                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

 ARTHUR GILBERT,                                  )
                                                  )
                      Plaintiff,                  )
                                                  )
               v.                                 )    Civil Case No. 05-2128 (RJL)
                                                  )
 JANET NAPOLITANO,                                )
                                                  )
                      Defendant.                  )
                                                  11---
                              MEMORANDUM OPINION
                               (January ~ 2011) [#66]

       Plaintiff Arthur Gilbert ("plaintiff" or "Gilbert") brings this action against Janet

Napolitano in her official capacity as Secretary of Homeland Security. He alleges that

his former employer, the U.S. Customs and Border Protection ("CBP"), a unit of the

Department of Homeland Security, engaged in discrimination and retaliation based on

race, age, and prior EEO activity in violation of Title VII of the Civil Rights Act of 1964

("Title VII"), 42 U.S.C. §§ 2000(e) et seq. and the Age Discrimination in Employment

Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq. Currently before the Court is the

defendant's Motion for Summary Judgment. Upon consideration of the pleadings,

relevant law, and the entire record, the motion is GRANTED.

                                     BACKGROUND

      Gilbert is an American of Mexican descent who was born in 1952. Pl.'s Opp'n to

Def.'s Stmt of Mat. Facts ("Pl.'s Opp'n to SMF") ~1.1 From approximately 1977 until


I As a preliminary matter, plaintiffs statement of material facts fails to comply with
Local Rule 7(h), which requires a party opposing a motion for summary judgment to file
                                              1
1997, plaintiff worked in various CBP field offices. See, e.g., Def.'s Ex. A at 23-24. In

October 1997, CBP removed plaintiff from his position as a GS-13 Supervisory Customs

Inspector in San Ysidro, California, in connection with allegations of misconduct in the

handling of a cocaine seizure. PI.'s Opp'n to SMF '1)3. Plaintiff appealed that action to

the Merit Systems Protection Board, and ultimately settled his appeal with CBP on June

5, 1998. Id. '1)'1)4-5; see also Def.'s Ex. B. As part of the settlement agreement, plaintiff

was reinstated and assigned to a GS-13 position in the Office of Field Operations

("OFO") at CBP Headquarters ("Headquarters") in Washington, D.C. Def.'s Ex. B at 2-

3. Though Gilbert's reinstatement was as of June 5, 1998, he was not required to report

to Headquarters until July 1, 2000. Id. Gilbert was permitted to use a mix of sick leave,

annual leave, and leave without pay between June 5, 1998 and July 1,2000. Id.

       Upon his arrival at Headquarters on July 1,2000, Gilbert was assigned to work for

Robert Jacksta in the Land Division of Passenger Programs. Gilbert Dep. 9:9-11 :6, May




"a separate concise statement of genuine issues setting forth all material facts as to which
it is contended there exists a genuine issue necessary to be litigated, which shall include
references to parts of the record relied on to support the statement." In support of his
opposition, Gilbert has filed a statement of 758 facts he contends are material and
disputed. PI.' sEx. 67. However, many of those "facts" are neither material nor disputed.
The purpose of Rule 7(h) is to "place[] the burden on the parties and their counsel, who
are most familiar with the litigation and the record, to crystallize for the district court the
material facts and relevant portions of the record." Robertson v. American Airlines, Inc.,
239 F. Supp. 2d 5, 7 (D.D.C. 2002) (quoting Jackson v. Finnegan, Henderson, Farabow,
Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996). Both the movant and the non-
movant bear this burden, and "[b]ecause the rule helps the district court maintain docket
control and decide motions for summary judgment efficiently, the D.C. Circuit has
repeatedly upheld district court rulings that hold parties to strict compliance with this
rule." Id. at 8 (citations omitted). Accordingly, the Court will adopt the defendant's
suggestion and strike Pl.'s Ex. 67.
                                              2
13,2009. Though disputed by the parties, according to plaintiff, he immediately

informed Jacksta of his prior EEO activity. Id. 11 :24-12:8.

