1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JANEAN CHAMBERS,

Plaintiff,

v.

KATHLEEN SEBELIUS, SECRETARY OF 

HEALTH AND HUMAN SERVICES

Defendant.

Civil Action No. 13-544 (CKK)

MEMORANDUM OPINION

(December 31, 2013)

Plaintiff Janean Chambers brings this action against Defendant Kathleen Sebelius, in her 

official capacity as Secretary of Health and Human Services, alleging violations of Title VII of 

the Civil Rights Act of 1964 and the Rehabilitation Act of 1973.1 Presently before the Court is 

Defendant’s [9] Motion to Dismiss, or in the Alternative, Motion for Summary Judgment.

2

 

Upon consideration of the pleadings3

, the relevant legal authorities, and the record as a whole, 

 1 Strangely, Defendant’s filing lists “Eric H. Holder, Jr., U.S. Attorney General, U.S. 

Department of Justice” as the Defendant in this action. Defendant provides no explanation for 

why the Attorney General should be substituted for the Secretary of Health and Human Services 

in this action, and the Court thus disregards this difference in Defendant’s captions as a 

typographical error.

2 The Court notes that Defendant has titled her filing “Memorandum of Points and 

Authorities in Support of Motion to Dismiss, or in the Alternative, Motion for Summary 

Judgment” without actually submitting a separate filing containing the motion this memorandum 

supports. However, because it is clear from Defendant’s Memorandum that she moves the Court 

for an order dismissing Plaintiff’s claims pursuant to Rule 12(b), or in the alternative, pursuant to 

Rule 56, the Court will construe this Memorandum as containing a Motion to Dismiss, or in the 

Alternative, Motion for Summary Judgment.

3 Complaint, ECF No. [1] (“Compl.”); Def.’s Mem. of P. & A. in Supp. of Mot. to 

Dismiss, or in the Alt., Mot. for Summ. J., ECF No. [9] (“Def.’s MSJ”); Def.’s Stmt. of Material 

Facts, ECF No. [9-1] (“Def.’s Stmt.”); Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss, or in the 

Alt., Mot. for Summ. J., ECF No. [11] (“Pl.’s Opp’n”); Pl.’s Stmt. of Genuine Issues, ECF No. 
2

the Court GRANTS Defendant’s [9] Motion to Dismiss or, in the Alternative, for Summary 

Judgment. Accordingly, this action is DISMISSED WITH PREJUDICE in its entirety.

I. BACKGROUND

A. Factual Background

Plaintiff Janean Chambers is a 48 year-old blind African-American female who has 

worked for the Department of Health and Human Services (“DHHS”) since 1989. Pl.’s Opp’n at 

2. In 2006, Plaintiff became a GS-0343-09 Management Analyst in the Office of Information 

Services (“OIS”) of the Administration for Children and Families (“ACF”) within DHHS. Pl.’s 

Ex. 1 (Chambers Affidavit) at 1. In this capacity, from 2007 until July 2012, Plaintiff’s duties 

included functioning as the Section 508 Coordinator for ACF. Id. at 3. Pursuant to 36 C.F.R. § 

1194.1, every federal government agency must ensure that its employees with disabilities have 

comparable access to electronic data and information through the development, procurement, 

and maintenance of appropriate electronic and information technology. Accordingly, every 

operating division of DHHS has a Section 508 Coordinator with the responsibility for ensuring 

that employees with disabilities are accommodated such that they have equal access to electronic 

data and information. Pl.’s Ex. 7 (Curtis Deposition Excerpts) at 46:10-19. Plaintiff’s 

supervisors in her GS-9 Management Analyst position were Jeanne Dionne and Michael Curtis. 

Pl.’s Ex. 1 at 1-2.

Plaintiff’s GS-9 position was the full performance level of her position, meaning that it 

was the highest grade-level that she could be promoted to without either competing with other 

individuals for a new, advertised position or receiving a non-competitive promotion through her 

accretion of duties. Id. at 2. In 2007, Plaintiff became eligible for elevation to GS-11 and 

 

[11-13] (“Pl.’s Stmt.”); Def.’s Reply in Support of Mot. to Dismiss, or in the Alt., Mot. for 

Summ. J., ECF No. [13] (“Def.’s Reply”).
3

inquired with her supervisors about obtaining a promotion to this grade level from her current 

position. Id. at 3. Plaintiff pointed out that all the other individuals functioning as Section 508 

Coordinators in DHHS were paid at a higher grade than she was, ranging from GS-12 to GS-14. 

Id. at 4. In her brief, Defendant points out, and Plaintiff concedes, that there is no position 

description for a Section 508 Coordinator. Def.’s Stmt. ¶ 23 (citing Def.’s Ex. 10 (Decl. of 

Stuart Hoffman) ¶ 5); Pl.’s Stmt. at 8. Furthermore, Plaintiff does not deny that there is no grade 

level requirement for an individual with Section 508 Coordinator duties, and admits that the 

grade level of each designated Section 508 Coordinator is based upon the specific duties, 

responsibilities, and authorities granted the incumbent of that position. Def.’s Stmt. ¶¶ 25, 37

(citing Def.’s Ex. 10 ¶ 6); Pl.’s Stmt. at 8, 12. In this vein, Defendant further states that Section 

508 responsibilities comprise a fraction of an individual’s overall duties. Def.’s Stmt. ¶ 26

(citing Def.’s Ex. 10 ¶ 5). Nevertheless, Plaintiff states that all of her work time as a GS-9 was

spent on her Section 508 Coordinator duties. Pl.’s Stmt. at 8 (citing Pl.’s Ex. 11 (Chambers 

Deposition Excerpts) at 4:11-17). She also points out that Jaime Robinson, a DHHS GS-12 IT 

employee in a different employment series with Section 508 Coordinator duties, stated in his 

deposition testimony that he did not have any role outside the Section 508 area. Id. at 8 (citing

Pl.’s Ex. 8 (Robinson Deposition Excerpts) at 42:14-16).

