195 F.3d 1 (D.C. Cir. 1999)
Kuross Samii, Appellantv.James H. Billington, Librarian of Congress, Appellee
No. 98-5410
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 1999Decided October 29, 1999

Appeal from the United States District Court for the District of Columbia(97cv01794)
David H. Shapiro argued the cause and filed the briefs for  appellant.  Diane Bodner entered an appearance.
Diane M. Sullivan, Assistant U.S. Attorney, argued the  cause for appellee.  With her on the brief were Wilma A.  Lewis, U.S. Attorney, Mark E. Nagle and R. Craig Lawrence,  Assistant U.S. Attorneys.
Before:  Ginsburg and Randolph, Circuit Judges, and  Buckley, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge:


1
Dr. Kuross Samii, an employee  of the Library of Congress who classifies himself as an "Asian  American," appeals from the district court's order on summary judgment rejecting his Title VII claims of retaliation  and racial discrimination.


2
The facts are these.  In September 1994, after working  three years at the Library as a GS-13 research associate, Dr.  Samii applied and was selected for a GS-14 position as a  program analysis officer within the Library's Office of the  Associate Librarian for Human Resource Services ("HRS"),  Affirmative Action and Special Programs Office ("AASPO").The program analysis officer position is a "budgeted" and  "funded" position, meaning Dr. Samii's salary is paid from the  portion of the Library's budget specifically allocated for Human Resource Services.


3
Shortly after starting at the AASPO, Dr. Samii was asked  to conduct a study to generate suggestions for improving the  effectiveness of the AASPO program.  Dr. Samii's study  concluded that an internal reorganization would enhance the  program's effectiveness.  Under a proposed reorganization,  Dr. Samii would have received a promotion to the next higher  grade level by accretion of duties.  The plan was presented to  upper management at the Library, who opposed it, as a result  of which it was never implemented.


4
Frustrated by the failed reorganization, Dr. Samii began to  explore the possibility of transferring out of AASPO.  In late  1995, he wrote to Lloyd Pauls, the Associate Librarian for  Human Resources, indicating his desire to transfer to another  part of the Library.  Mr. Pauls informed Dr. Samii that he  was free to transfer to another department so long as he  could find an open funded position.  According to Library  policy, HRS employees could not transfer budgeted salary  funds to other divisions of the Library.  Employees were  permitted to transfer from HRS to other areas of the Library only if they found open positions in other divisions with  budgeted funds.  In a memo responding to Dr. Samii's request, Mr. Pauls explained that he would approve a transfer  to another service unit but not permit the reassignment of  Dr. Samii's budget number and salary.


5
Though still intent on transferring out of the AASPO, Dr.  Samii continued in his position as a program analysis officer.While performing his duties, he concluded that the Library  was not fully complying with the terms of the "Cook settlement"--an agreement settling a lawsuit that alleged discrimination by the Library against its black employees.  See Cook  v. Billington, No. Civ. 82-0400, 1992 WL 276936 (D.D.C. Aug.  14, 1992).  In May 1995, Dr. Samii notified his supervisor,  Denise Banks, that certain reviews required by the settlement, ensuring nondiscrimination in the Library's hiring process, were not being conducted.  Ms. Banks passed along this  information to her supervisor, Lloyd Pauls.  Concerned that  the violations had not abated, Dr. Samii conferred with his  former supervisor, who encouraged him to report the Library's non-compliance with the settlement agreement.  On  March 7, 1996, Dr. Samii wrote a memorandum to John  Rensbarger, the Inspector General of the Library, informing  him that the reviews required under the Cook settlement  agreement were not being performed.  Rensbarger allegedly  discussed the matter with the Library's Senior Advisor for  Diversity, Jo Ann Jenkins.  Dr. Samii claims that Ms. Jenkins spoke with his immediate supervisor, Ms. Banks, and  told her to do something about the "troublemakers" on her  staff, referring to Dr. Samii's whistle-blowing activity.


6
Ms. Banks, however, was soon replaced by Carl Whisenton,  who became the new Director of the AASPO.  Dr. Samii  contends that Mr. Whisenton stopped the reorganization of  the AASPO, and thereby blocked his promotion.  He also  claims that Mr. Whisenton removed him from certain management decisions and lessened his duties, and that the  combination of these made him vulnerable to an eventual  lowering of his grade level.


7
After these events, Dr. Samii renewed his request to  transfer to another division of the Library.  In July 1996, he  wrote to the Acting Deputy Librarian, Thomas Carney, asking to be transferred to the Library's Office of Scholarly  Programs.  After consulting with Lloyd Pauls, Mr. Carney  responded that Dr. Samii could transfer only if the Office of  Scholarly Programs provided a budget number and funding  for the position.  Dr. Samii then wrote to Donald Scott, the  Deputy Librarian, making the same request to transfer.  Ms.  Jenkins, at the direction of Mr. Scott, replied to Dr. Samii's  request, advising him not to direct any further correspondence to top management at the Library unless cleared by his  immediate superiors.


