Arnold v. Salazar

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_____________________________
)
ROMELLA ARNOLD, )
)
Plaintiff, )
)
v. ) Civil Action No. 09-964 (RWR)
)
KEN SALAZAR, )
)
Defendant. )
_____________________________ )

MEMORANDUM OPINION

Plaintiff Romella Arnold, an African-American employee of

the United States Department of the Interior (“DOI”), brings suit

against the Secretary of the DOI (“Secretary”) alleging that the

Secretary failed to promote her in retaliation for her prior EEO

activity, in violation of Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e et seq. At the close of

discovery, the Secretary moved for summary judgment. Because

Arnold failed to exhaust her administrative remedies and

establish a prima facie case that the Secretary retaliated

against her by failing to select her for acting supervisor

positions, and because Arnold has not rebutted the non-

retaliatory reason the Secretary proffered for not promoting her

to the Program Manager position for which she applied, the

Secretary’s motion for summary judgment will be granted.
 - 2 -

BACKGROUND

Arnold is an African-American woman who has been employed by

the DOI since 1973 when she joined the department as a co-op

student. Compl. ¶ 2; Def.’s Mot. for Summ. J. (“Def.’s Mot.”),

Romella Arnold Dep. (“Arnold Dep.”) at 6:6–9. In 1975, Arnold

became a full-time Equal Employment Opportunity (“EEO”)

Specialist in the Office of the Secretary. Arnold Dep. at

6:6–10; Def.’s Mem. of P. & A. (“Def’s Mem.”) at 1. In 1997,

Arnold was reassigned to the DOI’s Bureau of Land Management

(“BLM”) where she worked as an EEO Specialist. Arnold Dep. at

14:17-15:1; Def.’s Mem. at 2. The next year, Arnold became a GS-

13 National Student Employment Program Manager. Compl. ¶ 5;

Def.’s Mem. at 2; Arnold Dep. at 14:17-15:4. In 2001, Arnold was

detailed to a temporary, 120-day promotion to a GS-14 Program

Manager of the Diversity Intern Program and Historically Black

Colleges and Universities (HBCU) program. In 2002, after her

successor’s 120-day detail ended, Arnold resumed the Diversity

Intern Program and HBCU Program Manager position, although not on

another GS-14 detail, and continued to fulfill her duties as

National Student Employment Program Manager. Def.’s Mem. at 3;

Arnold Dep. at 20:5-20.

In 2002, Marilyn Johnson was hired as the Assistant Director

for Human Resources for the BLM. In this capacity, Johnson

served as Arnold’s second-level supervisor. Def.’s Mot., Ex. 17,
 - 3 -

Marilyn Johnson Interview at 4:21-5:11. According to Arnold,

Johnson created a hostile work environment, discriminated against

Arnold by making false accusations about her, and demoted Arnold

from her position as National Student Employment Program Manager

in August 2003. Compl. ¶ 7. Johnson appointed Michael Brown to

replace Arnold and reassigned Arnold to a GS-13 Title VI EEO

Specialist position. Def.’s Mot., Ex. 4, Pl.’s Answers &

Objections to Def.’s 1st Set of Interrogs. & Reqs. for Produc. of

Docs. at 7. In early August 2003, Arnold made initial contact

with an EEO counselor concerning her reassignment to the Title VI

position and alleging that Johnson discriminated and retaliated

against her, and that Johnson created a hostile work environment.

Compl. ¶ 7; Def.’s Mot., Stmt. of Material Facts (“Def.’s Stmt.”)

¶ 1.

In 2004, Brown was removed from the Program Manager position

and Sylvia Felder was temporarily assigned as Acting Program

Manager. Compl. ¶ 7; Def.’s Stmt. ¶ 8. In 2005, the DOI posted

a vacancy announcement (WO Merit 2005-0135) for the Program

Manager position (GS-0340-14) “in the Office of the Chief, Human

Capital Management, Project Director, Special Initiatives Group.”

Def.’s Stmt. ¶ 5. According to the position description, the

Program Manager position has “supervisory and management

responsibilities,” but the “position does not require technical

competence in a specialized function area of Human Resources
 - 4 -

Management[.]” Def.’s Mot., Ex. 8, Romella Arnold Report of

Investigation (“Arnold ROI”) at 195; Def.’s Stmt. ¶ 7. The

vacancy announcement “advised applicants that their applications

would be scored using an automated on-line system which included

self-assessment questions, the answers to which would be used in

determining the applicants’ qualifications for the position[.]”

