UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_______________________________________ 

 ) 

VERNARD EVANS, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) Civil Action No. 08-1077 (RBW) 

 ) 

 ) 

KATHLEEN SEBELIUS, ) 

Secretary of the Department of ) 

Health and Human Services ) 

 ) 

 Defendant.1 ) 

_______________________________________) 

MEMORANDUM OPINION 

Vernard Evans, the plaintiff in this civil lawsuit, brings this action against the Secretary 

of the Department of Health and Human Services (the “Secretary”) in her official capacity, 

alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17

(2006) (“Title VII”), Amended Complaint (“Am. Compl.”) ¶¶ 5, 30, and the Age Discrimination 

in Employment Act of 1967, 29 U.S.C. § 623(a) (2006) (the “ADEA”),2 Plaintiff’s Opposition to 

 

1

 Pursuant to Federal Rule of Civil Procedure 25(d)(1), the Court has substituted the current Secretary of Health and 

Human Services, Kathleen Sebelius, as the defendant in this action. 

2

 The plaintiff did not formally assert an age discrimination claim in her Amended Complaint. However, the 

defendant addressed the ADEA in her motion for summary judgment, to which the plaintiff has responded in her 

opposition. Based on the leniency afforded to pro se plaintiffs as directed by the District of Columbia Circuit, the 

Court will treat the complaint as having been constructively amended so as to include a claim under the ADEA. See

Richardson v. United States, 193 F.3d 545, 548-49 (D.C. Cir. 1999). The Court notes that such an amendment does 

not prejudice the defendant, as she has addressed whether the plaintiff was discriminated against based on her age in 

her motion for summary judgment. See Ali v. District of Columbia, 278 F.3d 1, 8-9 (D.C. Cir. 2002) (citing Sinclair 

v. Kleindienst, 711 F.2d 291, 293 (D.C. Cir. 1983)) (holding that the complaint must give the “defendant fair notice 

of the plaintiff's claim and the grounds upon which it rests”). 
2

Motion to Dismiss and Oppose Summary Judgment (“Pl.’s Opp’n I”) at 1,3

 on the basis that the 

Department, an agency of the United States government and her employer, engaged in 

discriminatory employment practices against her based on her race (African-American), Am. 

Compl. ¶¶ 5, 30, and age (55), Pl.’s Opp’n I at 1, when it failed to promote her to a position for 

which she initially had been selected. This matter is currently before the Court on the 

defendant’s Motion to Dismiss Or Alternatively, For Summary Judgment (“Def.’ s Mot.”), which 

the plaintiff opposes, Pl.’s Opp’n. After carefully considering the parties’ pleadings, the 

defendant’s motion and the plaintiff’s opposition, and all memoranda of law and exhibits 

submitted with these filings,4

 the Court concludes that it must not only grant the defendant’s 

motion in part and deny it in part, but also grant the plaintiff limited leave to file an amended 

complaint for the reasons that follow.

I. BACKGROUND 

Viewing the evidence in the light most favorable to the plaintiff, the facts are as follows. 

At all relevant times pertaining to this lawsuit, the plaintiff was an employee of the 

Administration for Developmental Disabilities (the “ADD”), a subordinate office of the 

Administration for Children and Families (the “ACF”), within the Department of Health and 

 

3

 The plaintiff has filed two documents entitled “Opposition To Motion To Dismiss and Oppose Summary 

Judgment” simultaneously. The Court will identify her twenty page submission as Plaintiff’s Opposition (“Pl.’s 

Opp’n”) I and her seven page submission as Plaintiff’s Opposition (“Pl.’s Opp’n”) II. 

4

 The Court also considered the following documents that were submitted in connection with this motion: (1) the 

defendant’s Memorandum Of Points And Authorities In Support Of Motion to Dismiss Or Alternatively, For 

Summary Judgment (“Def.’s Mem.”); (2) the defendant’s Statement Of Material Facts As To Which There Is No 

Genuine Dispute (“Def.’s Stmt.”); (3) the plaintiff’s Opposition To Motion To Dismiss and Oppose Summary 

Judgment (“Pl.’s Opp’n”); the Plaintiff's Statement of Facts As To Which There Is A Genuine Dispute (“Pl.’s 

Stmt.”); and the defendant's Reply To Plaintiff's Opposition to Defendant's Motion to Dismiss or Alternatively, 

Motion For Summary Judgment (“Def.’s Reply”). 
3

Human Services (the “Agency”). Def.’s Stmt. ¶ 1.5

 The plaintiff, an African-American female, 

age 55 at the time of her non-promotion, Def.’s Mem., Exhibit (“Ex.”) 4 (Affidavit of Vernard 

Evans) (“Evans Aff.”) at 2, had been employed with the Agency for twenty-two years, and in her 

most recent position, served as a GS-101-13 Program Specialist within the ADD, the entity 

“responsible for administrating programs and policies serving persons with developmental 

disabilities.” Am. Compl. ¶ 2; Def.’s Stmt. ¶ 27. The ADD is headed by a Commissioner, who 

reports to the Assistant Secretary and Deputy Assistant Secretary of the ACF. Def.’s Stmt. ¶ 1. 

Prior to August 27, 2001, Sue Swenson served as Commissioner of the ADD, and she was 

succeeded by Dr. Patricia Morrissey, the appointee of the incoming presidential administration in 

2001. Id. ¶ 3.

A. The Plaintiff’s Application to the Lead Developmental Disability Specialist Position

 On April 21, 2001, the plaintiff applied for a newly created position within the ADD, a 

GS-14 position with the title “Lead Developmental Disability Specialist” (“LDDS”), “which was 

one of the four positions that out-going Commissioner Swenson sought to establish as part of her 

reorganization of [the] ADD.” Def.’s Stmt. ¶ 10. The Agency identified this new position in its 

vacancy announcement as a non-supervisory and non-bargaining unit position. Def.’s Mem., Ex. 

8 (LDDS Vacancy Announcement) at 1. On May 16, 2001, a panel of senior staff members 

interviewed the plaintiff for the position. Def.’s Mem., Ex. 13 (Plaintiff’s Letter to the Agency’s 

Office of Equal Employment Opportunity (“EEO”) June 13, 2002) at 1. Leola Brooks, the 

plaintiff’s supervisor and the selecting official for the position, recommended the plaintiff for the 

 

5

 The Court notes that the plaintiff has only opposed two of the Defendant’s Statements of Material Fact as to 

Which There is No Genuine Dispute. Therefore the Court will cite to the defendant’s (uncontroverted) facts when it 

is necessary to supplement the plaintiff’s complaint and in recounting of events. 
4

promotion.6 Def.’s Stmt. ¶ 11; Def.’s Mem., Ex. 2 (Affidavit of Leola Brooks) (“Brooks Aff.”) 

at 6-7, 9, 12. According to the plaintiff, in September of 2001, Ms. Brooks “told [her] she had 

[been] selected for the position and that the selection certificate had been returned to personnel 

for processing.” Am. Compl. ¶ 6. However, the plaintiff was not formally notified of this 

purported selection nor placed in the position. Def.’s Mem., Ex. 4 (Evans Aff.) at 5-6. The 

plaintiff made several inquiries concerning the status of the position, Def.’s Stmt. ¶ 17, and 

according to her complaint, was also notified by Personnel Specialist Jenny Mason that she had 

been selected and “would be placed once the Presidential freeze lifted.” Am. Compl. ¶ 7. 