In response to Plaintiff’s requests to be elevated to a GS-11 position, Plaintiff was 

repeatedly informed by her supervisors, Mr. Curtis and Ms. Dionne, that they supported her 

promotion, believing that she was an excellent employee who had “blossomed” in her current 

position. Pl.’s Ex. 7 at 60:9-20; Def.’s Ex. 4 (Curtis Affidavit) at 3. However, they informed her 

that because her current position terminated at GS-9, in order to be promoted to a GS-11 

position, she would have to compete for a GS-11 position that became available. In an affidavit 
4

submitted to the EEO investigator reviewing Plaintiff’s claim and in his deposition, Curtis 

repeatedly stated that he lacked the authority to promote Plaintiff in the absence of a vacancy, 

and that creation of such a position required the approval of his superiors in DHHS. Def.’s Ex. 4 

at 2 (“I only have authority to promote someone in a career-ladder series, and she is not in a 

promotion allowed career ladder. So I did not have authority to promote her.”); id. at 3 (“Her 

non-promotion was not based on her race or disability, but on no GS-11 opportunities being 

available to anyone.”); id. at 2 (“The government process for promotion is that someone 

advertises a position and you compete for that. There are no GS-11 positions in my office to 

promote to.”); Pl.’s Ex. 7 at 56:18-19 (Curtis stating that he lacked the authority to promote); id. 

at 60:13-15 (Curtis responding “Yes” to the question “You thought she was deserving of a 

promotion. You just had no way of doing that?”); id. at 100:4-5 (noting that vacancies are 

“approved by the assistant secretary.”); id. at 62:10:19 (noting that the GS-11 was made 

available by the assistant secretary who “approves all promotion opportunities”). Dionne as well 

consistently stated that she lacked the authority to promote Plaintiff in the absence of a vacancy, 

which she did not have the power to create herself. Def.’s Ex. 5 at 2 (Dionne Affidavit) (“She 

did request a promotion. I informed her that I don’t have promotion authority.”); id. (“[s]he did 

[request a promotion] and informed [sic] her that I did not have the authority to promote her.”); 

id. at 3 (“I did not discriminate against the Complainant based on her race and disability because 

I had no authority to promote her.”); Pl.’s Ex. 6 (Dionne Deposition Excerpts) at 66:14-67:11 

(stating that Dionne and Curtis lacked authority to promote and needed approval to advertise a 

position). In an e-mail summarizing a meeting between herself and Mr. Curtis and Ms. Dionne, 

Plaintiff stated that she understood them to lack the authority themselves to create the GS-11 

position she sought, as they could only request such a position. Def.’s Ex. 13 (E-mail from J. 
5

Chambers to J. Dionne and M. Curtis) (“From this meeting my understanding is that the 

opportunity for me to advance from a GS-9 to a GS-11 as the ACF Section 508 Coordinator is 

not available in ACF/OIS.”). Curtis and Dionne informed Plaintiff that although they could 

request the vacancy she sought, even if the position were approved, Plaintiff would still need to 

apply for the position. Id. (“Michael stated that he will continue to push this opportunity for 

advancement because of my title. However, if the slot is approved it will be advertised and I will 

need to apply for the position.”); Def.’s Ex. 15 (Rebuttal Affidavit of Janean Chambers) at 3-4 

(“Mr. Curtis stated that even if and when he has [the] budget for it, that he will need to have an 

available slot at a higher grade in order to offer a GS-11 level for the Section 508 Coordinator 

position, and he will have to advertise that job vacancy and I will need to apply for it . . . . He 

expressed that he would continue to support me and push for me to be promoted.”). Pl.’s Ex. 7 

at 57:22-58:5 (Curtis stating “I would have to go back and ask for a [position] . . . It would have 

to be approved by the assistant secretary. And then they would have to compete. And they 

would have to select based on all the people that applied for it.”). Curtis subsequently stated to 

Plaintiff that he had requested the creation of a GS-11 vacancy, but that the failure to create such 

a vacancy was due to a lack of budget for the position sought by Plaintiff. Pl.’s Ex. 7 at 83:15-

84:5; Def.’s Ex. 15 at 3.

Plaintiff challenges this explanation for the lack of her promotion, arguing that the failure 

to promote her constitutes discrimination on the basis of race and disability. Primarily, she notes 

that other vacancies were created during the time period at issue and that these vacancies allowed

other employees of DHHS the opportunity to advance beyond the full performance levels of their 

positions. Pl.’s Stmt. at 1-2. She points out that the OIS spent at least $206,431 to hire and/or 

increase the salaries of five white, non-disabled employees during the period when ACF alleges 
6

that it lacked the budget to create a new GS-11 position to which she could apply to. Id. at 2. 

However, in alleging these facts, Plaintiff does not point to any GS-11 position created in OIS. 

Rather she points to the creation of other positions, including a GS-12 Management Analyst 

Position, a GS-14 Information Technology Specialist and three GS-15 Division Director 

Positions. Pl.’s Ex. 6 at 92:3-17 (noting that three GS-15 positions were filled with existing GS14 employees); id. at 96:1-10 (discussing hiring for new GS-12 position); Pl.’s Ex. 7 at 87:7-88:9

(discussing hiring for GS-14 position). Moreover, Plaintiff does not suggest that these vacancies 

encompassed Section 508 Coordinator duties. Furthermore, Plaintiff does not offer evidence that 

Dionne and Curtis were seriously involved in the creation of these vacancies. Dionne states in 

her deposition testimony that she filed paperwork with the Human Resources Department to 

have the Information Technology Specialist position shifted to a GS-14 from the base level GS13 because the newly hired employee, Terry Cheng, “ha[d] been working at a higher salary than 

the lowest step,” and “[i]f the person has been working at a higher salary than the lowest step,

they can request to be hired at a higher step within the grade.” Pl.’s Ex. 6 at 47:6-18. However, 

according to Defendant, the GS-14 and GS-15 positions were created due to larger departmental 

needs identified by the Assistant Secretary. See Def.’s Att. 1 (Decl. of Michael Curtis) ¶ 7-8 

(noting that Assistant Secretary David Hansell “conveyed to [Curtis] that in regard to OIS ACF 

positions, he felt it was necessary to fill the three Division Director positions at the GS-15 level, 

to prevent losing staff.”); id. ¶ 8 (stating that the GS-14 Information Technological Specialist 

position was approved by Hansell in response to President Obama’s emphasis on cyber security). 

