                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



TAFT KELLY,

       Plaintiff,
               v.                                         Civil Action No. 09-00703 (JEB)
RAY LAHOOD, Secretary, United States
Department of Transportation,

       Defendant.


                         MEMORANDUM OPINION AND ORDER

       Plaintiff Taft Kelly is a black man who has worked for the Department of Transportation

for more than twenty years. He maintains in this suit that, in a series of incidents beginning with

a poor performance appraisal in 2006 and culminating in his involuntary transfer in 2009, DOT

discriminated against him on the basis of race and retaliated against him for attempting to

vindicate his rights. DOT has now filed a Motion for Summary Judgment. Because the Court

finds that Kelly has failed to exhaust his administrative remedies with regard to certain claims

and that no reasonable jury could find DOT’s stated reasons for other actions were pretextual, it

will grant the Motion in those parts. As Plaintiff, however, has produced evidence sufficient for

a jury to find discrimination or retaliation with respect to his 2008 rating and subsequent

involuntary transfer, the Court will deny the Motion as to that claim alone.

I.     Background

       At the time of his 2009 transfer, Kelly had been employed as the Division Administrator

of the D.C. Division of the Federal Motor Carrier Safety Administration (FMCSA), a distinct

administration within DOT, since 2001. See Def.’s Statement of Undisp. Mat. Facts (SUMF) at


                                                 1
1 (citing Mot., Exh. 6 (Pl.’s Dep.) at 29). In that role, Kelly was responsible for managing

DOT’s enforcement functions within the District, administering federal grants, and supervising

the staff assigned to the division. See Def.’s SUMF at 1-7. In 2006, Kelly’s former first-line

supervisor retired and was replaced by Robert Miller. See Mot., Exh. 7 (Dep. of Rose

McMurray) at 9; id., Exh. 8 (Dep. of Robert Miller) at 11. The incidents at issue in this case

began shortly thereafter.

       June 30, 2006, marked the end of the appraisal period for performance year (PY) 2006.

Pl.’s Decl., ¶ 5; Mot, Exh. D (PY 2006 Performance Appraisal). Because Miller had had little

opportunity to work with Kelly — or any other division administrator — during PY 2006, Miller

relied on feedback from other employees in evaluating Kelly’s performance. See Mot., Exh. 10

(Dep. of Danny Swift) at 85-92; see generally PY 2006 Performance Appraisal. Specifically,

Miller met with Danny Swift, who had briefly overseen Kelly’s work prior to Miller’s

appointment, to obtain information regarding Kelly’s performance. See Swift Dep. at 7-8, 85-86.

Based on criticisms elicited from Swift and on his own analysis of data regarding the

productivity of the D.C. Division, Miller gave Kelly only an “Achieved Results” rating for PY

2006. See Miller Dep. at 15-16; PY 2006 Performance Appraisal at 7-9; Swift Dep. at 85-92.

       Between October 23 and November 13, 2006, DOT announced that it was seeking to fill

the position of Service Center Director for the Eastern Services Center (ESC). See Miller Aff., ¶

3; id., Attachment A (Announcement No. FMCSA.RC-2007-0002). Seven candidates, including

Kelly, applied for the position. Id., ¶ 3; id., Attachment B (Applicant Score Sheet). Miller, who

served as the selecting official, reviewed the candidates’ application packages and assigned each

a numerical rating for writing skills, past work experience, direct program knowledge, and

relevance and importance of past achievements. See id., ¶¶ 3-5; Applicant Score Sheet. He gave



                                                2
the highest score to Scott Poyer, a mixed-race male, and ranked Kelly’s application third. See

Applicant Score Sheet; Mot., Exh. 9 (Dep. of Scot Poyer) at 11.

       Following this initial numerical scoring, Miller convened a three-person panel to

interview all seven applicants and make a recommendation. Miller Aff., ¶ 4. The panel was

comprised of three white individuals who interviewed the candidates using a set of standardized

questions and guidelines provided by Miller. See id., ¶ 6; id., Attachment C (ESC Service

Center Director Interview Questions); Pl.’s Decl., ¶ 18. Following the interviews, the panel

unanimously recommended Poyer to fill the position. See id., ¶ 8; id., Attachment C (Email

from Darrell Ruban, Jan. 16, 2007); Applicant Score Sheet; Poyer Dep. at 11-12. Combining

Miller’s initial scores with the panels’, Kelly remained the third best candidate, scoring a total of

65 points compared to Poyer’s 85 points. See Miller Aff., ¶ 8; Applicant Score Sheet. Miller

subsequently appointed Poyer to the position. See Miller Aff., ¶ 8; id., Attachment D

(Memorandum from Rovert Miller, Jan. 19, 2007).

