UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
_____________________________________________

ELIZABETH CHARLENE MOORE,

                                     Plaintiff,

                      v.                                           1:10-CV-632
                                                                      (FJS)
CHUCK HAGEL, Secretary of Defense,

                              Defendant.
_____________________________________________

APPEARANCES                                         OF COUNSEL

ROSE LEGAL ADVOCATES                                DAVID L. ROSE, ESQ.
1900 l Street, NW
Suite 610
Washington, D.C. 20036
Attorneys for Plaintiff

OFFICE OF THE UNITED                                MARINA UTGOFF BRASWELL, AUSA
STATES ATTORNEY
555 Fourth Street, NW
Room E4818
Washington, D.C. 20530
Attorneys for Defendant

SCULLIN, Senior Judge

                           MEMORANDUM-DECISION AND ORDER

                                     I. INTRODUCTION

       Currently before the Court is Defendant's motion to dismiss some of Plaintiffs' claims and

for summary judgment on the remainder of her claims. See Dkt. No. 18. Plaintiff opposes the

motion. See id. On December 11, 2012, the Court heard oral argument in support of, and in

opposition to, Defendant's motion. At the close of argument, the Court reserved decision on

Defendant's motion. The following is the Court's written resolution of Defendant's motion.
                                        II. BACKGROUND

       Plaintiff has worked for Defendant since 1979. She filed an internal EEO class complaint

on July 1, 1993, which Defendant denied on June 11, 1996. Plaintiff, together with four other

African-American employees, filed a Title VII putative class action lawsuit against Defendant in

1999, in which she alleged that Defendant's management was predominantly Caucasian and that

Defendant discriminated against African-American employees with respect to promotions,

training, opportunities, and awards. That lawsuit was settled in 2000.

       In the present action, Plaintiff alleges that Thomas Mann, her second level supervisor,

retaliated against her for her prior EEOC activity, i.e., the first law suit, when he did not select

her for a promotion in connection with three Assignment Opportunity Notices ("AON") and

when he did not support her.

       Defendant contends that, with respect to two of the three non-selection decisions       AON

070080 and AON 070624, Plaintiff failed to contact the EEO Office within forty-five days of not

being selected for those positions. Defendant also states that the same is true of her claim that

Mr. Mann did not support her. Therefore, Defendant argues that the Court should dismiss these

claims for failure to exhaust her administrative remedies.

       Alternatively, Defendant contends that, with respect to AON 070624 and Plaintiff's claim

that Mr. Mann did not support her, the Court should dismiss these claims because Plaintiff has

not shown an adverse action. Specifically, Defendant notes that Plaintiff never applied for AON

070624; and, therefore, her non-selection could not have been an adverse action against her.

       Finally, Defendant contends that he is entitled to summary judgment with respect to all of

Plaintiff's claims. Specifically, he asserts that two of the AONs to which Plaintiff applied were


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cancelled without the positions being filled, based on the decision to move the positions to where

there was a greater need. As to the third AON, Plaintiff did not apply and, thus, could not be

considered for selection. Finally, Defendant contends that Plaintiff's claim of retaliation fails

because there is simply too much time between her prior EEO activity and the actions about

which she complains.



                                           III. DISCUSSION

A.       Preliminary matters

         1. Whether the mixed motive theory applies to claims of retaliation under Title VII

         Plaintiff's counsel conceded that, in light of the Supreme Court's decision in Gross v. FBL

Fin. Servs., Inc., 129 S. Ct. 2343 (2009), and the district court's thorough analysis of that decision

in Hayes v. Sebelius, 762 F. Supp. 2d 90 (D.D.C. 2011), Plaintiff may not rely on a mixed-motive

theory to support her retaliation claim.



         2. Exhaustion of administrative remedies

         Plaintiff's counsel acknowledged at oral argument that Plaintiff withdrew her claim

regarding AON 070080 during the administrative process and that, therefore, she had not

exhausted her administrative remedies with respect to any retaliation based on that claim.

         In addition, the record is clear that Plaintiff never raised the claim that Mr. Mann had not

supported her in her position in the administrative proceedings. Therefore, the Court finds that

Plaintiff did not exhaust her administrative remedies with respect to any retaliation based on that

claim.


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B.     Summary judgment standard

       A court may grant summary judgment 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). A material fact is one that, under the applicable law, is capable of affecting the

outcome of the case. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). An issue is

genuine where the "evidence is such that a reasonable jury could return a verdict for the

nonmoving party" rather than evidence that is "so one-sided that one party must prevail as a

matter of law." Id. at 248, 252.



C.     Plaintiff's claims based on her non-promotion for AON 070624 and AON 071133

       To prevail on a claim of retaliation under Title VII, a plaintiff must prove, by a

preponderance of the evidence, that "'(1) [s]he engaged in protected activity; (2) [s]he was

subjected to an adverse employment action; and (3) there was a causal link between the protected

activity and the adverse action.'" Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012)

(quoting Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir. 2007)). For purposes of a retaliation

claim, "[a] materially adverse action is one that 'could well dissuade a reasonable worker from

making or supporting a charge of discrimination.'" Taylor v. Solis, 571 F.3d 1313, 1320 (D.C.

Cir. 2009) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 126 S. Ct. 2405,

165 L. Ed. 2d 345 (2006)) (other citation omitted).

       With respect to AON 070624, Plaintiff acknowledges that she did not apply for the

position. Not being selected for a position for which she did not apply cannot be considered an

adverse employment action. Moreover, the selection officer for that position was Gail Betts-


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Anderson and the approving officer was Percival Jacobs, neither of whom Plaintiff claims

retaliated against her. Finally, Plaintiff has failed to show that there is any causal connection

between her protected activity in the 1990s and the year 2000 and this allegedly adverse

employment action. Therefore, the Court finds that Plaintiff has failed to establish a prima facie

case of retaliation with respect to AON 070624.

       Plaintiff's claim based on her non-selection for AON 071133 suffers from the same

deficiencies. Mr. Mann, who is the only person whom Plaintiff claims retaliated against her, had

nothing to do with this position. He was not the selecting officer and he was not the person who

cancelled this position opening without filling it in October 2007. Plaintiff did not suffer an

adverse employment action because there was no position to be filled. Furthermore, she has

failed to show that there is any causal connection between her protected activity in the 1990s and

her lawsuit which settled in 2000 and this alleged adverse action, which occurred in 2007.

Therefore, the Court finds that Plaintiff has not established a prima facie case of retaliation based

on AON 071133.



                                        IV. CONCLUSION

       Accordingly, having reviewed the entire file in this case, the parties' submissions and oral

arguments, and the applicable law, and for the above-stated reasons, the Court hereby

       ORDERS that Defendant's motion to dismiss some of Plaintiff's claims and for summary

judgment on the remainder of her claims is GRANTED; and the Court further




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        ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and

close this case.


IT IS SO ORDERED.


Dated: May 24, 2013
       Syracuse, New York




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