                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
_________________________________________
                                          )
JOE WILSON, JR.,                          )
                                          )
            Plaintiff,                    )
                                          )
            v.                            )  Civil Action No. 10-490 (RMC)
                                          )
RAY LAHOOD, SECRETARY,                    )
DEPARTMENT OF TRANSPORTATION,             )
                                          )
            Defendant.                    )
_________________________________________ )

                                 MEMORANDUM OPINION

               Joe Wilson is an accountant with the Federal Highway Administration

(“FHWA”). After he was denied a promotion, Mr. Wilson, proceeding pro se, brought suit

against the Secretary of Transportation alleging race and age discrimination and retaliation. The

Secretary now moves for summary judgment. As explained below, the motion will be granted.

                                           I. FACTS

               Mr. Wilson has been employed as an accountant with the FHWA since 2003. He

started at the grade level GS-9, was promoted to GS-11 in 2005, and was promoted to GS-12 in

2006. He alleges that he is entitled to promotion on a non-competitive basis and that despite

being recommended for, and eligible for, promotion since 2006, the Secretary has failed to

promote him to grade GS-13. Compl. ¶ 5. Mr. Wilson claims that in December of 2007, he

requested a non-competitive promotion to grade GS-13, and he was required to take a “last

minute test with no notice covering matters that have never been within [his] job
responsibilities.” Id. ¶ 53.1

                Shortly thereafter, on December 18, 2007, Mr. Wilson contacted an EEO

counselor and charged that the Secretary had failed to promote him due to race and age

discrimination. Mr. Wilson is an African-American and he was 52 years old in December 2007.

Mot. to Dismiss [Dkt. # 6], Ex. 8 (EEO Counselor’s Report); id, Ex. 11 (EEO Investigation

Report). On January 22, 2008, FHWA sent Mr. Wilson a notice of his right to file a

discrimination complaint. Id., Ex. 9 (Notice). On January 30, 2008, Mr. Wilson filed a formal

complaint, and the Department of Transportation’s Office of Civil Rights (“DOT OCR”)

accepted Mr. Wilson’s complaint for investigation. Id., Ex. 10 (Letter from DOT OCR).

                On August 29, 2009, Mr. Wilson again contacted an EEO counselor to file an

EEO charge. He alleged that when he requested advanced sick leave, the FHWA retaliated

against him due to his prior complaint of discrimination by refusing to grant the advanced sick

leave. The FHWA indicated that it would charge him with leave without pay for the advanced

sick leave — from August 31, 2009 to September 3, 2009. He also alleged a hostile work

environment based on a report from a co-worker, Deera Herron, that she had overheard

management making derogatory remarks about him. Id., Ex. 19 (EEO Counselor’s Report). On

October 2, 2009, Mr. Wilson filed a formal complaint with the DOT OCR based on these two

allegations. Id., Ex. 23 (DOT OCR Complaint). DOT OCR dismissed the complaint for failure



        1
         Despite notations in the Complaint that pre-2008 discrimination claims were included in
a separate case, Mr. Wilson later sought to include such allegations in this case. On April 6,
2010, an EEOC Administrative Judge dismissed Mr. Wilson’s 2008 charge of failure-to-promote
due to race and age discrimination because the 2008 charge already was pending in this suit.
Mot. to Dismiss [Dkt. # 6], Ex. 29 (EEOC Dismissal Notice). The Court deemed the Complaint
to include pre-2008 discrimination claims. See Minute Order posted Dec. 27, 2010.

                                               -2-
to state a claim, noting that the allegations did not demonstrate severe or pervasive conduct that

actually affected any term or condition of employment. Id. DOT OCR did not comment

specifically on the retaliation charge.

               On March 24, 2010, Mr. Wilson filed this lawsuit against the Department of

Transportation and nine individuals alleging various tort, contract, and discrimination claims.

On January 4, 2011, the Court granted a motion for partial dismissal, dismissing all defendants

other than the Secretary of Transportation and dismissing all claims other than claims for race

discrimination, age discrimination, and retaliation. See Opinion [Dkt. # 22]; Order [Dkt. # 23].

The remaining claims allege: (1) race discrimination based on a December 2007 denial of

promotion (Count IV); (2) age discrimination based on the same December 2007 denial of

promotion (Count VII); and (3) retaliation based on an alleged decision to charge Mr. Wilson

with leave without pay from August 31 to September 3, 2009 (Count V).

                                  II. STANDARD OF REVIEW

               Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall

be granted “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgement as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted

against a party who “after adequate time for discovery and upon motion . . . fails to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986).

