KANGETHE v. DISTRICT OF COLUMBIA GOVERNMENT

Filing 37

MEMORANDUM OPINION Regarding 36 ORDER DENYING Defendant's 30 Motion for Summary Judgment. Signed by Judge Colleen Kollar-Kotelly on 11/20/2017. (lcckk3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN KANGETHE,
Plaintiff
v.

Civil Action No. 15-2185 (CKK)

THE DISTRICT OF COLUMBIA
Defendant
MEMORANDUM OPINION
(November 20, 2017)
This is an age discrimination and retaliation case brought by an employee of the District
of Columbia Department of Employment Services (“DOES”). Plaintiff John Kangethe, who is
representing himself pro se, alleges that he was passed over for a promotion on the basis of his
age and as retaliation for earlier discrimination complaints. Specifically, Plaintiff alleges that he
was not selected to fill an Associate Director position with the Office of Labor Market Research
and Information (“LMI AD Position”). He also alleges that he was retaliated against when he
was denied leave to attend the deposition of a party to a prior discrimination lawsuit. Plaintiff
brings this lawsuit against the District of Columbia under the Age Discrimination in Employment
Act (“ADEA”), the District of Columbia Human Rights Act (“DCHRA”) and Title VII of the
Civil Rights Act (“Title VII”).
Before the Court is Defendant District of Columbia’s [30] Motion for Summary
Judgment. Defendant claims that it is entitled to summary judgment for two reasons. First,
Defendant argues that Plaintiff cannot establish his prima facie case with respect to his claim that
he was denied leave, because this alleged denial did not constitute an “adverse action.” Second,
Defendant argues that Plaintiff has not rebutted Defendant’s proffered legitimate nondiscriminatory reason for not selecting Plaintiff for the LMI AD Position.

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Upon consideration of the pleadings, 1 the relevant legal authorities, and the record as a
whole, the Court DENIES Defendant’s motion. First, the Court finds that a reasonable jury
could conclude that Defendant’s failure to approve Plaintiff’s request for leave in a timely
fashion, thereby denying him the opportunity to prepare for the deposition of a key witness to his
earlier discrimination lawsuit, was sufficiently adverse to be actionable. Second, although a
close call, the Court finds that Plaintiff has offered enough evidence to rebut Defendant’s
proffered non-discriminatory reason for not selecting him for the LMI AD Position and that it
would be inappropriate for the Court to summarily adjudicate that claim.
I. BACKGROUND
Plaintiff John Kangethe is approximately 61 years old. Def.’s Stmt. of Material Facts not
in Dispute, ECF No. 30 (“Def.’s Stmt.”), at ¶ 1. He is a Labor Economist at DOES. Id.
A. Denial of Plaintiff’s Request for Leave
On April 7, 2014, Plaintiff submitted a request to take eight hours of leave from work on
April 9, 2014 so that he could prepare for and attend the deposition of a key witness to a prior
discrimination lawsuit that he had filed against the District of Columbia. Id. ¶ 39; Depo. of John
Kangethe, ECF No. 30-19 (“Pl.’s Depo.”), at 6:15-20, 21:18-21. The deposition was scheduled
for 3:30 pm. Def.’s Stmt. ¶ 37. Having received no response to his request by the morning of
the ninth, Plaintiff reported to work. Id. ¶¶ 42-43. He e-mailed his supervisor reminding him of
his request and notifying him that he would be taking off four hours in the afternoon. Id.