       During his mid-year review for PY 2007, Miller informed Kelly that his performance had

been only “Minimally Satisfactory” so far that year and provided him with a document detailing

specific areas in which he would be expected to improve. See Mot., Exh. G (PY 2007

Performance Appraisal) at 6-14. At the close of the PY 2007 evaluation period, Miller

determined that Kelly had failed to demonstrate improvement, and he accordingly received a

rating of “Minimally Satisfactory” on his final PY 2007 performance appraisal. See id. at 1.

Again, Miller provided Kelly with a detailed explanation of the areas in which his performance

had been lacking. Id. at 16-17. In particular, Miller emphasized that Kelly “did not provide

sufficient leadership and supervision to . . . staff,” had been “non-supportive and/or non-




                                                  3
responsive to program issues raised by . . . staff,” and did not “accept program guidance and

direction without challenge.” Id. at 16.

        On September 21, 2007, Poyer sent an email to all DAs requesting that they submit

proposed annual performance ratings and award recommendations for their staff members. See

Mot., Exh. J (Email from Scott Poyer, Sept. 21, 2007). The email emphasized that the proposed

ratings were “not to be shared with . . . staff until . . . they become final.” Id. (emphasis in

original). After Kelly submitted his proposed ratings, which Miller subsequently adjusted

downward, he violated this directive by delivering his initial ratings to each of his employees.

See Miller Aff., ¶¶ 16, 18; Mot., Exh. L (Performance Appraisals for Dave Price, Bernard

McWay, and Ellise Griffin). After discovering this, Miller instructed Kelly to issue the ratings

he had approved. Miller Aff., ¶ 18; Pl.’s Decl., ¶ 27. Instead of correcting the ratings, however,

Kelly circled, dated, and initialed his original ratings. See Performance Appraisals for Price,

McWay, and Griffin; Pl.’s Decl., ¶ 27. Kelly admits to having disregarded Miller’s instructions

and issuing his initial ratings instead of the amended ones, testifying that he did so because he

did not believe the amended ratings were “correct, fair, and equitable.” Pl.’s Dep. at 95; see also

Pl.’s Decl., ¶ 27.

        Following this incident, on December 6, 2007, Miller proposed that Kelly be suspended

for failing to follow instructions and improper conduct. Miller Aff., ¶ 18. Miller’s supervisor,

Daniel Hartman, sustained the charges of failure to follow instructions and imposed a five-day

suspension; he declined to sustain the charge of improper conduct. See Mot., Exh. M

(Memorandum from Daniel Hartman, Jan. 17, 2008); Miller Aff., ¶ 19. Hartman issued Kelly a

five-page letter explaining his decision on January 17, 2008. See Hartman Memorandum, Jan.




                                                   4
17, 2008. Kelly was suspended for five calendar days beginning January 28, 2008. See id.; Pl.’s

Decl., ¶ 27.

       On September 3, 2008, Miller informed Kelly that, because his performance continued to

be unacceptable, he would be placed on a Performance Improvement Plan (PIP) in lieu of

receiving an “Unsatisfactory” rating for PY 2008. See Mot., Exh. C (Memorandum from Robert

Miller, Sept. 3, 2008). Consistent with the PIP, Kelly’s PY 2008 rating period would be

extended through December 12, 2008. See id. Kelly was notified that if his performance did not

improve by then he could be reassigned, reduced in grade, or terminated. See id. Miller

described in great detail the areas in which Kelly’s performance remained unsatisfactory and

provided specific standards that Kelly would be expected to meet. See id. Miller informed Kelly

that Poyer would administer the PIP and would meet regularly with him to evaluate his progress.

See id.; Poyer Dep. at 22.

       Having met regularly with Kelly during the PIP period, Poyer issued a detailed report on

Kelly’s performance after the conclusion of Kelly’s extended 2008 appraisal period. See Mot.,

Exh. N (Report of the PIP of Taft Kelly) at 1-2. Poyer suggested that Kelly had not met the

performance goals set out in the PIP and had not improved his performance to a satisfactory

level. See id. After reviewing this report and discussing it with Poyer, Miller issued Kelly an

“Unsatisfactory” rating for PY 2008 and determined that he was unable “to effectively and

satisfactorily perform the duties of a Division Administrator.” Mot., Exh. O (PY 2008

Performance Appraisal) at 1, 8-11.

