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 Ci vil 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 curre nt 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 Di strict 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). Th e 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 Alternativel y, 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 plai ntiff’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 gran t 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 la wsuit, the plaintiff was an employee of the Administration for Developmental Disabilities (the “ADD”), a subordinate office of the Administration for Children and Families (the “A CF”), within the Depart ment 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 submissi on as Plaintiff’s Opposition (“Pl.’s Opp’n”) I and her seven page submission as Plaintiff’s Oppo sition (“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 St atement Of Material Facts As To Which There Is No Genuine Dispute (“Def.’s Stmt.”); (3) the plaintiff’s Opposition To Mo tion 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 Oppos ition 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 Pr ogram Specialist within the ADD, the entity “responsible for administrating programs and po licies 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 Assist ant 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 appoint ee of the incoming presidential administration in

2001. Id. ¶ 3.

A. The Plaintiff’s Application to the Lead De velopmental 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 Speci alist” (“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 Ma y 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 w ill cite to the defendant’s (u ncontroverted) 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 a nd that the selection certificate had been returned to personnel for processing.” Am. Compl. ¶ 6. However, th e plaintiff was not formally notified of this purported selection nor placed in the position. De f.’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 Pres idential freeze lifted.” Am. Compl. ¶ 7. During the time period covered in this complain t, several hiring policie s 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 administ ration 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 Febr uary 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 offi cially “select” the plaintiff for the LDDS position, and therefore, her actions constituted a reco mmendation or “tentative selection.” Def.’s Mem., Ex. 2 (Affidavit of Leola Brooks) (“Brooks Aff.”) at 9. The C ourt therefore concludes that it is inco rrect 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 memo randum “continued the hi ring controls on all promotions to the GS-13 level and above, includ ing 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 represen tative, Isadora Wills. Def.’s Stmt. ¶ 18; Am. Compl. ¶ 8. The plaintiff alleges that on Febr uary 5, 2002, she contacted the personnel office to inquire into the status of the LDDS position and was given contra dictory 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 year s before any action is taken.” Am. Compl. ¶ 9. On February 7, 2002, Ms. Wills submitted the plain tiff’s “questions to the Union concerning” the status of the position. Id. ¶ 10. When she had not receiv ed 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 retireme nt 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 th e 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 plain tiff 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, Assistan t 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 “t otally contradictory” to what the plaintiff had been informed previously. Id. ¶ 12; Pl.’s Opp’n I, Ex. 16 (A ffidavit of Lonnie Stewart) ¶ 2

. After the plaintiff’s March 4, 2002 meeting wi th 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 hiri ng freeze and she received a response from Ms. Clemons, the ACF Labor Re lations Officer, on Marc h 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. Comp l. ¶ 14; Pl.’s Opp’n I, Ex. 47 (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 LD DS 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 desc ribes the individuals who receiv ed 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 Respons e 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] c ould get one.” Pl.’s Opp’n I, Ex. 24 (Hearing Testimony of Patricia Morrissey) (“Morrissey Testimony”) at 45. Dr. Morrissey wanted a capable assist ant 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 Depart ment of Health and Human Services’ Office of Intergovernmental Affairs, id. at 33, Ms. McCormick was detailed into the ADD as the8 Executive Assistant, id. at 45. Ms. McCormick was approxi mately 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 budge tary 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 outst anding 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 Tes timony) 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 deni ed 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 Me m, Ex. 13 (Letter to EEO June 13, 2002) at 1. Unsatisfied with the investigation of her char ge by the Agency, the plaintiff filed a formal complaint with the Equal Employment Opportun ity Commission (“EEOC”). Am. Compl. ¶ 17. Before the EEOC, the Agency argued that the pl aintiff’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 pres ented “the original e-mail . . . with a sworn statement from the Union Rep who r eceived [it] (that did not contain the ADD promotions).” Id. Nonetheless, the administrative j udge dismissed the case for having been untimely filed. Id. The plaintiff timely appealed the dism issal and prevailed on appeal, resulting9 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 a ppealed 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, nondi scriminatory reasons for its

