BARBARA J. ROTHSTEIN, District Judge.
This matter is before the Court on [Dkt. # 29] the motion to dismiss or, in the alternative, for summary judgment filed by Defendant the Secretary of the Navy ("the Secretary"). Plaintiff Brenda Lee, an African-American born in 1948, alleges that while employed at the Security Assistance Programs Division of the Naval Sea System Command ("NAVSEA"), she was discriminated against because of her race and age, and retaliated against because of her protected equal employment opportunity ("EEO") activities in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.
Plaintiff Brenda Lee is an African-American born in 1948. Def.'s Mot. to Dismiss & for Summ. J. ("Def.'s Mot."), Def.'s Stmt. of Undisputed Material Facts ("Def.'s Stmt.") ¶ 1. During the events relevant to this case, Lee was a GS-12 program analyst at NAVSEA.
In July 1998, Carolyn Bolling, a NAVSEA employee, filed an EEO complaint alleging same-sex sexual harassment against her direct supervisor, Christine Chaikowski. Pl.'s Opp'n, Ex. 2 (Bolling Decl. ("Bolling Decl.") ¶ 2). Lee supported Bolling's complaint by submitting a written declaration in 1999 and testifying at Bolling's EEO Commission ("EEOC") administrative hearing in 2002. Id. ¶¶ 6-7.
In April 2004, Lee requested an accretion of duties promotion
Later in April 2004, NAVSEA announced and advertised a vacancy for a GS-13 program analyst position in 63IC2, another office in NAVSEA. Id. ¶ 13. Lee did not apply for the position in 63IC2. Pl.'s Opp'n at 9. NAVSEA ultimately decided to laterally reassign Kathy Ton to the 63IC2 position creating a vacancy in 63IC1. Rather than advertising Ton's old GS-13 program analyst position, the selection committee chose a candidate from the already-generated list of applicants qualified for the 63IC2 position. Def.'s Stmt. ¶¶ 19-20. The panel recommended that Randolph hire Marivic Britton, a younger, white employee with no prior EEO activity.
In December 2004, Lee was responsible for monitoring activity in 40 countries. Pls.' Opp'n, Ex. 8 at 96. Lee "believed that she had the heaviest workload and asked that some of her work be redistributed to the other analysts." Def.'s Stmt. ¶ 26. Lee volunteered to give up a number of smaller countries that required less work. Ultimately, in April 2005, Donald Seibel, Lee's first level supervisor, decided to reassign 11 countries which Lee had proposed be transferred. In addition, Seibel also reassigned to Lee's coworkers Australia, Egypt, and Korea which were deemed significant and substantial in light of their volume, complexity, and role in the war on terrorism. Id. ¶¶ 20, 28; Def.'s Mot., Ex. 8 (Donald Seibel Dep. ("Seibel Dep.") at 126:17-127:2, 127:22-128:1).
On August 3, 2004, Lee contacted an EEO officer alleging that Randolph discriminated and retaliated against her by denying her an accretion of duties promotion and by not advertising the GS-13 63CI1 position and thus denying Lee a chance to compete for it. Def.'s Stmt. ¶ 35.
On May 24, 2005, Lee again contacted an EEO officer alleging, in part, that Seibel discriminated and retaliated against her when he reassigned Australia, Egypt, and Korea to others. She also alleged that Randolph discriminated and retaliated against her by not selecting her for the GS-13 63CI1 position. Id. ¶ 36.
Lee brought suit on July 1, 2005 alleging discrimination on the basis of race and age and retaliation in violation of Title VII and the ADEA. Specifically, Lee claims that the Secretary discriminated and retaliated against her by (1) not upgrading Lee's GS-12 position to a GS-13 position through an accretion of duties promotion, (2) not selecting Lee for the GS-13 program analyst position, and (3) reducing Lee's work responsibilities. See Am. Compl. ¶¶ 23-25. The Secretary moves for summary judgment arguing that Lee has failed to exhaust her accretion of duties promotion claim and that no genuine issue of material fact exists as to any claim.
Summary judgment may be granted when "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). A dispute is "genuine" if a reasonable jury, given the evidence presented, could return a verdict for the nonmoving party. Musick
"`To survive a motion for summary judgment, the party bearing the burden of proof at trial must provide evidence showing that there is a triable issue as to an element essential to that party's claim.'" Etheridge v. FedChoice Federal Credit Union, 789 F.Supp.2d 27, 32 (D.D.C.2011) (quoting Arrington v. United States, 473 F.3d 329, 335 (D.C.Cir.2006)). Neither a "`mere ... scintilla of evidence,'" Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123 (D.C.Cir.2011) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505), nor "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), will suffice to defeat summary judgment. Instead, the nonmovant must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). In considering a summary judgment motion, a court is to draw all justifiable inferences from the evidence in favor of the nonmovant. Talavera v. Shah, 638 F.3d 303, 308 (D.C.Cir.2011).