       Beginning in August 2000, CBP issued several general vacancy announcements

for OS-14 positions. Pl.'s Opp'n to SMF ~I3. Multiple vacancies could be filled from

one vacancy announcement. Id.      ~14.   A list of the best qualified candidates, known as a

"selection register," along with the applications themselves, the position descriptions, and

the vacancy announcement were submitted to executive directors or directors with

vacancies in their offices. Def.'s Ex. H ~5. Directors would then make a

recommendation to the selecting official as to the strongest candidate. Id. The selecting

officials relied almost exclusively on the recommendation of the executive director or

director. Heinrich Dep. 89:11-90:20, Mar. 27, 2009; Def.'s Ex. U at 3; see also Heinrich

Dep. 30:3-31 :4. During the relevant time period, the selecting officials were Assistant

Commissioner Bonni Tischler, Deputy Assistant Commissioner John Heinrich or Deputy

Commissioner Deborah Spero. Heinrich Dep. 23:2-24:16; Def.'s Ex. U at 2; Def.'s Ex.

LL. As described below, plaintiff unsuccessfully applied for several promotions to OS-

14 positions, even though he was placed on the selection register for each.

   A. Vacancy Announcement HEADQ/OO-304KBS

       Between August 16, 2000 and February 16, 2001, CBP advertised for a OS-14

Customs Inspector position under vacancy announcement HEADQI00-304KBS. Def.'s

Ex. I. Plaintiff applied for the position a little over two months after arriving at




                                               3
Headquarters, on or about September 12, 2000.z Def.'s Ex. A. On Oct. 3, 2000, Gay

Laxton, a 40-year old white female who was recommended by John McGowan, was

selected by Heinrich. McGowan Dep. 91:4-13, May 7, 2009; Def.'s Exs. L; PI.'s Ex. 1

~65.   On November 2, 2000, the selection register containing plaintiffs name was

returned without a selection.

   B. Vacancy Announcement HQOFO/OI-OOSKBS

        Between April 4, 2001 and August 4, 2001, CBP advertised for a GS-14 Customs

Inspector position under vacancy announcement HQOFO/OI-005KBS. Def.'s Ex. J.

Plaintiff applied for the position on or about April 28, 2001. Def.' sEx. P. On July 11,

2001, Mark Reefe, a 32-year old white male, who had been recommended by one of his

supervisors, was selected by Tischler. Def.'s Exs. Q, R. On August 30, 2001, Todd

Hoffman, a 34-year old white male, who had been recommended by James Engleman,

was selected for promotion by Heinrich. Def.'s Exs. V, W, H at ~5. On November 29,

2001, John Milne, a 45-year old white male, who had been recommended by Camille



2 Gilbert contends that the terms of his settlement agreement with the Agency entitled
him to a promotion upon his arrival at Headquarters. However, it is undisputed that the
settlement agreement itself does not include those terms. PI.'s Opp'n to Def.'s SMF ~8.
Gilbert is unable to point to evidence-other than his own testimony-supporting this
claim. Indeed, his argument is not only uncorroborated but also undermined by the terms
of the agreement itself. See Def.'s Ex. B. Though it is not normally the province of this
Court to evaluate credibility, in such instances, as here, the Court may assess the
plaintiffs account. Arrington v. United States, 473 F.3d 329,343 (D.C. Cir. 2006) ("we
have held that summary judgment 'is most likely when a plaintiffs claim is supported
solely by the plaintiffs own self-serving testimony, unsupported by corroborating
evidence, and undermined either by other credible evidence, physical impossibility or
other persuasive evidence that the plaintiff has deliberately committed perjury."')
(citation omitted). Accordingly, I find that Gilbert's assertion that he was promised a
promotion not credible and will not consider it in the subsequent analyses of his claims.
                                            4
Polimeni to Jacksta, was selected by Tischler. Polimeni Dep.133: 16-134: 17, May 5,

2009 (Pl.'s Ex. 2); Def.'s Ex. U at ~5.

    C. Vacancy announcement MHCMP-133463-TW

       Between March 5, 2007 and March 16,2007, CBP advertised for the position of

Chief of Staff to the Assistant Commissioner of OFO, Jasyson Ahern, under vacancy

announcement MHCMP-133463-TW. Def.'s Ex. EE. A certificate of eligible candidates

was issued that included Marcy Brodsky, a 34-year old white female, and plaintiff.

