                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

 JOHN KANGETHE,
      Plaintiff
      v.                                                   Civil Action No. 15-2185 (CKK)
 THE DISTRICT OF COLUMBIA
      Defendant

                                  MEMORANDUM OPINION
                                    (November 20, 2017)

       This is an age discrimination and retaliation case brought by an employee of the District

of Columbia Department of Employment Services (“DOES”). Plaintiff John Kangethe, who is

representing himself pro se, alleges that he was passed over for a promotion on the basis of his

age and as retaliation for earlier discrimination complaints. Specifically, Plaintiff alleges that he

was not selected to fill an Associate Director position with the Office of Labor Market Research

and Information (“LMI AD Position”). He also alleges that he was retaliated against when he

was denied leave to attend the deposition of a party to a prior discrimination lawsuit. Plaintiff

brings this lawsuit against the District of Columbia under the Age Discrimination in Employment

Act (“ADEA”), the District of Columbia Human Rights Act (“DCHRA”) and Title VII of the

Civil Rights Act (“Title VII”).

       Before the Court is Defendant District of Columbia’s [30] Motion for Summary

Judgment. Defendant claims that it is entitled to summary judgment for two reasons. First,

Defendant argues that Plaintiff cannot establish his prima facie case with respect to his claim that

he was denied leave, because this alleged denial did not constitute an “adverse action.” Second,

Defendant argues that Plaintiff has not rebutted Defendant’s proffered legitimate non-

discriminatory reason for not selecting Plaintiff for the LMI AD Position.



                                                  1
       Upon consideration of the pleadings, 1 the relevant legal authorities, and the record as a

whole, the Court DENIES Defendant’s motion. First, the Court finds that a reasonable jury

could conclude that Defendant’s failure to approve Plaintiff’s request for leave in a timely

fashion, thereby denying him the opportunity to prepare for the deposition of a key witness to his

earlier discrimination lawsuit, was sufficiently adverse to be actionable. Second, although a

close call, the Court finds that Plaintiff has offered enough evidence to rebut Defendant’s

proffered non-discriminatory reason for not selecting him for the LMI AD Position and that it

would be inappropriate for the Court to summarily adjudicate that claim.

                                       I. BACKGROUND

       Plaintiff John Kangethe is approximately 61 years old. Def.’s Stmt. of Material Facts not

in Dispute, ECF No. 30 (“Def.’s Stmt.”), at ¶ 1. He is a Labor Economist at DOES. Id.

A. Denial of Plaintiff’s Request for Leave

       On April 7, 2014, Plaintiff submitted a request to take eight hours of leave from work on

April 9, 2014 so that he could prepare for and attend the deposition of a key witness to a prior

discrimination lawsuit that he had filed against the District of Columbia. Id. ¶ 39; Depo. of John

Kangethe, ECF No. 30-19 (“Pl.’s Depo.”), at 6:15-20, 21:18-21. The deposition was scheduled

for 3:30 pm. Def.’s Stmt. ¶ 37. Having received no response to his request by the morning of

the ninth, Plaintiff reported to work. Id. ¶¶ 42-43. He e-mailed his supervisor reminding him of

his request and notifying him that he would be taking off four hours in the afternoon. Id.




1
  The Court’s consideration has focused on the following documents and their attachments and/or
exhibits: Def.’s Mot. for Summary Judgment, ECF No. 30 (“Def.’s Mot.”); Pl.’s Opp’n to Def.’s
Mot. for Summary Judgment, ECF No. 34 (“Pl.’s Opp’n”); and Def.’s Reply in Support of Mot.
for Summary Judgment, ECF No. 35 (“Def.’s Reply”). In an exercise of its discretion, the Court
finds that holding oral argument in this action would not be of assistance in rendering a decision.
See LCvR 7(f).

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Plaintiff still got no response, but he went to the deposition. Id. ¶ 45. Plaintiff’s supervisor later

claimed to have forgotten to respond to Plaintiff’s request and e-mail. Id. ¶ 47. The supervisor

did not charge Plaintiff with leave for the four hours of work he missed on the afternoon of the

ninth. Id. ¶ 49. However, Plaintiff did not take the four hours of leave he had requested on the

morning of that day that he had intended to use to prepare for the deposition. Pl.’s Depo. at

21:18-21.

