UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_______________________________ ) JAMES O. BOLDEN, ) ) Plaintiff, ) ) Civ. No. 04-1905(EGS) v. ) ) DONALD C. WINTER, Secretary ) Of the Navy, ) ) Defendant. ) )

MEMORANDUM OPINION

This case involves a discrimination claim brought under

Title VII and the Rehabilitation Act on the basis of sex, race

and disability. James O. Bolden (“plaintiff”), a black male with

a claimed disability, alleges that the Secretary of the Navy

(“defendant”)1 failed to promote him from GS-11 to GS-12 but

instead promoted a Filipina female employee without a disability.

Defendant alleges that plaintiff was not qualified for the

promotion and that he is not comparable to a female employee who

did receive the promotion. Pending before the court are the

parties’ cross-motions for summary judgment. This Court DENIES

1 Donald Winter, Secretary of the United States Department of the Navy, has been automatically substituted for his predecessor pursuant to Fed. R. Civ. P. 25(d)(1).

1 plaintiff’s Motion for Summary Judgment and GRANTS defendant’s

Cross-Motion for Summary Judgment.

I. BACKGROUND

Plaintiff, who represents himself, is a former employee of

the Department of Navy, Bureau of Medicine and Surgery (“BUMED”).

Compl. at 3. Prior to working at BUMED, Bolden worked as an

accountant for the U.S. Department of Justice in the U.S.

Marshals Service and the Community Oriented Policing Services as

well as for the U.S. Soldiers’ and Airmen’s House. Compl. at 3-

4. Plaintiff holds an ABS degree in Business Administration with

an emphasis in accounting. Compl. at 4. He was hired on June

18, 2000, as an operating accountant, GS-0510-11, and was

employed by BUMED until June 27, 2003, when he entered into

disability retirement. See Compl. Ex. J (Notification of

Personnel Action).

Steven Sninsky and Robert Andersson2 were plaintiff’s first-

and third-level supervisors, respectively. Compl. at 3, 5.

While at BUMED, Plaintiff was in a “career ladder” position,

which allows for non-competitive promotion between GS grades 9,

11, and 12. Def.’s Mem. at 2 (citing sealed Ex. 13, Dep. of

James Bolden at 41). According to the Navy Merit Promotion

2 Since this litigation has commenced, Robert Anderson has legally changed the spelling of his surname to Andersson.

2 Procedures Manual, “employees are given grade-building experience

and are promoted without further competition when they

demonstrate the ability to perform at the next higher grade

level, meet regulatory and qualification requirements, and there

is enough work at the full performance level for all employees in

the group.” Def.’s Mot. for Summ. J., Ex. 2 at 1. Vincent

Vaccaro, the Navy’s Director for Civilian Personnel Programs,

stated that promotion is conditioned on an employee meeting the

time in-grade requirements and demonstrating the ability to

successfully perform the duties and responsibilities of the

higher grade level. Id. at Ex. 3 (Aff. of Vincent Vaccaro).

Even if an employee has successfully performed at his current

level, promotions are not guaranteed, as a supervisor may elect

against promotion if s/he feels the employee is not capable of

performing successfully at the higher level. Id.

Bolden stated that on June 20, 2000, two days after being

hired, he submitted a “Statement of Physical Ability for Light

Duty Work” informing the Navy of certain physical limitations.

Compl., Ex. B. It is unclear from the evidence presented

whether Bolden’s supervisors were aware that he filed this

statement. Andersson testified that Bolden never requested any

accommodation related to a disability and that he was unaware

that Bolden was disabled. Def.’s Mot. for Summ. J., Ex. 6 (Aug.

24, 2004 Aff. of Andersson). Sninsky stated that while he did

3 observe that plaintiff walked with a limp, he was unaware of

Bolden’s status as disabled.3 Id. at 10 (Aug. 19, 2004 Dec. of

Sninsky). Sninsky also stated he did not see any impact of

Bolden’s claimed disability on his ability to do work and that

Bolden never asked for any accommodations. Id.

In a performance review of Plaintiff’s work from the period

of October 1, 2000, through September 30, 2001, plaintiff

received a score of “acceptable” indicating his work met all of

the critical elements in the review. Compl., Ex. C. To attain a

rating of “acceptable” according to the BUMED Civil Performance

Management Form, all critical elements must be rated as “met.”