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The Court’s consideration has focused on the following documents and their attachments and/or
exhibits: Def.’s Mot. for Summary Judgment, ECF No. 30 (“Def.’s Mot.”); Pl.’s Opp’n to Def.’s
Mot. for Summary Judgment, ECF No. 34 (“Pl.’s Opp’n”); and Def.’s Reply in Support of Mot.
for Summary Judgment, ECF No. 35 (“Def.’s Reply”). In an exercise of its discretion, the Court
finds that holding oral argument in this action would not be of assistance in rendering a decision.
See LCvR 7(f).
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Plaintiff still got no response, but he went to the deposition. Id. ¶ 45. Plaintiff’s supervisor later
claimed to have forgotten to respond to Plaintiff’s request and e-mail. Id. ¶ 47. The supervisor
did not charge Plaintiff with leave for the four hours of work he missed on the afternoon of the
ninth. Id. ¶ 49. However, Plaintiff did not take the four hours of leave he had requested on the
morning of that day that he had intended to use to prepare for the deposition. Pl.’s Depo. at
21:18-21.
B. The LMI AD Position
A vacancy announcement for the LMI AD Position was issued on May 6, 2014 (“Vacancy
No. 25001”). Def.’s Stmt. ¶ 6. DOES Human Resource specialist Lachelle Savoy conducted an
initial review and scoring of the applications that were submitted and decided which applicants
were sufficiently qualified. Id. ¶ 3; see also generally Depo. of Lachelle Savoy Rogers, ECF No.
30-17 (“Savoy Depo.”). One of the factors Ms. Savoy was required to consider when scoring
applications was whether the applicant had “five years of specialized experience in supervisory
or project coordination assignments involving a staff of professional economists or researchers,
and experience in conducting economic analyses and studies regarding highly complex and
sophisticated issues.” Def.’s Stmt. ¶ 22.
Plaintiff applied to Vacancy No. 25001. Id. ¶ 6. Ms. Savoy testified that she scored
Plaintiff’s application and that his score was beneath the threshold required for further
consideration. Savoy Depo. at 29:10-12. Ms. Savoy testified that she was unable to score
Plaintiff any higher than she did because his application did not contain a resume. Id. at 29:1931:20. In particular, she testified that the absence of a resume rendered her unable to assess
whether Plaintiff had the requisite experience in supervisory or project coordination assignments.
Id. at 16:8-20, 29:19-31:20. Plaintiff contends that this is false—he testified that he did submit a

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resume and that Ms. Savoy had more than enough material to determine Plaintiff’s experience.
Pl.’s Depo. at 24:9-17. Vacancy No. 25001 was cancelled after no one had been chosen for the
position for sixty days. Savoy Depo. at 33:2-14.
However, a vacancy announcement for the same LMI AD Position was re-posted on
August 11, 2014 (“Vacancy No. 25461”). Def.’s Stmt. ¶ 14. It is undisputed that Plaintiff did
not submit an application for Vacancy No. 25461. Id. ¶ 7. Saidou Diallo, an economist
employed at DOES who is much younger than Plaintiff, did submit an application and was
selected for the position. Id. ¶¶ 16-17.
II. LEGAL STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to
the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to
specific parts of the record—including deposition testimony, documentary evidence, affidavits or
declarations, or other competent evidence—in support of its position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually establish the absence or presence of a
genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual

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basis in the record cannot create a genuine dispute sufficient to survive summary judgment. See
Ass’n of Flight Attendants-CWA, AFL-CIO v. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C. Cir.
2009). Moreover, where “a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact,” the district court may “consider the fact undisputed for
purposes of the motion.” Fed. R. Civ. P. 56(e).
When faced with a motion for summary judgment, the district court may not make
credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the
light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty
Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are
susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine
“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477
U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). “If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50
(internal citations omitted).
In recognition of the difficulty in uncovering clear evidence of discriminatory or
retaliatory intent, the district court should approach summary judgment in an action for
employment discrimination or retaliation with “special caution.” Aka v. Wash. Hosp. Ctr., 116
F.3d 876, 879-80 (D.C. Cir. 1997), vacated on other grounds, 156 F.3d 1284 (D.C. Cir. 1998)
(en banc). Be that as it may, the plaintiff is not relieved of his burden to support his allegations