During the time period covered in this complaint, several hiring policies were in effect at 

the Agency, the ACF, and the ADD. Def.’s Stmt. ¶¶ 7-9, 12-14. One was a January 20, 2001 

decision by the incoming presidential administration to place “all Executive departments and 

agencies” on a hiring freeze. Def.’s Stmt. ¶ 7; Def.’s Mem. Ex. 17 (Government Hiring Controls 

Memo Jan. 30, 2001) at 1. Thereafter, in February 2001, Department of Health and Human 

Services Secretary Tommy Thompson issued an agency wide memorandum asking the heads of 

all divisions “to defer decisions to fill positions at the GS-13 through SES levels until [he had] 

the opportunity to review staff deployment throughout the Department.” Def.’s Stmt. ¶ 8; Def.’s 

Mem., Ex. 6 (Undated Memo from Thompson) at 1. Despite the hiring freeze, the Agency was 

not prohibited from advertising vacancies, but purportedly “could not make official offers until 

the hiring control was lifted.” Def.’s Stmt. ¶ 9; Def.’s Mem., Ex. 15 (Affidavit of Vanessa 

 

6

 The defendant contests the plaintiff’s use of the word “selected” in regard to the position taken by Ms. Brooks, 

arguing that the plaintiff was simply “recommended” for the position by Ms. Brooks. Def.’s Reply at 2. And as Ms. 

Brooks has stated, she did not possess the authority to officially “select” the plaintiff for the LDDS position, and 

therefore, her actions constituted a recommendation or “tentative selection.” Def.’s Mem., Ex. 2 (Affidavit of Leola 

Brooks) (“Brooks Aff.”) at 9. The Court therefore concludes that it is incorrect to characterize Ms. Brooks’ action 

as having been a selection as opposed to a recommendation. 
5

Jenkins) (“Jenkins Aff.”) at 6. By October 2001, the Agency had relaxed the hiring freeze, but 

retained controls on supervisory and managerial positions at the GS-14, 15, and Senior Executive 

Service level. Def.’s Stmt. ¶ 12; Def.’s Mem., Ex. 9 (Memo from Sontag Oct. 15, 2001) at 1. 

Then, in November 2001, Dr. Wade Horn, Assistant Secretary for Children and Families, issued 

a memorandum to all subordinate ACF offices, in which he discussed the relaxation of agency 

wide hiring controls. Def.’s Stmt. ¶ 13; Def.’s Mem., Ex. 10 (Memo from Horn Nov. 29, 2001) 

(“Horn Memo”) at 1-3. Dr. Horn’s memorandum “continued the hiring controls on all 

promotions to the GS-13 level and above, including career ladder promotions and accretions in 

[the] ACF.” Def.’s Mem., Ex. 10 (Horn Memo) at 2. The memorandum directed agency 

officials to “obtain [Dr. Horn’s] approval before any official offer is made . . . for any personnel 

actions that are currently pending . . . in this category.” Id. 

Still awaiting promotion into the LDDS position, on February 2, 2002, the plaintiff 

enlisted the aid of her local union chapter representative, Isadora Wills. Def.’s Stmt. ¶ 18; Am. 

Compl. ¶ 8. The plaintiff alleges that on February 5, 2002, she contacted the personnel office to 

inquire into the status of the LDDS position and was given contradictory information, being told 

on the one hand that personnel records indicated that she had already occupied the position, 

while being ultimately told that “it could be years before any action is taken.” Am. Compl. ¶ 9. 

On February 7, 2002, Ms. Wills submitted the plaintiff’s “questions to the Union concerning” the 

status of the position. Id. ¶ 10. When she had not received a response by February 28, the 

plaintiff “began feeling stressed by her workload, and the added frustration from [the] promotion 

process” and officially retired from the Agency. Id. However, according to the plaintiff, she 

“was told by her manager and Union rep that [the] position was still available,” and she 

subsequently rescinded her retirement and returned to work. Id. 
6

On March 4, 2002, the plaintiff and Ms. Wills met with the President of the Union to 

discuss the inquiries that the plaintiff had submitted. Id. ¶ 11. The Union President purportedly 

informed the plaintiff that “she ha[d] been told that the position . . . ha[d] been cancelled per J. 

Ingrid Clemons.” Id. Thereafter, the plaintiff again telephoned the personnel office to inquire 

into the status of the position. Id. The personnel office “denie[d] that the . . . [position] had been 

cancelled, saying instead that it [was] on hold and that the selection certificate [was] ‘still 

good.’” Id. Then, on March 25, 2002, Dr. Horn, Assistant Secretary of the ACF, held an “All 

Hands Staff Meeting,” id. ¶ 12, and according to the plaintiff, he announced that “there was ‘no’ 

promotion freeze on GS-13’s and above,” which was “totally contradictory” to what the plaintiff 

had been informed previously. Id. ¶ 12; Pl.’s Opp’n I, Ex. 16 (Affidavit of Lonnie Stewart) ¶ 2.

After the plaintiff’s March 4, 2002 meeting with the Union representatives, Ms. Wills 

contacted personnel representatives with a list of the plaintiff’s questions concerning the LDDS 

position and the legitimacy of the agency hiring freeze and she received a response from Ms. 

Clemons, the ACF Labor Relations Officer, on March 28. Am. Compl. ¶ 13, Def.’s Mem., Ex. 

11 (Email from Clemons to Wills, March 28, 2002) (“Clemons Email”). The email stated that 

the LDDS position “had been cancelled on March 7, 2002 and that the cancellation was 

authorized by Leola Brooks, [the plaintiff’s] supervisor.” Def.’s Mem., Ex. 11 (Clemons Email) 

¶ 8. However, according to the plaintiff, Ms. Brooks denied ever having cancelled the 

promotion. Am. Compl. ¶ 13. The Clemons email also informed Ms. Wills that the requested 

list of promotions and hires during the Presidential and Secretarial freeze “would be forwarded to 

[her] via inter-office mail.” Def.’s Mem., Ex. 11 (Clemons Email) ¶ 4. However, when the 

plaintiff and Ms. Wills received the hiring and promotions list on April 11, 2002, “it did not list 

any promotions or hires in [the] ADD during the freeze.” Am. Compl. ¶ 14; Pl.’s Opp’n I, Ex. 4 
7

(Affidavit of Isadora Wills) at 1. Frustrated and “exasperated,” the plaintiff “officially retired a 

second time, on April 3, 2002.” Am. Compl. ¶ 14. 

Upon her retirement, the plaintiff submitted two Freedom of Information Act (“FOIA”) 

requests to the Agency concerning the cancellation of the LDDS position. See Def.’s Mem., Ex. 

12 (FOIA Response May 14, 2002); id. (FOIA Response May 22, 2002). On May 14, 2002, the 

request yielded the names of three individuals who received promotions in the ADD that were 

not included in the original list provided to Ms. Wills. Def.’s Mem. Id., (FOIA Response May 

14, 2002) at 2. The plaintiff describes the individuals who received promotions as “Caucasian 

females, younger in age than [her].” Am. Compl. ¶ 15. Specifically, the plaintiff learned that 

Faith McCormick had been selected to fill an Executive Assistant to the Commissioner position 

in the ADD. See Def.’s Mem., Ex. 12 (FOIA Response May 14, 2002) at 2. Additionally, the 

FOIA response from May 22, 2002, stated that “you were selected for the position on 9/13/01 . . . 