B. The LMI AD Position

       A vacancy announcement for the LMI AD Position was issued on May 6, 2014 (“Vacancy

No. 25001”). Def.’s Stmt. ¶ 6. DOES Human Resource specialist Lachelle Savoy conducted an

initial review and scoring of the applications that were submitted and decided which applicants

were sufficiently qualified. Id. ¶ 3; see also generally Depo. of Lachelle Savoy Rogers, ECF No.

30-17 (“Savoy Depo.”). One of the factors Ms. Savoy was required to consider when scoring

applications was whether the applicant had “five years of specialized experience in supervisory

or project coordination assignments involving a staff of professional economists or researchers,

and experience in conducting economic analyses and studies regarding highly complex and

sophisticated issues.” Def.’s Stmt. ¶ 22.

       Plaintiff applied to Vacancy No. 25001. Id. ¶ 6. Ms. Savoy testified that she scored

Plaintiff’s application and that his score was beneath the threshold required for further

consideration. Savoy Depo. at 29:10-12. Ms. Savoy testified that she was unable to score

Plaintiff any higher than she did because his application did not contain a resume. Id. at 29:19-

31:20. In particular, she testified that the absence of a resume rendered her unable to assess

whether Plaintiff had the requisite experience in supervisory or project coordination assignments.

Id. at 16:8-20, 29:19-31:20. Plaintiff contends that this is false—he testified that he did submit a



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resume and that Ms. Savoy had more than enough material to determine Plaintiff’s experience.

Pl.’s Depo. at 24:9-17. Vacancy No. 25001 was cancelled after no one had been chosen for the

position for sixty days. Savoy Depo. at 33:2-14.

       However, a vacancy announcement for the same LMI AD Position was re-posted on

August 11, 2014 (“Vacancy No. 25461”). Def.’s Stmt. ¶ 14. It is undisputed that Plaintiff did

not submit an application for Vacancy No. 25461. Id. ¶ 7. Saidou Diallo, an economist

employed at DOES who is much younger than Plaintiff, did submit an application and was

selected for the position. Id. ¶¶ 16-17.

                                    II. LEGAL STANDARD

       Summary judgment is appropriate where “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). The mere existence of some factual dispute is insufficient on its own to bar

summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to

the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient

admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

       In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to

specific parts of the record—including deposition testimony, documentary evidence, affidavits or

declarations, or other competent evidence—in support of its position, or (b) demonstrate that the

materials relied upon by the opposing party do not actually establish the absence or presence of a

genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual



                                                 4
basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See

Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir.

2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly

address another party’s assertion of fact,” the district court may “consider the fact undisputed for

purposes of the motion.” Fed. R. Civ. P. 56(e).

       When faced with a motion for summary judgment, the district court may not make

credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the

light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty

Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are

susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or

whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477

U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50

(internal citations omitted).

       In recognition of the difficulty in uncovering clear evidence of discriminatory or

retaliatory intent, the district court should approach summary judgment in an action for

employment discrimination or retaliation with “special caution.” Aka v. Wash. Hosp. Ctr., 116

F.3d 876, 879-80 (D.C. Cir. 1997), vacated on other grounds, 156 F.3d 1284 (D.C. Cir. 1998)

(en banc). Be that as it may, the plaintiff is not relieved of his burden to support his allegations



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with competent evidence. Brown v. Mills, 674 F. Supp. 2d 182, 188 (D.D.C. 2009). As in any

context, where the plaintiff would bear the burden of proof on a dispositive issue at trial, at the

summary judgment stage he bears the burden of production to designate specific facts showing

that there exists a genuine dispute requiring trial. Ricci v. DeStefano, 557 U.S. 557, 586 (2009).