               In ruling on a motion for summary judgment, the court must draw all justifiable


                                                -3-
inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the

nonmoving party may not rely solely on allegations or conclusory statements, Greene v. Dalton,

164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that

would enable a reasonable jury to find in its favor. Id. at 675. If the evidence “is merely

colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477

U.S. at 249-50 (citations omitted).

                                          III. ANALYSIS

               A. Race Discrimination Generally

               Title VII prohibits an employer from discriminating on the basis of race, color,

religion, sex, or national origin in hiring decisions, in compensation, terms, and conditions of

employment, and in classifying employees in a way that would adversely affect their status as

employees. 42 U.S.C. § 2000e-16. To establish a prima facie case of discrimination, a plaintiff

must show: 1) that he is a member of a protected class; 2) that he suffered an adverse personnel

action; 3) under circumstances giving rise to an inference of discrimination. Royall v. Nat’l

Ass’n of Letter Carriers, AFL-CIO, 548 F.3d 137, 144 (D.C. Cir. 2008).

               Once a plaintiff establishes a prima facie case, then the burden shifts to the

defendant to “articulate some legitimate, nondiscriminatory reason” for the employer’s action.

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802 (1973). If the defendant meets this burden, then the plaintiff must

have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons



                                                 -4-
offered by the employer were not its true reasons, but were a “pretext” for discrimination.

Burdine, 450 U.S. at 253; McDonnell Douglas, 411 U.S. at 804.

               In disparate treatment cases where the employer asserts a nondiscriminatory

reason for its action, “the prima facie case is a largely unnecessary sideshow.” Brady v. Office of

Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).

               In a Title VII disparate-treatment suit where an employee has
               suffered an adverse employment action and an 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 under McDonnell
               Douglas. Rather, in considering an employer’s motion for
               summary judgment or judgment as a matter of law in those
               circumstances, the district court must resolve one central question:
               Has the employee produced sufficient evidence for a reasonable
               jury to find that the employer’s asserted non-discriminatory reason
               was not the actual reason and that the employer intentionally
               discriminated against the employee on the basis of race, color,
               religion, sex, or national origin?

Id. (emphasis in original).

               B. Age Discrimination Generally

               To state a claim for age discrimination under the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. §§ 621-34, a plaintiff must allege that he belonged to the

protected age group of 40 years and older and that he suffered an adverse employment action

because of his age. As a federal employee, a plaintiff “can establish liability under § 633a in one

of two ways. First, [he] can make use of the McDonnell Douglas evidentiary framework to

establish that age was the but-for cause of the challenged personnel action . . . . Second, [he can

show] that age was a factor in the challenged personnel action.” Ford v. Mabus, 629 F.3d 198,

207 (D.C. Cir. 2010).



                                                 -5-
               C. Race and Age Discrimination in This Case

               In this case, Mr. Wilson fails to make out a prima facie case of race or age

discrimination and he fails to establish pretext. He has not presented any evidence or explanation

of how race or age played a role in the alleged discrimination. In opposition to this complete

lack of evidence or explanation, the Secretary has presented some evidence showing that race

was not a factor in its failure to promote Mr. Wilson. During the investigation of his complaint

before the EEO, the EEO Counselor created a list of FHWA employees who worked in the same

division as Plaintiff and who had been promoted between April 2006 and May 2008. See Def.’s

Mot. for Summ. J. [Dkt. # 25], Ex. 23 (Career Ladder Promotion List). The list showed that

from April 2006 to May 2008 there were ten career ladder promotions in that division — six of

the ten employees that were promoted were African Americans. Id.

               Mr. Wilson contends that he was given an impromptu accounting literacy test — a

test that other staff members who had been promoted were not required to take. While one way a

plaintiff can show discrimination is by demonstrating that he was treated differently than

similarly situated employees who were not part of the protected class, see George v. Leavitt, 407

F.3d 405, 412 (D.C. Cir. 2005), Mr. Wilson has failed to make such a showing. To prove that he

is similarly situated to another employee, a plaintiff must show that all of the relevant aspects of

his employment situation were “nearly identical” to those of the allegedly comparable employee.

Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999). The identified employee must “have

dealt with the same supervisor, have been subject to the same standards and have engaged in the

same conduct without such differentiating or mitigating circumstances that would distinguish

their conduct or the employer’s treatment of them.” Turner v. Billington, No. 02-219, 2006 WL



                                                 -6-
618420, at * 5 (D.D.C. Mar. 10, 2006).

               Mr. Wilson alleges that other employees who received promotions did not have to

pass any sort of proficiency test, yet he does not actually identify any such employees. Further,

he does not explain how such unnamed employees were similarly situated. Mr. Wilson bears the

burden of proving discrimination, and he cannot support the claim with conclusory allegations

that unidentified employees were treated more favorably. See Greene, 164 F.3d at 675 (on a

summary judgment motion, the nonmoving party may not rely solely on allegations or conclusory

statements; he must present specific facts that would enable a reasonable jury to find in its favor).