Compl., Ex. C.

The critical elements and standards are defined as:

(1) REGARD FOR QUALITY Completes objectives and work assignments with a focus on outcomes that reflect improvements for internal and external customers. (2) RESOURCE MANAGEMENT Reduce inefficiencies in the system by planning and goal setting; creating or improving programs, procedures, or systems, displaying persistence and a concern for efficiency by promoting partnering and collaboration among stakeholders. (3) LEADERSHIP AND MANAGEMENT Seizes the opportunity to advance the vision/mission of Navy Medicine. Positions self as the leader and strives to ensure that everyone buys into the mission. (4) DIAGNOSTIC CAPABILITY Seeks information from multiple sources to deal with various situations; is sensitive to the needs, interest, and agendas of others; and, identifies the resolution of issues. (5) INFLUENCE Uses convincing strategies to

3 Bolden has not clearly stated in his pleadings that he fits the definition of disabled required to sue under the Rehabilitation Act. For the purposes of Defendant’s Motion for Summary Judgment, the Court accepts that Bolden meets the standard.

4 influence individuals or groups to the organization’s views; demonstrates awareness of political sensitivity; displays concern for image.

Compl., Ex. C.

Plaintiff was “rated” by Sninsky and “reviewed” by

Andersson. Id. The performance review for October 2000 through

September 2001 states, under the heading of “Strengths &

Accomplishments,” that “Mr. Bolden has continued to play an

important role in the daily operations of the Accounting

Division. Never afraid to get involved in new endeavors, gather

and analyze required information, or think outside of the box,

Mr. Bolden is a valued member of the Accounting Operations

Division team.” Id. Under the heading, “Area(s) of Focus and

Emphasis,” the review states that Bolden “worked tirelessly with

[BUMED] codes to develop standards for data collections to meet

other reimbursable billable requirements,” “[s]pearheaded the

NAVTRANS led effort to update all BUMED field activity Department

of Defense Address Activity Codes,” and “[a]ggressively

researched and reconciled prior year account balances to free up

funds for return to TMA.” Id. Plaintiff was also recognized in

this review for having presented at the summer session of the

NSHS Financial and Material Management Training Course (“FMMTC”)

class. Id. In his performance review for the period of October

1, 2001, through September 30, 2002, Bolden again received an

5 assessment of “acceptable” as rated by Sninsky and reviewed by

Maureen Queenan-Flores. Id.

In January 2002, approximately eighteen months after

plaintiff commenced work at BUMED, Sninsky submitted the names of

Bolden and his co-worker Jenny Carlos to Andersson for promotion

to the GS-12 level. Pl.’s Reply and Opp’n, Ex. 1 (email).

Sninsky stated that at the time that he submitted plaintiff’s

name, he thought promotion was automatic upon reaching the time-

in-grade requirement and independent of the employee’s skill or

ability. Def.’s Mot. for Summ. J., Exh. 11 (Jan 7, 2008 Aff. of

Sninsky). He stated that had he known the actual requirements,

he would not have recommended Bolden’s promotion to GS-12. Id.

According to Andersson, the same certificate referred Bolden,

Carlos (female of Filipino origin) and Wanda Creech (Black

female) for promotion.4 Id. at Ex. 6.

Within two or three weeks of recommending Bolden and Carlos

for promotion, Andersson told Sninsky that he wanted both of them

to attend the FMMTC, a twelve-week training in fiscal and

material management. Id. at Ex. 5 (Jan. 7, 2008 Aff. of

Andersson), Ex. 10. According to Andersson, this course is a

general requirement for new employees and something that he

4 Bolden also compares himself to two other employees who were promoted: (1) Jane Cunningham – a white female with no disability – who was already a GS-12 when she began work at BUMED; and (2) Raymond Anderson, plaintiff’s second-line supervisor.

6 viewed as specifically necessary for Bolden to get his skills and

performance up to the GS-12 level. Id. at Ex. 6 at 3-4.

Andersson stated that, in addition to Bolden attending the FMMTC

training, he wanted Sninsky to work with Bolden for an additional

six months prior to promoting him. Id.