       Following this appraisal, Miller, along with several of his supervisors, ultimately

determined that reassigning Kelly to another office within the DOT would best solve the

performance issues that had emerged over the previous years. See McMurray Dep. at 35;



                                                5
Hartman Dep. at 62-63. On February 6, 2009, Hartman issued Kelly a letter explaining that he

had been reassigned to Office of Civil Rights (OCR). See Mot., Exh. P (Directed Reassignment,

Feb. 6, 2009).

       Kelly first initiated contact with an EEO counselor on October 30, 2006, claiming that

Miller was subjecting him to a hostile work environment and that his PY 2006 rating was

discriminatory. See Pl.’s Dep. at 42; Mot., Exh. Q (Formal Complaint of Discrimination, Jan. 1,

2007). He filed a formal complaint on January 7, 2007, requesting a hearing before an EEOC

administrative law judge. See Formal Complaint of Discrimination, Jan. 1, 2007. He voluntarily

withdrew this request, however, and the EEOC action was dismissed on January 13, 2009. See

Mot., Exh. R (Order of Dismissal). Kelly again initiated contact with an EEO counselor on

February 2009, claiming he had been subjected to discrimination and retaliation when he

received the PY 2008 “Unsatisfactory” rating and when he was involuntarily reassigned to the

OCR. See Mot., Exh. S (Report of Investigation, No. DOT-2009-22632-FMCSA-02); Pl.’s Dep.

at 132, 135. In addition, he claimed he had been subjected to a hostile work environment. See

Report of Investigation.

       On April 16, 2009, Kelly initiated the instant action. His First Amended Complaint

charges DOT with having discriminated against him on the basis of race when it issued his PY

2006 Performance Appraisal and with having both discriminated and retaliated against him when

it issued his appraisals for PYs 2007 and 2008, suspended him, declined to promote him, and

transferred him involuntarily to another position. See First Am. Compl., ¶¶ 27-28. Defendant —

technically, Secretary of DOT Ray LaHood, but referred to throughout simply as “DOT” — has

now moved for summary judgment.

II.    Legal Standard



                                               6
       Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at

248. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict

for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, Inc.,

477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by citing to particular parts of materials in the

record.” FED. R. CIV. P. 56(c)(1)(A).

       The party seeking summary judgment “bears the heavy burden of establishing that the

merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc., v.

Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). When a motion for summary judgment is under

consideration, “the evidence of the non-movant[s] is to be believed, and all justifiable inferences

are to be drawn in [her] favor.” Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. PEPCO,

447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288

(D.C. Cir. 1998) (en banc). On a motion for summary judgment, the Court must “eschew

making credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360,

363 (D.C. Cir. 2007).

       The nonmoving party’s opposition, however, must consist of more than mere

unsupported allegations or denials and must be supported by affidavits, declarations, or other

competent evidence, setting forth specific facts showing that there is a genuine issue for trial.

FED. R. CIV. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is



                                                  7
required to provide evidence that would permit a reasonable jury to find in its favor. Laningham

v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovant’s evidence is

“merely colorable” or “not significantly probative,” summary judgment may be granted. Liberty

Lobby, Inc., 477 U.S. at 249-50.

III.   Analysis

       Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual's race, color, religion,

sex, or national origin,” 42 U.S.C. § 2000e-2(a), or “because he has made a charge . . . or

participated in any manner in an investigation” of employment discrimination. 42 U.S.C. §

2000e-3(a). Kelly alleges that DOT unlawfully discriminated against him on the basis of race

and/or retaliated against him when it issued him poor performance evaluations for PYs 2006,

2007, and 2008, suspended him, declined to promote him, and involuntarily reassigned him to

another position. 1 DOT maintains, however, that Kelly has failed to exhaust certain of his claims

and has not presented evidence sufficient for a reasonable jury to find in his favor on those

remaining. The Court will first consider whether Kelly has exhausted his administrative

remedies; it will then turn to the merits of those claims that have been properly exhausted.

Finally, because Kelly’s Opposition to the instant Motion makes a brief reference to his having

raised a hostile-work-environment claim, the Court will determine whether he has actually done

so.