Def.’s Stmt. ¶ 10. Twelve people applied for the position,

including Arnold, Felder, and Brown, and ten received ranking

scores.1 Def.’s Stmt. ¶ 11; Def.’s Mot., Ex. 19, Decl. of

Philesa A. Spencer (“Spencer Decl.”) ¶ 9 & Ex. S3. Based on the

applicants’ responses to the self-assessment questions, the

computer generated the following scores:

100.00 Michael Brown
100.00 C.D.
98.24 S.V.
98.24 Sylvia Felder
93.82 S.S.
93.82 C.A.
92.94 Romella Arnold
92.06 E.C.
88.53 J.C.
86.76 R.S.

Def.’s Stmt. ¶ 11.

Philesa Spencer was the Human Resources Specialist

responsible for processing the vacancy. Id. ¶ 12. Robert

Renton, Johnson’s assistant, was the selecting official for the

position. Id.; Compl. ¶ 10. Spencer told Renton the number of

1
Two applicants were “screened-out” and not assigned
scores. See Def.’s Mot., Ex. 19, Decl. of Philesa A. Spencer ¶ 9
& Ex. S3.
 - 5 -

applicants but not their identities and Renton asked Spencer to

send him the top candidates. Def.’s Stmt. ¶¶ 13–15. Spencer

selected candidates with scores over 95; the four candidates, who

did not include Arnold, were referred for further consideration.

Id. ¶¶ 15, 17. A panel interviewed the four candidates and

recommended that Renton hire Brown. Id. ¶ 18. Felder was the

panel’s 4th choice. Id. Nevertheless, Felder was selected for

the position in June 2005. Id. ¶ 19; Def.’s Mot., Ex. 16, Hr’g

Exs. (Volume 3) at 13.

Arnold made initial contact with an EEO counselor on May 23,

2005 claiming that the DOI retaliated against for filing her 2003

EEO complaint by (1) “fail[ing] to provide [her] with the

opportunity to serve in Acting Supervisory positions as such

positions became available in the Human Resources office,” and

(2) “fail[ing] to consider [her] prior work experience,

knowledge, and skills among the best-qualified candidates” for

the Program Manager position. Arnold ROI at 9-10. “On July 18,

2005, Arnold amended her complaint to add a claim of reprisal due

to her non-selection for the [Program Manager] position.” Def.’s

Stmt. ¶ 20. Arnold filed her one-count complaint alleging

retaliation for filing her 2003 EEO complaint in May 2009.

The Secretary moves for summary judgment. With respect to

Arnold’s claim that she was retaliated against by not being

selected for acting supervisor positions, the Secretary argues
 - 6 -

that Arnold failed to exhaust her administrative remedies, and,

even if she had, that Arnold cannot establish a prima facie case

of retaliation for all of the non-selections. The Secretary also

argues that Arnold failed to rebut the legitimate, non-

retaliatory reason for not promoting Arnold to the Program

Manager position. Arnold opposes.

DISCUSSION

Summary judgment is properly granted if the “movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

259 (1986) (“[A] summary judgment motion will be defeated if

sufficient evidence supporting the claimed factual dispute be

shown to require a jury or judge to resolve the parties’

differing versions of the truth at trial, and that a plaintiff

may not, in defending against a motion for summary judgment, rest

on mere allegations or denials of his pleadings.” (citation

omitted) (internal quotation marks omitted)). “A genuine issue

is present in a case where the ‘evidence is such that a

reasonable jury could return a verdict for the non-moving party,’

a situation separate and distinct from a case where the evidence

is ‘so one-sided that one party must prevail as a matter of

law.’” Dozier-Nix v. District of Columbia, 851 F. Supp. 2d 163,

166 (D.D.C. 2012) (quoting Anderson, 477 U.S. at 248). “‘In
 - 7 -

considering a motion for summary judgment, a court is to draw all

justifiable inferences from the evidence in favor of the

nonmovant.’” Hairston v. Boardman, 915 F. Supp. 2d 155, 159

(D.D.C. 2013) (internal quotation marks omitted) (quoting Fields

v. Geithner, 840 F. Supp. 2d 128, 133 (D.D.C. 2012)).