Before filing a civil action under Title VII or the ADEA, the aggrieved party must timely exhaust her administrative remedies. Washington v. Wash. Metro. Area Transit Auth., 160 F.3d 750, 752 (D.C.Cir.1998). To satisfy the exhaustion requirement, a plaintiff raising claims of a discrete discriminatory act — such as failure to promote — must initiate informal contact with an EEO counselor within 45 days of when the allegedly discriminatory act occurred. See 29 C.F.R. § 1614.105(a)(1). "Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it." Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997). It is undisputed that Lee first initiated informal contact with an EEO counselor on August 3, 2004. See Def.'s Stmt. ¶ 35. Thus, any discrete discriminatory acts that occurred before June 19, 2004 are time barred.
The Secretary argues that Lee was denied an accretion of duties promotion on April 30, 2004 when Randolph told Lee that NAVSEA was not offering such promotions but that Lee could request a desk audit. See Def.'s Mot., Ex. 3 (Hercules Randolph Dep. ("Def.'s Randolph Dep.") at 51:1-11). Lee counters that on April 30, 2004, Randolph told Lee only that she could request a desk audit for a promotion. See Pl.'s Opp'n at 12 (citing id., Ex. 7 (Brenda Lee Dep. ("Pl.'s Lee Dep.") at 30:2-3)). Instead, Lee argues that Randolph unequivocally denied her request for an accretion of duties promotion on July 21, 2004 when Randolph told Lee that if she requested a desk audit, and the desk audit "showed her duties to exceed her grade level, he would have to open her position to competition," id. at 13, and that accretion of duties promotions not subject to competition were unavailable. Pl.'s Opp'n at 13; see also Pl.'s Lee Dep. at 37:7-16; Pl.'s Opp'n, Ex. 8 (Rpt. on Investigation ("ROI") at 22-23).
Under the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff claiming discrimination under Title VII or the ADEA carries the initial burden of establishing a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817; Krodel v. Young, 748 F.2d 701, 705 (D.C.Cir.1984) (stating that the McDonnell Douglas framework applies to ADEA claims). If a plaintiff makes out a prima facie case, the burden shifts to the employer to "produc[e] a nondiscriminatory explanation for the challenged personnel action." Ford v. Mabus, 629 F.3d 198, 201 (D.C.Cir.2010). If the employer provides a legitimate, non-discriminatory reason for the action, then the plaintiff must show "that discriminatory animus was the determining or but-for cause of the personnel action." Id.
If a defendant in a Title VII or ADEA matter presents a legitimate nondiscriminatory explanation for its actions, "the `one central inquiry' on summary judgment is `whether the plaintiff produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the plaintiff on a prohibited basis.'" Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C.Cir. 2012) (quoting Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C.Cir. 2008)). A court considers
Id. (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289, 1291 (D.C.Cir.1998) (en banc)). A plaintiff need not "`submit evidence over and above rebutting the employer's stated explanation in order to avoid summary judgment.'" Id. (quoting Aka, 156 F.3d at 1290).
Lee argues that Randolph discriminated against her by denying her an accretion of duties promotion. To establish a prima facie case of discrimination
Marshall v. Shalala, 16 F.Supp.2d 16, 19 (D.D.C.1998); accord Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 n. 1 (D.C.Cir.2008). The Secretary argues that Lee cannot establish a prima facie case of discrimination and also offers a legitimate non-discriminatory business reason for denying Lee's request for an accretion of duties promotion.
The Secretary contends that Lee cannot make out a prima face case of discrimination for three reasons. First, Lee "never took the steps necessary to `apply for' an `accretion of duties' grade increase, including seeking a desk audit." Def.'s Mot., Def.'s Br. at 27-28. Second, Lee was not qualified for the promotion. Third, Lee has not shown that other, similarly situated employees received accretion of duties promotions.
Lee does not contest, as she cannot, that she did not request a desk audit. See Pl.'s Resp. ¶¶ 7-11 (conceding the Secretary's statement that "[p]laintiff decided not to seek a desk audit"). During her deposition, Lee, herself, testified that she "never brought up the desk audit, period[,]" Def.'s Mot., Ex. 1 (Brenda Lee Dep. ("Def.'s Lee Dep.") at 29:25); accord id. at 29:21, 37:17-19, though Randolph had informed her that a desk audit would necessarily precede any promotion, id. at 37:7-12; see also ROI at 22.