       1
         By using the words “inter alia,” Kelly’s Complaint suggests that these were not the only
incidents he believed to have been unlawful. Except for a brief reference to an intended hostile-
work-environment claim, however which is addressed infra, Section III.C, neither his First
Amended Complaint nor his Opposition to the instant Motion identifies other independently
actionable grounds for this suit.
                                                 8
        A. Exhaustion

       “Before filing suit, a federal employee who believes that her agency has discriminated

against her in violation of Title VII must first seek administrative adjudication of her claim.”

Payne v. Salazar, 619 F.3d 56, 58 (D.C. Cir. 2010) (citing Scott v. Johanns, 409 F.3d 466, 468

(D.C. Cir. 2010) and 42 U.S.C. § 2000e-16(c)). EEOC regulations require that “[a]ggrieved

persons who believe they have been discriminated against on the basis of race,” 29 C.F.R. §

1614.105(a), “must initiate contact with [an EEO] Counselor within 45 days of the date of the

matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the

effective date of the action.” Id. § 1614.105(a)(1). Unless the employee provides an acceptable

ground for the equitable tolling of the 45 days, failure to initiate contact with an EEO counselor

within that time period serves as a bar to his claims. See Stewart v. Ashcroft, 352 F.3d 422, 425-

26 (D.C. Cir. 2003); 29 C.F.R. § 1614.105(a)(2).

       DOT contends that Kelly failed to exhaust his administrative remedies with respect to all

claims stemming from his PY 2006 Performance Appraisal and his 2008 suspension. DOT also

contends that he failed to exhaust claims relating to other incidents that occurred in 2007, but as

Kelly has conceded those incidents are not independently actionable, see Opp. at 23, the Court

need not address them here.

               1. PY 2006 Performance Appraisal

       According to the date accompanying his signature on the document, Kelly received his

PY 2006 rating on August 18, 2006. See PY 2006 Rating (Kelly’s signature is dated 8/18/2006).

Despite his dated signature, however, Kelly “is adamant that he first saw a draft of the rating on

August 21, 2006.” Opp. at 21 (citing Pl.’s Decl., ¶ 5). This dispute is immaterial: even assuming




                                                 9
Kelly were correct that he received the rating on the 21st, he concedes that he did not initiate

contact with a counselor until October 30, 2006, 69 days later. See id.

       Kelly nevertheless contends that he satisfied his exhaustion obligation because the 45-day

clock did not begin ticking until November 15, 2006, when he alleges he first received a copy of

the appraisal that memorialized the rating. See id. The regulations provide that the 45-day limit

shall be extended “when the individual shows that he or she was not notified of the time limits

and was not otherwise aware of them, that he or she did not know and reasonably should not

have known that the discriminatory matter or personnel action occurred.” 29 C.F.R. § 1614.105.

Kelly testified that he “was of the impression throughout that [the] time period for initiating

some action would not run until [he] was actually presented with a copy of the evaluation.” Pl.’s

Decl., ¶ 7. He further claims that although he saw the final “Achieved Results” rating in August,

he did not see the scores for the various performance sub-categories until he received a copy of

the appraisal in November. See Pl.’s Decl., ¶ 5 & n.7. For these reasons, he argues November

15 marked the beginning of the 45-day period.

       Kelly provides no basis for his “impression” that the 45 days did not begin to run until he

received a personal copy of the appraisal. His own testimony establishes that he was aware that

there was a 45-day limitation; he also admits that he was aware of the “Achieved Results” rating

in August. See Pl.’s Decl., ¶¶ 5-7. More significantly, the fact that he initiated contact with a

counselor on October 30, 16 days prior to the day he would have the clock begin, moreover,

belies any contention that he “did not know and reasonably should not have known” that the

discriminatory action took place until November 15. See Mot., Exh. Q (Complaint of

Discrimination); Opp. at 21. The Court, accordingly, concludes that Kelly failed to exhaust his




                                                 10
administrative remedies with regard to any claim arising from the PY 2006 Performance

Appraisal.

               2. 2008 Suspension

       Kelly was suspended in January 2008. He has provided no evidence, however, that he

raised this incident with the EEO Office until February 2009, more than a year after the

suspension took place. The emails he maintains satisfied his exhaustion obligation simply make

no mention of the suspension incident. See Pl.’s Decl. at n.9; Opp., Exh. 17 (Emails from Taft

Kelly); Opp. at 22-23. In the absence of any evidence that the suspension claim was properly

exhausted or any suggestion that the 45-day period should be tolled, the Court can only conclude

Kelly failed to exhaust this claim.

