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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2003 Decided December 23, 2003
No. 02-5233
HOWARD P. STEWART,
APPELLANT
v.
JOHN D. ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 01cv00265)
Richard L. Swick argued the cause for appellant. With
him on the briefs was David H. Shapiro. Heidi R. Burak-
iewicz entered an appearance.
Anne M. Murphy, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were
Roscoe C. Howard, Jr., U.S. Attorney, and Marleigh Dover,
Special Counsel.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, and SENTELLE and
HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Opinion concurring in the judgment filed by Circuit Judge
HENDERSON.
SENTELLE, Circuit Judge: Appellant Howard P. Stewart, a
Senior Litigation Counsel in the Environmental Crimes Sec-
tion (‘‘ECS’’) of the Department of Justice (‘‘DOJ’’), brought
this action against John Ashcroft, in his official capacity as
Attorney General of the United States, alleging employment
discrimination pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. Stewart, who is black,
challenges two separate incidents in which white candidates
were selected over him to be Chief of ECS. The first was the
1998 selection of Stephen Solow; the second, the 2000 selec-
tion of David M. Uhlmann. The District Court, considering
both challenges, granted summary judgment to the Govern-
ment. This appeal followed. Stewart contends the District
Court erred in concluding: (1) that his non-selections as Chief
of ECS were not adverse employment actions; and (2) that he
failed to rebut the Government’s legitimate, nondiscriminato-
ry reasons for not selecting him. In addition to Appellant’s
claims, the Government questions whether Stewart’s claims
surrounding the Solow selection were properly before the
District Court. We agree with the Government that only the
claim regarding Uhlmann’s selection was properly before the
District Court. With respect to that claim, we agree with
Appellant that the District Court erred in failing to find his
non-selection to be an adverse employment action, but be-
cause we agree with the District Court that Stewart failed to
rebut the Government’s legitimate, nondiscriminatory reason
for not selecting him, we affirm.
I. Background
A. Stewart’s Employment at DOJ
Appellant Stewart joined DOJ in 1985 as a prosecutor in
the Fraud Section of the Criminal Division. From 1987 to
3
1989, he served as an Assistant United States Attorney
(‘‘AUSA’’) in the Eastern District of Pennsylvania. In 1989
he arrived at ECS, where he has since remained. In 1996,
Stewart was appointed to the position of Senior Litigation
Counsel, a new Senior Executive Service (‘‘SES’’) position.
This made Stewart the only SES-level person inside ECS,
other than the Chief. Throughout Stewart’s career at ECS,
he has repeatedly applied for leadership positions, including:
(1) Chief of ECS in 1994, 1997, and 2000; (2) Deputy Chief of
ECS in 1998; and (3) two Assistant Chief positions in 1998.
In this litigation, Stewart alleges that his non-selection as
Chief in 1998 and 2000 was for reasons of racial discrimina-
tion.
The 1998 appointment of Stephen P. Solow
In 1997, Stewart applied for the then-vacant Chief position.
In October of 1997, Lois J. Schiffer, the Assistant Attorney
General responsible for filling the vacancy, sent a letter to the
Senior Executive Services Board stating that Solow had been
selected for the position. On October 30, 1997, she appointed
Solow Acting Chief of the Division. In order to comply with
federal regulations, the position was re-advertised from Janu-
ary 12 to January 27, 1998, and new applications were consid-
ered. On February 3, 1998, Solow was appointed to the SES,
a requirement to fill the Chief position. Accordingly, he was
appointed on February 3, 1998 to be Chief of ECS.
The 2000 appointment of Uhlmann
When the Chief position again became vacant in 2000,
Stewart again applied. Assistant Attorney General Schiffer
was again responsible for the selection. This time, she
selected Uhlmann. According to Schiffer, Uhlmann had sev-
eral qualities that were critical for the job, particularly his
management and leadership ability. Like Stewart, Uhlmann
had experience working with various United States Attor-
ney’s offices around the country. Uhlmann had handled
complex cases and was ‘‘highly regarded by the Solicitor
General’s Office.’’ Schiffer Dep. 159.