Def.'s Ex. JJ. The certificate noted that the list included the best qualified candidates for

the position and that any may be selected. Jd. On or about April 28, 2008, Ahern

recommended Brodsky for the position, and the selecting official, Spero, concurred.

Def. ' sEx. LL.

   D. Plaintiff's Additional EEO Activity

       On July 12, 2001, Gilbert first contacted an EEO officer regarding his non-

selection under vacancy announcement HQOFOIOI-005KBS. Def.'s Ex. BB. Then, on

or about September 12, 2001, Gilbert initiated a formal complaint of discrimination with

respect to the selections that had been made to date under vacancy announcements

HEADQIOO-304KBS and HQOFO/OI-00SKBS. He filed this action on November 1,

2005 [Dkt. # 1]. After Brodsky's selection for the Chief of Staff position, Gilbert filed an

additional EEO complaint on March 13,2008. Def.'s Ex. HH. He also amended his

complaint before this Court on December IS, 2009 to include that non-selection. Third

Amend. Compi. [Dkt. #S7].



                                              S
       Gilbert contends that CBP's decisions not to promote him on these six

occasions-either because another was promoted or because no one was promoted-were

based on retaliation for his prior EEO activity and/or race and age discrimination in

violation of Title VII and the ADEA. Unfortunately for Gilbert, I disagree.

                                       DISCUSSION

       Summary judgment is proper where the moving party 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 Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). Though the Court must draw all justifiable inferences in favor of the non-moving

party in deciding whether there is a disputed issue of material fact, "[t]he mere existence

of a scintilla of evidence in support of the [non-movant]' s position will be insufficient;

there must be evidence on which the jury could reasonably find for the [non-movant]."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "Ifthe evidence is merely

colorable, or is not significantly probative, summary judgment may be granted." Id. at

249-50 (citations omitted).

       Title VII establishes two elements for an employment discrimination claim: "(i)

the plaintiff suffered an adverse employment action (ii) because of the employee's race,

color, religion, sex, or national origin." Brady v. Office a/Sergeant at Arms, 520 F.3d

490,493 (D.C. Cir. 2008). If the employer asserts a legitimate, non-discriminatory

reason for the adverse action, the Court need only determine whether "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

                                              6
discriminated against the employee on the basis of race, color, religion, sex, or national

origin[.]" Id. at 494. The same approach also applies to age discrimination claims under

the ADEA. See Brown v. Brody, 199 F.3d 446,456 n.l 0 (D.C. Cir. 1999), abrogated on

other grounds by Steele v. Schafer, 535 F.3d 689 (D.C. Cir. 2008).

       Title VII similarly prohibits employers from retaliating against an employee

because that employee "has opposed any practice made an unlawful employment practice

by [Title VII], or because he 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). To prove retaliation, the plaintiff must show that he "engaged in protected

activity, as a consequence of which [his] employer took a materially adverse action

against [him]." Taylor v. Solis, 571 F.3d 1313,1320 (D.C. Cir. 2009) (citation omitted).

The causal connection can be proven by direct evidence or inferred from the temporal

proximity between the protected activity and the adverse action. Holcomb v. Powell, 433

F.3d 889, 903 (D.C. Cir. 2006); see also Cochise v. Salazar, 601 F.Supp.2d 196,201-02

(D.D.C.2009). As with discrimination claims, if the employer offers a legitimate,

nondiscriminatory reason for its actions, a court should proceed to the question of

retaliation vel non. Jones v. Bernanke, 557 F.3d 670,678 (D.C. Cir. 2009). Summary

judgment must be granted for the defendant if the plaintiff fails to "produce sufficient

evidence that would discredit those reasons and show that the actions were retaliatory."

Baloch v. Kempthorne, 550 F.3d 1191, 1200 (D.C. Cir. 2008).

       The parties do not contest that a failure to be promoted is an adverse action.