Federal employers are prohibited from discriminating against

an employee because the employee “has made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-

3(a); 42 U.S.C. § 2000e-16 (applying § 2000e-3(a) to federal

employers); see also Rochon v. Gonzales, 438 F.3d 1211, 1216

(D.C. Cir. 2006).

I. NON-SELECTION FOR ACTING SUPERVISOR POSITIONS

Arnold alleges that the Secretary retaliated against her for

bringing her 2003 EEO complaint by not selecting her for acting

supervisor positions. Compl. ¶¶ 7, 15. Arnold claims that on

eighteen occasions in 2002 to 2005, Def.’s Mot., Ex. 5, Pl.’s

Answers to Interrogs. & Resps. to Req. for Prod. of Docs.

(“Arnold Interrogs.”) at 8–11, “[o]ther employees in the [Office

of Human Resources] were permitted to act in supervisory

positions” when Johnson or other supervisors were out of the

office but Arnold was never permitted to act in such a position,

Compl. ¶ 7. The Secretary argues that he is entitled to judgment

as a matter of law on these claims because Arnold failed to
 - 8 -

timely exhaust her administrative remedies for the acting

supervisor positions assigned in 2003 to 2005 and cannot

establish a prima facie case of retaliation for the acting

supervisor position assigned in 2002. Def.’s Mem. at 13-16.

Title VII “[c]omplainants must timely exhaust the[ir]

administrative remedies before bringing their claims to court.”

Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997).

Specifically, a plaintiff must initiate informal contact with an

EEO counselor within 45 days of when the alleged discriminatory

conduct occurred. 42 U.S.C. § 2000e-16(c); 29 C.F.R.

§ 1614.105(a)(1). Arnold received e-mails from September 6, 2002

to February 7, 2005 announcing that others had been designated to

act as supervisors. Arnold Interrogs. at 8–11; see also Def.’s

Mem. at 13–14. However, in her 2003 EEO complaint, Arnold did

not make any allegations that she was discriminated against by

DOI failing to appoint her to acting supervisory positions. See

Def.’s Stmt. ¶ 1. Instead, Arnold did not initiate contact with

an EEO counselor and raise her claim of retaliation due to

failure to appoint her to acting supervisory positions until

May 23, 2005. Thus, the Secretary argues that all of Arnold’s

claims about non-selections that occurred before April 8, 2005 --

45 days before Arnold contacted an EEO counselor on May 23, 2005

and raised these claims -- are time-barred. Arnold does not

claim that she timely initiated contact with an EEO counselor for
 - 9 -

non-selection for each position. Instead, she argues that, under

the continuing violations theory, all of her claims were timely

exhausted because the Secretary’s actions were part of a

continuing pattern of ongoing retaliation that culminated with

Arnold’s non-selection for the Program Manager position in June

2005. Pl.’s Opp’n at 7, 10; see also id. at 10 (“Here Ms. Arnold

alleges a series of non-selections that served Ms. Johnson’s

larger purpose of denying her the [Program Manager] position on a

permanent basis.”).

In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101

(2002), the Supreme Court rejected the continuing violations

theory for discrete retaliatory acts and held that “a Title VII

plaintiff raising claims of discrete discriminatory or

retaliatory acts must file his charge within” 45 days of the day

that the act occurred. Id. at 122. This is so “even when [the

discrete discriminatory acts] are related to acts alleged in

timely filed charges. Id. at 113. Discrete acts include

“termination, failure to promote, denial of transfer, or refusal

to hire[.]” Id. at 114. The 45-day period begins to run when

the employee “knew, or should have known, about the alleged

discriminatory action[.]” Stewart v. Ashcroft, 352 F.3d 422, 425

(D.C. Cir. 2003).

Under Morgan, each discrete non-selection for an acting

supervisor position must have been timely exhausted even if the
 - 10 -

act is related to Arnold’s non-selection for the Program Manager

position, which was timely exhausted. The Secretary provides

evidence that Arnold learned that that someone else had been

appointed for some of the acting supervisor positions by

contemporaneous e-mails. In an administrative hearing related to

this matter, Arnold testified that she was alerted that others

were appointed to acting supervisor positions after August 2003

by e-mails that were sent to all employees that worked in human

resources. Pl.’s Opp’n, Ex. 1, Excepts from Hr’g Tr. at 76:6–12.