Similarly, Lee has not shown that she was qualified for a promotion. To support her argument that she was qualified for a promotion, Lee points to her GS-12 program analyst position description and her coworker Renee Dutton's GS-13 program analyst position description. See id. at 51-60. While the descriptions are similar, they are not identical. For instance, one of both Lee's and Dutton's major duties is "Systems Input, Reports and Improvements." While this duty is 5% of Lee's position, it is 25% of Dutton's position. Lee provides evidence that the "differences in percentage of time spent do not appear to be material inasmuch as the same level of knowledge is required regardless of the time spent." Pl.'s Opp'n, Ex. 6 (Larry Slagle Dep., Ex. 3 (Letter from Larry B. Slagle, Human Resources Consultant, to Charles W. Day, Jr., Gebhardt & Assocs., LLP (Mar. 3, 2006) ("Slagle Letter") at 3)). However, Lee has not shown that this difference is inconsequential. For instance, "Systems Input, Reports, and Improvements" may be more difficult than some of Lee's other major duties. Thus, while a jury may find that Lee's duties were similar to a GS-13 program analyst's position, she has not demonstrated that she was qualified for a GS-13 program analyst position.
Also, Lee has not shown that there was an employee who was not a
The Secretary proffers a legitimate, nondiscriminatory reason for its decision not to award Lee an accretion of duties promotion: NAVSEA had a policy barring noncompetitive accretion of duties promotions. Lee counters that NAVSEA did not have a bone fide policy against such promotions. She also argues that the Secretary's reason is pretext for intentional discrimination.
The Secretary has presented ample evidence showing that NAVSEA prohibited noncompetitive accretion of duties promotions during the period in question. For example, when Lee requested such a promotion, Randolph told Lee that "command" barred him from awarding noncompetitive accretion of duties promotions. Def.'s Lee Dep. at 38:3-6, 41:6-8; Def.'s Mot., Ex. 2 (Lee Statement before Office of Compl. Investigations at 33:21-34:2); Def.'s Randolph Dep. at 51:9-11, 52:1-3, 68:11-14. William D. McCafferty, the Director of the Command Human Resources/EEO Division at NAVSEA, also testified that NAVSEA "had and has a policy requiring that there be no noncompetitive accretion of duties promotions." Def.'s Mot., Ex. 13 (William Daniel McCafferty Dep. at 20:2-4, 20:11-18); see also Def.'s Mot., Ex. 14 (William D. McCafferty Decl. ¶ 4 ("[O]n March 31, 2004, ... NAVSEA's Executive Director, Pete Brown, reiterated the NAVSEA HQ policy that noncompetitive accretion promotions were not authorized.")). Finally, the minutes of a March 31, 2004 Business Transportation Executive Team meeting reflect the same policy. Def.'s Mot., Ex. 14, B-Codes Lunch Meeting Minutes ¶ 5.
Lee argues that the Navy's Merit Promotion Plan set the governing policies and under the Promotion Plan, employees could receive noncompetitive accretion of duties promotions. Lee baldly asserts that the Merit Promotion Plan was not properly modified to conform to NAVSEA's alleged policy barring noncompetitive accretion of duties promotions and thus, she argues that NAVSEA's policy never "had any legal effect." Pl.'s Opp'n at 23. To support her assertion, Lee cites page 51 of plaintiff's expert and consultant in Federal Personnel Administration Larry Slagle's deposition. Id. However, the excerpts she provides of Slagle's deposition end at page 46. She otherwise presents no evidence supporting the proposition that, in order to take effect, NAVSEA's policies must have been formally incorporated in the Navy's Merit Promotion Plan. See Pl.'s Opp'n at 7. Accordingly, Lee has not provided sufficient evidence to create a genuine dispute of fact that NAVSEA did not have a policy prohibiting noncompetitive accretion of duties promotions.
Lee claims that Randolph discriminated against her by selecting Britton instead of her for the GS-13 63IC1 program analyst position. To establish a prima facie case of non-selection,
Cones v. Shalala, 199 F.3d 512, 516 (D.C.Cir.2000). If the plaintiff was unable to apply for the position, the plaintiff may still be able to establish a prima facie case by showing that she "`made every reasonable attempt to convey [her] interest in the job to the employer.'" Id. at 518 (quoting EEOC v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir.1990)).
The Secretary argues that Lee cannot establish a prima facie case of discrimination and also offers a legitimate non-discriminatory business reason for selecting Britton for the GS-13 63IC1 program analyst position instead of Lee.