In March 2002, plaintiff learned that Carlos had been

promoted to GS-12 and inquired with Sninsky as to the status of

his own promotion. Pl.’s Reply and Opp’n, Ex. 1. Sninsky

informed plaintiff that Andersson wanted him to complete the

FMMTC as a “prerequisite to promotion.” Def.’s Mot. for Summ.

J., Ex. 8 (email). Evidence on the record reflects that Bolden

was enrolled in the FMMTC class commencing on July 8, 2002 and

ending on September 28, 2002. Id. at Ex. 13. Plaintiff did

attend a spring 2002 FMMTC for approximately one week but did not

return to class. Id. at Ex. 10. Bolden claims that he was

unable to attend the classes because he had to go on medical

leave in early May 2002. Def.’s Mem., Ex. 9.

On April 18, 2002, Plaintiff contacted an Equal Employment

Opportunity (“EEO”) Counselor at the Department of the Navy. See

(a)(1). On July 3, 2002, plaintiff filed a

formal administrative complaint of discrimination based on race,

color, disability, sex, and reprisal. Def’s Mot. to Dismiss, Ex.

4 (Formal Complaint of Discrimination). That complaint was

dismissed as untimely by the Department of the Navy on August 23,

7 2002.

at Ex. 5 (Aug. 23, 2002 Letter from Isaac Oliver to

James O. Bolden). Plaintiff appealed the dismissal to the Equal

Employment Opportunity Commission (“EEOC”). See Bolden v.

England, Appeal No. 01A30279 (E.E.O.C. Mar. 24, 2004) (Decision).

On March 24, 2004, the EEOC reversed the Department of the Navy’s

determination, and the complaint was remanded to the agency for

investigation of the allegations.

The agency sent a letter to plaintiff on June 17, 2004,

detailing what issues were accepted for investigation, how “[t]he

scope of the investigation will be limited” to these issues, that

“the EEO investigator is not authorized to inquire into any other

matters,” and if plaintiff had other matters he wished to

complain about, he had to see an EEO Counselor immediately.

Def.’s Mot. to Dismiss, Ex. 7. (Memo. from Chief of Staff to Mr.

James O. Bolden, June 17, 2004). The agency identified two

issues that plaintiff complained were evidence of discrimination:

(1) Plaintiff alleged that his supervisor discriminated against

him when he held up his promotion to GS-12 by imposing additional

requirements on him but not on a female co-worker who received

her promotion; and (2) Plaintiff alleged that recent scrutiny of

his work performance caused him undue stress, tension, and

anxiety resulting in him receiving medical treatment and

medication. The EEO counselor acknowledged Bolden’s claim that

the alleged discrimination was based on race (Black), color

8 (Black), sex (male), reprisal (prior EEO activity), and

disability (physical and mental). Def.’s Mot. to Dismiss, Ex. 7.

The investigation began on August 24, 2004, and concluded on

September 30, 2004.

at Ex. 8 (Report of Investigation). The

EEO investigator reviewed documents and spoke with plaintiff’s

supervisors at BUMED and other personnel.

. The

Report of Investigation, date stamped October 13, 2004, states

that “[o]n September 10, 2004, [plaintiff] was provided an

opportunity to respond to Mr. Andersson’s testimony. But the

certified mail to [plaintiff] was unclaimed, and he also failed

to respond to the correspondence sent to him by first class mail

on the same date.”

.

On November 3, 2004, plaintiff filed this lawsuit, prior to

receiving a final decision from the agency. Plaintiff’s

complaint, which he amended on June 29, 2005, raised a number of

issues and claims against a number of defendants in this matter.

On March 27, 2006, this Court, ruling on parties’ cross-motions

for summary judgment, dismissed all of plaintiff’s claims except

for his Title VII and Rehabilitation Act of 1973 discrimination

claim on the basis of race, sex, and disability (physical and

mental) based on the Navy’s failure to promote him from GS-11 to

GS-12. Mem. Op. & Order (March 27, 2006).

9 II. DISCUSSION

A. Standard of Review

Summary judgment should be granted only if the moving party

has shown that there are no genuine issues of material fact and

the moving party is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56; Celotex Corp. v. Catrett,

(1986); Waterhouse v. District of Columbia,

(D.C. Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc.,

(1986)). The party seeking summary judgment bears

the initial burden of demonstrating the absence of a genuine

dispute of material fact. See Celotex,

.

