United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 1999 Decided October 29, 1999
No. 98-5410
Kuross Samii,
Appellant
v.
James H. Billington, Librarian of Congress,
Appellee
Appeal from the United States District Court
for the District of Columbia
(97cv01794)
David H. Shapiro argued the cause and filed the briefs for
appellant. Diane Bodner entered an appearance.
Diane M. Sullivan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, Mark E. Nagle and R. Craig Lawrence,
Assistant U.S. Attorneys.
Before: Ginsburg and Randolph, Circuit Judges, and
Buckley, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: Dr. Kuross Samii, an employee
of the Library of Congress who classifies himself as an "Asian
American," appeals from the district court's order on sum-
mary judgment rejecting his Title VII claims of retaliation
and racial discrimination.
The facts are these. In September 1994, after working
three years at the Library as a GS-13 research associate, Dr.
Samii applied and was selected for a GS-14 position as a
program analysis officer within the Library's Office of the
Associate Librarian for Human Resource Services ("HRS"),
Affirmative Action and Special Programs Office ("AASPO").
The program analysis officer position is a "budgeted" and
"funded" position, meaning Dr. Samii's salary is paid from the
portion of the Library's budget specifically allocated for Hu-
man Resource Services.
Shortly after starting at the AASPO, Dr. Samii was asked
to conduct a study to generate suggestions for improving the
effectiveness of the AASPO program. Dr. Samii's study
concluded that an internal reorganization would enhance the
program's effectiveness. Under a proposed reorganization,
Dr. Samii would have received a promotion to the next higher
grade level by accretion of duties. The plan was presented to
upper management at the Library, who opposed it, as a result
of which it was never implemented.
Frustrated by the failed reorganization, Dr. Samii began to
explore the possibility of transferring out of AASPO. In late
1995, he wrote to Lloyd Pauls, the Associate Librarian for
Human Resources, indicating his desire to transfer to another
part of the Library. Mr. Pauls informed Dr. Samii that he
was free to transfer to another department so long as he
could find an open funded position. According to Library
policy, HRS employees could not transfer budgeted salary
funds to other divisions of the Library. Employees were
permitted to transfer from HRS to other areas of the Library
only if they found open positions in other divisions with
budgeted funds. In a memo responding to Dr. Samii's re-
quest, Mr. Pauls explained that he would approve a transfer
to another service unit but not permit the reassignment of
Dr. Samii's budget number and salary.
Though still intent on transferring out of the AASPO, Dr.
Samii continued in his position as a program analysis officer.
While performing his duties, he concluded that the Library
was not fully complying with the terms of the "Cook settle-
ment"--an agreement settling a lawsuit that alleged discrimi-
nation by the Library against its black employees. See Cook
v. Billington, No. Civ. 82-0400, 1992 WL 276936 (D.D.C. Aug.
14, 1992). In May 1995, Dr. Samii notified his supervisor,
Denise Banks, that certain reviews required by the settle-
ment, ensuring nondiscrimination in the Library's hiring pro-
cess, were not being conducted. Ms. Banks passed along this
information to her supervisor, Lloyd Pauls. Concerned that
the violations had not abated, Dr. Samii conferred with his
former supervisor, who encouraged him to report the Li-
brary's non-compliance with the settlement agreement. On
March 7, 1996, Dr. Samii wrote a memorandum to John
Rensbarger, the Inspector General of the Library, informing
him that the reviews required under the Cook settlement
agreement were not being performed. Rensbarger allegedly
discussed the matter with the Library's Senior Advisor for
Diversity, Jo Ann Jenkins. Dr. Samii claims that Ms. Jen-
kins spoke with his immediate supervisor, Ms. Banks, and
told her to do something about the "troublemakers" on her
staff, referring to Dr. Samii's whistle-blowing activity.
Ms. Banks, however, was soon replaced by Carl Whisenton,
who became the new Director of the AASPO. Dr. Samii
contends that Mr. Whisenton stopped the reorganization of
the AASPO, and thereby blocked his promotion. He also
claims that Mr. Whisenton removed him from certain man-
agement decisions and lessened his duties, and that the
combination of these made him vulnerable to an eventual
lowering of his grade level.
After these events, Dr. Samii renewed his request to
transfer to another division of the Library. In July 1996, he
wrote to the Acting Deputy Librarian, Thomas Carney, ask-
ing to be transferred to the Library's Office of Scholarly
Programs. After consulting with Lloyd Pauls, Mr. Carney
responded that Dr. Samii could transfer only if the Office of
Scholarly Programs provided a budget number and funding
for the position. Dr. Samii then wrote to Donald Scott, the
Deputy Librarian, making the same request to transfer. Ms.
Jenkins, at the direction of Mr. Scott, replied to Dr. Samii's
request, advising him not to direct any further correspon-
dence to top management at the Library unless cleared by his
immediate superiors.