Otherwise, the plaintiff could effectively defeat the “central purpose” of the summary judgment

device—namely, “to weed out those cases insufficiently meritorious to warrant . . . trial”—

simply by way of offering conclusory allegations, speculation, and argument. Greene v. Dalton,

164 F.3d 671, 675 (D.C. Cir. 1999).

                                        III. DISCUSSION

        The Court will deny Defendant’s motion for summary judgment for the reasons set forth

below. Although a close call, the Court finds that there are genuine disputes of fact with respect

to Plaintiff’s claims regarding both his request for leave to attend a deposition and his non-

selection for the LMI AD Position. Viewing the evidence in the light most favorable to Plaintiff

and granting him all reasonable inferences, the Court concludes that a reasonable jury could find

for Plaintiff.

A. Claims at Issue

        As a threshold matter, the Court clarifies what claims are still at issue in this case. At the

motion to dismiss stage, the Court found that the only adverse actions Plaintiff had adequately

pled were Defendant’s alleged refusal to grant him leave to attend the deposition of a party to his

prior lawsuit and Defendant’s alleged failure to select Plaintiff for a permanent LMI AD

Position. See Kangethe v. D.C., 206 F. Supp. 3d 661, 668-73 (D.D.C. 2016). These are the only

adverse actions currently remaining in this case. To the extent Plaintiff discusses other actions in

his opposition to Defendant’s motion for summary judgment—e.g., his non-selection for a



                                                  6
temporary LMI AD Position—the Court clarifies that Plaintiff has no separate claim based on

these actions in this case.

        Moreover, in his opposition Plaintiff attempts to inject a new claim into this case. He

states that “since the filing of [his] Complaint, the extensive e-discovery conducted in this case

reveals Dr. Kangethe was subjected to diminution of duties and responsibilities by his superiors.”

Pl.’s Opp’n at 22. This claim was not alleged in Plaintiff’s Complaint and has never been raised

before now. It is not a part of this case. See Harrison v. Office of the Architect of the Capitol,

964 F. Supp. 2d 81, 95 (D.D.C. 2013), aff’d sub nom. Harrison v. Office of Architect of Capitol,

No. 14-5287, 2015 WL 5209639 (D.C. Cir. July 16, 2015) (“It is axiomatic that the Plaintiff

cannot amend her Complaint by the briefs in support of or in opposition to a motion for summary

judgment.”).

B. Defendant’s Effective Denial of Plaintiff’s Request for Leave

        Defendant first argues that it is entitled to summary judgment on Plaintiff’s claim that his

request for leave to attend a deposition was denied because that alleged “denial” did not

constitute an “adverse action.” The Court does not agree that this issue can be resolved through

summary judgment.

        For the purposes of Plaintiff’s retaliation claim, to constitute an adverse action an

employment action must be “materially adverse, ‘which in this context means it well might have

dissuaded a reasonable worker from making or supporting a charge of discrimination.’”

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales,

438 F.3d 1211, 1219 (D.C. Cir. 2006) (internal quotation marks omitted)). At the motion to

dismiss stage, the Court declined to rule that the alleged denial of leave in this case could not

constitute an adverse action as a matter of law. It noted that a number of courts in this Circuit



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have held that, under certain circumstances, “a denial of leave can constitute materially adverse

action.” Hyson v. Architect of Capitol, 802 F. Supp. 2d 84, 103 (D.D.C. 2011) (emphasis

omitted); Nurriddin v. Bolden, 674 F. Supp. 2d 64, 90 (D.D.C. 2009) (rejecting argument that

denial of leave is inherently not an adverse action); see also Wiley v. Glassman, 511 F.3d 151,

159 (D.C. Cir. 2007) (affirming summary judgment for defendant on retaliation claim where

employee alleged she was denied paid leave to attend depositions in her pending discrimination

lawsuit, but relying on fact that guidelines applicable to her employment did not grant paid leave

to attend such depositions). The Court declined to rule definitively on the issue on the pleadings

because, in the absence of any factual record, it could not say whether or not the denial of leave

in this case had affected Plaintiff. See Newton v. Office of the Architect of the Capitol, 905 F.