               Moreover, even if Mr. Wilson had made out a prima facie case of discrimination,

the Secretary has set forth a legitimate non-discriminatory reason for denying the promotion: that

Mr. Wilson was not promoted because he did not demonstrate the knowledge that would have

enabled him to perform at the GS-13 level. FHWA promotes its employees “based on job-

related criteria and on merit principles.” Id., Ex. 4 (Personnel Management Manual, Merit

Promotion Plan) at ch. 3, § 1, part 3(a). FHWA specifically set forth proficiency levels expected

of accountants at each grade level in the Agency in an “Accountant Proficiency Chart.” Deputy

Chief Financial Officer Margo Sheridan described the areas of Accountant Proficiency for

eligibility for a promotion to a grade GS-13 accountant at the FHWA as follows:

               First Area:     Knowledge of the U.S. Standard General Ledger and the
                               Associated Trust Fund Guide (highly proficient at GS-13 level);

               Second Area: Knowledge of the Government Accountability Office Red Book
                            (highly proficient at GS-13 level);

               Third Area:     Knowledge of the three Circulars (A-136, A-123, and A-11)
                               published by the Office of Management and Budget (proficient at
                               GS-13 level);



                                                 -7-
               Fourth Area: Knowledge of Statements of Federal Financial Accounting
                            Standards (knowledgeable proficient (sic) at GS-13 level); and

               Fifth Area:    Knowledge of the Government Accountability Office Yellow
                              Book, also know as the Federal Government Auditing Standards
                              (knowledgeable proficient (sic) at GS-13 level).

Id., Ex. 5 (Sheridan Aff.) at 6-8. Mr. Wilson concedes that the Secretary provided the FHWA’s

Accountant Proficiency Chart through a power point presentation at a staff meeting on November

20, 2007, and that he attended the meeting. Id., Ex. 11 (Pl.’s Admissions Answers) at 1

(admitting Requests for Admission ## 2 & 3); id., Ex. 10 (Discovery Requests) at 13. Deputy

CFO Sheridan presented the Chart at the November meeting, explaining that she would use the

chart for promotions. Id., Ex. 7 (Dec. 5, 2007 email from Sheridan to CFO Park).

               Deputy CFO Sheridan interviewed Mr. Wilson on December 3, 2007 and

determined that he did not have the required proficiencies for a promotion to grade GS-13. Id.,

Ex. 5, (Sheridan Aff.) at 5-8. Two days after the interview, CFO Sheridan summarized her

interview of Mr. Wilson in an email to Chief Financial Officer Tom Park and explained why she

concluded that Mr. Wilson lacked the necessary knowledge:

               [Mr. Wilson] asserted that he was fully qualified to be a GS-13,
               and ready to be a GS-14. I then asked him about his current
               proficiency, using the GS-12 scale. He asserted that he was very
               proficient in these areas. For the USSGL he said that he saw and
               understood the journal entries. I asked him to tell me what the
               major series of SGLs were — he was incorrect for the 1000, 5000,
               and 4000 series. I then asked him to list the key budgetary SGLs
               were use (sic) — he named 4610 but incorrectly described it as
               UDO. He could not identify 4801, 4802, 4901, 4902, 4450, 4620.
               He asserted that he worked a lot with 132s and 133s — if so, he
               should know these budgetary accounts very well. GAO Red Book
               — he could not demonstrate any knowledge. OMB circulars —
               could not tell me the purpose or title of any of them. GAO Yellow
               Book — did not know what it was. As audit liaison, he should
               have known this item better than most accountants in HCFS. Key

                                               -8-
                financial management legislation — he cited the acronyms for our
                authorization legislation (ISTEA, TEA-21, SAFETEA-LU), but
                could not identify or describe CFOA, GPRA, GMRA, FFMIA, or
                FMFIA. I told [Mr. Wilson] to go do some homework – that the
                internet was an excellent source of information — and to come
                back when he thought he was ready to answer my questions.

Id., Ex. 7 (Dec. 5, 2007 email from Sheridan to CFO Park). In sum, although Mr. Wilson failed

to show proficiency for a promotion to the GS-13 level in all five functional areas, Ms. Sheridan

urged him to increase his knowledge and encouraged him to set up another interview when he

was ready to demonstrate the required proficiencies. Id.; see also id., Ex. 5, (Sheridan Aff.) at 9.

About two weeks later, on December 18, Mr. Wilson complained to an EEO counselor that he

was not promoted due to discrimination.