8
In November 1996, Dr. Samii filed an Allegation of Discrimination with the Library's Equal Employment Opportunity Complaints Office ("EEOC Office").  He listed Ms. Jenkins  as the discriminating official and alleged discrimination on the  basis of race, sex and national origin.  Among other things,  Dr. Samii claimed that Ms. Jenkins discriminated against him  by treating his request for transfer differently from the  requests of other employees who had transferred out of  Human Resources.  His Allegation of Discrimination did not  specify a claim for retaliation nor did it identify any Title VII  related protected conduct.  In December 1996, Dr. Samii met  with Welton Belsches, the EEO counselor assigned to his  case.  Though Dr. Samii contends that in this interview and  in a subsequent one, he discussed retaliatory actions taken  against him by Ms. Jenkins, Mr. Belsches maintains that he  did not.


9
On February 14, 1997, Dr. Samii filed a Complaint of  Discrimination with the EEOC Office alleging retaliation in  addition to discrimination.  Since the retaliation claim was not  "brought to the attention" of the EEO counselor as required  by Library regulations, Dr. Samii was notified that it would  not be accepted for processing.  See Library of Congress  Regulation 2010-3.1,  6(B)(2).  On May 13, 1997, in its Final  Agency Decision, the EEOC Office rejected Dr. Samii's appeal of its decision refusing to process his retaliation allegation.


10
Dr. Samii filed this action, invoking Title VII of the Civil  Rights Act of 1964, as amended, 42 U.S.C.  2000e et seq.,  shortly thereafter.  The district court granted summary judgment for the Librarian, finding that Dr. Samii had failed to  establish a prima facie case for retaliation or discrimination.For the reasons that follow, we affirm, but on a different  ground.


11
The parties agree that under McDonnell Douglas, to assert  a successful Title VII claim, an employee must establish that  the employer's asserted nondiscriminatory reasons for its  adverse conduct were pretextual.  See McDonnell Douglas  Corp. v. Green, 411 U.S. 792, 804 (1973);  Mungin v. Katten  Muchin & Zavis, 116 F.3d 1549, 1553-54 (D.C. Cir. 1997).Once an employer articulates a legitimate, nondiscriminatory  reason for the challenged employment decision, the employer  prevails unless the employee succeeds in discrediting the  employer's explanation.  See Aka v. Washington Hosp. Ctr.,  156 F.3d 1284, 1288-89 (D.C. Cir. 1998) (en banc).  Since the  ultimate burden of persuasion in proving retaliation remains  with the plaintiff, summary judgment is appropriate when the  employee is unable to satisfy this burden.  See Texas Dep't of  Community Affairs v. Burdine, 450 U.S. 248, 256 (1981);Paquin v. Federal Nat'l Mortgage Ass'n, 119 F.3d 23, 27-28  (D.C. Cir. 1997);  Chen v. General Accounting Office, 821 F.2d  732, 739 (D.C. Cir. 1987).


12
The Librarian has provided legitimate nondiscriminatory  reasons for not transferring Dr. Samii pursuant to his repeated requests.  The denials of his requests were predicated  on the Library policy applicable to all HRS employees.  Employees transferring to other divisions were not permitted to  take their budgeted salaries with them since doing so would  result in the department losing the funds allocated to those  specific positions.


13
Dr. Samii never made a request to transfer to an open,  funded position in another division of the Library.  Rather,  he desired that he be excepted from the general policy and be  allowed to take his HRS salary with him to a new position.This, the Librarian points out, was not possible since the program analysis officer position is critical to the AASPO and  HRS would have no funds to pay for his replacement's salary. According to Lloyd Pauls, three HRS employees transferred  to other Library divisions during the time Dr. Samii made his  requests.  Each of these employees found budgeted and  funded positions in the divisions to which they transferred.


14
Dr. Samii failed to discredit the existence of the Library's  stated transfer policy.  He offered no examples of HRS  employees who were permitted to reassign their salaries to  positions elsewhere in the Library.  If funding was the real  reason for denying his transfer, Dr. Samii contends that the  Library should have granted his request to be detailed to the  Office of Scholarly Programs, an action that would not have  necessitated funding from the granting service.  Doing so,  however, would have left the AASPO with no one to perform  the program analysis officer's duties and no funding to hire a  replacement.  Dr. Samii thus failed to present evidence that  would lead a reasonable fact finder to disbelieve the Library's  proffered reasons for denying his transfer requests.  We  therefore conclude that Dr. Samii has not met his burden, and  that the district court properly granted the Library's motion  for summary judgment on the retaliation claim.  See Paquin,  119 F.3d at 27-28.


15
Dr. Samii also believes that he was discriminated against  by the Library's failure to process his claim for retaliation  even though it accepted the retaliation claim filed by a black  employee under allegedly identical circumstances.  The Library maintains that the retaliation claim was not processed  because Dr. Samii failed to bring it to the attention of the  EEO counselor in accordance with Library regulations.  See  Library of Congress Regulation 2010-3.1,  6(B)(2).  The  district court nevertheless reviewed the claim1 and, in a ruling  we now affirm, found that Dr. Samii failed to establish  retaliation.  Any harm resulting from the Library's refusal to entertain the retaliation claim has thus been cured.  See  Bowden v. United States, 176 F.3d 552, 555 (D.C. Cir. 1999).Since the discrimination claim is derivative of Dr. Samii's  meritless retaliation claim, it too must fail.


16
Affirmed.



Notes:


1
  The district court reviewed the claim despite determining that  Dr. Samii failed to exhaust his administrative remedy.  We do not  address the exhaustion question in view of the Librarian's failure to  preserve it.