        B. Remaining Discrete Discrimination and Retaliation Claims

       The four properly exhausted claims remain: the PY 2007 performance evaluation, the

nonselection for the ESC Director position, the PY 2008 performance evaluation, and the

involuntary transfer. Because Kelly’s PY 2008 evaluation is both temporally and causally

connected to his involuntary transfer, the Court will examine those two incidents together.

       To survive summary judgment on each of these claims, Kelly must provide sufficient

evidence for a reasonable jury to determine that 1) he suffered an adverse employment action 2)

because of his race or his protected activity. See Brady v. Office of Sergeant at Arms, 520 F.3d

490, 493 (D.C. Cir. 2008); Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009). With regard

to the second element, if “an employer has asserted a legitimate, non-discriminatory reason” for

its employment decision, the Court must simply “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



                                                11
against the employee on the basis of race” or on the basis of his protected activity? Brady, 520

F.3d at 494; Jones, 557 F.3d at 678 (Brady “principles apply equally to retaliation claims”).

                 1. PY 2007 Performance Evaluation

       Kelly claims that his “Minimally Satisfactory” evaluation for PY 2007 constituted an

unlawfully discriminatory and retaliatory employment action. “[P]erformance evaluations,”

however, “ordinarily are not actionable under Title VII.” Douglas v. Donovan, 559 F.3d 549,

552 (D.C. Cir. 2009). In order for a performance evaluation to constitute an adverse action

cognizable under Title VII, “it must affect the employee’s ‘position, grade level, salary, or

promotion opportunities.’” Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009) (quoting

Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008)); see also Taylor v. Small, 350

F.3d 1286, 1293 (D.C. Cir. 2003) (“[F]ormal criticism or poor performance evaluations . . .

should not be considered [adverse actions] if they did not affect the employee's grade or

salary.”). Having provided no evidence suggesting that any tangible, objective harm

accompanied the PY 2007 evaluation, Kelly has not “discharge[d his] burden to show the

evaluations were ‘attached to financial harms.’” Taylor, 571 F.3d at 1321 (quoting Baloch, 550

F.3d at 1199).

       Even if the evaluation were an adverse action, moreover, Kelly has not provided evidence

sufficient for a reasonable jury to find that the rating was discriminatory or retaliatory. DOT has

provided extensive documentation of the performance issues it maintains justified the poor

rating. During Kelly’s mid-year review, Miller provided him with a document detailing thirteen

areas of concern and nine “performance expectations” intended “to assist [him] in raising his

level of performance.” Miller Aff., ¶ 11. His evaluation of Kelly’s performance, moreover, is




                                                12
corroborated by the testimony of other supervisors and by the findings of a federal program

review. See generally, e.g., Swift Dep.; Mot, Exh. B (FPR Report).

       Kelly’s Opposition to DOT’s Motion for Summary Judgment, however, contains not a

single citation to record evidence supporting his argument that Miller’s explanation was

pretextual. See Opp. at 25-26. Kelly challenges Miller’s reliance on the results of the federal

program review, contending that the report had exposed similar issues with other divisions. See

Opp. at 26; Pl.’s Decl., ¶ 19. That may well be true. It is indisputable, however, that the review

revealed significant problems within Kelly’s division, and, more importantly, the review was just

one factor Miller considered. In light of the extensive documentation of instances in which

Miller’s performance was lacking, no reasonable jury could conclude on the basis of the

evidence Kelly has presented that his PY 2007 performance rating was pretext for discrimination

or retaliation. The Court, therefore, will grant summary judgment for DOT on this claim.

               2. Nonselection for ESC Director Position

       It is undisputed that the failure to promote an employee constitutes an adverse

employment action. See, e.g., Stella v. Mineta, 284 F.3d 135, 146 (D.C. Cir. 2002) (“no question

that failure to promote is an ‘adverse action’”). DOT, however, has offered a legitimate,

nondiscriminatory reason for declining to offer Kelly promotion: Poyer, the individual ultimately

chosen for the position, was the most qualified candidate. Taking into account writing skills,

work experience, program knowledge, and relevance and significance of experience, Miller

scored Poyer’s written submission 14 points higher than Kelly’s. See Miller Aff., Attachment B

(Applicant Ratings). The three panelists who conducted interviews, furthermore, unanimously

ranked Poyer as the highest-scoring candidate. See id. Notably, Poyer had previous experience

with DOT’s Office of Strategic Planning, had demonstrated success in managing budgets, had



                                                13
multiple graduate degrees, had leadership experience in both the public and private sectors, and

had helped to develop a national quality assurance program. See Miller Aff., ¶ 9.