[and] personnel was not notified of a cancellation because a selection was made. The name and 

title of the authorizing official who requested holding the selected position was not located.” 

Def.’s Mem., Ex. 12 (FOIA Response May 22, 2002) at 1. 

B. The Executive Assistant Position

When Dr. Morrissey assumed her position as the ADD Commissioner in August of 2001, 

she immediately “wanted a[n] Executive Assistant as quickly as [she] could get one.” Pl.’s 

Opp’n I, Ex. 24 (Hearing Testimony of Patricia Morrissey) (“Morrissey Testimony”) at 45. Dr. 

Morrissey wanted a capable assistant with a “credible background” who was a “federal employee 

with knowledge of people with disabilities,” id., and because she was previously acquainted with 

Faith McCormick, a GS-14 employee in the Department of Health and Human Services’ Office 

of Intergovernmental Affairs, id. at 33, Ms. McCormick was detailed into the ADD as the 
8

Executive Assistant, id. at 45. Ms. McCormick was approximately 54 years old in 2001 when 

the detail was made. Def.’s Mem., Ex. 7 (Hearing Testimony of Faith McCormick) 

(“McCormick Testimony”) at 163. When certain budgetary restrictions had lifted, Dr. Morrissey 

issued a vacancy announcement for the Executive Assistant position, GS-15 level. Def.’s Mem., 

Ex. 24 (Morrissey Testimony) at 33; id., Ex. 14 (Executive Assistant Vacancy Announcement) at 

1. The vacancy announcement remained outstanding from December 28, 2001 through January 

14, 2002, and Dr. Morrissey admits that she personally informed Ms. McCormick about the 

opening. Pl.’s Opp’n I, Ex. 24 (Morrissey Testimony) at 44. As the only applicant, Dr. 

Morrissey selected Ms. McCormick for the position, effective February 24, 2002. Id. at 45; 

Def.’s Stmt. ¶ 25. The plaintiff maintains that she was not aware of the availability of the 

Executive Assistant position and was therefore denied the opportunity to apply for the position. 

Pl.’s Opp’n I at 12. 

On June 13, 2002, the plaintiff contacted her EEO Counselor to file a complaint of 

discrimination based on race and age. Def.’s Mem, Ex. 13 (Letter to EEO June 13, 2002) at 1. 

Unsatisfied with the investigation of her charge by the Agency, the plaintiff filed a formal 

complaint with the Equal Employment Opportunity Commission (“EEOC”). Am. Compl. ¶ 17. 

Before the EEOC, the Agency argued that the plaintiff’s initial EEO filing was untimely, based 

on an email that the plaintiff labels as having been “doctored,” presumably, she is contending, by 

the Agency “add[ing] promotions in [the] ADD that should have been in the original e-mail, but 

were not included.” Id. ¶ 22. At that time, the plaintiff presented “the original e-mail . . . with a 

sworn statement from the Union Rep who received [it] (that did not contain the ADD 

promotions).” Id. Nonetheless, the administrative judge dismissed the case for having been 

untimely filed. Id. The plaintiff timely appealed the dismissal and prevailed on appeal, resulting 
9

in her case being returned to the administrative judge. Id. ¶ 23. After conducting a hearing, the 

Agency issued its final decision on April 17, 2006, concluding that there had been no 

discrimination. Evans v. Leavitt, Appeal No. 0120063847, 2008 WL 858955, at *1 (E.E.O.C. 

Mar. 21, 2008). On June 16, 2006, the plaintiff appealed the decision to the EEOC’s Office of 

Federal Operations. Id. On March 21, 2008, the Office of Federal Operations affirmed the 

Agency’s decision, finding that it had “provided legitimate, nondiscriminatory reasons for its 

actions.” Id. at *3. The plaintiff then filed this action in this Court June 23, 2008.

In her Amended Complaint, the plaintiff charges that “the Agency discriminated against 

[her] based on her [r]ace in failing to promote her to the GS-14 position for which she had been 

selected.” Am. Compl. ¶ 30. The plaintiff also claims that she “was not made aware” of the 

Executive Assistant to the Commissioner position, “or given a chance to compete for other GS14 and GS-15 details and promotions that were made available to white women within the office, 

positions which the Bargaining Unit Rules indicate should happen.” Id. ¶ 5. As a result of the 

Agency’s actions, the plaintiff states that she has “suffered humiliation along with physical and 

emotion distress” and has gone from a “hard[working], trusting, productive, efficient, and 

conscientious employee to [a] paranoid, sleepless, [and] sad” individual who has suffered a 

“breakdown of [her] body with headaches, abdominal discomfort, depression, back pain, and 

numerous test[s] which included endoscopy procedure, [two] abdominal sonograms, upper and 

lower gastro intestinal evaluations, colonoscopy, and stomach CT scan, and anger and irritability 

with her own family.” Id. ¶ 29. According to the plaintiff, the “[t]est results confirmed that [her] 

[health] problems stemmed from [her] stressed work environment and these symptoms continued 

past [her] retirement.” Id. 
10

On January 12, 2009, the defendant filed the motion currently before the Court, which 

seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), or alternatively, for 

summary judgment pursuant to Federal Rule of Civil Procedure 56. Def.'s Mot. at 1. 

Specifically, the defendant contends that she is entitled to the relief being requested because the 

plaintiff has failed to timely exhaust her administrative remedies, and her complaint should 

therefore be dismissed, Def.'s Mem. at 11, and that summary judgment should be awarded 

because (1) the evidence demonstrates that the Agency’s decision to cancel the LDDS vacancy 

“was not based on race or age, but rather on hiring controls,” id. at 12; (2) the plaintiff was not 

treated differently from similarly situated employees outside of her protected class, id. at 13; and 

(3) the plaintiff’s allegations regarding the Executive Assistant position are “meritless” because 

she never applied for the position, id. at 16. 

In opposition, the plaintiff contends: (1) that the agency “has failed to meet its burden” 

of showing that her EEO contact was untimely, and nevertheless, the Court should equitably toll 

her claims, Pl.’s Opp’n II at 1, 6; (2) the record is “replete” with contradictions and contested 

issues of fact; Pl.’s Opp’n I at 1, 13-14; (3) the Collective Bargaining Agreement should have 

applied to the LDDS vacancy, id. at 13; and (4) she was treated differently from all other 

employees and the Court should compare her treatment to that of Ms. McCormick, id. at 14. 