Instead, the government offers a legitimate, non-discriminatory reason for each

                                             7
occurrence: that each promotion decision was based on the agency officials'

determination that the ultimately-selected candidates were the best-qualified individuals

for the positions. "[W]hen an employer says it made a hiring or promotion decision

based on the relative qualifications ofthe candidates, a plaintiff can directly challenge

that qualifications-based explanation only if the plaintiff was 'significantly better

qualified for the job' than those ultimately chosen." Adeyemi v. District of Columbia,

525 F.3d 1222, 1227 (D.C. Cir. 2008) (citation omitted). This is because a factfinder

would not ordinarily infer discrimination when the plaintiff is similarly qualified to the

selected candidate; it is only when the plaintiff is significantly better qualified but not

hired that "the fact finder can legitimately infer that the employer consciously selected a

less-qualified candidate-something employers do not usually do, unless some other

strong consideration, such as discrimination, enters into the picture." Jackson v.

Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007). Because Gilbert cannot, for the following

reasons, demonstrate that he was significantly more qualified than any of the other

candidates promoted, summary judgment must be granted for the defendant.

   A. Vacancy Announcement HEADQ/OO-304KBS

       Vacancy Announcement HEADQIOO-304KBS, a general vacancy announcement,

stated that the primary criteria against which candidates would be evaluated were: (1)

knowledge of customs laws, regulations and procedures related to Field Operations; (2)

ability to plan, evaluate, coordinate and implement Customs Service policies and

programs; (3) ability to communicate orally; (4) ability to communicate in writing; (5)



                                              8
knowledge of analytical and evaluative techniques and methods related to process

redesign. See Def.' s Ex. I.

             1. Selection of Ms. Gay Laxton

          Laxton was selected for a GS-14 position as an assistant to McGowan. McGowan

Dep. 63 :7-64:2. McGowan had been tasked with introducing decision markers in other

CBP offices with a business process method of analyzing large bodies of information to

better utilize resources. ld. 78: 1-11. He was looking for someone to support him in this

new role, and to assist with things like keeping track of issues and follow-up, preparing

training presentations, and doing internal research within the organization. ld. 80: 1-

81 :21.

          Plaintiff and Laxton appeared on the selection register, indicating that both were

among the best qualified for the position. ld. 56:20-60:3; Pitts Dep. 176:5-9, June 30,

2009 ("Pitts 2009 Dep."). Laxton had worked at Headquarters since 1996, and had

experience developing and implementing passenger control systems designed to promote

efficiency, and had performed analytical and evaluative work related to those programs.

Def. 's Ex. M. She had also coordinated training for all Customs inspectors; in that

capacity, she was responsible for liaising with the contractor and in-house trainers and

keeping apprised of all aspects of the training program to brief the Assistant

Commissioner. ld. McGowan recommended Laxton because he felt that her

organization, ability to work independently, and final work product best fit the need he

perceived for the position. ld.; McGowan Dep. 91 :4-13; 91 :20-92:9. As our Circuit has

instructed, "given the dynamic nature of the hiring process," the Court should not

                                                9
"second-guess how an employer weighs particular factors in the hiring decision."

Jackson, 496 F.3d at 709.

       Gilbert also had experience relevant to the position (see Def. 's Ex. A), and, taking

all inferences in his favor, was recommended by his first-line supervisor, Arthur Pitts

(Pitts 2009 Dep. 128: 14-17). Indeed, Pitts had a very favorable view of Gilbert and

believed him to be more qualified than Laxton, whom Pitts had at some point supervised

at Headquarters. ld. 66:1-9; 69:8-11. Gilbert contends that Pitts' statement is sufficient

to create a genuine dispute of material fact. However, Pitts was not involved in the

selection process other than giving informal recommendations. Id. l36:20-141:14; Def.'s

Ex. AA at 2. Moreover, Pitts played no role in the formal selection process or in the

designation of selection criteria. As such, his opinion that generally Gilbert was more

qualified than Laxton is immaterial for her selection for this particular position, about

which Pitts had little knowledge. Gilbert is unable to point to anything in the record to

indicate that he was significantly more qualified than Laxton based on the criteria

McGowan outlined.