4
B. Proceedings Below
Stewart first contacted an equal employment opportunity
(‘‘EEO’’) counselor regarding Solow’s selection as Chief on
August 12, 1998, and subsequently filed a formal complaint on
November 21, 1998. That complaint was amended in 2000 to
cover Uhlmann’s selection as Chief in that year. Having
failed to obtain administrative relief, Stewart filed the present
action.
The District Court granted summary judgment to the
Government. We pause to note that first, however, the
District Court ‘‘assume[d] TTT without deciding that TTT the
court TTT ha[d] jurisdiction to hear the case.’’ Stewart v.
Ashcroft, 211 F. Supp. 2d 166, 172 n.1 (D.D.C. 2002), but see
Citizens for a Better Living Env’t, 523 U.S. 83, 101 (1998)
(‘‘Hypothetical jurisdiction produces nothing more than a
hypothetical judgment – which comes to the same thing as an
advisory opinion, disapproved by the Court from the begin-
ning’’); Galvan v. Federal Prison Indus., 199 F.3d 461, 463
(D.C. Cir. 1999) (‘‘Jurisdiction must be established before a
federal court may proceed to any other question’’). This was
an obvious reference to Stewart’s challenge of Solow’s selec-
tion, which the Government had argued was time-barred by
the EEOC’s regulations governing administrative remedies.
Bypassing the time-bar issue, the District Court deter-
mined that the denials of Stewart’s applications were the
denial of lateral transfers, not failures to promote. This was
because Senior Litigation Counsel, Stewart’s position, and
Chief of ECS were both SES positions that have no differ-
ence in pay and benefits. Thus, the Court ruled Stewart had
not been subject to an adverse personnel action, as required
to establish a prima facie case of discrimination. Brown v.
Brody, 199 F.3d 446, 453 (D.C. Cir. 1999).
Alternatively, the Court concluded that Stewart failed to
rebut the Government’s legitimate, nondiscriminatory reason
for not selecting him – that other candidates were more
qualified. Additionally, he failed to present any evidence that
the cause of his non-selection was based on race.
5
II. Analysis
This Court reviews the grant of summary judgment de
novo, applying the same standards as the District Court.
Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Summary
judgment should only be granted where there are no genuine
issues of material fact, and all inferences must be viewed in a
light most favorable to the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250, 255, 106 S.Ct. 2505,
2511, 2513-14, 91 L.Ed.2d 202 (1986).
A. Exhaustion
As an initial matter, we must determine whether this case
is time-barred. While the District Court framed its ability to
hear these claims as jurisdictional, this Court has noted that
the exhaustion of remedies is not jurisdictional, but more akin
to a statute of limitations. See Bowden v. United States, 106
F.3d 433, 437 (D.C. Cir. 1997) (‘‘The administrative time limits
created by the EEOC erect no jurisdictional bars to bringing
suit’’). While we need not address here the timing require-
ments as a jurisdictional bar, we must still address these
requirements.
The timing requirements for bringing a Title VII claim are
set forth in 29 C.F.R. § 1614.105(a)(1), which states in perti-
nent part:
An aggrieved person must initiate contact with a
Counselor within 45 days of the date of the matter
alleged to be discriminatory or, in the case of per-
sonnel action, within 45 days of the effective date of
the action.
29 C.F.R. § 1614.105(a)(1) (2002). Stewart’s August 12, 1998
initiation of EEO procedures is untimely if he knew, or should
have known, about the alleged discriminatory action prior to
June 27, 1998 – 45 days prior to his initial contact with EEO.
Solow became Chief of ECS on February 3, 1998. Because
Stewart initiated his EEO complaint well after 45 days from
this time, he fails to satisfy the requirements of
§ 1614.105(a)(1). Therefore, Stewart must rely on the tolling
provisions of § 1614.105(a)(2), which provide that the time
6
will be tolled if he ‘‘did not know and reasonably should not
have [ ] known that the discriminatory matter or personnel
action occurred.’’
With the tolling provision in mind, we consider the events
prior to June 27, 1998, to determine if Stewart should have
known of Solow’s selection. Of course, on February 3, 1998,
Solow was appointed to SES and officially selected as Chief.