                FHWA supervisors continued to encourage Mr. Wilson. On December 20, 2007

and again on January 8, 2008, CFO Park met with Mr. Wilson. Mr. Wilson stated that he was

ready for another interview, and CFO Park suggested that Mr. Wilson schedule another interview

with Deputy CFO Sheridan. Id., Ex. 12 (Jan. 8, 2008 email from CFO Park to himself). Mr.

Wilson never scheduled another interview.

                Mr. Wilson attempts to show pretext by making conclusory allegations that he

was in fact qualified for promotion to the GS-13 level and that he was entitled to a promotion

because he had successfully worked for more than one year at a GS-12 level. See Pl.’s Opp’n

[Dkt. # 29] at 9-14. He also denies that the Accountant Proficiency requirements constituted the

Agency’s standard for promotion, contends that he was singled out for testing, and argues that he

was qualified to be promoted to a grade GS-13. See e.g., id.; Pl.’s Supplemental Mem. [Dkt.

# 32] at 2-5.

                Mr. Wilson cannot establish pretext simply based on his own subjective

                                                 -9-
assessment of his own performance; it is the perception of the decision-maker that is relevant.

See Waterhouse v. Dist. of Columbia, 124 F. Supp. 2d 1, 7 (D.D.C. 2000), aff’d, 298 F.3d 989

(D.C. Cir. 2002), abrogated on other grounds by Mastro v. Potomac Elec. Power Co., 447 F.3d

843, 851 (D.C. Cir. 2006); see e.g., Dorns v. Geithner, 692 F. Supp. 2d 119, 135 (D.D.C. 2010)

(granting summary judgment because the plaintiff had produced no evidence, other than her own

subjective opinion, that she performed at a higher level than stated in her performance reviews).

Further, Title VII does not permit a court to act as a “super-personnel department” that

reexamines an employer’s business decisions. Barbour v. Browner, 181 F.3d 1342, 1346 (D.C.

Cir. 1999).

               Mr. Wilson has not presented any evidence that he was discriminated against

based on age or race. Moreover, he has not presented any evidence tending to show that the

proferred reason for failing to promote him — his failure to qualify for the GS-13 level position

— is a mere pretext for discrimination. Accordingly, summary judgment will be granted in favor

of the Secretary on the claims for race and age discrimination (Counts IV and VII).2

               D. Retaliation

               Count V of the Complaint alleges retaliation based on the decision to charge Mr.

Wilson with leave without pay from August 31 to September 3, 2009. The Secretary moved for

summary judgment on this claim, and the Court ordered Mr. Wilson to file a response, noting

that if he failed to respond to any legal issue or controvert any fact, the Court might deem the



       2
        Mr. Wilson also continues to argue that he was subject to a hostile work environment.
While Mr. Wilson attempted to allege a claim for hostile work environment, the Complaint
contained only vague allegations insufficient to state such a claim and thus the claim was
dismissed. See Mem. Op. [Dkt. # 22] at 13-16.

                                                -10-
issue or the fact to be conceded. See Order filed Mar. 28, 2011 (citing Fox v. Strickland, 837

F.2d 507 (D.C. Cir. 1988) and Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992)). Mr. Wilson

filed an opposition to the motion and a supplemental memorandum, but he failed to address the

alleged retaliation issue. See Pl.’s Opp’n [Dkt. # 29]; Pl.’s Supplemental Mem. [Dkt. # 31]. On

summary judgment, a court may treat those arguments that the plaintiff failed to address as

conceded pursuant to LCvR 7.1(b). See FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997).

Thus, because the issue is conceded, the Secretary’s motion for summary judgment on the

retaliation claim will be granted and Count V will be dismissed.3

                                      IV. CONCLUSION

               The Secretary’s motion for summary judgment [Dkt. # 25] will be granted, and

this case will be dismissed. A memorializing Order accompanies this Memorandum Opinion.



Date: October 4, 2011                                          /s/
                                                 ROSEMARY M. COLLYER
                                                 United States District Judge




       3
          Moreover, Plaintiff was never charged with leave without pay as alleged in the
Complaint. Although Martin Sorensen, Director of Financial Services, initially denied Mr.
Wilson’s request for leave, when Mr. Wilson asked again, Mr. Sorensen approved the request.
See Def.’s Mot. for Summ. J. [Dkt. # 25], Ex. 22 (Sept. 14, 2009 email from Sorensen to
Wilson). The nuisance of having to ask twice does not constitute a materially adverse action and
is insufficient to support a claim for retaliation. Burlington N. & Santa Fe Ry. v. White, 548 U.S.
53 , 68 (2006) (“petty slights and minor annoyances” are not actionable).

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