       Gilbert's retaliation claim must also fail. The defendant argues that because

Laxton's selection over Gilbert occurred approximately three years after Gilbert's initial

EEO activity relating to his removal in San Diego, Gilbert cannot demonstrate a temporal

proximity sufficient to infer causation and thus fails to make a prima facie case. By

contrast, Gilbert attempts to demonstrate that a "pattern of antagonism" existed sufficient

for the fact-finder to infer causation. See, e.g., Kachmar v. SunGard Data Systems, Inc.,

109 F.3d 173, 177 (3d Cir. 1997). However, I need not even decide whether Gilbert has

                                             10
made out a prima facie case of retaliation. Jones, 557 F.3d at 678. Even assuming that

he has, he has failed to rebut the defendant's legitimate, non-discriminatory justification

that Laxton was more qualified than Gilbert for the position for the reasons discussed

above. Accordingly, summary judgment on Count V must be granted for the defendant.

           2. Non-Selection

       Count I alleges that Gilbert's failure to be selected on November 2, 200 I-when a

selection register with his name was returned without selection-was a result of

discrimination and retaliation. To make a prima facie case of discrimination or retaliation

when plaintiff is denied a position that remains unfilled, "the plaintiff must show that the

position was not withdrawn simply for lack of a vacancy." Carter v. George Washington

University, 387 F.3d 872,883 (D.C. Cir. 2004) (applying to race discrimination case).

See also Stella v. Mineta, 284 F.3d l35, 145 (D.C. Cir. 2002) (same standard applies to

age discrimination cases). Gilbert has not put forth any evidence that the position was

not filled for this reason or that the employer "still needed someone to occupy the

position," as demonstrated by actions such as leaving the position unfilled or taking steps

to recruit other candidates for the position. See, e.g., Carter, 387 F.3d at 883. Because

Gilbert has failed to make out a prima facie case of either discrimination or retaliation,

summary judgment must be granted for the defendant.

   B. Vacancy Announcement HQOFO/OI-005KBS

       Vacancy Announcement HQOFOIOI-005KBS, a general vacancy announcement,

stated that the primary criteria against which candidates would be evaluated were the

same as those listed in Vacancy Announcement HEADQIOO-304KBS: (1) knowledge of

                                             11
customs laws, regulations and procedures related to Field Operations; (2) ability to plan,

evaluate, coordinate and implement Customs Service policies and programs; (3) ability to

communicate orally; (4) ability to communicate in writing; (5) knowledge of analytical

and evaluative techniques and methods related to process redesign. See Def.' sEx. 1.

       1.     Selection of Mr. Mark Reefe

       Count II relates to the promotion of Reefe over Gilbert. Though the

recommending official is disputed, Reefe was ultimately appointed by Tischler. Def.'s

Exs. Q-R.    Reefe had experience as an Inspector and Senior Inspector at Dulles Airport,

and had been at Headquarters for over two years prior to his promotion. In addition,

Reefe had wide experience across the agency, having served as a program officer for

private aircraft, small vessels, Customs signage, airport security, Automated Targeting

SystemlPassenger application, Fairness in Law Enforcement Data Collection, and Qik

Analysis. Def.'s Ex. S.

       Reefe's supervisors thought favorably of him: lacksta testified that Reefe had

worked at Headquarters long enough to understand Headquarters operations as well as

know how to integrate agency programs, spot and resolve issues across programs, and

coordinate with other agencies. lacksta Dep. 129:7-19, May 11,2009. In particular, he

noted a presentation Reefe gave to the Field Directors presenting a software package that

would integrate data on air travelers with the capabilities of land border and seaports. Id.

117:2-22. That software would allow a customs inspector to access all of the information

regardless of the port of entry. Id. Similarly, Polimeni's undisputed opinion was that



                                             12
Reefe was "methodical," "specific," "thorough," "comprehensive," and that he "paid

attention to details" and was able to work independently. Polimeni Dep. 66: 15-67: 1. 3

       Though Jacksta acknowledged that some of Gilbert's experience would have been

relevant and useful for the position (see, e.g., J acksta Dep. 118: 13-119:7), he also thought

that Gilbert lacked the ability to articulate his understanding of the relationships between

and among the various programs run by the agency. Jd. 98:8-18; 99:6-20; 119:12-16.