On February 13, 1998, Stewart received a letter that went to
all ECS employees and reorganized the entire section. The
letter was written by Solow and in it he identified himself as
Chief. Further, on June 17, 1998, Stewart wrote a letter to
Solow identifying Solow as Chief. Finally, on June 23, Stew-
art’s lawyer, hired to represent him in this matter, sent a
letter requesting the status of Solow’s appointment.
The evidence shows that at the very least Stewart should
have known by June 27, 1998, that Solow had been appointed
and any alleged discrimination had occurred. As detailed
above, there were several events in February that should
have prompted Stewart to inquire about the status of the job
he sought. Rather, Stewart waited until June to have his
attorney ask. This formalistic event simply does not salvage
Stewart’s claim. Particularly troublesome is Stewart’s letter
to Solow identifying Solow as Chief. Stewart’s response that
calling Solow ‘‘Chief’’ was a mere courtesy does not persuade
this Court that Stewart was not aware of Solow’s selection
prior to June 27, 1998.
Stewart failed to bring his claims regarding Solow’s selec-
tion to the EEO Counselor in a timely manner and failed to
satisfy the tolling provision. Because timely exhaustion of
administrative remedies is a prerequisite to a Title VII action
against the federal government, the Solow selection is not
properly before this Court. Bowden, 106 F.3d at 437.
B. Adverse Employment Action
Stewart contends that the District Court’s determination
that he had not been subjected to an adverse employment
action was erroneous. The District Court correctly noted
that ‘‘plaintiff bears the burden of showing tangible employ-
7
ment action evidenced by firing, failing to promote, a consid-
erable change in benefits, or reassignment with significantly
different responsibilities.’’ Stewart v. Ashcroft, 211 F. Supp.
2d at 173 (citing Brown, 199 F.3d at 452). The District Court
also correctly noted that ‘‘a bruised ego’’ will not suffice to
make an employment action adverse. Id. (quoting Flaherty
v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir. 1994)). The
District Court viewed Stewart’s situation as a denial of a
lateral transfer, with no change in pay, benefits, or other
material consequences. The Court therefore held he had
‘‘not suffered an objectively tangible harm.’’ Id. at 175
(quoting Freedman, 255 F.3d at 848).
We most clearly addressed lateral transfers in Brown,
where we held:
A plaintiff who is made to undertake or who is
denied a lateral transfer – that is, one in which she
suffers no diminution in pay or benefits – does not
suffer an actionable injury unless there are some
other materially adverse consequences affecting the
terms, conditions, or privileges of her employment
or her future employment opportunities such that a
reasonable trier of fact could conclude that the plain-
tiff has suffered objectively tangible harm. Mere
idiosyncrasies are not sufficient to state an injury.
Brown, 199 F.3d at 457. This passage answers one question
immediately – the District Court was correct in considering
this case as one of a lateral transfer. The rule plainly states
that a lateral transfer is one in which there is no diminution
in pay and benefits. Id. It is undisputed that Stewart,
already an SES employee, would receive no different pay or
benefits if selected as Chief of ECS.
On the present facts, however, Brown goes only this far.
The remaining language of Brown suggests that there are
lateral transfers that could be considered adverse employ-
ment actions. The present facts supply a compelling argu-
ment for that case. No matter how one looks at it, the Chief
of ECS is the head of the section. He runs the ECS and,
most important, he supervises and directs the Senior Litiga-
8
tion Counsel. Non-selection as Chief of ECS has objective,
tangible, and ‘‘materially adverse consequences [for] the
terms, conditions, or privileges’’ of Stewart’s employment
because the Government has denied him the opportunity to
advance within the hierarchy of the ECS and the Department
more generally. Brown, 199 F.3d at 457.
The Government argues that the two SES positions, Senior
Litigation Counsel and Chief, are objectively the same. The
Government relies particularly on the fact that Stewart would
have the same pay and benefits if he were selected as Chief
as he does as Senior Litigation Counsel. With respect to
other aspects of the Chief position, the Government argues
that Stewart’s denial of these are ‘‘perceived slights,’’ with no
objective harm. For instance, they argue that the denial of
the ability to gain greater supervisory skills is not an objec-
tive harm. We think the government misses the point. Mr.