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with competent evidence. Brown v. Mills, 674 F. Supp. 2d 182, 188 (D.D.C. 2009). As in any
context, where the plaintiff would bear the burden of proof on a dispositive issue at trial, at the
summary judgment stage he bears the burden of production to designate specific facts showing
that there exists a genuine dispute requiring trial. Ricci v. DeStefano, 557 U.S. 557, 586 (2009).
Otherwise, the plaintiff could effectively defeat the “central purpose” of the summary judgment
device—namely, “to weed out those cases insufficiently meritorious to warrant . . . trial”—
simply by way of offering conclusory allegations, speculation, and argument. Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999).
III. DISCUSSION
The Court will deny Defendant’s motion for summary judgment for the reasons set forth
below. Although a close call, the Court finds that there are genuine disputes of fact with respect
to Plaintiff’s claims regarding both his request for leave to attend a deposition and his nonselection for the LMI AD Position. Viewing the evidence in the light most favorable to Plaintiff
and granting him all reasonable inferences, the Court concludes that a reasonable jury could find
for Plaintiff.
A. Claims at Issue
As a threshold matter, the Court clarifies what claims are still at issue in this case. At the
motion to dismiss stage, the Court found that the only adverse actions Plaintiff had adequately
pled were Defendant’s alleged refusal to grant him leave to attend the deposition of a party to his
prior lawsuit and Defendant’s alleged failure to select Plaintiff for a permanent LMI AD
Position. See Kangethe v. D.C., 206 F. Supp. 3d 661, 668-73 (D.D.C. 2016). These are the only
adverse actions currently remaining in this case. To the extent Plaintiff discusses other actions in
his opposition to Defendant’s motion for summary judgment—e.g., his non-selection for a

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temporary LMI AD Position—the Court clarifies that Plaintiff has no separate claim based on
these actions in this case.
Moreover, in his opposition Plaintiff attempts to inject a new claim into this case. He
states that “since the filing of [his] Complaint, the extensive e-discovery conducted in this case
reveals Dr. Kangethe was subjected to diminution of duties and responsibilities by his superiors.”
Pl.’s Opp’n at 22. This claim was not alleged in Plaintiff’s Complaint and has never been raised
before now. It is not a part of this case. See Harrison v. Office of the Architect of the Capitol,
964 F. Supp. 2d 81, 95 (D.D.C. 2013), aff’d sub nom. Harrison v. Office of Architect of Capitol,
No. 14-5287, 2015 WL 5209639 (D.C. Cir. July 16, 2015) (“It is axiomatic that the Plaintiff
cannot amend her Complaint by the briefs in support of or in opposition to a motion for summary
judgment.”).
B. Defendant’s Effective Denial of Plaintiff’s Request for Leave
Defendant first argues that it is entitled to summary judgment on Plaintiff’s claim that his
request for leave to attend a deposition was denied because that alleged “denial” did not
constitute an “adverse action.” The Court does not agree that this issue can be resolved through
summary judgment.
For the purposes of Plaintiff’s retaliation claim, to constitute an adverse action an
employment action must be “materially adverse, ‘which in this context means it well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.’”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales,
438 F.3d 1211, 1219 (D.C. Cir. 2006) (internal quotation marks omitted)). At the motion to
dismiss stage, the Court declined to rule that the alleged denial of leave in this case could not
constitute an adverse action as a matter of law. It noted that a number of courts in this Circuit

