MEMORANDUM OPINION
REGGIE
B. WALTON UNITED STATES DISTRICT JUDGE.
The
plaintiff, an African-American female of Haitian descent,
brings this civil action against the defendant, Ajit Pai, in
his official capacity as the Chairman of the Federal
Communications Commission (“FCC”), for alleged
discrimination based on race and national origin in violation
of Title VII of the Civil Rights Act of 1964 (“Title
VII”), as amended, 42 U.S.C. § 2000e-2 to -17
(2012). See Complaint (“Compl.”)
¶¶ 4, 30. Currently pending before the Court is the
Defendant's Motion for Summary Judgment
(“Def.'s Mot.”). Upon careful consideration
of the parties' submissions, [1] the Court concludes for the
following reasons that it must deny the defendant's
motion for summary judgment.
I.
BACKGROUND
A.
Factual Background
The
plaintiff is an African-American attorney of Haitian descent
who has been an FCC employee since 1996. See
Pl.'s Resp., Exhibit (“Ex.”) A (Transcript of
EEOC Proceedings on May 11, 2012) 57:14-16. During the time
period relevant to this litigation, the plaintiff was a
Senior Legal Advisor in the Strategic Analysis and
Negotiations Division (the “Division”) of the
FCC's International Bureau. See id., Ex. A
(Transcript of EEOC Proceedings on May 11, 2012) 57:4-9;
57:18-21. From approximately 2003 to 2009, she was supervised
by the Chief of the Division, Kathryn O'Brien, a
Caucasian female. See Def.'s Facts ¶ 3;
Pl.'s Resp., Ex. A (Transcript of EEOC Proceedings on May
11, 2012) 58:8-13; 73:16-21.
In
early 2008, one of O'Brien's two Deputy Division
Chief positions became vacant. See Pl.'s Resp.,
Ex. A (Transcript of EEOC Proceedings on May 11, 2012)
182:8-12. O'Brien did not consider the plaintiff for the
position, see id., Ex. A (Transcript of EEOC
Proceedings on May 11, 2012) 193:17-194:7, but instead asked
Robert Tanner, a white male who was an attorney-advisor for
the Division, to serve as an Acting Deputy Division Chief on
an interim basis, see Def.'s Facts ¶ 7;
Pl.'s Resp., Ex. A (Transcript of EEOC Proceedings on May
11, 2012) 189:8-22; id., Ex. A (Transcript of EEOC
Proceedings on May 17, 2012) 530:25-531:7.
The
plaintiff subsequently commenced this litigation, alleging
that the defendant discriminated against her based on her
race and national origin, and retaliated against her after
she filed a complaint of discrimination with the Equal
Employment Opportunity Commission. See Compl.
¶¶ 22-24.
B.
Procedural Background
On May
24, 2013, the defendant filed a motion to dismiss this case,
arguing that the plaintiff failed to timely exhaust her
administrative remedies as to her claims. See Motion
to Dismiss at 1. Because the defendant, in his motion, relied
on matters outside of the pleadings, see Memorandum
in Support of Motion to Dismiss at 9-10, the Court converted
the defendant's motion to dismiss into one for summary
judgment, see Pintro v. Wheeler (Pintro I),
35 F.Supp.3d 47, 51-52 (D.D.C. 2014), and entered summary
judgment in favor of the defendant with respect to all of the
plaintiff's claims, with the exception of the
plaintiff's race and national origin discrimination
claims that were based on the plaintiff's 2008
non-selection for the Acting Deputy Division Chief position
that was awarded to Robert Tanner, see id. at 56.
The Court concluded that the defendant was “not
entitled to summary judgment on the plaintiff's
non-selection for the Acting Deputy Division Chief
position” based on his argument that the plaintiff
untimely challenged her non-selection because “a
genuine factual dispute exist[ed] regarding the timing of
Tanner's designation as Acting Deputy Division Chief and
therefore the plaintiff's knowledge of when Tanner's
designation occurred.” Id. at 53.
After
the parties' attempt to mediate this case was
unsuccessful, see Min. Order (Jan. 19, 2016), and
after discovery closed on September 16, 2016, see
Order at 1 (Mar. 18, 2016), ECF No. 29, the defendant filed
his second motion for summary judgment, see
generally Defendant's Motion for Summary Judgment,
which the Court denied in Pinto v. Pai (Pintro
II), 273 F.Supp.3d 264, 274 (D.D.C. 2017). In Pintro
II, the Court found that “a reasonable jury could
conclude that the [defendant's] explanations for not
selecting the plaintiff for the Acting Deputy Division Chief
position were pretextual and infer that the real reason for
the plaintiff's non-selection was discrimination.”
Pintro II, 273 F.Supp.3d at 274.
Once
again, the Court referred this case for mediation at the
parties' request, see Minute Order (Aug. 21,
2017), and after further negotiations between the parties
were again unsuccessful, see Joint Status Report at
1 (Jan. 24, 2018), the parties “request[ed] that the
Court schedule a pretrial conference . . . and [ ] a trial
date, ” id. On May 24, 2018, the parties
appeared before the Court for the pretrial conference,
see Minute Entry (May 24, 2018), during which the
defendant for the first time raised the argument that the
plaintiff's non-selection for the Acting Deputy Division
Chief position was not an adverse action. In response to the
defendant's arguments, the Court concluded that
“whether the plaintiff suffered an adverse action is a
question of fact reserved for the jury, ” Order at 1
(May 24, 2018), ECF No. 62 (citing Niskey v. Kelly,
859 F.3d 1, 8 (D.C. Cir. 2017)), and rescheduled the
continuation of the pretrial conference to a later date,
see id. at 3. At the rescheduled pretrial conference
on June 14, 2018, the Court affirmed its ruling that
“whether the plaintiff suffered an adverse action is a
question of fact reserved for the jury, ” Order at 1
(June 14, 2018), ECF No. 69, but reopened discovery regarding
the selection process for the 2010 Deputy Division Chief
position, see id. at 2.
On
February 13, 2019, the defendant requested leave to file
another motion for summary judgment, see
Defendant's Motion for Leave to File Motion for Summary
Judgment at 1, asserting that the “newly gleaned
discovery has direct bearing on the issue [of] whether [the]
[p]laintiff suffered an adverse action, ” and that the
defendant “had not addressed th[at] issue in” his
previous motions because he “did not have an
evidentiary record dispositive of th[e] issue, ”
id. at 2. On April 9, 2019, the Court granted the
defendant's motion for leave to file another motion for
summary judgment, see Order at 1 (Apr. 9, 2019), ECF
No. 100, and the motion was filed on the docket thereafter,
see generally Def.'s Mot. The defendant's
third motion for summary judgment is the subject of this
Memorandum Opinion.
II.
STANDARD OF REVIEW
A court
can grant a Rule 56 motion for summary judgment only if
“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 fact is material if
it ‘might affect the outcome of the suit under the
governing law,' and a dispute about a material fact is
genuine ‘if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.'”
Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir.
2008) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)). When ruling on a motion for summary
judgment, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in
his favor.” Anderson, 477 U.S. at 255.
“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment.” Id. The
movant has the burden of demonstrating the absence of a
genuine issue of ...