In determining whether a genuine issue of material fact

exists, the court must view all facts in the light most favorable

to the non-moving party. See Matsushita Elec. Indus. Co. v.

Zenith Radio Corp.,

(1986) (citation omitted).

The non-moving party’s opposition, however, must consist of more

than mere unsupported allegations or denials and must be

supported by affidavits or other competent evidence setting forth

specific facts showing that there is a genuine issue for trial.

See Fed. R. Civ. P. 56(e); Celotex,

. Moreover,

if the evidence favoring the non-moving party is “merely

colorable, or is not significantly probative, summary judgment

10 may be granted.” Anderson,

(internal

citations omitted).

Although summary judgment “must be approached with special

caution in discrimination cases, a plaintiff is not relieved of

her obligation to support her allegations by affidavits or other

competent evidence showing that there is a genuine issue for

trial.” Morgan v. Fed. Home Loan Mortgage Corp.,

(D.D.C. 2001), aff'd,

(D.C. Cir. 2003)

(citations and internal quotation marks omitted); see also

Marshall v. James,

(D.D.C. 2003) (noting

that special caution “does not eliminate the use of summary

judgment in discrimination cases”) (citing cases). The court

views summary judgment motions in discrimination cases with the

appropriate caution, but the court cannot overlook a plaintiff’s

failure to submit evidence that creates a genuine factual dispute

or entitlement to judgment as a matter of law. See Wada v.

Tomlinson,

(D.D.C. 2007) (finding

that even though the “special standard” applied to motions for

summary judgment in employment discrimination cases is “more

exacting, it is not inherently preclusive” of a grant of summary

judgment in favor of defendants).

B. McDonnell Douglas Framework

Plaintiff claims discrimination under Title VII and the

Rehabilitation Act. Title VII makes it unlawful for a federal

11 government employer to discriminate “based on race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a).

The Rehabilitation Act provides that “[n]o otherwise qualified

individual with a disability” may be discriminated against by a

federal agency “solely by reason of her or his disability.”

(a).

Where there is no direct evidence of discrimination, the

court applies the McDonnell Douglas burden-shifting framework

under which the plaintiff must first establish a prima facie case

of discrimination. McDonnell Douglas Corp. v. Green,

(1973). Disability discrimination claims brought

pursuant to the Rehabilitation Act are subject to the same

McDonnell Douglas burden-shifting standard as Title VII claims.

See Rosell v. Kelliher,

(D.D.C. 2006).

Accordingly, the Court analyzes all discrimination claims

together. Under the McDonnell Douglas framework, the plaintiff

has the initial burden of establishing a prima facie case by a

preponderance of the evidence. See McDonnell Douglas,

; Stella v. Mineta,

(D.C. Cir. 2002).

In most cases, to make out a prima facie case of

discrimination, a plaintiff must demonstrate that: “(1) [he] is a

member of a protected class; (2) [he] has suffered an adverse

employment action; and (3) the unfavorable action gives rise to

an inference of discrimination.” Czekalski v. Peters,

(D.C. Cir. 2007) (quoting George v. Leavitt,

(D.C. Cir. 2005)); Stella,

. In certain

circumstances, however, such as where the plaintiff sought only

an increase in grade and pay and not promotion to a vacant

position, the D.C. Circuit has found that “‘the traditional

McDonnell Douglas test does not fit’” and the Court therefore

“‘adjust[s] the McDonnell [Douglas] formula to ask whether a

similarly situated person . . . requested and received the

benefit [plaintiff] sought.’” Taylor v. Small,

(D.C. Cir. 2003) (quoting Cones v. Shalala,

(D.C. Cir. 2000)). In Taylor, the D.C. Circuit clearly

outlined what is required in order for a plaintiff to make out a

prima facie case of discriminatory refusal to promote where the

plaintiff is only claiming entitlement to an increase in pay or

grade based on current responsibilities rather than promotion to

a vacant position. “[T]he plaintiff must show that she sought

and was denied a promotion for which she was qualified, and that

‘other employees of similar qualifications . . . were indeed

promoted at the time the plaintiff's request for promotion was

denied.’”

(quoting Bundy v. Jackson,

(D.C.

Cir. 1981)).

Should the plaintiff succeed in making out a prima facie

case, the “burden then must shift to the employer to articulate

some legitimate, nondiscriminatory reason” for its actions.