actions.” Id. at *3. The plaintiff then filed th is action in this Court June 23, 2008. In her Amended Complaint, the plaintiff char ges 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. Th e plaintiff also claims that sh e “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 ma de 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 sh e 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, sleeple ss, [and] sad” individual who has suffered a “breakdown of [her] body with headaches, abdom inal discomfort, depression, back pain, and numerous test[s] which included endoscopy proc edure, [two] abdominal sonograms, upper and lower gastro intestinal evaluati ons, colonoscopy, and stomach CT s can, and anger and irritability with her own family.” Id. ¶ 29. According to the plaintiff, th e “[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 mo tion currently before the Court, which seeks dismissal pursuant to Federal Rule of Ci vil 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 en titled to the relief bei ng requested because the plaintiff has failed to timely e xhaust her administrative reme dies, 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 th e 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 em ployees outside of her protected class, id. at 13; and (3) the plaintiff’s allegations regarding the Exec utive 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, a nd nevertheless, the Court should equitably toll her claims, Pl.’s Opp’n II at 1, 6; (2) the record is “replete” w ith 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 treate d 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 ar e presented to and not excluded by the court . . . [and] [a]ll parties [have been] given reasonable opportunity to pr esent all the material th at 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) (W alton, J.). Here, treating the entire motion under the summary judgment standa rd 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 su mmary 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 infere nces” 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 re ly 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 se t forth specific facts s howing 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 th e non-moving party must ‘produce evidence . . . capable of being converted into admissible eviden ce’” and that “sheer hearsay[] . . . ‘counts for nothing’” (internal citati ons omitted)). However, the party moving for summary judgment bears the burden of establishing the absence of evid ence 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 me asure of rigor, or caution, is appropriate in applying this standard to motions for summary j udgment 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 initia te administrative proceedings by contacting an EEO counselor within forty-five days of the allegedly disc riminatory 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 prerequisi te for claims of age discrimina tion 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 District13 Court . . . subject to waiver, estoppel, and equitable tolling’” (quoting Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 393 (1982)). As an affirm ative defense, the defendant bears the burden of proving that the plainti ff 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 Bo wden 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 wi th 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 a nd reasonably should not have [ ] known that the discriminatory matter or pers onnel action occurred’” (t hird alteration in original)); Bayer , 956 F.2d at 333 (noting that the plain tiff “bears the burden of pleading and proving . . . ‘equitable reasons’ for noncomplian ce”). 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 contacti ng 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 cont ends 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 can cellation 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 learne d that the ADD Executive Assistant position had

been filled. Id. The plaintiff counters that under th e “reasonable suspicion” standard, 8 the email she

received in March was “insuffici ent to trigger [her] burden to c ontact an EEO counselor.” Pl.’s Opp’n II at 2. The plaintiff argues that sh e had been given “cont rary 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 representativ e 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. Mc Cormick’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 th e operative date because the defendant has offered no evidence that the plaint iff was notified of the LDDS pos ition cancellation on that date. Def.’s Mem., Ex. 11 (Clemons Email) ¶ 8. S econd, the defendant has not met its burden of proving that the plaintiff was act ually 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) (c iting Gray v. Greyhound Lines, Inc. , 545 F.2d 169, 176 (D.C. Cir. 1976)). Here, the “reasonable suspicion” standard is not only th e 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 memb ers 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 vi ctim of discrimination,’” Hines v. Bair , 594 F. Supp. 2d 17, 22-23 (D.D.C. 2009) (citation omitted) and “is not allo wed 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 forest all initiating contact with an EEO counselor to strengthen her claim of discrimi nation, but rather, to clarify co nclusively 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 “b ecause 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 fa vorable to the plaintiff, and the plaintiff has offered evidence that she di d not have “reasonabl e suspicion” of any discrimination until May 22, 2002, the Court finds th at the plaintiff's June 13, 2002 contact with her EEO counselor was timely, and that the plai ntiff therefore exhausted her administrative remedies before initiating this case.16 B. The Plaintiff’s Disparate Treatment Claims Title VII provides that “personnel actions aff ecting employees . . . in executive agencies . . . shall be made free from any discrimination ba sed on race . . . . ” 42 U.S.C. § 2000e-16(a). The ADEA provides in pertinent part that “[a]ll pers onnel actions affecting em ployees 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 he re, 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 plaint iff 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 legitim ate, 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 quot ation marks omitted), and the court must resolve only “the ultimate que stion of discrimination vel non .” George v. Leavitt , 407 F.3d 405, 411-12 (D.C. Cir. 2005) (quoting U.S. Post al 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 discrimina tion 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 act ion gives rise to an inference of discrimination.” Stella v.