Stewart was denied the opportunity to take over his supervi-
sor’s position. The failure to select Stewart as Chief clearly
had materially adverse consequences for his present and
future employment opportunities. He was simply denied his
supervisor’s job. Because of the equality of pay and benefits,
we may call it a lateral transfer, but in reality, it is more
similar to a denial of a promotion – which is clearly an
adverse employment action.
Just as withdrawing an employee’s supervisory duties con-
stitutes an adverse employment action, see Burke v. Gould,
286 F.3d 513, 522 (D.C. Cir. 2001), so too failing to select an
employee for a position with substantially greater supervisory
authority is an adverse employment action. As stated above,
in Brown we recognized that while generally lateral transfers,
or the denial of them, could not be considered adverse
employment actions, there are circumstances where they
could be. 199 F.3d at 457. What sets this case outside the
norm is the structure of the SES. Because transfers inside
the SES may not result in different pay or benefits, these
moves will almost always be viewed as lateral. They are,
however, not always truly lateral in all respects. This re-
quested transfer is not. The relationship between the Senior
9
Litigation Counsel and Chief is not purely horizontal. The
record evidence demonstrates that the Chief actively and
directly supervises the Senior Litigation Counsel. Uhlmann
testified that as Chief he assigned duties to Stewart ‘‘includ-
ing specific management duties, and other initiatives.’’ Uhl-
mann Dep. 24.1 Indeed, at oral argument, Government coun-
sel stated affirmatively that ‘‘there is a hierarchy’’ and that
‘‘the Chief’s job is higher in the hierarchy than Mr. Stew-
art’s.’’ This case, therefore, fits squarely in the qualification
in Brown that makes the denial of some lateral transfers
adverse employment actions. By being denied the transfer to
his supervisor’s position, Stewart suffered more than harm to
his reputation, as the Government argued and the District
Court accepted. That harm amounts to ‘‘materially adverse
consequences affecting the terms, conditions, or privileges of
[his] employment or [his] future employment opportunities
such that a reasonable trier of fact could conclude [Stewart]
has suffered objectively tangible harm.’’ Brown, 199 F.3d at
457. We agree with Appellant that the District Court erred
in failing to consider his non-selection an adverse employment
action.
C. Stewart’s Case under McDonnell Douglas
Stewart also challenges the District Court’s finding that he
failed to rebut the Government’s legitimate, nondiscriminato-
ry reason for not selecting him–that Uhlmann was more
qualified. We analyze this case under the familiar McDon-
nell Douglas test. McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). To establish a prima facie case, Appellant
must first show that (1) he is a member of a protected class;
(2) he applied for and was qualified for an available position;
and (3) despite his qualifications he was rejected. Id. at 802.
1 The concurring opinion expresses concern about a lack of record
evidence that Stewart’s Senior Litigation Counsel position was
subordinate to the ECS Chief. To that we simply point to Stew-
art’s application for the Chief position, in which he identifies his
immediate supervisor as Stephen P. Solow, then ECS Chief.
10
Furthermore, Appellant must at least establish that his rejec-
tion was not based on ‘‘the two most common legitimate
reasons on which an employer might rely to reject a job
applicant: an absolute or relative lack of qualifications or the
absence of a vacancy in the job sought.’’ Morgan v. Federal
Home Loan Mortgage, 328 F.3d 647, 651 (D.C. Cir. 2003).
If the plaintiff establishes his prima facie case, the defen-
dant then bears the burden of producing evidence that the
plaintiff was rejected, or someone else was preferred, for a
legitimate, nondiscriminatory reason. Id. If the defendant
produces such evidence, McDonnell Douglas, ‘‘with its pre-
sumptions and burdens disappears and the sole remaining
issue is discrimination vel non.’’ Id.