Supp. 2d 88, 93 (D.D.C. 2012), aff’d, 598 F. App’x 12 (D.C. Cir. 2015) (holding “that sick leave

restrictions did not constitute a ‘materially adverse’ action where the restrictions had never

actually affected the plaintiff.”).

        Discovery is now complete and the record shows that Plaintiff was meaningfully affected

by the denial of leave. His supervisor’s failure to timely approve his request resulted in his not

taking leave for the first half of the day on April 9, 2014, which he had intended to use to prepare

for an important deposition in his prior discrimination lawsuit. Although the amount of leave

effectively denied to Plaintiff—four hours—may seem fairly small, the practical effect of that

denial could strike a reasonable jury as significant given that it denied Plaintiff the opportunity to

prepare for an important event in his discrimination lawsuit. See Batson v. Powell, 912 F. Supp.

565, 579 (D.D.C. 1996), aff’d, 203 F.3d 51 (D.C. Cir. 1999) (holding that “[d]enial of leave to

attend a [EEO] counseling meeting can qualify as an adverse employment action.”).




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        This material impact on Plaintiff distinguishes this case from others in which a denial of

leave had no real effect on the plaintiff. See, e.g., Hyson, 802 F. Supp. 2d at 103 (holding that

plaintiff’s “request was eventually granted, albeit after a delay, and such a delay would not deter

a reasonable employee from pursuing a charge of discrimination.”) (internal citation omitted).

Similarly, the fact that Plaintiff was effectively not able to leave for the full eight hours requested

distinguishes his case from others cited by the Defendant in which an employer was able to

“cure” an otherwise adverse action. Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003).

Defendant’s belated “grant” of Plaintiff’s request for leave in this case was not a complete cure,

because Plaintiff was unable to take four hours off that he had requested to prepare for the

deposition. 2

        To be clear, this Memorandum Opinion should not be interpreted as holding that

Defendant’s failure to timely grant Plaintiff the requested leave is an adverse action as a matter

of law. The Court simply holds that this factual dispute is best left for a jury to decide.

“Whether a particular adverse action satisfies the materiality threshold is generally a jury

question, with [the Court’s] role limited to determining whether, viewing the evidence in the

light most favorable to the plaintiff, a reasonable jury could find the action materially adverse.”

Rattigan v. Holder, 643 F.3d 975, 986 (D.C. Cir. 2011), vacated on other grounds, No. 10-5014,

2011 WL 4101538 (D.C. Cir. Sept. 13, 2011). Here, a reasonable jury could find for Plaintiff.

Summary judgment is accordingly inappropriate.




2
  Defendant places emphasis on the allegedly “inadvertent” nature of Plaintiff’s supervisor’s
failure to grant Plaintiff leave, Def.’s Mot. at 13, but the supervisor’s intent is irrelevant to the
question of whether the denial had a sufficiently adverse impact on Plaintiff so as to constitute an
“adverse action.”

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C. Defendant’s Non-Selection of Plaintiff for the LMI AD Position

       Next, Defendant seeks summary judgment on Plaintiff’s claim related to his non-

selection for the LMI AD Position. Defendant argues that Plaintiff has not offered sufficient

evidence to rebut its proffered non-discriminatory reason for its decision. It is well-established

that “it is no longer relevant” if Plaintiff established a prima facie case once Defendant has

proffered a non-discriminatory explanation for its conduct. U.S. Postal Serv. Bd. of Governors v.

Aikens, 460 U.S. 711, 715 (1983). Because Defendant has proffered allegedly non-

discriminatory reasons for its failure to promote Plaintiff, setting forth facts to establish a prima

facie case would be “an unnecessary sideshow.” Brady v. Sgt. at Arms, 520 F.3d 490, 494 (D.C.

Cir. 2008). Rather, this Court “need not- and should not decide” whether Plaintiff has made out a

prima facie case. Id. (emphasis in original). The Court need only determine whether Plaintiff

has “produced sufficient evidence for a reasonable jury to find the [Defendant’s] non-

discriminatory reason was not the actual reason and that the employer intentionally discriminated

against the employee on the basis of” a protected status. Id.

