.R.Civ.P. 56(c), (e)(2)-(3).

         “Evaluating whether evidence offered at summary judgment is sufficient to send a case to the jury is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C. Cir. 2011). This evaluation is guided by the related principles that “courts may not resolve genuine disputes of fact in favor of the party seeking summary judgment, ” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (per curiam), and “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor, ” id. at 651 (internal quotation marks omitted) (alteration in original) (quoting Liberty Lobby, 477 U.S. at 255). Courts “may not make credibility determinations or weigh the evidence, ” Iyoha v. Architect of the Capitol, 927 F.3d 561, 565 (D.C. Cir. 2019) (internal quotation marks and citations omitted), since “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, ” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000) (internal quotation marks and citation omitted); see also Burley v. Nat'l Passenger Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015).

         The fact that a plaintiff's testimony is uncorroborated is immaterial for purposes of summary judgment, since “[c]orroboration goes to credibility, a question for the jury, not the district court.” Robinson v. Pezzat, 818 F.3d 1, 9 (D.C. Cir. 2016). Nonetheless, for a factual dispute to be “genuine, ” the nonmoving party must establish more than “[t]he mere existence of a scintilla of evidence in support of [its] position, ” Liberty Lobby, 477 U.S. at 252, and cannot rely on “mere allegations” or conclusory statements, see Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011) (internal quotation marks omitted); accord Fed. R. Civ. P. 56(e). If “opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Lash v. Lemke, 786 F.3d 1, 6 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The Court is only required to consider the materials explicitly cited by the parties, but may on its own accord consider “other materials in the record.” Fed.R.Civ.P. 56(c)(3).

         III. DISCUSSION

         As noted, only two of the plaintiff's twenty-one original claims remain: his alleged constructive demotion due to age discrimination claim (Count I), and his pattern or practice disparate treatment claim (Count II). For the reasons that ...