       In light of this explanation, the only remaining question is whether Plaintiff has

“produced sufficient evidence for a reasonable jury to find [this] reason was not the actual reason

and that the employer intentionally discriminated against the plaintiff.” Adeyemi v. District of

Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008) (citing Brady, 520 F.3d at 493-95). In

response, Kelly contends that Miller’s having given him a poor rating for PY 2006, coupled with

a conversation he had had with HR official Marlene Thomas in November 2006, “revealed

hostility toward Plaintiff even before the selection decision was made in early 2007.” See Opp.

at 23-24. In addition, he argues that the composition of the interview panel violated agency

policies in two ways: it was not sufficiently diverse and the selecting official, Miller, did not

serve on it. See Opp. at 24. In support of this argument, he cites a memorandum that states that

“[p]anel members must be selected with consideration to diversity and will include appropriate

representation. The Selecting Official is the panel leader.” See Pl.’s Decl., ¶ 18; Opp., Exh. 21

(Memorandum from Annette Sandberg, Dec. 18, 2003).

       DOT maintains that the memorandum does not require a racially diverse panel; it merely

states that the panelists “must be selected with consideration to diversity.” Reply at 5; Sandberg

Memorandum, Dec. 18, 2003. It concedes, however, that Miller violated internal policy by

failing to serve on the interview panel. See Reply at 5. “Procedural irregularities,” do not

establish pretext “absent some actual evidence that defendant acted on a motivation to

discriminate.” Oliver-Simon v. Nicholson, 384 F. Supp. 2d 298, 312 (D.D.C. 2005). If, as Kelly

alleges, Miller was primarily responsible for his allegedly discriminatory treatment, the fact that

he did not serve on the panel can only have served to make the hiring decision less biased. The



                                                 14
deviation from policy, moreover, was not “so irregular or inconsistent with [DOT’s] established

policies as to make its hiring explanation unworthy of belief.” Porter v. Shah, 606 F.3d 809, 816

(D.C. Cir. 2010).

       In addition, Kelly argues that his nonselection was discriminatory because he was more

qualified for the position than Poyer. Even if Kelly could demonstrate that he was better

qualified than Poyer, however, such evidence does not suffice to support an inference of

discrimination or retaliation; rather, a jury must be able to find he was “significantly better

qualified for the job.” Holcomb v. Powell, 433 F.3d 889, 897 (D.C.Cir. 2006) (emphasis added).

The difference must be “great enough to be inherently indicative of discrimination.” Jackson v.

Gonzales, 496 F.3d 703, 707 (D.C.Cir. 2007) (internal quotation marks omitted). “In a close

case, a reasonable [fact-finder] would usually assume that the employer is more capable of

assessing the significance of small differences in the qualifications of the candidates, or that the

employer simply made a judgment call.” Aka, 156 F.3d at 1294.

       Kelly contends that his experience as a DA was more relevant than Poyer’s experience in

strategic planning and budgeting at DOT’s headquarters. See Pl.’s Decl., ¶ 17. He also suggests

Poyer had “little supervisory experience, and none over the employees in the field who have to

carry out day to day enforcement activities.” Id. Miller, however, scored Kelly higher than

Poyer in terms of “direct program knowledge,” which is consistent with Kelly’s contention that

he had more experience working directly with employees in the field. See Applicant Evaluation.

He gave both candidates the same score with respect to past work experience. See id. Although

Poyer’s experience may have been different from Kelly’s, Miller testified that he particularly

valued Poyer’s experience with the budgeting process, and, because he hoped the ESC Director

“could establish a local [quality assurance] program for the ESC,” Poyer’s experience helping to



                                                 15
develop a national quality assurance program was also weighted heavily. See Miller Aff., ¶ 9.

Add this to his indisputably superior educational credentials and it is clear Kelly cannot establish

he was better qualified — let alone significantly better qualified — for the job.