The Secretary contends that Lee did not apply for the GS-13 program analyst position. NAVSEA never advertised the 63IC1 position. Instead, NAVSEA selected an analyst from the list of qualified candidates who had applied for the 63IC2 position. Recognizing that Lee was unable to apply for the 63IC1 position, the Secretary further argues that Lee also
Lee does not adequately challenge the Secretary's argument and evidence that Lee did not apply for the GS-13 63IC1 position or otherwise express an interest in any GS-13 position for which she had to compete. Lee admits that she was aware that she had to submit her resume to the electronic hiring system "[i]n order to be considered for selection for promotion under the open continuous vacancy announcement system." Def.'s Stmt. ¶ 11. Lee does not dispute that she did not upload her resume to the system until September 2004. Compare Sergeson Decl. ¶ 3 ("Lee first submitted a resume to the database on September 23, 2004."), with Def.'s Lee Dep. at 43:12 ("I really don't recall when I put it in there."). Thus, Lee has not shown that she applied for the position or expressed an interest in it.
The Secretary argues that Randolph selected Britton for the 63IC 1 position without giving Lee an opportunity to compete for the position because Randolph reasonably applied a personnel policy that allowed him to use an earlier list of qualified applicants that was generated to fill the 63IC2 position to fill the 63IC 1 position. The Secretary provides evidence that the human resources department told a member of the selection committee for the 63CI1 position that "since the [63ICI] vacancy was the same series and grade as the one previously announced in another division, it was not necessary to issue another vacancy announcement." Def.'s Mot., Ex. 5 (Rpt. on Investigation (Raymond J. Ashenfelder Decl. ("Ashenfelder Decl.") at 230)). The selection committee member also believed that "[t]here was no regulatory requirement to do another announcement to fill the position." Id. at 231. Thus, because Randolph "needed somebody in [the 63IC1 position] fast[,]" Def.'s Randolph Dep. at 84:6, the panel selected a person from the list of applicants qualified for the 63IC2 position to fill the 63IC1 position. Ashenfelder Decl. at 230.
Lee counters that the Secretary's proffered reason is pretext for discrimination because Randolph departed from the "normal procedure" and instead used a previous list of qualified applicants for a separate, earlier-advertised position. Pl.'s Opp'n at 26.
Although "a variation from an established procedure can evince pretext," Weber v. Battista, 604 F.Supp.2d 71, 76 (D.D.C.2009) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 145, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)), Lee has not shown that it does here. The selection process was concededly unprecedented. See Def.'s Randolph Dep. at 82:1-4, 83:2-4. However, Lee's opposition identifies no evidence showing that NAVSEA's "bizarre series of personnel maneuvers" rose to the level of race and age discrimination. Pl.'s Opp'n at 8. For instance, Lee has not shown that NAVSEA was duty-bound
Lee claims that Seibel discriminated against her by reassigning her major countries of Australia, Egypt, and Korea to a younger, white coworker. To establish a general prima facie case of disparate treatment, "a plaintiff must show [(1)] that [she] `is a member of a protected class,' [(2)] that [she] `suffered an adverse employment action,' and [(3)] that `the unfavorable action gives rise to an inference of discrimination.'" Youssef v. FBI, 687 F.3d 397, 401 (D.C.Cir.2012) (quoting Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir.2002)). The Secretary contends that Lee cannot show that reassigning some of her work duties was an adverse employment action. The Secretary also argues that Seibel had a legitimate non-discriminatory business reason for reassigning the countries to Lee's coworkers.
The Secretary argues that Lee was not harmed by the reassignment since she retained similar professional responsibilities after the three countries were reassigned. Def.'s Br. at 34-35. "[A] reduction in responsibilities can constitute an adverse employment action." Loya v. Sebelius, 840 F.Supp.2d 245, 256 (D.D.C. 2012) (citing Czekalski v. Peters, 475 F.3d 360, 364-65 (D.C.Cir.2007)). It is an adverse employment action if the reduction causes the employee to "`experience materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.'" Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir. 2009) (quoting Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002)). Here, there is evidence that Australia, Egypt, and Korea made up Lee's "major work." Pl.'s Lee Dep. at 56:14-23; see also Seibel Dep., at 127:1-2, 127:22, 128:1. However, Lee has provided no evidence that she was "reassign[ed] with significantly different responsibilities," Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)), or that the temporary reassignment otherwise affected a term or condition of her employment.