While Gilbert eventually acquired this knowledge after several years at Headquarters, one

of the main criteria against which candidates were evaluated was their ability to

communicate, both orally and in writing. Def.'s Ex. 1. Though Gilbert may have been

qualified for the position, unfortunately for him, mere qualification is insufficient to

defeat summary judgment. Because Gilbert is unable to demonstrate that he was

significantly more qualified that Reefe, summary judgment must be granted for the

defendant as to discrimination as well as retaliation on this Count.

       2.     Selection of Mr. Todd Hoffman

       Hoffman was recommended for a GS-14 promotion by James Engleman, the

director of the Anti-Smuggling Unit within OFO, and ultimately selected by Heinrich.

Engleman Dep. 62:3-6; 81:10-19, Apr. 28. 2009. Engleman believed that Headquarters

experience was an important qualification for the position because the environment was

different than at a port of entry, and selected Hoffman in part because he had spent three

3Pitts thought that Gilbert was significantly more qualified than Reefe. Pitts 2009 Dep.
69:2-7. However, for the reasons discussed above, including Pitts' unfamiliarity with the
specific positions being filled and his lack of involvement in the process, his assessment
of the relative qualifications of Gilbert and Pitts is immaterial to the resolution of
Gilbert's claims.
                                             13
years at Headquarters developing and managing various programs. Id. 91 :6-17; Def. Ex.

X. In reviewing applications, Engleman looked at applicants' accomplishments, duties,

assignments, skills, and abilities at Headquarters. Engleman Dep. 89:21-90:4. In

addition, Hoffman's prior assignment had been with an office that coordinated and

communicated closely with the Anti-Smuggling Unit. Id. 104: 1-17.

       By contrast, Gilbert provided "little or no information about any Headquarters[]

accomplishments, activities, skills, etc." and did not list any specific accomplishments or

specific examples of relevant work he had performed. Id. 107:5-7; 108:1-109:15. Nor

can Gilbert point to anything in the record to indicate that he was significantly more

qualified than Hoffman. See Pl.'s Opp'n 58. Accordingly, Gilbert has not met his

burden in demonstrating that a reasonable jury could find that this non-discriminatory

reason was not the action reason, and that the Agency intentionally discriminated against

Gilbert on the basis of race or age.

       Similarly, plaintiff has offered no evidence that Engleman knew about Gilbert's

prior EEO activity before he recommended Hoffman for selection, and has thus failed to

set forth a prima facie case ofretaliation. 4 Thus, summary judgment as to Count IV must

be granted for the defendant.




4 Though Gilbert argues that Heinrich, and not Engleman, knew about Gilbert's EEO
activity, Heinrich's unrebutted testimony is that he relied on recommendations from
executive directors like Engleman. See Pl.'s Opp'n to Def.'s SMF ~~15-16 ("In fact, the
actual selection decisions are usually initiated by Directors and Executive Directors.").
As such, Heinrich's knowledge about Gilbert's EEO activity is immaterial to the
resolution of plaintiff's retaliation claim as to the selection of Hoffman.
                                            14
       3.     Selection of Mr. John Milne

       The government argues that it is entitled to summary judgment on Gilbert's claim

with respect to Milne's promotion because Gilbert failed to exhaust his administrative

remedies. As our Circuit has explained, the "EEOC has established detailed procedures

for the administrative resolution of discrimination complaints, including a series of time

limits for seeking informal adjustment of complaints, filing formal charges, and

appealing agency decisions to the Commission." Bowden v. United States, 106 F.3d 433,

437 (D.C. Cir. 1997) (citation omitted). Plaintiffs must exhaust those administrative

remedies before suit can be brought in district court. ld.

       The government contends that because Gilbert sought informal EEO counseling in

July 2001, filed his formal EEO complaint on September 12, 2001, and did not thereafter

seek to amend his complaint, Gilbert failed to exhaust his administrative remedies for his

non-selection in favor of Milne. I agree. Though equitable considerations may, in

certain instances, permit a plaintiff to proceed on an unexhausted claim, see, e.g., Nat'l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), Gilbert has not proffered any

persuasive reason why his case qualifies for such an exception. Gilbert never amended

his complaint to include his failure to be promoted over Milne. Indeed, the only evidence

in the record of informing the EEO about anything related to this claim was in his

January 29,2002 affidavit to the EEO, where he notes that on November 29,2010, a list

was referred for additional selection under Vacancy Announcement HOFO/OI-005KBS.