13 McDonnell Douglas,

. Defendant only has the

burden of production and “need not persuade the court that it was

actually motivated by the proffered reasons.” Tex. Dep't of

Cmty. Affairs v. Burdine,

(1981).

The plaintiff must then demonstrate that the employer’s

stated reason was pretextual and that the true reason was

discriminatory. Stella,

. According to Aka v.

Washington Hospital Center,

(D.C. Cir. 1998), the

pretextual analysis proceeds by considering:

whether the jury could infer discrimination from the combination of (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer’s proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer) or any contrary evidence that may be available to the employer (such as evidence of a strong track record in equal opportunity employment).

. “The ultimate burden of persuading the trier of

fact that the defendant intentionally discriminated against the

plaintiff remains at all times with the plaintiff.” Reeves v.

Sanderson Plumbing Prod., Inc.,

(2000) (quoting

Burdine,

). “As courts are not free to second-

guess an employer’s business judgment,” a plaintiff’s mere

speculations are “insufficient to create a genuine issue of fact

regarding [an employer’s] articulated reasons for [its decisions]

14 and avoid summary judgment.” Branson v. Price River Coal Co.,

(10th Cir. 1988).

C. Failure to Promote

To survive summary judgment in an action for failure to

promote, a plaintiff must show (1) that he sought and was denied

a promotion, (2) for which he was qualified, and (3) that another

employee of similar qualifications was promoted at the time the

plaintiff’s request for promotion was denied. Taylor,

. Bolden has demonstrated the first element -- that he

sought and was denied a promotion -- but he has not clearly

demonstrated the latter two elements.

Plaintiff alleges discrimination on account of his race,

sex, and disability based on the Navy’s failure to promote him

from the GS-11 level to GS-12 in 2002. Plaintiff claims that he

met the requirements to receive a career promotion to a GS-12

level but was denied that promotion. Compl. at 5. Plaintiff

also argues that he was qualified for the promotion because he

was given responsibility for the GS-13 level functions of Tom

Bezila. Pl.’s Reply and Opp’n at 3. Plaintiff points to his

performance evaluations, which praise his involvement in the

division, his tireless work, his aggressive research, and his

spearheading of a BUMED accounting initiative. Compl., Ex. C.

Plaintiff further claims that similarly situated white, female

15 and/or non-disabled employees were promoted under different

standards of performance. Pl.’s Reply and Opp’n at 7.

Defendant argues that plaintiff cannot make out a prima

facie case of discrimination because he was neither qualified for

a career promotion to the next higher grade level nor can he

point to similarly situated employees who were promoted when he

was not. Def.’s Mem. at 1. Defendant notes that the

determination of an employee’s qualifications for promotion is a

personnel decision in the discretion of an employer. See

. Defendant maintains that the fact that Bolden had

met the time-in-grade requirement did not automatically qualify

him for a promotion.

1. Plaintiff’s Qualifications

In order for Bolden to make out his prima facie case of

discrimination, he must demonstrate that he was qualified to be

promoted to the GS-12 level. “An essential requirement for a

prima facie case of discrimination based on failure to promote is

plaintiff’s qualification for the promotion position. A career-

ladder promotion is contingent on the employee’s ability to

perform at the next higher grade.” Nails v. England,

(D.D.C. 2004) (internal citation omitted).

According to the Merit Promotion Procedures Manual, “[e]mployees

are not entitled to promotion at any time and no promise of

promotion is implied by selection to a career ladder position.”

16 Def.’s Mot. for Summ. J., Ex. 2. The Manual states that an

employee in a career-ladder position may not be promoted “due to

inability to perform at the higher grade level, within a

reasonable amount of time.”

Defendant does not dispute that plaintiff met the one-year

time-in-grade to be eligible for a promotion. Defendant does

dispute, however, that plaintiff was qualified for a promotion.

Specifically, defendant argues that plaintiff failed to meet the

performance requirements for a promotion to a GS-12 because he

was lacking “in-depth knowledge of Navy Medical Accounting and of

BUMED Financial Management Organization” and produced errors

stemming from “unfamiliarity with BUMED accounting and

plaintiff’s reluctance to ask others for assistance and be a team

player, all of which are necessary for a GS-12 employee of an

accounting team." Def.’s Mem. at 12 (citing Ex. 5 6, 8, 17).