       Ultimately, absent a viable showing of pretext, the Court will defer to an employer's

judgment concerning which of several employees was the best fit for a given position.

Otherwise, the Court would impose itself as “a super-personnel department that reexamines an

entity’s business decisions – a role which [the D.C. Circuit has] repeatedly disclaimed.”

Jackson, 496 F.3d at 707 (internal quotation marks omitted). As Kelly has made no such

showing, the Court will grant DOT’s Motion for Summary Judgment with respect to the failure-

to-promote claim.

               3. PY 2008 Performance Evaluation and Involuntary Transfer

         The determination that Kelly had failed his PIP, earning him a rating of

“Unsatisfactory” for PY 2008, and his subsequent reassignment to the OCR were the culminating

events in this case. DOT does not appear to contest that Kelly’s reassignment constituted an

actionable adverse employment action. Indeed, it is well established that a transfer to a position

with “significantly different responsibilities” can constitute an adverse action. See Forkkio v.

Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002) (quoting Burlington Indus., Inc. v. Ellerth, 524

U.S. 724, 761 (1998)).

       DOT maintains that Kelly was reassigned as a result of the performance issues that had

emerged over the prior two years. See Mot. at 39; Hartman Dep. at 62-63; McMurray Dep. at

35; Directed Reassignment, Feb. 6, 2009. In particular, during PY 2008, Miller determined that

Kelly’s performance merited an “Unsatisfactory” rating and that he was unable “to effectively

and satisfactorily perform the duties of a Division Administrator.” See PY 2008 Performance



                                                 16
Appraisal. For example, Miller pointed to data suggesting that 58% of the work product

produced by the D.C. Division required corrections and had to be returned. See id. In his

reassignment memo, Hartman explained that because Kelly had not demonstrated an ability to

perform the tasks of a DA and because his skills and experiences suited him for the Equal

Opportunity Specialist position in the OCR, he would be reassigned to that role. See Mot., Exh.

P (Directed Reassignment, Feb. 6, 2009).

       Kelly maintains that this explanation for his reassignment was a pretext for unlawful

discrimination and retaliation. Miller, he claims, had been “seeking to remove him from his

position within months of taking over the Field Administrator position in June 2006” and had

created a paper trail of poor evaluations that would ultimately justify his removal. See Opp. at

26-27. A few of Kelly’s primary arguments in support of his version of the events are worth

noting. He highlights the dearth of black employees working in high-level positions at DOT and

points to incidents suggesting that other black employees were treated discriminatorily. See Pl.’s

Decl., ¶¶ 10, 16 & n. 2. He identifies testimony suggesting that, following the federal program

review, the D.C. Division received harsher criticism than other divisions that displayed similar

shortcomings. Id., ¶ 19. One of his employees, Steven Henley, testified that he was “troubled

for days” when Miller asked him a series of questions about Kelly and the other employees in the

D.C. Division in what seemed like a “fishing expedition” for negative information. Opp, Exh. 12

(Aff. of Steven Henley). Another employee, Curtis Thomas, stated that Marlene Thomas, an HR

employee, suggested to him that Kelly “better watch [himself] and be very careful[] bcause Bob

Miller . . . was after them and their positions.” Id., Exh. 13 (Meeting Summary, prepared by

Curtis Thomas). In December 2007, he maintains, Miller and Hartman made an unannounced




                                                17
visit to his office, singling the D.C. division out for an audit of its grant-management practices.

Pl.’s Decl., ¶¶ 21-22.

        While it is undoubtedly a close question, the Court is ultimately persuaded that Kelly has

provided sufficient evidence for a jury to reasonably determine that his reassignment was

discriminatory and/or retaliatory. “Credibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”

Liberty Lobby, 477 U.S. at 255. Should the jury, for example, credit Kelly’s testimony and

discredit Miller’s, it could plausibly find in his favor. The Court, therefore, will deny DOT’s

Motion for Summary Judgment with respect to Kelly’s 2008 rating and subsequent involuntary

transfer.

            C. Implicit Hostile-Work-Environment Claim

        Were it not for a single line in Kelly’s Opposition to the instant Motion suggesting that he

may have intended to bring a hostile-work-environment claim in addition to his independent

discrimination and retaliation claims, the Court’s task would now be at its end. Neither Kelly’s

initial Complaint nor his First Amended Complaint uses the term “hostile work environment” or

in any other way conveys an intention to make out a hostile-work-environment claim. See

generally Compl.; First Am. Compl. The Court, accordingly, was as surprised as it imagines

DOT was by the offhand suggestion in Kelly’s Opposition that he had made out such a claim.