In addition, the Court notes that the GS-12 position was only advertised in March and April 

2012, shortly before the end of the time period at issue in this case, and that the individual 

selected for the position had an effective date of September 2012, well after the end of the time 
7

at issue in this case. Def.’s Att. 3 (Decl. of Melissa Smith) ¶ 6; Pl.’s Ex. 9 (GS-12 Vacancy 

Posting).

In challenging her lack of promotion, Plaintiff also questions whether her supervisors 

ever actually requested the creation of a GS-11 vacancy. Pl.’s Stmt. at 2-3. She notes that ACF 

has not produced paperwork containing such a request and that Jason Donaldson, the Deputy 

Assistant Secretary for Administration at ACF during the time at issue, stated in an affidavit that 

Plaintiff requested a promotion from him during the informal EEO mediation held on January 4, 

2012. Id. (citing Pl.’s Ex. 3 (Donaldson Affidavit) at 3). Plaintiff interprets this statement to 

mean that Donaldson did not receive any request to promote Plaintiff until the informal EEO 

mediation in this case on January 4, 2012 and thus Plaintiff’s supervisors are untruthful when 

they state that they requested a vacancy to which she could be promoted. Pl.’s Opp’n at 4. 

Defendant vigorously disputes this assertion, pointing to multiple statements in the record

showing that Plaintiff’s supervisor, Michael Curtis, repeatedly requested the creation of a 

vacancy that she could be promoted to, even though he did not explicitly mention Plaintiff by 

name. See, e.g., Pl.’s Ex. 7 at 62:18-19 (“I repeatedly asked for an -11 year after year after 

year.”); id. at 82:20-83:14 (Curtis stating that he submitted the request and that “the request for 

an additional 508 position at a senior level was rejected.”); Pl.’s Ex. 6 at 67:9-11 (“My 

recollection is that [Curtis] said he would talk with Jason Donaldson to see if he could be given 

the approval to advertise a position.”); id. at 68:5-8 (“I remember in the meeting him saying that 

he was going to have a conversation with Jason Donaldson to see whether he could get approval 

to advertise a position.”). Defendant further points to a declaration from Donaldson stating that 

Curtis requested the position sought by Plaintiff, albeit without referencing her by name. Pl.’s 

Att. 2 (Decl. of Jason Donaldson) ¶ 7 (Donaldson recalling that Curtis, although not mentioning 
8

Plaintiff by name, “requested authority to create and then compete an administrative support 

position.”).

Yet although no vacancy existed for Plaintiff to apply to, Plaintiff’s supervisors explored 

an alternative means of promoting her. In response to Plaintiff’s contention that she should be 

paid at a higher grade, Donaldson authorized a desk audit. Def.’s Stmt. ¶ 15; Pl.’s Stmt. at 7. “A 

desk audit is a process by which an employee may request ‘her work to be reviewed.’” Rand v. 

Secretary of the Treasury, 816 F.Supp.2d 70, 72 n. 1 (D.D.C. 2011) (quoting Williams v. 

Dodaro, 806 F.Supp.2d 246, 249 n. 2 (D.D.C. 2011)). “‘[I]f, in the eyes of the reviewers, that 

work is at a level higher than that at which the employee is currently graded, the employee will 

be promoted to the level’ that is reflected by her performance.” Id. “This is sometimes called an 

‘accretion of duties’ promotion, because the desk audit is meant to trigger a promotion to match 

the employee's ‘accretion of duties’ over time.” Id. The desk audit was conducted in early 2012 

by Human Resources Specialist Rosalind Fortune. Def.’s Stmt. ¶ 15; Pl.’s Stmt. at 7; Def.’s Ex. 

8 (Fortune Affidavit) at 2. Fortune met with Plaintiff and discussed her duties, spoke with 

Plaintiff’s supervisor, Dionne, and used a set grade level criteria of nine factors to analyze 

Plaintiff’s position. Def.’s Stmt. ¶ 16; Pl.’s Stmt. at 7. Fortune reviewed the following factors: 

knowledge required by the position, supervisory controls, guidelines, complexity, scope and 

effect, personal and purpose of contacts, physical demands, and work environment. Def.’s Stmt. 

¶ 17; Pl.’s Stmt. at 7. After conducting an analysis of each of these factors, Fortune concluded 

that Plaintiff was properly classified at the GS-9 level. Def.’s Stmt. ¶ 18; Pl.’s Stmt. at 7. Wendy 

Hackley, a Supervisory HR Specialist, approved the desk audit’s findings, concluding that given 
9

Plaintiff’s duties, she was properly classified at the GS-9 level.

4

 Def.’s Stmt. ¶ 19; Pl.’s Stmt. at 

7. Plaintiff is not challenging the results of the desk audit in this case. 

Ultimately, in June 2012, in response to Plaintiff’s requests for a promotion, the DHHS 

did approve and create a GS-11 Management Analyst Position to which Plaintiff could apply. 

Pl.’s Ex. 7 at 62:10-63:2. When the position vacancy was advertised, the vacancy was restricted 

to ACF employees. Id. at 64:6-8. Plaintiff applied for the position and was the only person in 

ACF found to be qualified. Pl.’s Ex. 6 at 69:13-70-4. Plaintiff currently serves in this GS-11

Management Analyst position. 

B. Procedural Background

Plaintiff filed suit in this Court on April 23, 2013, alleging violations of Title VII of the 

Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 

U.S.C. §§ 2000e et seq., and the Rehabilitation Act of 1973, as amended by the U.S. Department 

of Health and Human Services. See Compl. ¶ 1. She alleges that Defendant’s failure to promote 

her as early as 2007 constitutes discrimination on the basis of her race (African-American) and 

her physical handicap (blindness). Defendant subsequently filed her [9] Motion to Dismiss, or in 

the Alternative, Motion for Summary Judgment.