II. STANDARD OF REVIEW 

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

summary judgment. The Court will treat such a motion as one for summary judgment when 

“matters outside the pleadings are presented to and not excluded by the court . . . [and] [a]ll 

parties [have been] given 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. 
11

2003); Ross v. United States, 591 F. Supp. 2d 48 (D.D.C. 2008) (Walton, J.). Here, treating the 

entire motion under the summary judgment standard of review is appropriate because “the 

[defendant’s] motion[] [was] in the alternative for summary judgment and the parties had the 

opportunity to submit . . . materials in support and in opposition.” Americable Int’l, Inc. v. Dep’t

of Navy, 129 F.3d 1271, 1274 n.5 (D.C. Cir. 1997) (finding that it would not be “unfair” to treat 

such a motion as one for summary judgment).7

 

To grant a motion for summary judgment, the Court must find that “the pleadings, the 

discovery and disclosure materials on file, and any affidavits show that there is no genuine issue 

as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(c). When ruling on a motion for summary judgment, the Court must view the 

evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 

895 (D.C. Cir. 2006), and must also draw “all justifiable inferences” in the non-moving party’s 

favor and accept the non-moving party’s evidence as true. Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 255 (1986). However, the non-moving party cannot rely on “mere allegations or 

denials,” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 

248) (internal quotation marks omitted) but “must set forth specific facts showing that there is a 

genuine issue for trial.” Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

475 U.S. 574, 587 (1986). In addition, the non-moving party cannot rely upon inadmissible 

evidence to survive summary judgment; rather, the non-moving party must rely on evidence that 

 

7

 The Court notes that the defendant has complied with the District of Columbia Circuit’s instruction in Neal v. 

Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992), that it assist the Court in providing notice to the pro se plaintiff of the 

effect of treating its motion as one for summary judgment. See Def.’s Mem. at 1-2. Because the plaintiff’s 

opposition demonstrates her awareness of the summary judgment standard, Pl.’s Opp’n I at 1, 10-12, the Court is 

satisfied that the plaintiff is not surprised by the Court’s decision to review the motion under Rule 56. 
12

would arguably be admissible at trial. Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) 

(finding that “[t]o survive summary judgment the non-moving party must ‘produce evidence . . . 

capable of being converted into admissible evidence’” and that “sheer hearsay[] . . . ‘counts for 

nothing’” (internal citations omitted)). However, the party moving for summary judgment bears 

the burden of establishing the absence of evidence that supports the non-moving party’s case. 

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Finally, because of the difficulty of 

establishing discriminatory intent, “an added measure of rigor, or caution, is appropriate in 

applying this standard to motions for summary judgment in employment discrimination cases.” 

Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997) (internal quotation marks 

omitted), rev’d on other grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en banc). 

III. LEGAL ANALYSIS 

A. Exhaustion of Administrative Remedies

The exhaustion of administrative remedies is a prerequisite to the awarding of judicial 

relief under Title VII. 42 U.S.C. § 2000e-16(c); Brown v. Gen. Servs. Admin., 425 U.S. 820, 

832-33 (1976); Bayer v. U.S. Dep’t of Treasury, 956 F.2d 330, 332 (D.C. Cir. 1992). An 

aggrieved plaintiff must initiate administrative proceedings by contacting an EEO counselor 

within forty-five days of the allegedly discriminatory action. 29 C.F.R. § 1614.105(a)(1); James 

v. England, 332 F. Supp. 2d 239, 243-44 (D.D.C. 2004) (Walton, J.). The exhaustion 

requirement is also a prerequisite for claims of age discrimination under the ADEA, 29 U.S.C. § 

633a (2006). James, 332 F. Supp. 2d at 243 (citing Chennareddy v. Bowsher, 935 F.2d 315, 317 

(D.C. Cir. 1991)). This forty-five day time limit is not jurisdictional, but operates as a statute of 

limitations defense. See Jarrell v. U.S. Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985) (“[A] 

timely administrative charge is a prerequisite to initiation of a Title VII action in the District 
13

Court . . . subject to waiver, estoppel, and equitable tolling’” (quoting Zipes v. Trans World 

Airlines, Inc., 455 U.S. 385, 393 (1982)). As an affirmative defense, the defendant bears the 

burden of proving that the plaintiff failed to properly exhaust her administrative remedies. See

Colbert v. Potter, 471 F.3d 158, 165 (D.C. Cir. 2006); Armstrong v. Reno, 172 F. Supp. 2d 11, 

20 (D.D.C. 2001) (citing Bowden v. United States, 106 F.3d 433, 437-38 (D.C. Cir. 1997); 

Brown v. Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985)). 

In addition, under 29 C.F.R. § 1614.105(a)(2), the plaintiff may plead equitable 

considerations as grounds for tolling the untimely contact with an EEO counselor. See Stewart 

v. Ashcroft, 352 F.3d 422, 425 (D.C. Cir. 2003) (stating that section 1614.105(a)(2) “provide[s] 

that the time will be tolled if [the plaintiff] ‘did not know and reasonably should not have [ ] 

known that the discriminatory matter or personnel action occurred’” (third alteration in 

original)); Bayer, 956 F.2d at 333 (noting that the plaintiff “bears the burden of pleading and 

proving . . . ‘equitable reasons’ for noncompliance”). However, this Circuit has held that 

equitable tolling should only be granted in “extraordinary and carefully circumscribed 

circumstances.” Mondy v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988). 

The defendant argues that the cancellation of the LDDS vacancy “is a discrete personnel 

action which triggered the time limits for contacting an EEO Counselor.” Def.’s Mem. at 10. 

Relying on an email from ACF Labor Relations Officer Clemons to the plaintiff’s union 

representative (Ms. Wills), the defendant contends that because the position was cancelled on 

March 7, 2002, “that is when time started running.” Id. However, the defendant admits that the 

plaintiff may not have been aware of the cancellation until receiving Ms. Clemons’ email on 

March 28, 2002. Id. at 11. Further, the defendant posits that “there is no doubt” that on April 8, 
14

2002, the plaintiff’s union representative learned that the ADD Executive Assistant position had 

been filled. Id. 

The plaintiff counters that under the “reasonable suspicion” standard,8 the email she 

received in March was “insufficient to trigger [her] burden to contact an EEO counselor.” Pl.’s 

Opp’n II at 2. The plaintiff argues that she had been given “contrary and conflicting” 

information regarding the LDDS position and did not suspect discrimination until receipt of the 

defendant’s responses to her FOIA requests on May 14 and 22, 2002. Id. Further, the plaintiff 

challenges the defendant’s assertion that April 8, 2002, is the operative date because the email 

she had received from her union representative did not contain the full list of the ADD 

promotions. Id. at 4. This is confirmed by Ms. Wills, who states that the email “did not include 

an Executive Assistant, GS-15, within . . . [the] ADD.” Pl.’s Opp’n I, Ex. 4 (Wills Aff.) at 1. 

And, the plaintiff was not apprised of Ms. McCormick’s promotion until she received the May 

14, 2002 response to her FOIA requests. Def.’s Mem., Ex. 12 (FOIA Response May 14, 2002) at 

2. Thus, according to the plaintiff, her June 13, 2002 contact with her EEO counselor was 

timely. For the following reasons, the Court agrees with the plaintiff. 

First, the Court rejects March 7, 2002, as the operative date because the defendant has 

offered no evidence that the plaintiff was notified of the LDDS position cancellation on that date. 

Def.’s Mem., Ex. 11 (Clemons Email) ¶ 8. Second, the defendant has not met its burden of 

proving that the plaintiff was actually notified that the LDDS position had been cancelled on 

 

8

 The plaintiff relies heavily on decisions of the EEOC. See Pl.’s Opp’n II at 2, 4. However, these decisions are not 

binding authority on this Court and only have the weight of persuasive authority. See Vinson v. Taylor, 753 F.2d 

141, 148-49 n.60 (D.C. Cir. 1985) (citing Gray v. Greyhound Lines, Inc., 545 F.2d 169, 176 (D.C. Cir. 1976)). 