The District Court found the Government’s nondiscrimina-
tory reason for hiring Uhlmann over Stewart – that Uhlmann
had more managerial experience – persuasive. This, the
District Court noted, shifted the burden back to Stewart to
provide sufficient evidence such that a jury could find this
‘‘proffered reason was a pretext for discrimination.’’ Pau-
quin v. National Mortgage Ass’n, 119 F.3d 23, 27-28 (D.C.
Cir. 1998). The District Court held that appellant offered no
evidence to rebut the Government’s legitimate, nondiscrimina-
tory reason for selecting Uhlmann. On appeal, the Govern-
ment maintains that position. Stewart, on the other hand,
argues that he is so much more qualified than Uhlmann that a
jury could reasonably determine that relying on Uhlmann’s
qualifications was a pretext for discrimination.
Under the liberal requirements for establishing a prima
facie case, Appellant has met the burden of McDonnell
Douglas only as to the first positive elements. Cones v.
Shalala, 199 F.3d 512, 518 (D.C. Cir. 2000) (‘‘[Plaintiff] estab-
lished that he was substantively qualified and [the Govern-
ment] selected a white person.’’). Here, Stewart has set forth
sufficient facts that he is substantively qualified for the job
and a white person was selected. A recounting here of
Stewart’s many qualifications is not required. It is sufficient
to note that Stewart, along with Deborah Smith, the Deputy
Chief of ECS, and Uhlmann were the final three candidates
11
for the Chief position. Sobeck Dep. 38. Stewart has rebut-
ted two common legitimate reasons for not being selected, an
‘‘absolute TTT lack of qualifications or the absence of a
vacancy in the job sought.’’ Morgan, 328 F.3d at 651.
The Government responds that its selection of ECS Chief
was based on its observations of Stewart’s performance and
determinations that Uhlmann was more qualified. Uhlmann
took a more keen interest in management. Several parties
testified that, although Stewart was a part of management, he
rarely attended management meetings. Ms. Smith, Deputy
Chief of ECS, testified that prior ECS Chiefs ‘‘express[ed]
frustration from time to time that [Stewart] wasn’t there
more often’’ at management meetings, or otherwise involved
in management of ECS. Smith Dep. 35. See also Sobeck
Dep. 84 (Stewart ‘‘had shown little interest or initiative in
administrative or leadership matters’’); Uhlmann Dep. 14
(Stewart ‘‘wasn’t a particularly active member or participant
in [management] meetings, and my sense was, he frequently
absented himself’’).
The Government also points to the application process.
Uhlmann prepared a 21-page application explaining his vision
for ECS in terms of detailed goals. In addition, with each
goal he proposed for ECS, he explained how his qualifications
would enable him to make the goal a reality. Stewart’s
application, on the other hand, was largely a reproduction of a
1995 memorandum sent by Schiffer to the SES board regard-
ing Stewart’s Executive Core Qualifications. Reading the
Schiffer memorandum and Stewart’s application together, it
is clear that much less effort and thought went into it than
the Uhlmann application. The Stewart application caused
‘‘great concern’’ to Schiffer, and others, as ‘‘a piece of writ-
ing.’’ Schiffer Dep. 161. Additionally, as detailed below,
Stewart’s qualifications were simply not superior to Uhl-
mann’s so as to create an inference that the Government’s
selection of Uhlmann was based on any discriminatory rea-
son.
Having set forth a nondiscriminatory reason for Uhlmann’s
selection, McDonnell Douglas, ‘‘with its presumptions and
12
burdens disappears and the sole remaining issue is discrimi-
nation vel non.’’ Morgan, 328 F.3d at 651. The question
then becomes whether a reasonable finder of fact could
determine that the Government’s ‘‘proffered reason was a
pretext for discrimination.’’ Pauquin, 119 F.3d at 27-28.
This case is about a dispute over job qualifications. On
that issue, our decision in Aka v. Washington Hospital, 156
F.3d 1284 (D.C. Cir. 1998) (en banc), is instructive. In that
case, the plaintiff had made out a prima facie case of discrim-
ination under McDonnell Douglas and refuted the employer’s
proffered nondiscrimination reasons. Aka’s qualifications
were quite superior to those of Valenzuela, the candidate the
hospital selected for a pharmaceutical job. In the pharma-
ceutical area, Aka had nineteen years of professional experi-
ence, versus Valenzuela’s two months of volunteer work. Aka
had earned two degrees, while Valenzuela had earned none.