       Defendant proffers two non-discriminatory reasons for not selecting Plaintiff: one reason

for not selecting him for Vacancy No. 25001, and another for Vacancy No. 25461. The Court

begins by noting its agreement with Defendant that Plaintiff has not raised genuine factual issues

relating to Defendant’s proffered reason for not selecting him for Vacancy No. 25461.

Defendant represents that Plaintiff was not selected to fill this vacancy because he did not submit

an application. Ms. Savoy testified that this failure to apply was the reason she could not select

Plaintiff for further consideration for this particular vacancy. Savoy Depo. at 49:19-50:2. This is




                                                  10
a legitimate, non-discriminatory reason for not selecting Plaintiff, and one which Plaintiff has not

factually rebutted. 3

        Relying on International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977),

Plaintiff argues that he could qualify as a “constructive applicant” with respect to Vacancy No.

25461. That case, however, is inapposite. It dealt with an alleged “pattern and practice of

employment discrimination” against a large group of employees. Id. at 328. The issue before

the Supreme Court was whether class-wide relief could extend to employees who had not in fact

applied for and been denied promotions. Id. at 363. The Supreme Court decided “that an

incumbent employee’s failure to apply for a job is not an inexorable bar to an award of

retroactive seniority,” and that “[i]ndividual nonapplicants must be given an opportunity to

undertake their difficult task of proving that they should be treated as applicants and therefore are

presumptively entitled to relief accordingly.” Id. at 364. Whatever possible relevance this

holding might have to this case, it does not aid Plaintiff to prove that Defendant’s non-

discriminatory reason for not selecting him for Vacancy No. 25461 was pretext.

        However, Plaintiff’s failure to apply to the second vacancy announcement for the LMI

AD Position (Vacancy No. 25461) is not fatal to his case. Plaintiff may still pursue his claim

with respect to the LMI AD Position on the basis of his application to the first vacancy

announcement (Vacancy No. 25001), because Plaintiff applied to that announcement and, despite

the fact that the announcement was subsequently cancelled, the position effectively remained

vacant and Defendant continued to seek applicants. See Cones v. Shalala, 199 F.3d 512, 516




3
 At the motion to dismiss stage, the Court noted that Plaintiff had alleged that the applicant who
was eventually chosen for the position also had not submitted an application. Kangethe, 206 F.
Supp. 3d at 672-73. After discovery, Plaintiff appears to have retracted that allegation and
acknowledges now that this individual did in fact apply to Vacancy No. 25461.

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(D.C. Cir. 2000) (holding that to establish a prima facie case under Title VII, “the plaintiff must

show that (1) he is a member of a protected class; (2) he applied for and was qualified for an

available position; (3) despite his qualifications he was rejected; and (4) either someone not of

his protected class filled the position or the position remained vacant and the employer

continued to seek applicants.”) (emphasis added); Carter v. George Washington Univ., 387 F.3d

872, 882-83 (D.C. Cir. 2004) (holding that plaintiff can state prima facie claim for discrimination

where Defendant “withdrew the position for lack of qualified applicants and then, several months

later, restructured the position, increased the salary, and convinced the employee who had last

held the position to return” because “the position not only remained unfilled, but, as shown by

[defendant’s] later efforts to bring back the former employee, the [defendant] still needed

someone to occupy the position.”).

       Accordingly, the Court moves on to assess whether Plaintiff has adequately rebutted

Defendant’s proffered non-discriminatory reason for its failure to select him based on his

application to the initial vacancy for the LMI AD Position (Vacancy No. 25001). Defendant

represents that Plaintiff was not selected for this vacancy because the individual screening

applications for the position determined that he did not have sufficient experience, in large part

because he had not submitted his resume as part of his application packet.

       The Court has carefully considered the entire record in this case and concludes that,

although a close call, a reasonable jury could find that Plaintiff has satisfied his burden of

rebutting this explanation. Plaintiff contends that he did submit a resume with his application,

and has offered evidence to support that contention. Plaintiff himself testified that he submitted

a resume, Pl.’s Depo. at 24:9-17, and he also presented an e-mail that he received from




                                                 12
Defendant after submitting his materials that stated “[y]our online resume has been successfully

submitted,” Pl.’s Ex. 39, ECF No 34-1 at 53.