Here, the “reasonable suspicion” standard is not only the governing law of the EEOC, but is the standard other 

members of this Court have employed. See Johnson v. Gonzales, 479 F. Supp. 2d 55, 59 (D.D.C. 2007) (citing 

McCants v. Glickman, 180 F. Supp. 2d 35, 40-41 (D.D.C. 2001)). 
15

March 28, 2002. Rather, the plaintiff has offered credible evidence that she did not receive the 

complete list of hires in the ADD until receipt of the responses to her FOIA requests. Pl.’s 

Opp’n I, Ex. 4 (Wills Aff.) at 1. Although members of this Court have held that “‘[t]he 

plaintiff's time for [contacting an EEO counselor] starts to run when the plaintiff has a reasonable 

suspicion that [she] has been the victim of discrimination,’” Hines v. Bair, 594 F. Supp. 2d 17, 

22-23 (D.D.C. 2009) (citation omitted) and “is not allowed to ‘wait until [she] has direct proof of 

the allegedly discriminatory actions,’” id. (citing McCants v. Glickman, 180 F. Supp. 2d 35 

(D.D.C. 2001)), here, the plaintiff did not forestall initiating contact with an EEO counselor to 

strengthen her claim of discrimination, but rather, to clarify conclusively whether the Agency 

had in fact cancelled the LDDS position. See Pl.’s Opp’n II at 5; Def.’s Mem., Ex. 14 (FOIA 

Response May 14, 2002) at 2. Unlike the plaintiff in McCants, who had “first suspected 

discrimination on the day of his [job] interview” but had waited more than two years before 

raising his concerns “because he had no tangible evidence” of discrimination, and “hoped to get 

a job later,” Ms. Evans promptly contacted an EEO counselor when she first suspected 

discrimination upon receiving the FOIA response. See McCants, 180 F. Supp. 2d at 41; Pl.’s 

Opp’n II at 5. 

Because the Court must consider the facts in the light most favorable to the plaintiff, and 

the plaintiff has offered evidence that she did not have “reasonable suspicion” of any 

discrimination until May 22, 2002, the Court finds that the plaintiff's June 13, 2002 contact with 

her EEO counselor was timely, and that the plaintiff therefore exhausted her administrative 

remedies before initiating this case. 
16

B. The Plaintiff’s Disparate Treatment Claims

Title VII provides that “personnel actions affecting employees . . . in executive agencies . 

. . shall be made free from any discrimination based on race . . . . ” 42 U.S.C. § 2000e-16(a). The 

ADEA provides in pertinent part that “[a]ll personnel actions affecting employees or applicants 

for employment who are at least 40 years of age . . . in executive agencies . . . shall be made free 

from any discrimination based on age.” 29 U.S.C. § 633(a). Where, as here, there is no direct 

evidence of discrimination,9 the Court assesses the plaintiff’s claims under the framework set 

forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under 

the McDonnell Douglas framework, “the plaintiff must establish a prima facie case of 

discrimination” in the first instance, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 

142 (2000), after which “the burden shifts to the defendant, who must ‘articulate some 

legitimate, non-discriminatory reason’ for the adverse action,’” Czekalski v. Peters, 475 F.3d 

360, 363 (D.C. Cir. 2007) (quoting McDonnell Douglas, 411 U.S. at 802). Assuming that the 

defendant can articulate a legitimate, non-discriminatory reason for its treatment of the plaintiff, 

“the McDonnell Douglas framework—with its presumptions and burdens—disappear[s],” 

Reeves, 530 U.S. at 142–43 (internal citation and quotation marks omitted), and the court must 

resolve only “the ultimate question of discrimination vel non.” George v. Leavitt, 407 F.3d 405, 

411-12 (D.C. Cir. 2005) (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 

714 (1983)); see Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) 

(applying the McDonnell Douglas burden allocating framework to ADEA claims). 

 

9

 “Direct evidence of discrimination is evidence that, if believed by the fact finder, proves the particular fact in 

question without any need for inference. Such evidence includes any statement or written document showing a 

discriminatory motive on its face.” Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 86 (D.D.C. 2006) 

(Walton, J.) (internal quotation marks, citations, and alterations omitted). The plaintiff does not argue, nor could she, 

that the factual record in this case contains any such direct evidence of discrimination. 
17

To establish a prima facie case for discrimination under Title VII, the plaintiff must show 

that “(1) she is a member of a protected class; (2) [was subjected to] an adverse employment 

action; and (3) the unfavorable action gives rise to an inference of discrimination.” Stella v.

Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002) (citation omitted). Similarly, to establish a prima 

facie case under the ADEA, the plaintiff must demonstrate “that age discrimination was a 

‘determining factor’ in the employment decision.” Cuddy v. Carmen, 694 F.2d 853, 856-57 

(D.C. Cir. 1982). In that regard, the plaintiff must show that: “(1) she belongs to the statutorily 

protected age group, i.e., ages 40-70, (2) she suffered an adverse employment action and, (3) the 

unfavorable action gives rise to an inference of discrimination.” Reshard v. Peters, 579 F. Supp. 

2d 57, 72 (D.D.C. 2008) (Walton, J.) (citing Chappell-Johnson v. Powell, 440 F.3d 484, 488 

(D.C. Cir. 2006)). One way in which a plaintiff can establish an inference of discrimination is by 

“demonstrating that she was treated differently from similarly situated employees who are not 

part of the protected class.” Leavitt, 407 F.3d at 412. 

However, the District of Columbia Circuit has held that when considering a motion for 

summary judgment “[i]n a . . . disparate-treatment suit where an employee has suffered an 

adverse employment action and the employer has 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” and must “resolve one central question: Has the employee 

produced sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory reason was not the actual reason and that the employer intentionally discriminated 

against the employee on the basis of race . . . [or age].” Brady v. Office of Sergeant at Arms,

520 F.3d 490, 494 (D.C. Cir. 2008). Although Brady moderates the impact of the plaintiff’s 

prima facie case in conducting the disparate-treatment analysis, as the District of Columbia 
18

Circuit has since explained in Jones v. Bernanke, 557 F.3d 670 (D.C. Cir. 2009), the strength of 

the prima facie case, along with evidence of “pretext and any other” evidence of discrimination 

bears on the “determin[ation] whether [these several categories of evidence] ‘either separately or 

in combination’ provide sufficient evidence for a reasonable jury to infer [discrimination].” Id.

at 679 (quoting Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (D.C. Cir. 2002)). 

Finally, as a prerequisite to relief under Title VII and the ADEA, the plaintiff must have 

suffered an adverse employment action. Brady, 520 F.3d at 493. An adverse 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.” 

Broderick v. Donaldson, 437 F.3d 1226, 1233 (D.C. Cir. 2006) (quoting Burlington Indus., Inc. 

v. Ellerth, 524 U.S. 742, 761 (1998)). 

The plaintiff asserts three acts of discrimination allegedly committed by the defendant: 

(1) its failure to place her in the newly created LDDS position, Am. Compl. ¶ 5; (2) its decision 

to detail Faith McCormick, a white female, to the ADD as the Executive Assistant, allegedly 

without properly advertising the position, Pl.’s Opp’n I at 7 n.4; and (3) the subsequent 

promotion of Ms. McCormick to the Executive Assistant, GS-15 position, which allegedly 

deprived the plaintiff of “a chance to compete,” Am. Compl. ¶ 5. 