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have held that, under certain circumstances, “a denial of leave can constitute materially adverse
action.” Hyson v. Architect of Capitol, 802 F. Supp. 2d 84, 103 (D.D.C. 2011) (emphasis
omitted); Nurriddin v. Bolden, 674 F. Supp. 2d 64, 90 (D.D.C. 2009) (rejecting argument that
denial of leave is inherently not an adverse action); see also Wiley v. Glassman, 511 F.3d 151,
159 (D.C. Cir. 2007) (affirming summary judgment for defendant on retaliation claim where
employee alleged she was denied paid leave to attend depositions in her pending discrimination
lawsuit, but relying on fact that guidelines applicable to her employment did not grant paid leave
to attend such depositions). The Court declined to rule definitively on the issue on the pleadings
because, in the absence of any factual record, it could not say whether or not the denial of leave
in this case had affected Plaintiff. See Newton v. Office of the Architect of the Capitol, 905 F.
Supp. 2d 88, 93 (D.D.C. 2012), aff’d, 598 F. App’x 12 (D.C. Cir. 2015) (holding “that sick leave
restrictions did not constitute a ‘materially adverse’ action where the restrictions had never
actually affected the plaintiff.”).
Discovery is now complete and the record shows that Plaintiff was meaningfully affected
by the denial of leave. His supervisor’s failure to timely approve his request resulted in his not
taking leave for the first half of the day on April 9, 2014, which he had intended to use to prepare
for an important deposition in his prior discrimination lawsuit. Although the amount of leave
effectively denied to Plaintiff—four hours—may seem fairly small, the practical effect of that
denial could strike a reasonable jury as significant given that it denied Plaintiff the opportunity to
prepare for an important event in his discrimination lawsuit. See Batson v. Powell, 912 F. Supp.
565, 579 (D.D.C. 1996), aff’d, 203 F.3d 51 (D.C. Cir. 1999) (holding that “[d]enial of leave to
attend a [EEO] counseling meeting can qualify as an adverse employment action.”).

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This material impact on Plaintiff distinguishes this case from others in which a denial of
leave had no real effect on the plaintiff. See, e.g., Hyson, 802 F. Supp. 2d at 103 (holding that
plaintiff’s “request was eventually granted, albeit after a delay, and such a delay would not deter
a reasonable employee from pursuing a charge of discrimination.”) (internal citation omitted).
Similarly, the fact that Plaintiff was effectively not able to leave for the full eight hours requested
distinguishes his case from others cited by the Defendant in which an employer was able to
“cure” an otherwise adverse action. Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003).
Defendant’s belated “grant” of Plaintiff’s request for leave in this case was not a complete cure,
because Plaintiff was unable to take four hours off that he had requested to prepare for the
deposition. 2
To be clear, this Memorandum Opinion should not be interpreted as holding that
Defendant’s failure to timely grant Plaintiff the requested leave is an adverse action as a matter
of law. The Court simply holds that this factual dispute is best left for a jury to decide.
“Whether a particular adverse action satisfies the materiality threshold is generally a jury
question, with [the Court’s] role limited to determining whether, viewing the evidence in the
light most favorable to the plaintiff, a reasonable jury could find the action materially adverse.”
Rattigan v. Holder, 643 F.3d 975, 986 (D.C. Cir. 2011), vacated on other grounds, No. 10-5014,
2011 WL 4101538 (D.C. Cir. Sept. 13, 2011). Here, a reasonable jury could find for Plaintiff.
Summary judgment is accordingly inappropriate.

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Defendant places emphasis on the allegedly “inadvertent” nature of Plaintiff’s supervisor’s
failure to grant Plaintiff leave, Def.’s Mot. at 13, but the supervisor’s intent is irrelevant to the
question of whether the denial had a sufficiently adverse impact on Plaintiff so as to constitute an
“adverse action.”
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C. Defendant’s Non-Selection of Plaintiff for the LMI AD Position
Next, Defendant seeks summary judgment on Plaintiff’s claim related to his nonselection for the LMI AD Position. Defendant argues that Plaintiff has not offered sufficient
evidence to rebut its proffered non-discriminatory reason for its decision. It is well-established
that “it is no longer relevant” if Plaintiff established a prima facie case once Defendant has
proffered a non-discriminatory explanation for its conduct. U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 715 (1983). Because Defendant has proffered allegedly nondiscriminatory reasons for its failure to promote Plaintiff, setting forth facts to establish a prima
facie case would be “an unnecessary sideshow.” Brady v. Sgt. at Arms, 520 F.3d 490, 494 (D.C.
Cir. 2008). Rather, this Court “need not- and should not decide” whether Plaintiff has made out a
prima facie case. Id. (emphasis in original). The Court need only determine whether Plaintiff
has “produced sufficient evidence for a reasonable jury to find the [Defendant’s] nondiscriminatory reason was not the actual reason and that the employer intentionally discriminated
against the employee on the basis of” a protected status. Id.
Defendant proffers two non-discriminatory reasons for not selecting Plaintiff: one reason
for not selecting him for Vacancy No. 25001, and another for Vacancy No. 25461. The Court
begins by noting its agreement with Defendant that Plaintiff has not raised genuine factual issues
relating to Defendant’s proffered reason for not selecting him for Vacancy No. 25461.
Defendant represents that Plaintiff was not selected to fill this vacancy because he did not submit
an application. Ms. Savoy testified that this failure to apply was the reason she could not select
Plaintiff for further consideration for this particular vacancy. Savoy Depo. at 49:19-50:2. This is