Stewart’s evidence presents no such stark superiority of
credentials over those of the successful candidates.
As a threshold matter, Stewart, a highly regarded litigator
who has handled very complex environmental litigation, incor-
rectly and perhaps wishfully, states that litigation experience
is the most critical trait to be Chief of ECS. The Govern-
ment takes the position that while litigation experience is
required, management experience is the most critical. Spe-
cifically, the DOJ required the Chief to have: experience in
managing complex organizations, creating training programs,
establishing and prioritizing enforcement initiatives, and de-
veloping ECS policy. It is clear Uhlmann had these skills
and Stewart lacked them. Because courts are not ‘‘super-
personnel department[s] that reexamine[ ] an entity’s busi-
ness decision[s],’’ we defer to the Government’s decision of
what nondiscriminatory qualities it will seek in filling the
Chief position. Dale v. Chicago Tribune Co., 797 F.2d 458,
464 (7th Cir. 1986).
Turning to the comparison of qualifications that Stewart
presents, he was simply not discernibly better than Uhlmann.
Stewart relies heavily on the fact that he was already an SES
employee, whereas Uhlmann was not. While this is true, it
13
says little about the level of relative qualifications between
the two men to serve as Chief. Indeed, Uhlmann was
immediately accepted into the SES when he was recom-
mended. Stewart, in accordance with his view that litigation
experience should be the driving factor, argues that he has
more extensive prosecutorial experience than Uhlmann.
While the record does reveal that Stewart had more prosecu-
torial experience in environmental matters, Uhlmann also had
substantial experience as a prosecutor, with over 25 jury
trials to his credit. Stewart essentially argues that these
don’t really count, because 20 of them were in District of
Columbia Superior Court and did not involve environmental
matters. We don’t find Stewart’s detailed challenges to the
substance of Uhlmann’s particular trials persuasive. The
Government looks at trial experience as one factor in select-
ing the Chief, and both Uhlmann and Stewart had prosecuto-
rial experience. The fine distinctions over the substance of
those trials are not sufficient to give rise to suspicion of
pretext or a jury finding of discrimination. Had Uhlmann
never tried a case, perhaps we would have to look further, but
that is simply not what occurred here. Schiffer testified that
he was ‘‘highly regarded by the Solicitor General’s Office.’’
Schiffer Dep. 159. This is no small indication of his ability as
a litigator. Additionally, prior to his selection as Chief, he
served for two and a half years as Assistant Chief of the
division, a position that provided him with substantial man-
agement and leadership experience in ECS.
Stewart also states he is better prepared to work with the
various United States Attorney’s offices around the country,
owing to his two years of service as an AUSA in the Eastern
District of Pennsylvania. In this realm, he challenges Uhl-
mann’s relative inexperience – only six months as an AUSA
as part of a DOJ training program. Again, like Stewart’s
detailed testing of Uhlmann’s trial experience, these distinc-
tions are too fine to make Uhlmann’s selection questionable.
Both Stewart and Uhlmann had served as AUSAs, and an 18-
month longer tour for Stewart does not set him that far
ahead of Uhlmann.
14
In discussing a Court’s review of an employer’s decision to
promote based on superior qualifications, this Court stated:
We must assume that a reasonable juror who might
disagree with the employer’s decision, but would find
the question close, would not usually infer discrimi-
nation on the basis of a comparison of qualifications
alone. In a close case, a reasonable juror would
usually assume that the employer is more capable of
assessing the significance of small differences in the
qualification of the candidates, or that the employer
made a judgment call.
Aka, 156 F.3d at 1294. The selection of ECS Chief necessari-
ly depends on ‘‘assessing the significance of small differences
in the qualifications’’ and making ‘‘a judgment call.’’ Id.