Arnold now argues that she was unaware “that she had been denied

the opportunity to serve as an acting supervisor until . . . much

later.” Pl.’s Opp’n at 10. However, Arnold does not cite any

evidence in the record to support her factual assertion and does

not address the Secretary’s evidence that she received notice of

her non-selection for each acting supervisor position assigned

after August 2003 by contemporaneous e-mails. Summary judgment

cannot be avoided by merely alleging that the movant is

incorrect. See Anderson, 477 U.S. at 259. Accordingly, the

Secretary is entitled to judgment as a matter of law for Arnold’s

claims of retaliatory non-selection for acting supervisor

positions assigned after August 20032 because Arnold failed to

2
All of Arnold’s claimed non-selections except for the
position dated September 6, 2002 occurred after August 2003.
 - 11 -

initiate contact with an EEO counselor within 45 days of learning

of her non-selection.3

The Secretary is also entitled to summary judgment on

Arnold’s claim regarding her non-selection for the acting

supervisor position dated September 6, 2002 because Arnold cannot

establish a prima facie case of retaliation for this claim. To

establish a prima face case of retaliation, a plaintiff must show

“(1) that [she] engaged in statutorily protected activity;

(2) that [she] suffered a materially adverse action by [her]

employer; and (3) that a causal link connects the two.” Jones v.

Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). Arnold claims that

she was retaliated against for filing an EEO complaint in 2003 by

not being selected for an acting supervisor position in 2002.

Because this non-selection pre-dates Arnold’s 2003 EEO complaint,

it could not have been retaliation for her filing the 2003

complaint. See Booth v. District of Columbia, 701 F. Supp. 2d

73, 79 (D.D.C. 2010). Moreover, Arnold did not respond to the

Secretary’s legal argument that Arnold cannot establish a prima

3
The Secretary also moves for summary judgment for
Arnold’s claim that Felder’s designation as the Acting Program
Manager in October 2004 was retaliatory, alleging that Arnold
abandoned this claim. Because Arnold failed to respond to this
argument in her opposition, this argument will be deemed conceded
and judgment will be entered for the defendant regarding Arnold’s
claim that designating Felder to the Acting Program Manager
position was retaliatory conduct. See Iweala v. Operational
Techs. Servs., Inc., 634 F. Supp. 2d 73, 80–81 (D.D.C. 2009)
(deeming conceded the defendant’s exhaustion argument in its
motion where the plaintiff failed to respond to it in her
opposition).
 - 12 -

facie case of retaliation for her claim regarding her non-

selection for the acting supervisor position dated September 6,

2002 because Arnold cannot establish a causal link between her

protected conduct and not being appointed to the acting

supervisor position. Accordingly, the Secretary is entitled to

judgment as a matter of law regarding Arnold’s claim that her

non-selection for the acting supervisor position dated

September 6, 2002 was retaliatory.

II. PROGRAM MANAGER POSITION

Arnold alleges that the Secretary failed to promote her to

the Program Manager position in retaliation for her protected

conduct. Compl. ¶ 15. The Secretary argues that judgment should

be entered against Arnold because the Secretary had a legitimate,

non-retaliatory reason for not promoting Arnold to the Program

Manager position: Arnold’s “application was screened out prior

to referral of the top candidates to” Renton, the selecting

official, based on Arnold’s lower, computer-generated score on

the self-assessment. Def.’s Mem. at 19. The Secretary contends

that the self-assessment was “developed based on the position

description which had been prepared prior to Arnold’s initial

contact [with an EEO counselor] on August 4, 2003.” Id. The

Secretary asserts that the assessment gave work experience in

certain programs, such as Arnold’s work experience in the Special

Initiatives Group, less weight than the “paramount qualification”
 - 13 -

for the position: management knowledge and skills. See Def.’s

Stmt. ¶ 7 (stating that the position description for the Program

Manager “position [did] not require technical competence in a

specialized function area of Human Resources Management, but

rather has a paramount qualification requirement for Management

knowledge and skills” (internal quotation marks omitted)). The

Secretary also argues that screening out Arnold’s application

before the top candidates were referred to the interview panel

was non-retaliatory. The Secretary explains that Spencer

“pare[d] down” the list of applicants based on what Spencer

believed to be a “natural break” in the applicants’ scores.