In November 1996, Dr. Samii filed an Allegation of Dis-
crimination with the Library's Equal Employment Opportuni-
ty Complaints Office ("EEOC Office"). He listed Ms. Jenkins
as the discriminating official and alleged discrimination on the
basis of race, sex and national origin. Among other things,
Dr. Samii claimed that Ms. Jenkins discriminated against him
by treating his request for transfer differently from the
requests of other employees who had transferred out of
Human Resources. His Allegation of Discrimination did not
specify a claim for retaliation nor did it identify any Title VII
related protected conduct. In December 1996, Dr. Samii met
with Welton Belsches, the EEO counselor assigned to his
case. Though Dr. Samii contends that in this interview and
in a subsequent one, he discussed retaliatory actions taken
against him by Ms. Jenkins, Mr. Belsches maintains that he
did not.
On February 14, 1997, Dr. Samii filed a Complaint of
Discrimination with the EEOC Office alleging retaliation in
addition to discrimination. Since the retaliation claim was not
"brought to the attention" of the EEO counselor as required
by Library regulations, Dr. Samii was notified that it would
not be accepted for processing. See Library of Congress
Regulation 2010-3.1, s 6(B)(2). On May 13, 1997, in its Final
Agency Decision, the EEOC Office rejected Dr. Samii's ap-
peal of its decision refusing to process his retaliation allega-
tion.
Dr. Samii filed this action, invoking Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. s 2000e et seq.,
shortly thereafter. The district court granted summary judg-
ment for the Librarian, finding that Dr. Samii had failed to
establish a prima facie case for retaliation or discrimination.
For the reasons that follow, we affirm, but on a different
ground.
The parties agree that under McDonnell Douglas, to assert
a successful Title VII claim, an employee must establish that
the employer's asserted nondiscriminatory reasons for its
adverse conduct were pretextual. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 804 (1973); Mungin v. Katten
Muchin & Zavis, 116 F.3d 1549, 1553-54 (D.C. Cir. 1997).
Once an employer articulates a legitimate, nondiscriminatory
reason for the challenged employment decision, the employer
prevails unless the employee succeeds in discrediting the
employer's explanation. See Aka v. Washington Hosp. Ctr.,
156 F.3d 1284, 1288-89 (D.C. Cir. 1998) (en banc). Since the
ultimate burden of persuasion in proving retaliation remains
with the plaintiff, summary judgment is appropriate when the
employee is unable to satisfy this burden. See Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Paquin v. Federal Nat'l Mortgage Ass'n, 119 F.3d 23, 27-28
(D.C. Cir. 1997); Chen v. General Accounting Office, 821 F.2d
732, 739 (D.C. Cir. 1987).
The Librarian has provided legitimate nondiscriminatory
reasons for not transferring Dr. Samii pursuant to his re-
peated requests. The denials of his requests were predicated
on the Library policy applicable to all HRS employees. Em-
ployees transferring to other divisions were not permitted to
take their budgeted salaries with them since doing so would
result in the department losing the funds allocated to those
specific positions.
Dr. Samii never made a request to transfer to an open,
funded position in another division of the Library. Rather,
he desired that he be excepted from the general policy and be
allowed to take his HRS salary with him to a new position.
This, the Librarian points out, was not possible since the
program analysis officer position is critical to the AASPO and
HRS would have no funds to pay for his replacement's salary.
According to Lloyd Pauls, three HRS employees transferred
to other Library divisions during the time Dr. Samii made his
requests. Each of these employees found budgeted and
funded positions in the divisions to which they transferred.
Dr. Samii failed to discredit the existence of the Library's
stated transfer policy. He offered no examples of HRS
employees who were permitted to reassign their salaries to
positions elsewhere in the Library. If funding was the real
reason for denying his transfer, Dr. Samii contends that the
Library should have granted his request to be detailed to the
Office of Scholarly Programs, an action that would not have
necessitated funding from the granting service. Doing so,
however, would have left the AASPO with no one to perform
the program analysis officer's duties and no funding to hire a
replacement. Dr. Samii thus failed to present evidence that
would lead a reasonable fact finder to disbelieve the Library's
proffered reasons for denying his transfer requests. We
therefore conclude that Dr. Samii has not met his burden, and
that the district court properly granted the Library's motion
for summary judgment on the retaliation claim. See Paquin,
119 F.3d at 27-28.
Dr. Samii also believes that he was discriminated against
by the Library's failure to process his claim for retaliation
even though it accepted the retaliation claim filed by a black
employee under allegedly identical circumstances. The Li-
brary maintains that the retaliation claim was not processed
because Dr. Samii failed to bring it to the attention of the
EEO counselor in accordance with Library regulations. See
Library of Congress Regulation 2010-3.1, s 6(B)(2). The
district court nevertheless reviewed the claim1 and, in a ruling
we now affirm, found that Dr. Samii failed to establish
retaliation. Any harm resulting from the Library's refusal to
__________
1 The district court reviewed the claim despite determining that
Dr. Samii failed to exhaust his administrative remedy. We do not
address the exhaustion question in view of the Librarian's failure to
preserve it.
entertain the retaliation claim has thus been cured. See
Bowden v. United States, 176 F.3d 552, 555 (D.C. Cir. 1999).
Since the discrimination claim is derivative of Dr. Samii's
meritless retaliation claim, it too must fail.
Affirmed.