II. LEGAL STANDARD

Defendant’s motion seeks dismissal for failure to state a claim, or in the alternative, 

summary judgment. Pursuant to Fed. R. Civ. P. 12(d), “if, on a motion under Rule 12(b)(6) . . . 

matters outside the pleadings are presented to and not excluded by the court, the motion must be 

treated as one for summary judgment under Rule 56” and “[a]ll parties must be given a 

 4 While Plaintiff appealed the desk audit’s findings, this appeal was cancelled when 

Plaintiff applied for and was selected for a GS-11 position at ACF, as an employee cannot appeal 

the classification of apposition to which they are not officially assigned. Def.’s Stmt. ¶ 20 (citing 

5 C.F.R. § 511.603); Pl.’s Stmt. at 7 (same). 
10

reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 

12(d); see Yates v. District of Columbia, 324 F.3d 724, 725 (D.C. Cir. 2003). Here, both parties 

have presented matters outside of the pleadings in support of their positions. Accordingly, the 

Court will review Defendant’s entire motion under the summary judgment standard, because 

“the [defendant's] motion[] [was] in the alternative for summary judgment and . . . the parties had 

the opportunity to submit and submitted materials in support and in opposition.” Americable 

Int'l, Inc. v. Dep't of Navy, 129 F.3d 1271, 1273 n. 5 (D.C. Cir. 1997) (determining that it would 

not be “unfair” to treat such a motion as one for summary judgment).

Summary judgment is appropriate where “the movant shows that there is no genuine 

dispute as to any material fact and [that she] is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar 

summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will 

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to 

the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient 

admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to 

specific parts of the record—including deposition testimony, documentary evidence, affidavits or 

declarations, or other competent evidence—in support of her position, or (b) demonstrate that the 

materials relied upon by the opposing party do not actually establish the absence or presence of a 

genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual 

basis in the record cannot create a genuine dispute sufficient to survive summary judgment. 
11

Ass’n of Flight Attendants–CWA, AFL–CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. 

Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to 

properly address another party’s assertion of fact,” the district court may “consider the fact 

undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e).

When faced with a motion for summary judgment, the district court may not make 

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the 

light most favorable to the non-movant, with all justifiable inferences drawn in her favor. 

Liberty Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are 

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. 

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine 

“whether the evidence presents a sufficient disagreement to require submission to a jury or 

whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 

U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is 

some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith 

Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not 

significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50 

(internal citations omitted).

III. DISCUSSION

Title VII of the Civil Rights Act makes it unlawful for any employer to “fail or refuse to 

hire or to discharge any individual, or otherwise 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)(1). Similarly, 

the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability” may 
12

be discriminated against by a federal agency “solely by reason of his or her disability.” 29 

U.S.C. § 794(a). The Rehabilitation Act further states that “[t]he standards used to determine 

whether this section has been violated in a complaint alleging employment discrimination under 

this section shall be the standards applied under [provisions of] the Americans with Disabilities 

Act [ADA].” Id. § 794(d). The ADA bars discrimination against a “qualified individual on the 

basis of disability in regard to . . . conditions [ ] and privileges of employment,” including 

“advancement,” 42 U.S.C. § 12112(a). 

Where, as here, a plaintiff offers no direct evidence of discrimination, Title VII and 

Rehabilitation Act claims are assessed pursuant to a burden-shifting framework initially set out 

by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See 

Kersey v. Wash. Metro. Area Transit Auth., 586 F.3d 13, 16-17 (D.C. Cir. 2009) (noting that 

McDonnell Douglas framework also applies to claims under the Rehabilitation Act). Pursuant to 

that framework, the plaintiff has the initial burden of proving by a preponderance of the evidence 

a prima facie case of discrimination or retaliation. Tex. Dep't of Cmty. Affairs v. Burdine, 450 

U.S. 248, 252-53 (1981). Then, “the burden shifts to the defendant ‘to articulate some 

legitimate, nondiscriminatory reason for the [adverse employment action].’ ” Id. at 253 (quoting 

McDonnell Douglas, 411 U.S. at 802). 

However, in Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008), the 

D.C. Circuit simplified the analysis for Title VII disparate treatment suits. Under Brady, once an 

employer has proffered a nondiscriminatory reason, the McDonnell Douglas burden-shifting 

framework disappears, and the court must simply determine whether the plaintiff has put forward 

enough evidence to defeat the proffer and support a finding of retaliation. See Brady, 520 F.3d

at 494 (“[W]here an employee has suffered an adverse employment action and an employer has 
13

asserted a legitimate, non-discriminatory reason for the decision, the district court need not – and 

should not – decide whether the plaintiff actually made out a prima facie case under McDonnell 

Douglas.”) (emphasis in original). Consequently, at the summary judgment stage, a district court 

is left with “one central question: Has the employee produced sufficient evidence for a 

reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual 

reason and that the employer intentionally discriminated against the employee on the basis of 

race, color, religion, sex, or national origin?” Id. See also Kersey, 586 F.3d at 17 n.2 (applying 

Brady in case involving the Rehabilitation Act). “In other words, the Court must determine if 

the plaintiff has produced enough evidence such that a reasonable jury would find that the 

Department’s non-discriminatory reasons are mere pretext for underlying unlawful 

discrimination.” Perry v. Donovan, 733 F.Supp.2d 114, 118 (D.D.C. 2010).

Yet “[w]hile Brady directs the district court’s focus to the employer’s proffered nondiscriminatory reason, the Court still first must determine whether plaintiff has suffered an 

adverse employment action.” Adesalu v. Copps, 606 F.Supp.2d 97, 103 (D.D.C. 2009). See 

Evans v. Sebelius, 716 F.3d 617, 619 (D.C. Cir. 2013) (noting that an adverse action is a 

prerequisite for a Title VII claim) (citing Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 

2003)); Patterson v. Johnson, 505 F.3d 1296, 1298 (D.C. Cir. 2007) (“Liability for 

discrimination under Title VII requires an adverse employment action.”) (citing Brown v. Brody, 

199 F.3d 446, 452-55 (D.C. Cir. 1999)); Perry, 733 F.Supp.2d at 118 (“Before the Court can 

undertake [the Brady] inquiry, however, the Court must determine whether the alleged acts of 

discrimination constitute adverse employment actions.”). See also Baloch v. Kempthorne, 550 

F.3d 1191, 1196 (D.C. Cir. 2008) (stating that an adverse employment action is an essential 

element of a discrimination claim under the Rehabilitation Act). 
14

“An ‘adverse employment action’ is ‘a significant change in employment status, such as 

hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a 

decision causing significant change in benefits.’” Douglas v. Donovan, 559 F.3d 549, 552 (D.C. 