Def.’s Mem. at 19 (citing Spencer Decl. ¶¶ 10-11). Arnold

counters that Johnson appointed Renton “to oversee the hiring

process, and orchestrated a selection process replete with

irregularities.” Pl.’s Opp’n at 12. First, Arnold challenges

the scoring and argues that there was no “natural break” in the

applicants’ scores. Id. at 13. Second, Arnold argues that the

Secretary’s neutral reason is implausible because the Secretary

preselected Felder for the Program Manager position and Felder

was not qualified for the position. Id. at 13-14. Finally,

Arnold argues that the Secretary failed to provide sufficient

evidence demonstrating the fairness of the promotion process.

Id. at 14.4

4
Arnold also argues that the Secretary’s neutral reason is
pretextual because Johnson developed the self-assessment
 - 14 -

Failure to promote an employee as retaliation for engaging

in a protected activity violates Title VII. See Taylor v. Solis,

571 F.3d 1313, 1321 (D.C. Cir. 2009); Stewart, 352 F.3d at 427.

Once an employer has offered a legitimate, non-retaliatory reason

for the non-promotion, a court examines whether the plaintiff has

produced sufficient evidence to establish “that the reason

asserted by the employer is pretext for retaliation.” Holcomb v.

Powell, 433 F.3d 889, 901 (D.C. Cir. 2006) (citing Cones v.

Shalala, 199 F.3d 512, 520 (D.C. Cir. 2000)).

Arnold argues that the applicant scores were adjusted by

adding veterans’ preference points5 before Spencer identified and

questions and Renton knew the identities of all of the
applicants. These arguments are insufficient to avoid summary
judgment because Arnold does not point to any evidence in the
record to support her allegations. Moreover, Arnold did not
contest the Secretary’s assertion that Renton did not know the
identities of the applicants when he asked Spencer to pare down
the list of applicants. See Def.’s Stmt. ¶¶ 13-14; Pl.’s Opp’n
at 5. “As courts are not free to second-guess an employer’s
business judgment, a plaintiff’s mere speculations are
insufficient to create a genuine issue of fact regarding an
employer’s articulated reasons for its decisions and avoid
summary judgment.” Brown v. Brody, 199 F.3d 446, 458-59 (D.C.
Cir. 1999) (internal quotation marks omitted), abrogated in part
by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
5
Under 5 U.S.C. §§ 2108, 3309 veterans are given
preference in hiring when external competitive hiring procedures
are used. There are a number of preference categories, including
a “5-point preference” (“TP”), a 10-point 30 percent compensable
disability preference (“CPS”), and a 10-point disability
preference (“XP”). Veterans Services, Office of Personnel Mgmt.,
http://www.opm.gov/policy-data-oversight/veterans-services/vet-
guide (last visited Sept. 17, 2013). The Quickhire printout
showing the applicants’ scores for the Program Manager position
lists the applicants’ preference statutes. See Pl.’s Opp’n, Ex.
2, Romella Arnold Rpt. on Investigation at 201 (designating C.D.
 - 15 -

forwarded the best qualified applicants to Renton. Arnold

alleges that had veterans’ preference points not been added, then

there would have been no “natural break” in the applicants’

scores and Arnold’s application would have been forwarded to the

interview panel. Accordingly, Arnold contends that the

“[d]efendant’s assertion that there was a natural break at

95 is . . . false.” Pl.’s. Opp’n at 13.

This argument does not demonstrate pretext because Arnold

failed to provide evidence showing that adding veterans’

preference points to the applicants’ scores was motivated by a

desire to retaliate against Arnold for engaging in protected

conduct. Moreover, Arnold merely denies without evidentiary

support the Secretary’s evidence showing that the scores that

Spencer used to rank the applicants actually did not include

veterans’ preference points. The Secretary offers evidence that

although the printout shows the applicants’ preference statuses,

veterans’ preference points were not included in the total

scores. See Def.’s Mot., Ex. 2, Hr’g 1/28/09 Tr. 253:13-254:17

(Spencer testifying that she knew that veterans’ preference

points were not included in the scores because the printout shows

scores sorted by “Total Score” and not “Vet+”); Def.’s Reply, Ex.