Mineta , 284 F.3d 135, 145 (D.C. Cir. 2002) (citation om itted). Similarly, to establish a prima facie case under the ADEA, the plaintiff must demonstrate “that age discrimination was a ‘determining factor’ in the empl oyment 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 adve rse employment action and, (3) the unfavorable action gives rise to an infere nce of discrimination.” Reshard v. Peters , 579 F. Supp. 2d 57, 72 (D.D.C. 2008) (Walton, J.) (c iting 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-treat ment 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 “r esolve one central ques tion: Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory reason was not the actual reason a nd that the employer intentionally discriminated against the employee on the basis of race . . . [o r 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 th e disparate-treatment analysis, as the District of Columbia18 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 “pre text and any other” evid ence of discrimination bears on the “determin[ation] whet her [these several categories of evidence] ‘either separately or in combination’ provide sufficient evidence for a r easonable 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 ADE A, 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 respons ibilities, or a decision causing signi ficant 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 chan ce to compete,” Am. Compl. ¶ 5. The defendant argues that the plaintiff “ca nnot meet [her] burden” of proving that the Agency’s failure to place her into the L DDS position was based on unlawful discrimination, Def.’s Mem. at 14, and relies on a series of me moranda placing it on hiring freezes and controls as evidence of legitimate, nondiscrimi natory reasons for its actions, id. at 12, 15. Ultimately, the defendant claims, the plaintiff’s “tentative sele ction was never approved” and the newly created position was cancelled without filling it with another employee. Id. at 13. The defendant further19 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 Executi ve 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 th at 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 sel ectee for the position was Faith McCormick, a 57 year-old white female who is older than [the] [p]l aintiff.” 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 decisi on 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 Assist ant position, the plai ntiff maintains that “when details and promotions were made available to white wome n 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 es chew assessing the plaintiff’s prima facie case, the defendant having offered non-discriminatory expl anations 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 must20 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 (interna l 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 failu re 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] qu alifications, [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 framew ork demands ‘that the alleged discriminatee demonstrate at least that his reje ction 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 plainti ff need not show that the position was filled by someone outside her protected class in order to make a prima facie cas e, though the plaintiff must show that the position was not withdraw n 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 el ement 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 this21 rule exists “when such an application would ha ve been futile,” but the plaintiff must provide evidence of the alleged futility. Lathram , 336 F.3d at 1089. In analyzing the plaintiff’s claim regardi ng the LDDS position, she clearly has shown that “[s]he is [a] member of a [prot ected class,] . . . [s]he applied a nd was qualified for a promotion,” and that “despite [her] qualifications, [s]he was rejected,” but cannot show that “other employees of similar qualificati ons who were not members of the pr otected 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 suffici ency of the plaintiff’s prima facie case, [she] does emphasize that “[i]ndeed, none of the LDD Pr ogram Specialist positions were filled and as such, [the] [p]laintiff was treate d 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 cance lled 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 satis fy the final prong of analysis, that her nonpromotion “gives rise to an infe rence of discrimination,” Reshard , 579 F. Supp. 2d at 72, because the Agency cancelled the position. Despite the weakness of the pl aintiff’s prima facie case, because the defendant has offered a legitimate, nondiscriminatory reason for its actions, the

Court must nonetheless evaluate th e totality of the plaintiff’s evid ence 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 de fendant’s asserted legitimate, nondiscriminatory reason for its actions, namely that it did not place the plai ntiff into the LDDS position because of hiring22 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 a nd demonstrates that throughout the EEOC’s investigation, she was unable to discern precisel y 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. We lls) (“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 plaint iff 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 cancellati ons, “namely budgetary considerations”); see

also Reeves , 530 U.S. at 141 (holding that the plaintiff must show th at age “‘actually played a role in [the employer's decisionmaking] pro cess 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 pr oducing a legitimate, nondiscriminatory reason for its cancellation of the vacancy, which the plaint iff has not rebutted, the plaintiff is unable to