Based on this framework, Stewart’s pointing to differences in
qualifications that merely indicate a ‘‘close call’’ does not get
him beyond summary judgment. This Court will not reexam-
ine governmental promotion decisions where it appears the
Government was faced with a difficult decision between two
qualified candidates, particularly when there is no other
evidence that race played a part in the decision.
Finally, we address Stewart’s argument that the Govern-
ment used his involvement in a faction at ECS as a pretext
for discrimination. Apparently, during a period in the mid–
1990s, ECS had serious personnel problems resulting in
balkanization of the office. While the parties do not fully
explain the problems involved, it is sufficient to note that it
involved competing interests by groups inside ECS and was
serious enough to affect the ECS’s dealings with other agen-
cies. Stewart asserts that his membership in one of the
factions provided Schiffer and the Government with the origi-
nal reason for not selecting him as Chief. Stewart claims,
however, that this is self-contradictory, as Schiffer has subse-
quently selected Chiefs who were involved in the infighting,
including Uhlmann. According to Stewart, this proves that
relying on his involvement in a faction as a grounds for
denying him the position is a pretext. This argument fails.
Stewart points to nowhere in the record where Schiffer
15
contradicts herself. He merely assumes that it would be a
contradiction for her to not select him partly based on the
fact that he was involved in Section infighting, yet select
someone who was also involved. The record does not provide
any force to Stewart’s argument. First, Schiffer did not rely
solely on Stewart’s involvement in the infighting as a reason
for not selecting him. Furthermore, it appears that anyone
in ECS at the time of the factionalization would be identified
with some aspect of it. Uhlmann, according to Schiffer’s
testimony, was never identified with the more intense faction-
al activity.
Lastly, there is a complete lack of evidence in the record
that indicates race was a factor in the selection of Uhlmann as
Chief of ECS. The only evidence Stewart offers is the
testimony of Nadira Clark, an administrative assistant to
Schiffer. This testimony is wholly unpersuasive. When
asked if she thought race was a factor, Ms. Clark testified
that ‘‘I don’t know. I don’t know. I can’t speculate one way
or another about that. I guess what I would say is that TTT
any selection of a minority candidate TTT is always going to
be scrutinized a little bit moreTTTT’’ Clark Dep. 33-34. She
further testified that Schiffer was ‘‘very interested in finding
minority candidates for management positions.’’ Id. at 80.
Clarke’s testimony, in whole, is unpersuasive and admittedly
based on speculation. It would not support a jury finding of
liability.
III. Conclusion
Stewart’s claims regarding the Solow selection as ECS
Chief are dismissed, as they were not timely filed. While the
District Court erred in determining that Stewart’s non-
selection as Chief of ECS was not an adverse employment
action, it was correct in concluding that Stewart did not rebut
the Government’s legitimate, nondiscriminatory reason for his
nonselection. Stewart simply presented no evidence showing
that the Government’s nondiscriminatory reasons for select-
ing Uhlmann were pretextual. Furthermore, the record
shows no evidence that race played a factor in Stewart’s non-
16
selection. Therefore, the judgment of the District Court is
affirmed.
1
KAREN LECRAFT HENDERSON, Circuit Judge, concurring in
the judgment:
I concur in the majority opinion’s disposition and, for the
most part, in its reasoning. I disagree, however, with its
conclusion that Howard P. Stewart suffered an ‘‘adverse
employment decision’’—a necessary element of an employ-
ment discrimination claim—when he was not selected to be
Chief of the Environmental Crimes Section in the United
States Department of Justice.
In Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999), we
announced the ‘‘rule’’ that an employee like Stewart who is
simply ‘‘denied a lateral transfer—that is, one in which [ ]he
suffers no diminution in pay or benefits—does not suffer an
actionable injury unless there are some other materially
adverse consequences affecting the terms, conditions, or privi-
leges of [his] employment or [his] future employment oppor-
tunities such that a reasonable trier of fact could conclude
that the plaintiff has suffered objectively tangible harm.’’ 199
F.3d at 452 (emphasis added). There is no evidence in this
record to support a finding of ‘‘objectively tangible harm.’’