 The defendant argues that the plaintiff “cannot meet [her] burden” of proving that the 

Agency’s failure to place her into the LDDS position was based on unlawful discrimination, 

Def.’s Mem. at 14, and relies on a series of memoranda placing it on hiring freezes and controls 

as evidence of legitimate, nondiscriminatory reasons for its actions, id. at 12, 15. Ultimately, the 

defendant claims, the plaintiff’s “tentative selection was never approved” and the newly created 

position was cancelled without filling it with another employee. Id. at 13. The defendant further 
19

explains that the “ADD is headed by a political appointee,” and when Dr. Morrissey assumed her 

post, “there was no guarantee that the [she] would opt to fill positions that were created by the 

outgoing Commissioner.” Id. at 16. In regard to the Executive Assistant position, the defendant 

argues that it properly advertised the position in a vacancy announcement, to which the plaintiff 

failed to apply. Id. at 13. The defendant also contends that the plaintiff “has cited no authority, 

nor can she, for her argument that the agency was under some obligation to notify her or any 

other employee personally of vacancy announcements.” Def.’s Reply at 2. Furthermore, the 

defendant asserts, “the selectee for the position was Faith McCormick, a 57 year-old white 

female who is older than [the] [p]laintiff.” Def.’s Mem. at 13. 

In opposition, the plaintiff posits that “each of the various management officials and other 

agency officials involved in the selection decision at issue have contradicted themselves and 

each other on numerous occasions,” and that “application of the [Collective] Bargaining 

Agreement would have required agency personnel to place [her] in the position within two pay 

periods of selecting her.” Pl.’s Opp’n I at 13. She also challenges the defendant’s contention 

that she was treated in the same manner as other similarly situated employees. Id. at 14. In 

regard to the Executive Assistant position, the plaintiff maintains that “when details and 

promotions were made available to white women within the office, [she] was not given an 

opportunity to compete.” Id. at 1. For the following reasons, the Court must find that the 

plaintiff’s claims cannot survive summary judgment. 

Brady directs this Court to eschew assessing the plaintiff’s prima facie case, the 

defendant having offered non-discriminatory explanations for the actions being challenged by 

the plaintiff. 520 F.3d at 494. Nevertheless, in evaluating whether the defendant’s proffered 

reasons for the vacancy cancellation and failure to promote were pretextual, the Court must 
20

consider all “relevant categories of evidence,” including whether the plaintiff has made out a 

prima facie case of discrimination. Jones, 557 F.3d at 678-79 (internal citation and quotation 

marks omitted). The Court will therefore assess whether the plaintiff has made a prima facie 

case of race or age discrimination. 

When a plaintiff’s claim is premised on failure to promote, the prima facie case requires 

the plaintiff to show that: “(1) [s]he is [a] member of a [protected class]; (2) [s]he applied and 

was qualified for a promotion; (3) despite [her] qualifications, [s]he was rejected; and (4) other 

employees of similar qualifications who were not members of the protected group were 

promoted at the time the plaintiff's request was denied.” Awofala v. Cent. Parking Sys. of Va., 

Inc., 630 F. Supp. 2d 64, 69 (D.D.C. 2009) (citing McDonnell Douglas, 411 U.S. at 802; Bundy 

v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981)); see Hayslett v. Perry, 332 F. Supp. 2d 93, 99 

(D.D.C. 2004) (explaining that “[t]his framework demands ‘that the alleged discriminatee 

demonstrate at least that his rejection did not result from . . . the absence of a vacancy in the job 

sought’” (quoting Morgan v. Fed. Loan Home Mortg. Corp., 328 F.3d 647, 650-51 (D.C. Cir. 

2003))). Additionally, in this Circuit, “a plaintiff need not show that the position was filled by 

someone outside her protected class in order to make a prima facie case, though the plaintiff 

must show that the position was not withdrawn simply for lack of a vacancy.” Carter, 387 F.3d 

at 882-83 (citing Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1152-53 (D.C. Cir. 2004)); 

accord Carter v. Pena, 14 F. Supp. 2d 1, 6 (D.D.C. 1997). 

This Circuit has held consistently that “an element of a prima facie case of discriminatory 

non-promotion is that the plaintiff ‘applied for and was denied an available position for which 

he/she was qualified.’” Lathram v. Snow, 336 F.3d 1085, 1089 (D.C. Cir. 2003) (quoting Stella, 

284 F.3d at 139); Cones v. Shalala, 199 F.3d 512, 516 (D.C. Cir. 2003). An exception to this 
21

rule exists “when such an application would have been futile,” but the plaintiff must provide 

evidence of the alleged futility. Lathram, 336 F.3d at 1089. 

 In analyzing the plaintiff’s claim regarding the LDDS position, she clearly has shown that 

“[s]he is [a] member of a [protected class,] . . . [s]he applied and was qualified for a promotion,” 

and that “despite [her] qualifications, [s]he was rejected,” but cannot show that “other employees 

of similar qualifications who were not members of the protected group were promoted at the 

time the plaintiff's request was denied.” Awofala, 630 F. Supp. 2d at 69. Although the 

defendant does not expressly challenge the sufficiency of the plaintiff’s prima facie case, [she] 

does emphasize that “[i]ndeed, none of the LDD Program Specialist positions were filled and as 

such, [the] [p]laintiff was treated no differently from other applicants.” Def.’s Mem. at 13. 

Likewise, the plaintiff’s prima facie case of age discrimination is relatively weak. Because she 

was fifty-five years old when the Agency cancelled the LDDS position, she was a member of the 

age group protected by the ADEA. Def.’s Mem., Ex. 4 (Evans Aff.) at 2; see 29 U.S.C. § 633(a). 

Additionally, the plaintiff suffered an adverse action when she was not placed into the LDDS 

position. See Broderick, 437 F.3d at 1233 (describing failure to promote as an adverse 

employment action). However, she cannot satisfy the final prong of analysis, that her nonpromotion “gives rise to an inference of discrimination,” Reshard, 579 F. Supp. 2d at 72, because 

the Agency cancelled the position. Despite the weakness of the plaintiff’s prima facie case, 

because the defendant has offered a legitimate, nondiscriminatory reason for its actions, the 

Court must nonetheless evaluate the totality of the plaintiff’s evidence in assessing the ultimate 

issue of whether she was the victim of intentional discrimination. Brady, 520 F.3d at 494. 