Andersson, who decided whether or not Bolden was promoted,

testified that “[he] did not think that [Bolden] was performing

at the GS-11 level. There were a lot of errors in his work, and

unfamiliarity, and questioning of others. It was clear that he

did not understand and was too proud to ask questions.” Def.’s

Mot. for Summ. J., Ex. 6 at 3. Additionally, Andersson noted

that plaintiff often submitted his work directly to him rather

than following the chain of command. Id. at 4.

17 Plaintiff has not shown that his qualification required his

promotion; he failed to demonstrate to his supervisors that he

was able to perform at the GS-12 level. The evidence on the

record indicates that Bolden’s first level supervisor, Sninsky,

“frequently noted errors in plaintiff’s work, some of which were

basic, and did not feel that plaintiff had the understanding and

familiarity with the BUMED accounting system or organization

necessary to perform at the GS-12 level.” Id. at 12.

Specifically, Sninsky sent an e-mail to plaintiff on April 27,

2002, correcting errors in his work and stating that “this is a

performance issue which you need to address immediately;” on May

3, 2002, Sninsky sent another e-mail to Bolden correcting an

error and stating that “[t]his is another simple line of

accounting error that needs to be corrected.” Def.’s Reply and

Opp’n at 10 (quoting Exs. 2, 3). There is also evidence on the

record that plaintiff’s failure to complete the FMMTC training

course –- which was meant to bring his work-product and

understanding of accounting up to the level of a GS-12 –- was a

major factor in his failure to secure a promotion from

defendants. Id. at 10. While plaintiff has produced evidence

that he attended other training courses while employed by BUMED,

he does not contest that he elected not to attend the FMMTC

course, as required of new employees. Id. at 7.

18 Plaintiff’s performance evaluations do suggest that he was

performing well and meeting all of the requirements for his

position. Bolden was also given increased responsibility,

including being reassigned the tasks of a GS-13 employee, an

indication that he may have been performing work that was above

his GS-11 status. In Kilby-Robb v. Spellings,

(D.D.C. 2007), however, the court found that a plaintiff

failed to establish that she was qualified for a promotion based

solely upon her responsibilities:

Even assuming that she performed all of the duties she claims to have performed as Acting Team Leader of the PIRC team -- a matter that is contested by [Defendant] -- plaintiff has not demonstrated that such duties alone were sufficient to support a promotion in grade or salary. Plaintiff presented an overwhelming number of exhibits with her opposition, but the bulk of her exhibits were meant "to demonstrate to the court the volume of work she was required to perform." Mere volume of work, however, does not establish that a grade promotion was warranted.

(citation omitted). Bolden has similarly produced

evidence that he had a large volume of work and had taken on

duties of an employee of higher grade. This, however, is

insufficient because plaintiff does not demonstrate that “duties

alone were sufficient to support a promotion.”

In Wiley v. Glassman,

(D.C. Cir. 2007), the

D.C. Circuit found that a plaintiff failed to offer evidence that

her position deserved to be reclassified at a higher grade due to

an accretion of more duties and responsibilities. See

at

19 156. The D.C. Circuit noted that the plaintiff offered

“virtually nothing to establish what her original duties as a GS-

12 International Radio Broadcaster had been, what duties she was

performing when she was denied a promotion, and what

responsibilities the GS-13 position commonly entailed.”

. As in Wiley, Bolden has not specifically stated what his

duties were or what his new duties would be in order to

demonstrate that he was in fact qualified for promotion to GS-12.

Bolden points to his “acceptable” ratings in his performance

evaluations to indicate that he was qualified for the GS-12

position, but these are only relevant to his GS-11 abilities as

that is what they evaluate, and do not clearly show that he was

able to perform the tasks of the next level.

In Luster v. Freeman,

(D.D.C. Oct. 27, 1980), a

plaintiff “clearly established” a prima facie of discrimination

when he was not promoted although he had been eligible for

promotion for a significant amount of time, had “many successful

years of service,” and had received two previous merit

promotions.

. The only negative evaluations the

plaintiff received were close in time to associations with

another employee who filed a discrimination claim raising

suspicions of racially motivated reprisals.

Based on this

evidence, the court concluded that the preponderance of the

evidence showed that “but for racial discrimination against him,

20 he would have been promoted to the GS-9 level.”