Stewart argues, without elaboration, that the Chief job ‘‘car-
ried with it significantly elevated supervisory duties and
responsibilities,’’ Appellant’s Br. at 13; see also id. at 14
(Chief position ‘‘by its very nature carried tremendous super-
visory and managerial responsibilities’’); id. at 15 (Stewart
‘‘applied for a position that would have given him a more
distinguished title and greater supervisory responsibilities’’);
cf. 211 F. Supp. 2d at 174 (‘‘plaintiff asserts that these losses
stem directly from the defendant’s failure to promote him to a
position that carries ‘significantly elevated duties and respon-
sibilities’ ’’) (record citation omitted). He fails to explain,
however, how the responsibilities are ‘‘elevated’’ over his own.
His bare allegations may reflect Stewart’s ‘‘own subjective
interest’’ in the position of Chief. See 211 F. Supp. 2d at 175.
They do not support a finding of objectively tangible harm.1
1Stewart’s complaint alleged in addition that he suffered ‘‘dam-
age to his career and to his professional and personal reputation,
embarrassment, humiliation, and emotional pain.’’ Compl. ¶ 14.
These intangible harms are plainly not actionable. See Stewart v.
Evans, 275 F.3d 1126, 1136 (D.C. Cir. 2002) (‘‘public humiliation or
2
As evidence that Stewart’s position was subordinate to the
Section Chief’s, the majority opinion states that Chief Uhl-
mann ‘‘testified that as Chief he assigned duties to Stewart
‘including specific management duties, and other initiatives.’ ’’
Maj. Op. at 8–9 (quoting Uhlmann Dep. at 24). Uhlmann
testified that during his tenure Stewart ‘‘ha[d] continued to
serve as TTT the reviewing official for [the Section’s] legal
support staff,’’ as he had done before Uhlmann became Chief.
Id. Uhlmann further stated he had asked Stewart ‘‘to meet
with all the trial teams in the section after cases were
charged, to work with their assistant chiefs, and to work with
them on formulating trial strategy,’’ and ‘‘to participate in
every management meeting.’’ Id. at 24–25. To me, this
testimony does not reflect the kind of supervisory hierarchy
that the majority opinion suggests.2
In pressing his claim of adverse employment action, Stew-
art relies heavily on Burke v. Gould, 286 F.3d 513 (D.C. Cir.
2002), in which the court concluded a government employee
suffered an adverse employment action when he ‘‘was relieved
of his supervisory responsibilities as section chief and as-
signed to unspecified duties.’’ 286 F.3d at 516. To lose
supervisory authority through a job change is a far cry from
failing to acquire different supervisory authority through non-
selection. It is undisputed that Stewart has long exercised
supervisory responsibilities over junior lawyers in his current
position. See 211 F. Supp. 2d at 175 (‘‘plaintiff himself
acknowledges that in his current position as Senior Litigation
Counsel, he has had years of experience supervising other
attorneys’’). These responsibilities may be different in kind
loss of reputation does not constitute an adverse employment action
under Title VII’’).
2 I ascribe little weight to the conclusionary support the majority
cites for the proposition that the Chief was Stewart’s supervisor, see
Maj. Op. at 8 & n.1, namely the government’s non-record ‘‘hierar-
chy’’ comments at oral argument and Stewart’s own, self-serving
characterization of the Chief as his ‘‘supervisor,’’ see also Schiffer
Dep. at 165–66 (also calling Chief Stewart’s ‘‘supervisor’’). They
tell us nothing specific about the relationship between the Chief’s
position and Stewart’s.
3
from those attendant upon the Chief’s position but such
differences as exist do not negate the fact that Stewart’s
current position entails supervisory responsibility or make
the position inferior to the Chief’s.
In sum, while I agree with the majority opinion that no
reasonable juror could find the defendant’s legitimate, nondis-
criminatory reason for not selecting Stewart in 2000 was
pretextual, I do not believe we need reach pretext. I would
affirm the summary judgment with regard to Stewart’s non-
selection in 2000 on the ground that Stewart failed at the
prima facie stage to show that he suffered an adverse employ-
ment action. In all other respects, I concur in the majority
opinion.