Cir. 2009) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003). “An employee must 

‘experience[] materially adverse consequences affecting the terms, conditions, or privileges of 

employment or future employment opportunities such that a reasonable trier of fact could find 

objectively tangible harm.’” Id. (quoting Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 

2002). The D.C. Circuit has cautioned that “not everything that makes an employee unhappy is 

an actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001). Indeed,

in this respect, “courts are not ‘super-personnel department[s] that reexamine[] an entity’s 

business decision[s].’” Stewart v. Ashcroft, 352 F.3d 422, 429 (quoting Dale v. Chicago Tribune 

Co., 797 F.2d 458, 464 (7th Cir. 1986)).

Here, Defendant argues that Plaintiff has failed to suffer an adverse employment action. 

Def.’s MSJ at 4-6; Def.’s Reply at 3-4. In her complaint, Plaintiff alleges that Defendant failed 

to promote her in violation of Title VII and the Rehabilitation Act. As Defendant points out, and 

Plaintiff appears to concede, Plaintiff position terminated at the GS-9 grade level. Def.’s Stmt. ¶

1; Pl.’s Stmt. at 4. Therefore, the only way for Plaintiff to be promoted was either for her to 

apply for a vacancy announcement or to have her position upgraded via a desk audit. A desk 

audit requested by Plaintiff’s supervisors and ordered by Jason Donaldson, the Deputy Assistant 

Secretary of DHHS, concluded that Plaintiff was properly classified as a GS-9 and the results of 

this audit are not challenged here. Consequently, in order to be promoted, Plaintiff needed to 

apply for a vacant position open to competition. In the absence of a rejected application for an 

available position, Defendant contends, there is no adverse employment action. Def.’s MSJ at 5. 
15

In addressing failure to promote claims in employment discrimination cases, courts in 

this Circuit have focused on the need for showing an available position for which promotion was 

denied.5 See, e.g., Yarber-Butler v. Billington, 53 Fed. Appx. 120, 120 (D.C. Cir. 2002) 

(“Failure to promote is generally an adverse action . . . but not if there is no open position.”); 

Cones v. Shalala, 199 F.3d 512, 516 (D.C. Cir. 2000) (to establish a prima facie case for nonselection, plaintiff must show there was a “vacancy in the job sought.”); Hayslett v. Perry, 332 

F.Supp.2d 93, 100 (D.D.C. 2004) (“Lacking evidence of an available position, plaintiff cannot 

establish a prima facie case of employment discrimination based on non-promotion.”). Such a 

principle makes practical sense. The existence of a vacancy signals that a plaintiff’s supervisor 

has been provided the authorization to appoint someone to the position plaintiff seeks. The 

failure to exercise this authority to promote a plaintiff in a protected class thus can constitute an 

adverse employment action actionable in an employment discrimination claim. However, where 

no vacancy exists, a supervisor less clearly possesses the authority to promote an employee 

above the highest level of a career ladder position. Thus, the failure to promote in the absence of 

an available position, while frustrating to a plaintiff, does not necessarily constitute an adverse 

employment action.6 See Glass v. Lahood, 786 F.Supp.2d 189, 220 (D.D.C. 2011) (“a plaintiff 

 5 Courts in this Circuit have applied the same standard in assessing adverse employment 

actions under Title VII and the Rehabilitation Act, see, e.g. Norris v. Salazar, 885 F.Supp.2d 

402, 419-420 (D.D.C. 2012), and neither party argues that a different standard governs the two 

statutes. 

6 Perry v. Donovan, 733 F.Supp.2d 114 (D.D.C. 2010) represents a limited exception to 

this principle, holding that a vacancy is not a prerequisite for a failure to promote claim when the 

employee is challenging a lack of promotion based on an accretion of duties, for which no 

vacancy would necessarily be required. In Perry, the plaintiff’s career ladder position capped 

her grade level at GS-11. Id. at 116. Thus, as here, in order to reach GS-12, plaintiff had to 

apply for an available GS-12 position or request a desk audit. Id. Since there were no available 

GS-12 vacancies, plaintiff requested a desk audit, which determined that plaintiff was actually 

working at a GS-12 grade level. Id. However, the plaintiff’s supervisor challenged the results of 

the desk audit, and after this supervisor submitted additional information, plaintiff’s position was 
16

pursuing a failure-to-promote claim in this Circuit . . . must ordinarily establish that there was an 

available position”) (citing Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003)). 

Perhaps recognizing this limit on the scope of adverse employment actions, Plaintiff 

attempts to frame her argument more broadly. She contends that where an employer regularly 

creates vacancies as a means of promoting its employees and told an employee that it was 

working on doing so for her, the failure to create and advertise that position constitutes an 

actionable adverse employment action. Pl.’s Opp’n at 10-12. Here, Plaintiff points out that her 

supervisors led her to believe that they were pushing for the creation of a GS-11 position to 

which she could apply. Id. at 4. Further, Plaintiff points out that other vacancies (although not at 

the GS-11 level) were created during the time at issue allowing other OIS employees to be 

promoted or hired at levels above GS-11. Id. at 5-8; Pl.’s Stmt. at 3-4. Plaintiff argues that 

together these facts render the failure to promote her an adverse employment action, even though 

no position existed for her supervisors to appoint her to. In essence, Plaintiff argues that her 

supervisors did have the authority to promote her, even in the absence of a vacant position.