In her effort to rebut the defendant’s asserted legitimate, nondiscriminatory reason for its 

actions, namely that it did not place the plaintiff into the LDDS position because of hiring 
22

controls, the plaintiff does not dispute that the Agency was under several hiring freezes and 

controls during the relevant periods. Pl.’s Stmt. ¶¶ 10, 23, 25. Instead, she identifies 

contradictions in management testimony and demonstrates that throughout the EEOC’s 

investigation, she was unable to discern precisely which management official authorized the 

cancellation of the LDDS position. Pl.’s Opp’n I at 13; compare id., Ex. 10 (Deposition of 

Letrina Holley) (“Holley Dep.”) (stating that Dr. Wells instructed her to cancel the position) at 

26-27, with Def.’s Mem., Ex. 11 (Affidavit of Dr. Wells) (“Dr. Wells Aff.”) (stating that Chris 

Gerstein “informed [him]” of the decision to cancel the position). Although the Agency never 

properly informed the plaintiff of its decision when it initially cancelled the position, it also 

never filled the position with another employee. Def.’s Mem., Ex. 2 (Brooks Aff.) at 12; see

Carter, 14 F. Supp. 2d at 6 (finding that a plaintiff cannot establish a prima facie case of 

discrimination when “no one was ever hired for the vacant position, and the vacancy was 

ultimately canceled”). Additionally, there is no evidence that the Agency cancelled the vacancy 

for an impermissible reason. See Hayslett, 332 F. Supp. 2d at 100 n.6 (assessing the motivation 

behind a vacancy cancellation may be warranted to determine presence of intentional 

discrimination); Carter, 14 F. Supp. 2d at 6 (finding that employer offered legitimate, 

nondiscriminatory reasons for vacancy cancellations, “namely budgetary considerations”); see

also Reeves, 530 U.S. at 141 (holding that the plaintiff must show that age “‘actually played a 

role in [the employer's decisionmaking] process and had a determinative influence on the 

outcome’” (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993))). As in Carter, 

because the defendant has met its burden of producing a legitimate, nondiscriminatory reason for 

its cancellation of the vacancy, which the plaintiff has not rebutted, the plaintiff is unable to 

demonstrate an inference of discrimination. 
23

Second, the plaintiff’s argument that the LDDS position was improperly labeled as a nonbargaining unit also fails to raise an inference of discrimination. The record clearly demonstrates 

that the Human Resources office designated the position as non-bargaining before the vacancy 

was announced. See Pl.’s Opp’n I, Ex. 10 (Holley Dep.) at 9, 11. Absent any contrary evidence, 

the Court cannot conclude that this designation was for a discriminatory reason. See Carter, 14 

F. Supp. 2d at 7) (“[N]either the nonmovant’s conjecture and surmise nor mere ‘conclusory 

allegations of discrimination, without more’ are sufficient to defeat a motion for summary 

judgment.” (quoting Carney v. Am. Univ., 960 F. Supp. 436, 439 (D.D.C. 1997))). The 

arguments the plaintiff raises concerning the Collective Bargaining Agreement are therefore 

inapplicable. 

Third, the plaintiff disputes the Agency’s assertion that Gretchen Menn, a Caucasian 

female, age 60, is a similarly situated employee to whom they can compare the plaintiff’s 

treatment. Pl.’s Opp’n I at 14-15. The Agency argues that Ms. Menn was also selected for the 

LDDS position and not placed into it because of hiring controls. Def.’s Mem. at 13. The 

plaintiff challenges the Agency’s position, arguing that its evidence appears to indicate only that 

Ms. Menn was a candidate for the position, but not that she was initially selected. Pl.’s Opp’n I 

at 14-15; Def.’s Mem., Ex. 15 (ACF Promotion Selection Certificate) at 1. However, having 

offered legitimate, nondiscriminatory reasons for its actions, the Agency is not required to 

demonstrate that another employee is similarly situated to the plaintiff, nor for that matter must 

the plaintiff proffer evidence of such an employee. See Brady, 520 F.3d at 494, n.2. Even if the 

plaintiff could prove that Ms. Menn was never actually selected for the position, because she 

cannot also show that the Agency continued to fill the vacancies, she is unable to rebut the 

defendant’s proffered reasons for canceling the position. See Carter, 387 F.3d at 882-83. The 
24

dispositive issue is that the Agency cancelled an entire position and never sought to revive it or 

to transfer its duties to another. See Bowie v. Ashcroft, 283 F. Supp. 2d 25, 31 (D.D.C. 2003) 

(finding that “[w]hen a government agency cancels a vacancy announcement and no one outside 

the protected class is hired to fill the position, the plaintiff cannot establish her prima facie

case”). 

The plaintiff spends a great amount of time exploring and disparaging the credibility of 

Agency management in an attempt to reveal factual inconsistencies in their testimony. Pl.’s 

Opp’n I at 13-17. These facts developed by the plaintiff may demonstrate that the defendant 

acted imprudently in communicating Agency policy to the plaintiff; however, as this Circuit has 

stated, “[e]ven if a court suspects that a job applicant ‘was victimized by [ ] poor selection 

procedures’ it may not second-guess an employer’s personnel decision absent demonstrably 

discriminatory motive.” Fishbach v. D.C. Dep’t of Corrections, 86 F.3d 1180 (D.C. Cir. 1996); 

see Forman v. Small, 271 F.3d 285, 291 (D.C. Cir. 2001) (“Consistent with the courts’ reluctance 

to become involved in micromanagement of everyday employment decisions, the question before 

the court is limited to whether [the plaintiff] produced sufficient evidence of . . . discrimination, 

not whether [s]he was treated fairly . . . . ” (internal citations omitted)). Ultimately, the Court 

concludes that the Agency’s actions were based on legitimate, nondiscriminatory reasons, 

specifically, the imposition of hiring controls and the new managerial direction that accompanied 

a change in leadership at the ADD. 

In assessing the plaintiff’s claims regarding the Executive Assistant position, the Court 

will first evaluate whether the plaintiff has made out a prima facie case of discriminatory nonpromotion. Here, the plaintiff only clearly establishes that she belongs to a protected class 

(African-American, age fifty-five) and “other employees of similar qualifications who were not 
25

members of the protected group were promoted . . . .” Awofala, 630 F. Supp. 2d at 69. The 

plaintiff has not shown that she “applied and was qualified for a promotion,” and that “despite 

[her] qualifications, [s]he was rejected.” Id. (emphasis added); see Def.’s Mem., Ex. 7 (Vernard 

Evans Hearing Testimony) at 145. 

However, despite the evident weaknesses in the plaintiff’s prima facie case, as explained 

above, the Court must nonetheless consider the ultimate issue of discrimination vel non. Brady, 

520 F.3d at 494. The plaintiff does not contest that she did not apply for the Executive Assistant, 

GS-15 level position, but rather, argues that unlike Ms. McCormick, she was not personally 

informed of the vacancy announcement.10 Am. Compl. ¶ 5; Pl.’s Opp’n I at 16. To the extent 

that the plaintiff is contending that the defendant was under a duty to inform her or any other 

employee personally of the vacancy announcement, Def.’s Reply at 2, her claim is without merit. 

Therefore, because the defendant properly advertised the GS-15 position in a vacancy 

announcement, the plaintiff’s failure to apply for it “dooms the sustainability” of her nonpromotion claim, especially considering her failure to show that failure to advise her personally 

of the position was done for discriminatory reasons. Elhusseini v. Compass Group USA, Inc., 

578 F. Supp. 2d 6, 19-20 (D.D.C. 2008) (Walton, J.); see Lathram, 336 F.3d at 1089. 

The plaintiff further attempts to rebut the defendant’s reasons for promoting Ms. 

McCormick by arguing that she is similarly situated to Ms. McCormick. Pl.’s Opp’n I at 11. 