4, Decl. of Philesa A. Spencer at Ex. S7 (showing scores

specially sorted by “Vet+” and applicants’ entitled to receive

as “TP,” S.V. as “CPS,” and J.C. as “XP”).
 - 16 -

veterans’ preference points with increased scores). By contrast,

Arnold merely contends that “[t]he Quickhire printout

demonstrates that veterans preference points were included” in

the scores. Pl.’s Opp’n at 5. Arnold bases her argument on the

fact that the printout shows the applicant’s preference status

next to his or her name and the unsupported assertion that “[t]he

Quickhire system is set up to automatically add[] points to

applicants’ scores when they indicate that they are entitled to

veterans preference.” Pl.’s Opp’n at 13. Arnold offers no

evidence to support her contention and rebut the Secretary’s

evidence.

Arnold’s argument that the Secretary preselected Felder for

the Program Manager position fails because preselection that is

“‘not on some basis prohibited by Title VII’” “‘does not violate

Title VII.’” Oliver-Simon v. Nicholson, 384 F. Supp. 2d 298, 310

(D.D.C. 2005) (quoting Goostree v. Tennessee, 796 F.2d 854, 861

(6th Cir. 1986)). “Although pre-selection sheds light on an

employer’s motivation for a hiring decision, where there is no

evidence that pre-selection is based on a motive prohibited by

Title VII . . . , the conduct is not actionable.” Id.6

6
Similarly, Arnold’s assertion that Brown and not Felder
was “the clear best qualified candidate for the position[,]”
Pl.’s Opp’n at 12, without any accompanying evidence that Felder
was preselected to retaliate against Arnold, is insufficient to
show pretext.
 - 17 -

Arnold’s assertion that Felder was not qualified for the

Program Manager position, Pl.’s Opp’n at 13, also fails to

establish pretext. The Program Manager position vacancy

announcement states that applicants for the Program Manager

position “must have one (1) year of specialized experience at or

equivalent to at least the next lower grade.” Arnold ROI at 184-

1. The Secretary asserts that “[s]pecialized experience is

experience which is in or directly related to the work and which

has equipped the applicant with the specific knowledge, skills,

and abilities to successfully perform the duties of the position

to be filled.” Id. Using this definition, the Secretary argues

that Felder was qualified for the Program Manager position

because Felder’s application shows that Felder had over a year of

specialized experience in GS-13 and GS-14 positions, including 6-

7 months of experience in the Special Initiatives Group when she

served as the Acting Program Manager. Def.’s Stmt. ¶¶ 21-24.

Arnold counters that Felder was not qualified for the position

because Felder did not have over a year of specialized experience

in the programs and initiatives for which the Program Manager is

primarily responsible.7 Put simply, Arnold argues that the

7
The vacancy announcement (WO Merit 2005-0135) states:
Primary responsibilities cover the following programs
and initiatives: Historically Black Colleges and
Universities; Hispanic Serving Colleges; Tribal
Colleges and Universities; Asian American/Pacific
Islander Initiative; Students with Disabilities
Initiatives; Faculty Exchange Program; Executive
Orders; Educational Partnerships; Diversity
 - 18 -

Secretary’s legitimate non-retaliatory reason for not promoting

Arnold was pretextual because the Secretary applied a broader

definition of “specialized experience” than Arnold would have

liked. However, “[a]bsent some evidence that the defendant does

not ‘honestly believe in the reasons it offers,’ the Court ‘will

not second-guess how the defendant weighed particular factors in

the promotion decision[.]’” Robinson v. Paulson, 591 F. Supp. 2d

78, 91 (D.D.C. 2008) (quoting George v. Leavitt, 407 F.3d 405,

415 (D.C. Cir. 2005); Jackson v. Gonzales, 496 F.3d 703, 709

(D.C. Cir. 2007)). Here, Arnold does not provide any evidence

that the Secretary did not believe that “specialized experience”

included experience in programs and initiatives other than those

which are the primary responsibility of the Program Manager.

Thus, without evidence that the Secretary does not believe that

Felder was qualified for the Program Manager position, concluding

that Arnold has raised a genuine issue of material fact would

require “contraven[tion] with the principle that courts defer to

the employer’s decision of what nondiscriminatory qualities it

will seek in filling a position.” Jackson, 496 F.3d at 715

Initiatives; Diversity Intern Program; Students
Educational Employment Program; Student Temporary
Employment Program (STEP); Student Career Experience
Program (SCEP). Advising, counseling and assisting
human resources specialists in delivering the highest
quality and efficiency of human resources services
possible.
Arnold ROI at 184-1.
 - 19 -

(internal quotation marks omitted) (citing Stewart, 352 F.3d at

429).