Yet Plaintiff’s argument is unavailing. In Adesalu v. Copps, 606 F.Supp.2d 97 (D.D.C. 

2011), Judge Paul L. Friedman faced an almost identical situation to this and concluded that no 

 

re-evaluated and a second desk audit determined that plaintiff was actually performing GS-11 

work. Id. at 116-117. In response, plaintiff brought suit, arguing that her supervisor’s challenge 

to the first desk audit “was discriminatory because it resulted in the reversal of the findings of the 

first desk audit and foreclosed the opportunity for plaintiff to attain promotion.” Id. at 117. The 

court concluded that plaintiff had suffered an adverse employment action despite the lack of a 

vacant position to which she could apply, noting that where a “plaintiff requested a desk audit 

and presented evidence of work product sufficient to warrant a promotion, the plaintiff could . . .

overcome the lack of vacancy and establish[] an adverse employment action.” Id. at 119. 

Accordingly, Perry’s finding of an adverse employment action in the absence of a vacancy was 

based on the fact that the “[p]laintiff . . . requested a desk audit and presented sufficient evidence 

to be considered for a promotion.” Id. That result is not applicable here, as a desk audit 

concluded that Plaintiff was properly classified as a GS-9 and she does not challenge the results 

of this desk audit in this Court. 
17

adverse employment action had occurred. In Adesalu, an African-American Nigerian economist 

at the Federal Communications Commission sought promotion from the GS-13 level, which was 

the full performance level of his position. Id. at 99. Like Plaintiff Chambers here, in order “to 

obtain promotion to the GS-14 level, plaintiff either had to (1) apply for a competitive vacancy 

and be selected, or (2) request a desk audit to determine whether he is performing work at the 

GS-14 level and, if so, request that he be promoted non-competitively.” Id. While no desk audit 

was conducted, Plaintiff indicated his interest in promotion via vacancy to his supervisors. In 

response, one of his supervisors “made a promise that plaintiff could be promoted within two 

years depending on the quality of his work.” Id. After Mr. Adesalu was subsequently informed 

by his supervisors that he would not be promoted (ostensibly in violation of this promise), he 

brought suit, alleging that the failure to promote him was based on his race and national origin. 

Id. In challenging the failure to promote, he noted that other economists at the FCC, all of whom 

were not black or Nigerian, were being simultaneously promoted while he remained in his 

current position. Id.

Considering the plaintiff’s claim based on his supervisor’s statement, Judge Friedman

concluded that plaintiff had failed to show an adverse employment action with respect to the 

denial of his promotion. Id. at 102-04. The court noted that “defendant has proffered undisputed 

evidence that there were no vacant positions for competitive promotion to GS-14 Industry

Economists during the relevant time period. The other employees who were promoted were 

either promoted to a different grade (GS-15), or were on a different career ladder, and thus were 

eligible for non-competitive promotion to GS-14.” Id. at 103 (internal citations omitted). So too 

here, Plaintiff has not put forward any evidence that there was a vacancy for the GS-11 position 

she sought. And while other employees within OIS were promoted, Plaintiff does not state that 
18

any of these promotions were made to GS-11, the grade level she herself sought. Rather, these 

vacancies were created at the GS-12, GS-14, and GS-15 levels, and none of these positions 

involved Section 508 Coordinator duties. Further, Defendant has provided evidence that the GS14 and GS-15 positions were created to address larger departmental needs and that the GS-12 

position was advertised and filled only at the conclusion of the time at issue in this case. See 

Def.’s Att. 1 ¶ 7-8 (noting that Assistant Secretary David Hansell “conveyed to [Curtis] that in 

regard to OIS ACF positions, he felt it was necessary to fill the three Division Director positions 

at the GS-15 level, to prevent losing staff.”); id. ¶ 8 (stating that the GS-14 Information 

Technological Specialist position was approved by Hansell in response to President Obama’s 

emphasis on cyber security); Def.’s Att. 3 ¶ 6. Thus, as in Adesalu, “Plaintiff has proffered no 

evidence to show that there was a vacant position for which [s]he was eligible in the time period 

for which [s]he administratively exhausted [her] claims.” 606 F.Supp.2d at 103. Accordingly, 

“Plaintiff could not have suffered an adverse employment action for failure to promote when 

there were no available vacancies.” Id. 

In reaching this conclusion, Judge Friedman also rejected the plaintiff’s claim that his

supervisor’s promise to promote him and subsequent failure to act on this promise rendered the 

failure to promote in the absence of a vacant position an adverse employment action. On this 

point, the court concluded that “[e]ven if Mr. Woock did promise plaintiff that plaintiff would be 

promoted, and later rescinded that promise, Mr. Woock never had the authority to fulfill this 

promise; thus defendant’s maintenance of plaintiff at his current grade is not an adverse 

employment action.” Id. (emphasis added). 

Here, Plaintiff argues that there is a genuine issue of material fact as to whether her 

supervisors had the authority to promote her, which would appear to distinguish this case from 
19

Adesalu. Pl.’s Opp’n at 10-12; Pl.’s Stmt. at 3-4, 6. Plaintiff contends a jury could find that 

when Plaintiff’s supervisors decided to promote one of their subordinates, they were able to gain 

approval for the creation of a vacant position designed for the promotion of that employee. Pl.’s 

Stmt. at 3-4, 6. Yet the Court’s review of the record shows that there is no genuine issue as to 

this fact. Plaintiff’s supervisors, Michael Curtis and Jeanne Dionne, have repeatedly and 

consistently stated that they lacked the authority to promote her or unilaterally create the position 

she sought. Def.’s Ex. 4 at 2 (“I only have authority to promote someone in a career-ladder 

series, and she is not in a promotion allowed career ladder. So I did not have authority to 

promote her.”); id. at 3 (“Her non-promotion was not based on her race or disability, but on no 

GS-11 opportunities being available to anyone.”); Def.’s Ex. 5 at 2 (“She did request a 

promotion. I informed her that I don’t have promotion authority.”); id. (“[s]he did [request a 

promotion] and informed [sic] her that I did not have the authority to promote her.”); id. at 3 (“I 

did not discriminate against the Complainant based on her race and disability because I had no 

authority to promote her.”); Pl.’s Ex. 7 at 56:18-19 (Curtis stating that he lacked the authority to 

promote); id. at 60:13-15 (Curtis responding “Yes” to the question “You thought she was 

deserving of a promotion. You just had no way of doing that?”). Rather, they have made clear 

that the creation of a vacancy is a process that requires the approval of their superiors in DHHS. 