demonstrate an inference of discrimination.23 Second, the plaintiff’s argument that the L DDS 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 designate d 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 designa tion 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 th at she was initially selected. Pl.’s Opp’n I at 14-15; Def.’s Mem., Ex. 15 (ACF Promotion Se lection Certificate) at 1. However, having offered legitimate, nondiscriminatory reasons for its actions, the Agency is not required to demonstrate that another employee is similarly situ ated 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. The24 dispositive issue is that the Agen cy 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 can cels a vacancy announcement and no one outside the protected class is hired to fill the position, the plaintiff ca nnot establish her prima facie case”). The plaintiff spends a great amount of time e xploring and disparagi ng the credibility of Agency management in an attempt to reveal f actual inconsistencies in their testimony. Pl.’s Opp’n I at 13-17. These facts developed by the plaintiff may demonstrat e that the defendant acted imprudently in communicating Agency policy to the plaintiff; however , as this Circuit has stated, “[e]ven if a court susp ects that a job applicant ‘was victimized by [ ] poor selection procedures’ it may not second-guess an employe r’s personnel decision ab sent 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) (“Consis tent with the courts’ reluctance to become involved in micromanagement of ever yday employment decisions, the question before the court is limited to whether [t he 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 hiri ng controls and the new manageri al direction that accompanied a change in leadership at the ADD. In assessing the plaintiff’s claims regard ing the Executive Assist ant position, the Court will first evaluate whether the plaintiff has made out a prima facie case of discriminatory nonpromotion. Here, the plaintiff only clearly esta blishes that she belongs to a protected class (African-American, age fifty-five) and “other em ployees of similar qualifications who were not25 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 th e 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 dut y 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 failur e to show that failure to advise her personally of the position was done for discriminatory r easons. 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 situat ed to Ms. McCormick. Pl.’s Opp’n I at 11. However, the plaintiff must “demonstrate that ‘a ll 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 th e 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 cha nge 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 rela tionship with the Commissioner and applied for the Executive Assistant position by res ponding 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, Co mmissioner 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., E x. 7a (Morrissey Hearing Testimony) at 25. In contrast, the LDDS positions created by out going 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 we re actually similarly situated to her, this allegation added nothing to [the plaintiff’s] claim that the defendants’ explanation for her [non-promoti on] 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 comp arator. 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 repl acement 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 discrimi nation claim where plaintiff a nd 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 yo unger person was favored, a plaintiff must point to a worker with a ‘significant’ or ‘substa ntial’ difference in age.”) (citing O’Connor , 517 U.S. at 313). In sum, because Ms. McCormick was less th an one year younger than the plaintiff at the time of her promotion, and in the absence of a ny other evidence that w ould permit a reasonable jury to infer that age was at all consideration for her non-promo tion, the plaintiff’s ADEA claim

must fail. The only remaining claim is the plaintiff’s c ontention that she “was not given notice of the GS-14 [Executive Assistant] vacancy announcem ent and would have applied to the position if so informed.” Pl.’s Opp’n I at 7 n.4. Because the plaintiff is only ra ising this claim for the first time in her opposition, she petitions the Co urt to “amend[] her current complaint.” Id. The defendant has not responded to th is 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 no ted before, the District of Columbia Circuit’s

11 In its brief, the defendant asserts that Ms. McCormick is “older” than the plaintiff. De f.’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 pl aintiff’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. Tuni ca-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 Executiv e Assistant position, under Wiley , the Court cannot summarily strike the claim. However, Wiley also directs the Court to cons ider “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 a pparent . . . 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 fi le an amended complaint,” 542 F.3d at 62, limited

to her non-selection for the GS-14 Executive Assi stant 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 Ti tle VII and ADEA claims concerni ng the cancellation of the LDDS position and her non-selection for th e GS-15 Executive Assistant position. However, as for the plaintiff's newly-raised non-selection claim rega rding 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 pr ejudice with respect to the new non-selection29 claim made by the plaintiff in her opposition, and gr ant 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 me morandum 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 re garding the LDDS and the GS-15 Execut ive 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 th e GS-14 Executive Assistant deta il claim, if any she intends to file, on or before January 19, 2010.