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a legitimate, non-discriminatory reason for not selecting Plaintiff, and one which Plaintiff has not
factually rebutted. 3
Relying on International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977),
Plaintiff argues that he could qualify as a “constructive applicant” with respect to Vacancy No.
25461. That case, however, is inapposite. It dealt with an alleged “pattern and practice of
employment discrimination” against a large group of employees. Id. at 328. The issue before
the Supreme Court was whether class-wide relief could extend to employees who had not in fact
applied for and been denied promotions. Id. at 363. The Supreme Court decided “that an
incumbent employee’s failure to apply for a job is not an inexorable bar to an award of
retroactive seniority,” and that “[i]ndividual nonapplicants must be given an opportunity to
undertake their difficult task of proving that they should be treated as applicants and therefore are
presumptively entitled to relief accordingly.” Id. at 364. Whatever possible relevance this
holding might have to this case, it does not aid Plaintiff to prove that Defendant’s nondiscriminatory reason for not selecting him for Vacancy No. 25461 was pretext.
However, Plaintiff’s failure to apply to the second vacancy announcement for the LMI
AD Position (Vacancy No. 25461) is not fatal to his case. Plaintiff may still pursue his claim
with respect to the LMI AD Position on the basis of his application to the first vacancy
announcement (Vacancy No. 25001), because Plaintiff applied to that announcement and, despite
the fact that the announcement was subsequently cancelled, the position effectively remained
vacant and Defendant continued to seek applicants. See Cones v. Shalala, 199 F.3d 512, 516

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At the motion to dismiss stage, the Court noted that Plaintiff had alleged that the applicant who
was eventually chosen for the position also had not submitted an application. Kangethe, 206 F.
Supp. 3d at 672-73. After discovery, Plaintiff appears to have retracted that allegation and
acknowledges now that this individual did in fact apply to Vacancy No. 25461.
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(D.C. Cir. 2000) (holding that to establish a prima facie case under Title VII, “the plaintiff must
show that (1) he is a member of a protected class; (2) he applied for and was qualified for an
available position; (3) despite his qualifications he was rejected; and (4) either someone not of
his protected class filled the position or the position remained vacant and the employer
continued to seek applicants.”) (emphasis added); Carter v. George Washington Univ., 387 F.3d
872, 882-83 (D.C. Cir. 2004) (holding that plaintiff can state prima facie claim for discrimination
where Defendant “withdrew the position for lack of qualified applicants and then, several months
later, restructured the position, increased the salary, and convinced the employee who had last
held the position to return” because “the position not only remained unfilled, but, as shown by
[defendant’s] later efforts to bring back the former employee, the [defendant] still needed
someone to occupy the position.”).
Accordingly, the Court moves on to assess whether Plaintiff has adequately rebutted
Defendant’s proffered non-discriminatory reason for its failure to select him based on his
application to the initial vacancy for the LMI AD Position (Vacancy No. 25001). Defendant
represents that Plaintiff was not selected for this vacancy because the individual screening
applications for the position determined that he did not have sufficient experience, in large part
because he had not submitted his resume as part of his application packet.
The Court has carefully considered the entire record in this case and concludes that,
although a close call, a reasonable jury could find that Plaintiff has satisfied his burden of
rebutting this explanation. Plaintiff contends that he did submit a resume with his application,
and has offered evidence to support that contention. Plaintiff himself testified that he submitted
a resume, Pl.’s Depo. at 24:9-17, and he also presented an e-mail that he received from