Finally, Arnold asserts that the Secretary did not provide

sufficient evidence for a court to determine whether the Program

Manager selection process was fairly administered, Pl.’s Opp’n at

14,8 and the Secretary’s failure to do so raises an inference of

discrimination, id. at 12.9 However, once the Secretary offers a

8
Arnold asserts that
To determine if the process was fair or that there was
a “fairly administered selection process[,]” at a
minimum, the Agency must indicate who determined that
this program would be used and whether it is
consistently used in filling GS-14 program manager
positions, who developed the questions that were asked,
and who and how was it decided the weight to be given
to each question and response, and provide an
explanation how the applicants received the scores they
received.
Pl.’s Opp’n at 14.
9
Arnold bases her argument that federal agencies are
required to show that they provided a fairly administered
selection process and that failing to do so raises an inference
of discrimination, Pl.’s Opp’n at 12, on Salazar v. Washington
Metropolitan Transit Authority, 401 F.3d 504 (D.C. Cir. 2006).
However, Salazar does not stand for this proposition. In that
case, Salazar brought suit against the Washington Metropolitan
Transit Authority (“WMATA”) alleging, in part, that it had
discriminated against him by not promoting him because of his
national origin. Salazar, 401 F.3d at 505. WMATA claimed that
“it did not promote Salazar because more qualified candidates
were selected for the position through a fairly administered
selection process.” Id. at 508 (internal quotation marks
omitted). As such, the question before the court was
whether a reasonable jury could find in Salazar’s favor
based on all the evidence, including “(1) the
plaintiff’s prima facie case; (2) any evidence the
plaintiff presents to attack the employer’s proffered
explanation for its actions; and (3) any further
evidence of discrimination that may be available to the
plaintiff (such as independent evidence of
 - 20 -

legitimate non-retaliatory reason for not promoting Arnold,

Arnold bears the burden of offering evidence sufficient for a

reasonable jury to find that the Secretary’s asserted non-

retaliatory reason was pretext. See Iweala v. Operational Techs.

Servs., Inc., 634 F. Supp. 2d 73, 81 (D.D.C. 2009) (citing Brady

v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.

2008)). However, Arnold provides no evidence that shows that the

selection process was unfair. Because the Secretary has met his

burden in offering a legitimate non-retaliatory reason for not

promoting Arnold, and Arnold has not shown that his reason was

pretext, the Secretary does not have a further obligation to

provide additional evidence of the fairness of the promotion

process as Arnold asserts. See Holcomb, 433 F.3d at 901.

CONCLUSION

Arnold did not exhaust her administrative remedies for her

claims that the Secretary retaliated against her by failing to

select her for acting supervisor positions assigned in 2003 to

2005. Arnold failed to establish a prima facie case of

discriminatory statements or attitudes on the part of
the employer).”
Id. (quoting Waterhouse v. District of Columbia, 298 F.3d 989,
992-93 (D.C. Cir. 2002)). The court found that Salazar had
offered sufficient evidence from which a reasonable jury could
“conclude that WMATA failed to provide a ‘fairly administered
selection process’ and that its claim to the contrary is
pretextual.” Id. at 509. Thus, Salazar establishes only that
where an employer asserts that its non-selection of an employee
occurred through a fairly administered process, an employee’s
evidence that the process was not fairly administered could raise
an inference of discrimination.
 - 21 -

retaliation for her claim that she was not selected for an acting

supervisor position dated September 6, 2002 as retaliation for

her protected 2003 conduct. Arnold has raised no genuine

material issue to rebut the Secretary’s legitimate, non-

retaliatory reason for not promoting Arnold. Arnold conceded the

Secretary’s arguments that Arnold was not better qualified for

the Program Manager position than was Felder and that Felder’s

designation as the Acting Program Manager in October 2004 was not

retaliatory. The Secretary is entitled to judgment as a matter

of law, and judgment will be entered for the Secretary. A final

Order accompanies this Memorandum Opinion.

SIGNED this 19th day of September, 2013.

/s/
RICHARD W. ROBERTS
Chief Judge