. In

contrast to Luster, Bolden was only in service at BUMED for the

minimum time required to be promoted to GS-12, and there is

evidence on the record that his supervisors felt he would benefit

from extended time to meet the requirements of work at the GS-11

level. Bolden does not present compelling evidence that he was

definitively qualified for promotion such that he would have been

promoted but for discrimination by BUMED.

2. Similarly Situated

Neither does Plaintiff satisfy the final part of the prima

facie test outlined in Taylor. Plaintiff must demonstrate that

other employees of similar qualifications –- who do not exhibit

any of his claimed protected traits -- were promoted at the time

his request for promotion was denied. To be similarly situated a

“plaintiff . . . must demonstrate that all of the relevant

aspects of [his] employment situation were ‘nearly identical’ to

those of [his comparables].” Holbrook v. Reno,

(D.C. Cir. 1999) (citation and internal quotation marks omitted).

In Taylor, the plaintiff failed to demonstrate that she was

similarly situated to other employees receiving promotions.

Taylor,

. The plaintiff there pointed to four

white employees promoted from GS-11 to GS-12, but the evidence

demonstrated that three of the employees had over ten years in

grade GS-11 prior to promotion and the other was a supervisory

21 archivist in a GS-11/GS-12 career-ladder position.

Similarly, in Wiley, the D.C. Circuit held that the plaintiff had

produced nothing to rebut the “clear evidence” offered by the

defendant that the employee to whom plaintiff sought to compare

herself had experienced an increase in responsibilities over time

which justified his promotion. Wiley,

.

Plaintiff has failed to establish that his employment

situation was similar in all relevant regards to those with whom

he seeks comparison, the standard in the D.C. Circuit. See

Holbrook,

. Plaintiff points to three individuals

who he claims were similarly situated to him and who were

promoted when he was not: Jane Cunningham, Raymond Anderson, and

Jenny Carlos. None of the individuals to whom Bolden compares

himself to are similarly situated. Jane Cunningham –- a white

female with no disability -- was already a GS-12 when she began

work at BUMED; she was also in a different department and had a

different first-line supervisor than Bolden. See Def.’s Mem. at

13 (citing Ex. 6 at 6). Raymond Anderson was plaintiff’s second-

line supervisor and thus also not similarly situated to him.

The only potentially comparable employee who received a

promotion was Jenny Carlos -- a Filipina female with no

disability. Although Carlos worked in the same department as

Bolden and was hired at the same time, defendant notes that her

previous experience at BUMED and her exemplary record, including

22 being awarded “Civilian of the Quarter” and “Civilian of the

Year” in 2001, distinguishes her qualifications from those of

plaintiff. Carlos had previously worked at BUMED as an

accounting technician for fifteen months prior to returning in

2000 as a GS-11 accountant. At the time that both Bolden and

Carlos were considered for promotion, she had worked at BUMED

twice as long as plaintiff. Furthermore, Carlos did attend the

same FMMTC class in which the plaintiff declined to participate.

Though she was unable to complete the course due to a family

medical emergency, according to Andersson, her non-completion of

the course was not a bar to her promotion because she had already

demonstrated an ability to work at the GS-12 level. Def.’s Reply

and Opp’n at 8.

Sninsky, who supervised both Carlos and Bolden, testified

that “Bolden was not a top performer. He was doing basic work,

such as Coast Guard billing and not policy type work or anything

else which was considered more advanced and would have required

more skill.” Def. Mot. for Summ. J., Ex. 11 7. In comparison,

“[Carlos] was a much better performer than Bolden. When there

were new projects in the office, Jenny Carlos would frequently

volunteer, whereas Bolden would not want to be involved.”

at

Ex. 11-8.

Plaintiff attaches a number of exhibits to his pleadings in

an effort to show that he was similarly situated to Carlos;

23 however, the evidence neither supports his arguments nor

contradicts the key differences pointed to by defendants between

plaintiff and his alleged comparators as required to rebut

defendant’s non-discriminatory explanation.

III. CONCLUSION

Bolden has not met his burden of demonstrating a prima facie

case of employment discrimination under Taylor. Accordingly,

plaintiff’s Motion for Summary Judgment is DENIED; defendant’s

cross-motion for Summary Judgment is GRANTED. An appropriate

Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge March 16, 2009

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