       To be sure, Defendant vigorously disputes this point, and has competing evidence to

support its position. Defendant has offered testimony from Ms. Savoy that there was no resume

submitted with the application. Savoy Depo. at 31:6-14. It has also submitted computer

screenshots from the program used by Defendant to manage applications that appear to indicate

that no resume was submitted with Plaintiff’s application. Def.’s Exs. 2, 16, ECF Nos. 30-2, 30-

10. And an IT Specialist at the D.C. Department of Human Resources has submitted a

declaration which states that there was no resume attached to Plaintiff’s application. Def.’s Ex.

11, ECF No. 30-12. Finally, Defendant argues that the e-mail Plaintiff received did not really

mean that he had submitted a resume.

       However, at the summary judgment stage the Court cannot make credibility

determinations or weigh the evidence—instead, it must analyze the evidence in the light most

favorable to Plaintiff, with all justifiable inferences drawn in his favor. Liberty Lobby, 477 U.S.

at 255. Doing so here, the Court concludes that a jury could reasonably decide to reject

Defendant’s evidence in favor of Plaintiff’s, and infer that Plaintiff submitted a resume with his

application. In doing so, the jury could reasonably conclude that the non-discriminatory reason

Defendant has offered for its decision was not its real reason. It is well established that “a

factfinder’s reasonable rejection of the defendant’s proffered explanation will support an

inference of discrimination,” and, indeed, “a plaintiff’s discrediting of an employer’s stated

reason for its employment decision is entitled to considerable weight.” Aka v. Washington Hosp.

Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S.




                                                 13
502, 511 (1993) (“rejection of the defendant’s proffered reasons will permit the trier of fact to

infer the ultimate fact of intentional discrimination”) (emphasis omitted).

       Although the Court is not required to deny summary judgment on the basis of such

evidence alone in every case, id., the Court concludes that summary judgment for Defendant is

improper on the particular facts of this case. Plaintiff, who is 61 years old, was denied a position

which was ultimately given to a much younger man. Plaintiff had submitted applications for this

or similar positions many times throughout his tenure at DOES and had been repeatedly rejected.

He had also brought an earlier discrimination lawsuit against Defendant. Defendant, his

employer for many years, denied him the position this time on the grounds that it was allegedly

unable to determine his work experience—despite the fact that Plaintiff’s experience was largely

made up of working for the Defendant itself. Defendant has not proffered evidence to suggest

that, had it considered Plaintiff’s full qualifications, he would not have been qualified for the

position. In fact, Plaintiff has proffered evidence that he was more qualified for the position than

the individual ultimately chosen for it. See Pl.’s Depo. at 69:13-81:1. Moreover, as discussed

above, Defendant has offered a reason for not selecting Plaintiff—based on his failure to submit

a resume—which, viewing the evidence in the light most favorable to Plaintiff and drawing all

justifiable inferences for him, a reasonable jury could find to be false. In the absence of this

reason, a reasonable jury could infer that retaliation or discrimination were the actual reasons for

Defendant’s decision.

       As with its decision regarding Plaintiff’s denial of leave claim, the Court clarifies that its

decision not to summarily adjudicate Plaintiff’s non-selection claim should not be interpreted as

an acceptance of Plaintiff’s view of the facts. The Court merely holds that, although a close call,

a combination of Plaintiff’s discrediting of Defendant’s stated reason for its decision and various



                                                 14
aspects of Plaintiff’s prima facie case are enough to allow a reasonable jury to find for Plaintiff,

and accordingly preclude this Court from granting summary judgment for Defendant.

                                       IV. CONCLUSION

       In sum, the Court DENIES Defendant’s motion for summary judgment. The Court will

not grant summary judgment on the issue of whether Defendant’s effective denial of Plaintiff’s

request for leave constituted an adverse action, nor will it grant summary judgment on Plaintiff’s

claim regarding his non-selection for the LMI AD Position. An appropriate Order accompanies

this Memorandum Opinion.

                                                         /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




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