Specifically, in response to DOT’s argument that certain incidents identified in his First

Amended Complaint did not constitute adverse actions, Kelly’s Opposition states that he had

“properly listed these issues as part of his hostile environment claim and they are properly

includable in that claim.” Opp. at 23. He makes no further reference to or argument in support

of a hostile-work-environment claim in his brief.



                                                 18
       A complaint need not necessarily use the words “hostile work environment” in order to

make out a hostile-work-environment claim. See Steele v. Schafer, 535 F.3d 689, 694 (D.C. Cir.

2008). Indeed, “discrimination” or “retaliation” can “in principle include[] a hostile work

environment theory.” Id. “[T]he complaint and the evidence of a plaintiff,” nevertheless, “must

be sufficient to put defendants on notice of any theory of recovery upon which the plaintiff is

relying.” Overby v. Nat’l Ass’n of Letter Carriers, 595 F.3d 1290, 1297 (D.C. Cir. 2010).

       Two cases from our Circuit are directly relevant in determining whether Kelly’s First

Amended Complaint sufficed to put DOT on notice of a hostile-work-environment claim. On

the one hand, in Steele v. Schafer, the panel determined that the plaintiff had raised a claim

where 1) his complaint “specifically request[ed his] reassignment ‘to a less hostile working

environment,’” 2) he “indisputably raise[d] a constructive discharge claim premised on a hostile

work environment,” 3) the defendant acknowledged and responded to the hostile-work-

environment claim in its Motion for Summary Judgment, and 4) the plaintiff defended its claim

in its Opposition to that Motion. Id. at 694. On the other hand, in Reshard v. LaHood, 2011 WL

5514009 (D.C. Cir. 2011), the panel distinguished Steele and held that the plaintiff had not made

out a claim. In that case, although the plaintiff’s Complaint contained “allegations of an

‘environment’ of ‘direct acts of racial discrimination,’ an ‘environment of professional

suppression’ and discriminatory conduct ‘designed to make plaintiff leave the agency’,” which

“arguably might have sufficed to place [the defendant] on notice of a hostile work environment

claim,” the court emphasized that 1), unlike in Steele, the plaintiff had not made a constructive-

discharge claim, 2) neither party addressed the claim in its briefs until the plaintiff filed a second

motion for reconsideration years after the court’s initial summary judgment order, and, relatedly,




                                                  19
3) the defendant was undoubtedly prejudiced by the plaintiff’s failure to clearly make out a

hostile-work-environment theory. Id. at *2-3.

         Admittedly, this case falls somewhere in between these two markers. Significantly,

however, unlike both Steele and Reshard, the First Amended Complaint contains absolutely no

indicia that Kelly intends to invoke a hostile-work-environment theory. And while the prejudice

to DOT is not as extreme here as it was in Reshard, where the eight-year delay left the “evidence

. . . stale and memories vague,” Kelly’s failure to make an explicit hostile-work-environment

claim in his pleadings coupled with his failure to make any affirmative argument concerning any

such claim in his Opposition deprived DOT of an opportunity to respond to the merits of that

claim in their briefs. The fact that Kelly clearly raised the issue of hostile work environment in

his EEOC complaints, moreover, demonstrates that he was aware of the hostile-work-

environment theory and suggests his omission of that claim from his pleadings was intentional.

The Court simply cannot consider a claim to have been adequately raised based on a single,

responsive reference to a “hostile environment claim” in an Opposition to a Motion for Summary

Judgment. It finds, accordingly, no basis to consider an implicit hostile-work-environment

claim.

IV. Conclusion

         For the foregoing reasons, the Court ORDERS that:

                1. Defendant’s Motion for Summary Judgment is GRANTED IN PART and

                    DENIED IN PART;

                2. The Motion is DENIED as to the involuntary transfer claim;

                3. The Motion is GRANTED with respect to all other claims; and




                                                20
             4. All parties shall appear for a status hearing on January 31, 2012, at 9:30 am in

                 Courtroom 19.



      SO ORDERED.


                                                   /s/ James E. Boasberg
                                                   JAMES E. BOASBERG
                                                   United States District Judge
Date: January 12, 2012




                                             21