Def.’s Ex. 4 at 2 (“The government process for promotion is that someone advertises a position 

and you compete for that. There are no GS-11 positions in my office to promote to.”); Pl.’s Ex. 

6 at 66:14-67:11 (stating that Dionne and Curtis lacked authority to promote and needed 

approval to advertise a position); Pl.’s Ex. 7 at 100:4-5 (noting that vacancies are “approved by 

the assistant secretary.”). Indeed, as noted, in an e-mail summarizing a meeting between herself 

and Mr. Curtis and Ms. Dionne, Plaintiff stated that she understood them to lack the authority 
20

themselves to create the GS-11 position she sought, as they could only request such a position. 

Def.’s Ex. 13 (“From this meeting my understanding is that the opportunity for me to advance 

from a GS-9 to a GS-11 as the ACF Section 508 Coordinator is not available in ACF/OIS.”). At 

most, the record reveals that Mr. Curtis and Ms. Dionne possessed the authority to request from 

their superiors that a vacancy be created, as well as the authority to fill a vacancy created in their 

division. See id. (“Michael stated that he will continue to push this opportunity for advancement 

because of my title. However, if the slot is approved it will be advertised and I will need to 

apply for the position.”); Def.’s Ex. 15 at 3-4 (“Mr. Curtis stated that even if and when he has 

[the] budget for it, that he will need to have an available slot at a higher grade in order to offer a 

GS-11 level for the Section 508 Coordinator position, and he will have to advertise that job 

vacancy and I will need to apply for it . . . . He expressed that he would continue to support me 

and push for me to be promoted.”). Pl.’s Ex. 7 at 57:22-58:5 (Curtis stating “I would have to go 

back and ask for a -13 slot . . . It would have to be approved by the assistant secretary. And then 

they would have to compete. And they would have to select based on all the people that applied 

for it.”). However, the record does not support the conclusion that Plaintiff’s supervisors had the 

authority to create the position she sought.

In arguing that a genuine issue of material fact exists with respect to this point, Plaintiff 

contends that the eventual creation of a GS-11 position to which she could be promoted shows 

that her supervisors had the authority to promote her all along. Pl.’s Opp’n at 7. Yet, again, the 

record shows that approval for the creation of this eventual GS-11 position came from the 

Assistant Secretary, and not from Plaintiff’s supervisors. See Pl.’s Ex. 7 at 62:10:19 (noting that 

the GS-11 was made available by the assistant secretary who “approves all promotion 

opportunities”). That this action was taken at the urging of Curtis does not support Plaintiff’s 
21

argument. Rather, this is consistent with the conclusion that Plaintiff’s supervisors could, and 

did, request a vacancy that would function as an upgraded version of a current employee’s 

position, but could not create one. Id. (Curtis noting that the GS-11 slot opened after he

“repeatedly asked for an -11 year after year after year. And it was finally approved at that 

time.”) id. at 83:11-14 (“The way the process works is you don’t actually create a position for an 

individual. You just simply create a position. So the request for an additional 508 position at a 

senior level was rejected.”). Furthermore, the fact that other vacancies were created that allowed 

other ACF employees to be promoted during the time at issue does not support Plaintiff’s claim 

that her supervisors had the authority to create these positions. Plaintiff points to nothing in the 

record to show that the other vacancies were created as a result of Curtis and Dionne’s actions. 

Indeed, Defendant has put forth evidence that the GS-14 and GS-15 vacancies were created due 

to larger departmental needs identified by the Assistant Secretary. See Def.’s Att. 1 ¶ 7-8 

(noting that Assistant Secretary David Hansell “conveyed to [Curtis] that in regard to OIS ACF 

positions, he felt it was necessary to fill the three Division Director positions at the GS-15 level, 

to prevent losing staff.”); id. ¶ 8 (stating that the GS-14 Information Technological Specialist 

position was approved by Hansell in response to President Obama’s emphasis on cyber security). 

Further, Defendant has proffered evidence that the GS-12 position was advertised and filled only 

at the conclusion of the time at issue in this case. Def.’s Att. 3 ¶ 6. In light of this evidence, 

Plaintiff’s claim that these vacancies functioned as de facto promotions that were created by her 

supervisors has no basis in fact and is mere speculation insufficient to defeat Defendant’s motion 

for summary judgment. 

Similarly unavailing is Plaintiff’s argument that a genuine issue of material fact exists as 

to whether her supervisors even requested the vacancy she sought. Pl.’s Stmt. at 2-3. The 
22

statements in the record show that Plaintiff’s supervisor Michael Curtis did request his vacancy, 

albeit without mentioning Plaintiff by name. See, e.g., Pl.’s Ex. 7 at 62:18-19 (“I repeatedly 

asked for an -11 year after year after year.”); id. at 82:20-83:14 (Curtis stating that he submitted 

the request and that “the request for an additional 508 position at a senior level was rejected.”). 

Plaintiff attempts to cast doubt on these statements by pointing to Donaldson’s statement that 

Plaintiff requested a promotion from him during the informal EEO mediation held on January 4, 

2012. Pl.’s Ex. 3 at 3. Plaintiff argues that this means that Donaldson did not receive any 

request to promote Plaintiff until the informal EEO mediation in this case on January 4, 2012. 

Yet, as Defendant points out, this statement, even when read as Plaintiff suggests, does not show 

that Plaintiff’s supervisors failed to request a vacancy on her behalf and that their deposition 

testimony is thus untruthful. Rather, read in the context of Donaldson’s other statements in the 

record, this account is consistent with the fact that Curtis did request a vacancy on behalf of 

Plaintiff, but did not refer to her by name in making this request. Def.’s Att. 2, ¶ 7 (Donaldson 

stating that Curtis “did not ask for any position for the Plaintiff, rather, he requested authority to 

create and then compete an administrative support position”). Indeed, Plaintiff points to no 

statement from Donaldson that he never received a request for a GS-11 vacancy from Curtis. 