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Defendant after submitting his materials that stated “[y]our online resume has been successfully
submitted,” Pl.’s Ex. 39, ECF No 34-1 at 53.
To be sure, Defendant vigorously disputes this point, and has competing evidence to
support its position. Defendant has offered testimony from Ms. Savoy that there was no resume
submitted with the application. Savoy Depo. at 31:6-14. It has also submitted computer
screenshots from the program used by Defendant to manage applications that appear to indicate
that no resume was submitted with Plaintiff’s application. Def.’s Exs. 2, 16, ECF Nos. 30-2, 3010. And an IT Specialist at the D.C. Department of Human Resources has submitted a
declaration which states that there was no resume attached to Plaintiff’s application. Def.’s Ex.
11, ECF No. 30-12. Finally, Defendant argues that the e-mail Plaintiff received did not really
mean that he had submitted a resume.
However, at the summary judgment stage the Court cannot make credibility
determinations or weigh the evidence—instead, it must analyze the evidence in the light most
favorable to Plaintiff, with all justifiable inferences drawn in his favor. Liberty Lobby, 477 U.S.
at 255. Doing so here, the Court concludes that a jury could reasonably decide to reject
Defendant’s evidence in favor of Plaintiff’s, and infer that Plaintiff submitted a resume with his
application. In doing so, the jury could reasonably conclude that the non-discriminatory reason
Defendant has offered for its decision was not its real reason. It is well established that “a
factfinder’s reasonable rejection of the defendant’s proffered explanation will support an
inference of discrimination,” and, indeed, “a plaintiff’s discrediting of an employer’s stated
reason for its employment decision is entitled to considerable weight.” Aka v. Washington Hosp.
Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

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502, 511 (1993) (“rejection of the defendant’s proffered reasons will permit the trier of fact to
infer the ultimate fact of intentional discrimination”) (emphasis omitted).
Although the Court is not required to deny summary judgment on the basis of such
evidence alone in every case, id., the Court concludes that summary judgment for Defendant is
improper on the particular facts of this case. Plaintiff, who is 61 years old, was denied a position
which was ultimately given to a much younger man. Plaintiff had submitted applications for this
or similar positions many times throughout his tenure at DOES and had been repeatedly rejected.
He had also brought an earlier discrimination lawsuit against Defendant. Defendant, his
employer for many years, denied him the position this time on the grounds that it was allegedly
unable to determine his work experience—despite the fact that Plaintiff’s experience was largely
made up of working for the Defendant itself. Defendant has not proffered evidence to suggest
that, had it considered Plaintiff’s full qualifications, he would not have been qualified for the
position. In fact, Plaintiff has proffered evidence that he was more qualified for the position than
the individual ultimately chosen for it. See Pl.’s Depo. at 69:13-81:1. Moreover, as discussed
above, Defendant has offered a reason for not selecting Plaintiff—based on his failure to submit
a resume—which, viewing the evidence in the light most favorable to Plaintiff and drawing all
justifiable inferences for him, a reasonable jury could find to be false. In the absence of this
reason, a reasonable jury could infer that retaliation or discrimination were the actual reasons for
Defendant’s decision.
As with its decision regarding Plaintiff’s denial of leave claim, the Court clarifies that its
decision not to summarily adjudicate Plaintiff’s non-selection claim should not be interpreted as
an acceptance of Plaintiff’s view of the facts. The Court merely holds that, although a close call,
a combination of Plaintiff’s discrediting of Defendant’s stated reason for its decision and various

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aspects of Plaintiff’s prima facie case are enough to allow a reasonable jury to find for Plaintiff,
and accordingly preclude this Court from granting summary judgment for Defendant.
IV. CONCLUSION
In sum, the Court DENIES Defendant’s motion for summary judgment. The Court will
not grant summary judgment on the issue of whether Defendant’s effective denial of Plaintiff’s
request for leave constituted an adverse action, nor will it grant summary judgment on Plaintiff’s
claim regarding his non-selection for the LMI AD Position. An appropriate Order accompanies
this Memorandum Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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