See Def.'s Ex. C at 3. By that time, Milne had been selected for the GS-14 promotion



                                             15
over Gilbert, yet for reasons known only to the plaintiff, he failed to include this event in

his affidavit. Accordingly, the government is entitled to summary judgment on Count III.

   C. Vacancy Announcement MHCMP-133463-TW

       Brodsky was recommended for the Chief of Staff position by Ahern and selected

by Spero. Def.'s Ex. LL. The position was created to assist Ahern and his deputy,

William Heffelfinger, in their duties. Heffelfinger Dep. 24:9-10, Mar. 11, 2010. Because

the Chief of Staff would act on Ahern's behalf, he sought a candidate who had

"judgment, competence, [his] confidence as well as understanding of[his] thinking on

[certain] issues." Ahern Dep. 55:17-22, Dec. 9, 2008 (Pl.'s Ex. 16) ("Ahern 2008 Dep.").

It was important to him that the candidate "ha[d] [his] confidence, loyalty, [and] trust," to

maintain the confidentiality of discussions and integrity of various reports. Id. 96:2-8.

Additional qualities he wanted included an ability to perform in a front office setting,

interact with other agency officials, and "an in-depth knowledge of the various functions

within CBP and a proven ability to manage people and projects in increasingly more

responsible positions." Ahern Decl.   ~I9,   Apr. 4, 2008 (Pl.'s Ex. 38).

       Prior to her promotion, Brodsky had already been working for Ahern as his

executive assistant. In that role, her tasks included helping him develop policy, staffing,

attending meetings on his behalf, and coordinating workload between Ahern and

Heffelfinger and acting in Ahern's stead. Heffelfinger Dep. 55:20-56:19; 57:20-21.

Indeed, Ahern selected Brodsky for the position because, in his view, she had

demonstrated the necessary qualities in her work supporting the Assistant

Commissioner's daily responsibilities. See, e.g., id. 55:15-57:22. In particular, Ahern

                                               16
noted that Brodsky had "proven performance in a front office setting, an ability to work

with other principal agency officials on behalf of the Assistant Commissioner and ha[ d]

shown the ability to represent the Assistant Commissioner in meetings and conferences

involving high-level officials from other agencies, business and industry executives, and

Members of Congress." Ahern Decl. '20.

       It is worth repeating that our Circuit has instructed lower courts to decline to

"serve as a 'super-personnel department that reexamines an entity's business decisions. '"

Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) (citation omitted). Though

Brodsky may have not had as much experience in certain areas as Gilbert, she did meet

the most crucial criteria Ahern identified: trust. Gilbert, on the other hand, did not.

       Ahern had concerns about Gilbert as a result of his participation in disciplinary

proceedings against an employee in San Diego. Ahern 2008 Dep. 96:9-18. The

employee at issue was alleged to have inappropriately provided official-use only reports

to Gilbert while he was separated from CBP. Id. 99:6-101 :2. Ahern recalled that Gilbert,

who had been the employee's supervisor, had requested that she bring him the

documents. Id. 100: 10-15. Though Gilbert argues that he did not, in fact, request those

documents, whether or not Gilbert actually requested the documents or the employee

voluntarily provided them is not material to the resolution of Gilbert's claim: Ahern

believed Gilbert had requested the documents and thus had questions about his

trustworthiness. Though Ahern may have been wrong in his belief, Gilbert is unable to

demonstrate that his lack of trust was merely a pretext and that a jury could reasonably

infer discriminatory motive. Furthermore, Brodsky's promotion took place nearly six

                                              17
years after Gilbert's initial counseling with the Agency's EEO office, and two years after

the filing of this suit. Thus, Gilbert cannot demonstrate the temporal proximity required

to set forth a prima facie case of retaliation. Accordingly, summary judgment must be

granted for the defendant as to Count VI.

                                    CONCLUSION

      For all the foregoing reasons, the defendant's Motion to for Summary Judgment is

GRANTED. An appropriate order shall accompany this memorandum opinion.




                                            18