However, the plaintiff must “demonstrate that ‘all of the relevant aspects of her employment 

situation were nearly identical to those . . . [of Ms. McCormick],’” Holbrook v. Reno, 196 F.3d 

255, 261 (D.C. Cir. 1999) (citation omitted), and the plaintiff cannot make this showing. See

 

10 The Court addresses the plaintiff’s claim regarding Ms. McCormick’s temporary GS-14 detail to the Executive 

Assistant position infra at 27-28. 
26

Sharpe v. Bair, 580 F. Supp. 2d 123, 133 (D.D.C. 2008) (Walton, J.) (noting that even though 

employee identified is outside of the protected class, it “does not change the fact that as 

employees, they are differently situated”). Ms. McCormick, who was already a GS-14 level 

employee in another division of the Agency, Def.’s Reply, Ex. A (McCormick Employee Data), 

did not apply for the LDDS position, Def.’s Mem., Ex. 15 (Jenkins Aff.) at 8, and unlike the 

plaintiff, Ms. McCormick had a preexisting relationship with the Commissioner and applied for 

the Executive Assistant position by responding to the vacancy announcement. Id., Ex. 7 

(McCormick Hearing Testimony) at 160. Although the Agency was under hiring restrictions at 

the time of Ms. McCormick’s promotion, Commissioner Morrissey sought the necessary 

approval for the position because securing an Executive Assistant was a “condition” of her 

accepting the Commissioner’s role. Def.’s Mem., Ex. 7a (Morrissey Hearing Testimony) at 25. 

In contrast, the LDDS positions created by outgoing Commissioner Swenson never materialized 

under the new administration. See id., Ex. 3 (Dr. Wells Aff.) at 6-7 (explaining that 

Commissioner Swenson “departed the agency prior to the position being filled” and that the new 

administration “ordered Personnel to hold off on completing the action because of a desire to 

limit the proliferation of higher graded positions”). Therefore, the treatment of the plaintiff and 

Ms. McCormick concerning their promotional experiences are not comparable. See Waterhouse, 

298 F.3d at 995-996) (“In the absence of evidence that the comparators were actually similarly 

situated to her, this allegation added nothing to [the plaintiff’s] claim that the defendants’ 

explanation for her [non-promotion] was mere pretext.”). 

In regard to her ADEA claim, the plaintiff claims that the Agency continued to hire 

employees “younger in age” while her promotion was on hold, Am. Compl. ¶ 15, and identifies 

Ms. McCormick as a relevant comparator. Pl.’s Opp’n I at 11-12. Assuming arguendo that Ms. 
27

McCormick is in fact similarly situated to the plaintiff, her claim would still fail because Ms. 

McCormick is less than one year younger in age than the plaintiff.11 See O’Connor v. Consol. 

Coin Caterers Corp., 517 U.S. 308, 313 (1996) (holding that “such an inference [of 

discrimination] cannot be drawn from the replacement of one worker with another worker 

insignificantly younger” (emphasis added)); Cuddy, 694 F.2d at 856-57; Reshard, 579 F. Supp. 

2d at 73-74 (dismissing age discrimination claim where plaintiff and the selectee were both fiftysix years old); Beeck v. Fed. Express Corp., 81 F. Supp. 2d 48, 54 (D.D.C. 2000) (“To raise an 

inference of discrimination by showing that a younger person was favored, a plaintiff must point 

to a worker with a ‘significant’ or ‘substantial’ difference in age.”) (citing O’Connor, 517 U.S. at 

313). In sum, because Ms. McCormick was less than one year younger than the plaintiff at the 

time of her promotion, and in the absence of any other evidence that would permit a reasonable 

jury to infer that age was at all consideration for her non-promotion, the plaintiff’s ADEA claim 

must fail. 

The only remaining claim is the plaintiff’s contention that she “was not given notice of 

the GS-14 [Executive Assistant] vacancy announcement and would have applied to the position 

if so informed.” Pl.’s Opp’n I at 7 n.4. Because the plaintiff is only raising this claim for the 

first time in her opposition, she petitions the Court to “amend[] her current complaint.” Id. The 

defendant has not responded to this new allegation in her reply, nor did she anticipate it in her 

motion for summary judgment. See Def.’s Mot. at 1 (characterizing the plaintiff’s claims); 

Def.’s Reply 2-3. However, as this Court has noted before, the District of Columbia Circuit’s 

 

11 In its brief, the defendant asserts that Ms. McCormick is “older” than the plaintiff. Def.’s Mem. at 13. However, 

this is actually controverted by Ms. McCormick’s own testimony, in which she identified her birthday as March 7, 

1947. Def.’s Mem., Ex. 7 (McCormick Testimony) at 163. According to the EEOC’s proceedings, the plaintiff was 

born September 27, 1946. Evans, Appeal No. 0120063847, 2008 WL 858955, at *1 (E.E.O.C. Mar. 21, 2008); see

also Def.’s Mem., Ex. 4 (Evans Aff.) at 2 (stating age as fifty-six in 2003). 
28

decision in Wiley v. Glassman, 511 F.3d 151 (D.C. Cir. 2007) held that “it was inappropriate for 

another member of this Court to ‘strike’ a plaintiff’s claim raised for the first time in the 

plaintiff’s opposition,” if the factual basis of the “‘new’ claim was substantially similar” to a 

claim properly before the Court. Tunica-Biloxi Tribe of La. v. United States, 577 F. Supp. 2d 

382, 411 (D.D.C. 2008) (Walton, J.) (quoting Wiley, 511 F.3d at 159); see Hamilton v. Paulson, 

542 F. Supp. 2d 37, 61 (D.D.C. 2008) (Walton, J.). Because the plaintiff’s claim regarding the 

GS-14 Executive Assistant detail is “substantially similar” to her claim concerning her nonselection for the GS-15 Executive Assistant position, under Wiley, the Court cannot summarily 

strike the claim. However, Wiley also directs the Court to consider “undue prejudice” to the 

defendant, who has not responded to the plaintiff’s new allegations. 511 F.3d at 159. Therefore, 

as this Court determined in Hamilton, “[t]he only solution readily apparent . . . is to deny the 

defendant’s motion for summary judgment without prejudice with respect to the plaintiff’s 

apparent new claim and grant [her] leave to file an amended complaint,” 542 F.3d at 62, limited 

to her non-selection for the GS-14 Executive Assistant detail. Thereafter, the defendant can 

renew her motion for summary judgment, if doing so is deemed appropriate. Id.

III. CONCLUSION 

For all of the foregoing reasons, the defendant’s motion for summary judgment is hereby 

granted as to the plaintiff’s Title VII and ADEA claims concerning the cancellation of the LDDS 

position and her non-selection for the GS-15 Executive Assistant position. However, as for the 

plaintiff's newly-raised non-selection claim regarding the GS-14 detail to the Executive Assistant 

position, “that claim must be decided another day.” Hamilton, 542 F.3d at 63. The Court will 

therefore deny the defendant’s motion without prejudice with respect to the new non-selection 
29

claim made by the plaintiff in her opposition, and grant the plaintiff leave to file an amended 

complaint in conformance with this Court’s instructions. 

SO ORDERED this 17th day of December, 2009.12

 REGGIE B. WALTON 

 United States District Judge 

 

12 An order will be issued contemporaneously with this memorandum opinion (1) granting in part and denying in 

part the defendant’s motion for summary judgment, (2) granting summary judgment in the defendant’s favor with 

respect to the plaintiff’s claims regarding the LDDS and the GS-15 Executive Assistant positions, (3) denying 

summary judgment with respect to the plaintiff’s GS-14 Executive Assistant detail claim, and (4) directing the 

plaintiff to file an amended complaint with respect to the GS-14 Executive Assistant detail claim, if any she intends 

to file, on or before January 19, 2010.