Without statements from Donaldson undermining Curtis and Dionne’s representations, all 

Plaintiff can point to in order to show a genuine issue of material fact is her contention that ACF 

has failed to produce the paperwork documenting these vacancy requests. But standing alone 

without any showing that Plaintiff has even requested this information, or evidence as to 

DHHS’s submission and recordkeeping regime as to promotion requests, such unadorned 

speculation is insufficient to create more than a “metaphysical doubt” as to the issue of whether 

Plaintiff’s supervisors actually requested a vacancy. Matsushita, 475 U.S. at 586. Furthermore, 
23

even if true, the failure to produce this paperwork is not inconsistent with Plaintiff’s supervisors 

making the requests for vacancies orally. See Pl.’s Ex. 6 at 67:9-11 (“My recollection is that 

[Curtis] said he would talk with Jason Donaldson to see if he could be given the approval to 

advertise a position.”) (emphasis added); id. at 68:5-8 (“I remember in the meeting him saying 

that he was going to have a conversation with Jason Donaldson to see whether he could get 

approval to advertise a position.”) (emphasis added); Pl.’s Att. 2, ¶ 7 (Donaldson stating that 

Curtis made his requests for vacancies orally).

Accordingly, finding no genuine issue of material fact as to (1) whether Plaintiff’s 

supervisors lacked the authority to promote her, and (2) whether Plaintiff’s supervisors requested 

a vacancy on her behalf, the Court views this case as identical to Adesalu. And just as in that 

case, unfulfilled promises by Plaintiff’s supervisors that they were working to secure her a 

promotion do not create an adverse employment action in the absence of a vacancy. In order to 

obtain approval to advertise a vacancy for the position Plaintiff sought, Plaintiff’s supervisors

had to make a request to the Assistant Secretary of DHHS for authority to create a position. 

Thus, just as with the supervisor in Adesalu, Plaintiff’s supervisors lacked the authority to create 

the vacancy they requested for her without the approval of higher-level DHHS employees. 

Accordingly, their requests to promote her to a position they could not themselves create, 

although unsuccessful in the time frame at issue, do not render her failure to be promoted an 

actionable adverse employment action. 

Plaintiff cites two D.C. Circuit cases in arguing that the failure to create a vacancy for 

which an employee can apply can constitute an adverse employment action. Pl.’s Opp’n at 11-

12. However, neither of these cases extends as far as Plaintiff suggests. First, in Cones v. 

Shalala, 199 F.3d 512, 518 (D.C. Cir. 2000), the D.C. Circuit held that the decision not to 
24

advertise a vacant position can constitute an adverse employment action. In that case, the 

plaintiff challenged the defendant’s decision to laterally transfer a white employee into the 

position plaintiff sought promotion to, rather than open the position to competition. Id. at 516. 

Despite the fact that defendant never opened the position to competition, the D.C. Circuit found

that the plaintiff had still suffered an adverse employment action because “refusing to allow 

[plaintiff] to compete for the promotion was tantamount to refusing to promote him.” Id. at 521. 

Here, the facts are different in a crucial respect. Defendant here has not created a GS-11 position 

and sought to shield it from competition by laterally transferring another employee in without 

advertising a vacancy. Rather, as discussed, the position that Plaintiff sought did not exist during 

the time at issue and her supervisors lacked the authority to create it. Plaintiff could not compete 

for a position that did not exist. Indeed, Cones itself recognized the necessity of a vacancy in 

establishing an adverse employment action for failure to promote. See id. at 516 (noting that one 

of the “most common nondiscriminatory reasons for a plaintiff’s rejection” is “the absence of a 

vacancy in the job sought.”) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 

324, 358 n. 44 (1977)); id. at 517 (noting the D.C. Circuit’s “clear statements” in prior cases 

“that plaintiffs in non-selection cases need show only that they applied for the vacant position 

and that a person not of their protected class was selected.”) (emphasis added). See also YarberButler, 53 Fed. Appx. at 120 (citing Cones, 199 F.3d at 516, for the proposition that “if there is 

no vacancy in the job sought, the plaintiff cannot establish a prima facie case.”) (internal 

citations omitted).

Similarly, Plaintiff’s citation to Evans v. Sebelius, 716 F.3d 617 (D.C. Cir. 2013) is 

unavailing. In that case, the defendant created a position and opened it to competition. 

However, after the plaintiff applied and was interviewed for the position, the vacancy was 
25

cancelled. Id. at 618-19. Finding the Government’s explanation for the cancellation of the 

position inaccurate and inconsistent, and noting the fact that white employees were 

simultaneously promoted, the D.C. Circuit overturned the district court’s grant of summary

judgment to the defendant. Id. at 622. Evans is distinct from the facts here, as no GS-11 

vacancy to which Plaintiff could apply existed during the time at issue and Plaintiff’s supervisors 

lacked the authority to unilaterally create one. By contrast, in Evans, a vacancy existed and the 

plaintiff’s supervisors there had the authority to promote plaintiff. 

Consequently, under Circuit case law, there is no adverse employment action here. 

Plaintiff points to Defendant’s failure to promote her, but absent an available vacancy to which 

Plaintiff could have applied, or at least a showing that her supervisors had the authority to create 

such a vacancy and failed to request it, there is no adverse employment action. Under Adesalu, 

Plaintiff cannot challenge the failure to be promoted to a position which did not exist and which 

her supervisors, while utilizing their power to request, lacked the power to unilaterally create. 

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS Defendant’s [9] Motion to Dismiss, or in 

the Alternative, Motion for Summary Judgment. Accordingly, this action is DISMISSED WITH 

PREJUDICE in its entirety. An appropriate Order accompanies this Memorandum Opinion. 

Dated: December 31, 2013 

/s/

COLLEEN KOLLAR-KOTELLY 

United States District Judge