The Secretary contends that Seibel temporarily reassigned Australia, Egypt, and Korea "to lighten [Lee's] workload and to more evenly distribute work among the analysts." Def.'s Br. at 37. There is evidence that NAVSEA conducted a workload analysis that revealed that Lee's workload was larger than her co-workers' workloads. See Def.'s Lee Dep. at 65:5-9. To more equitably distribute country assignments, Seibel reassigned Australia, Egypt, and Korea from Lee to others given the volume, importance, and complexity of work each country required. Seibel Dep. at 126:18-127:2. There is also evidence that the three countries were reassigned to help Lee better manage her workload. See id. at 129:20-22 (Seibel testifying that he explained to Lee that the reassignment would "allow her time to get her arms around her workload"); see also Pl.'s Lee Dep. at 73:1-2 (Lee testifying that Seibel told her that the countries were being reassigned because Lee "hadn't kept [a] database updated").
Lee identifies no evidence disputing that her workload was larger than that of her coworkers or that her supervisors sought to reduce it for that reason. But cf. Def.'s Lee Dep. at 65:5-66:23 (Lee testifying that she agreed to give up several countries assigned to her other than Australia, Egypt, and Korea because her workload was heavier than that of her coworkers). Because Lee has not shown that the Secretary's asserted non-discriminatory reason was not the actual reason for reducing Lee's work responsibilities, summary judgment must be granted for the Secretary.
In 1999, Lee submitted a written declaration in support of Bolling's same-sex sexual harassment claims. In December 2002, Lee testified at an EEOC hearing in support of Bolling's claims. Lee's alleges that her supervisors retaliated against her for engaging in those protected activities by denying her request for an accretion of duties promotion, not promoting Lee to the GS-13 program analyst position, and reassigning her major work responsibilities. The Secretary argues that Lee cannot establish a prima facie case of retaliation for any of the challenged actions. The Secretary further argues that it has legitimate non-retaliatory reasons for its employment decisions.
Title VII forbids employers from discriminating against an employee because she has "`opposed' a practice that Title VII forbids or has `made a charge, testified, assisted, or participated in' a Title VII `investigation, proceeding, or hearing.'" Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting 42 U.S.C. § 2000e-3(a)). The ADEA also prohibits employers from retaliating against employees who participate in protected conduct. See Gomez-Perez v. Potter, 553 U.S. 474, 488, 128 S.Ct. 1931, 170 L.Ed.2d 887 (2008); Forman v. Small, 271 F.3d 285, 297 (D.C.Cir.2001).
The Secretary argues that Lee cannot show a causal connection between her protected conduct and her 2004 non-promotion and non-selection because there is insufficient temporal proximity between Lee's protected conduct and either of NAVSEA's employment actions and Lee cannot point to other evidence demonstrating causation.
A plaintiff may demonstrate causation through direct evidence or circumstantial evidence, such as "the temporal proximity between the employer's knowledge of a protected activity and the adverse employment action." Rattigan v. Gonzales, 503 F.Supp.2d 56, 77 (D.D.C. 2007). If the plaintiff relies only on temporal proximity to establish causation, the plaintiff must show that "`the two events are very close in time.'" Hamilton, 666 F.3d at 1357 (quoting Woodruff v. Peters, 482 F.3d 521, 529 (D.C.Cir.2007)); see also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) ("The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be `very close[.]'"). Although neither the Supreme Court nor the D.C. Circuit has established a bright-line rule, "the cases cited by the Breeden Court seem to suggest that if a plaintiff relies upon temporal proximity alone to establish causation, the time span must be under three months." Buggs v. Powell, 293 F.Supp.2d 135, 148 (D.D.C.2003). However, courts should evaluate "the specific facts of each case to determine whether inferring causation is appropriate." Hamilton, 666 F.3d at 1358.
The Secretary argues that Lee cannot show a causal connection between her protected conduct and the allegedly materially adverse actions. In her amended complaint, Lee intimates that she was retaliated against only because of her involvement in the Bolling matter. See Am. Compl. ¶¶ 16-17.
As discussed above, Lee failed to demonstrate a genuine dispute of material fact as to the Secretary's proffered reasons for Lee's non-promotion and non-selection to GS-13 positions and the redistribution of Lee's work duties. That reasoning carries equal force in the retaliation context. See Gilbert v. Napolitano, 670 F.3d 258, 261 (D.C.Cir.2012). Thus, because Lee has not shown that a jury could infer retaliation from her prima facie case of retaliation "any evidence [she] present[ed] to attack the employer's proffered explanation for its actions[,]" and "any further evidence of discrimination[,]" Hamilton, 666 F.3d at 1351, summary judgment will be granted for the Secretary on Lee's retaliation claim.
For the foregoing reasons, the court concludes that [Dkt. # 29] the Secretary's motion for summary judgment is granted. An Order consistent with this Memorandum Opinion is separately issued this 26th day of July, 2013.