The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Plaintiff brought this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), and the Age Discrimination in Employment Act, 129 U.S.C. § 621 ("ADEA"), alleging that the federal Bureau of Prisons' denied him a promotion based on his age, his sex, his race, and in retaliation for his prior Equal Employment Opportunity ("EEO") activity. Defendant moves for summary judgment on the grounds that (1) plaintiff failed to timely exhaust his administrative remedies; (2) plaintiff cannot establish a prima facie case under Title VII or the ADEA; and (3) the government's actions were based on legitimate, non-discriminatory reasons, and plaintiff has not adduced evidence to rebut the government's reasons. The defendant's motion will be granted.
Plaintiff Bernard Singleton, an African-American, was an employee for the Bureau of Prisons ("BOP") from 1985 to 2006, when he retired. (Singleton Aff.*fn1 ¶¶ 1, 2, 5.) When Singleton retired, he held the position of Warehouse Supervisor at the Metropolitan Correctional Center ("MCC"), a detention facility in Manhattan. (Id.)
In 2003 and 2004, Singleton was considered three times for a promotion to Trust Fund Supervisor at the Metropolitan Detention Center ("MDC"), a detention facility in Brooklyn. (Def. R. 56.1 Statement*fn2 ¶¶ 6-22.) He was not selected for the position any of the three times. (Id.) The first time Singleton applied, he was not selected because he did not meet the posted qualifications for the position. (Id. ¶¶ 5-7.) No one was hired to fill the position at that time because an insufficient number of qualified people had applied. (Id. ¶ 8.)
The second time Singleton applied, the BOP had lowered the qualifications requirement, and Singleton was now considered qualified for the position. (Id. ¶¶ 9-10.) Singleton was selected as a finalist for the position, along with four other applicants: a white man, two other black men, and a black woman. (Id. ¶ 12.) Neither Singleton nor any of the other four finalists was selected to fill the position. (Id. ¶ 18.) The reason, according to BOP management, was two-fold: a concern at BOP that prison administration was "top-heavy," that is, employing too many supervisors relative to line staff (id. ¶¶ 14-15), and the fact that the BOP Regional Director, the person responsible for making the final selection, was about to retire, and his replacement, who would more appropriately make such a prospective decision, would not take office in time to make a selection before the position was scheduled to "expire" under BOP personnel rules (id. ¶¶ 16-17). In light of these concerns, BOP decided not to fill the position at that time. (Id. ¶ 18.)
The BOP posted the position again shortly thereafter, and Singleton's application was considered a third time. (Id. ¶¶ 21-22.) However, by that point, a formal BOP initiative had been undertaken to reduce supervisory staff, including by consolidating positions at institutions in close geographic proximity. (Id. ¶ 25.) According to the wardens of the MCC and MDC, it was in response to this initiative that they recommended the consolidation of several supervisory positions, including the Trust Fund Supervisor, and the positions at the two institutions were consolidated. (Id. ¶ 27.) The incumbent Trust Fund Supervisor at the MCC, Lisette Ortiz-Garcia, thereafter assumed responsibility over the MDC as well. (Id. ¶ 30.) Ortiz-Garcia, a Hispanic woman, was Singleton's supervisor at the time, and did not receive a promotion or a pay increase as a result of her taking on the added responsibility. (Id. ¶¶ 30-33; Singleton Aff. ¶ 5.) In light of this decision to consolidate the positions, neither Singleton nor any of the other applicants was awarded the MDC Trust Fund Supervisor position, and the BOP informed Singleton of this decision in a letter dated July 13, 2004. (Def. R. 56.1 Statement ¶ 34.)
On September 23, 2004, Singleton learned that Ortiz-Garcia was assuming the responsibilities of the MDC Trust Fund Supervisor. At the same time, Singleton also learned that he would no longer serve as "acting" Trust Fund Supervisor for the MCC. (Singleton Aff. ¶ 6.) Up to that point, Singleton had assumed the responsibilities of his supervisor Ortiz-Garcia when she was absent. (Singleton Dep.*fn3 51-52.) These responsibilities included oversight of additional MCC facilities and supervision over three additional MCC employees. (Id. 55-56.) Singleton received no official title nor additional compensation as a result of the additional responsibilities he took on. (Id. 52.) The person who replaced Singleton as acting Trust Fund Supervisor at the MCC was Yimesi Oladomoye. (Id. 50-51.) Oladomoye was the Assistant Trust Fund Supervisor at the MDC, and the consolidation that caused Ortiz-Garcia to become the Trust Fund Supervisor for both the MCC and the MDC also caused Oladomoye to become Assistant Trust Fund Supervisor for the two facilities. (Connors Supp. Decl. ¶¶ 3-4.)
Singleton contacted an EEO counselor on October 5, 2004, to complain of alleged discrimination by the BOP, and filed a formal EEO complaint on November 1. (Def. R. 56.1 Statement ¶¶ 35-36.) After exhausting his administrative appeals, Singleton filed suit in this Court alleging that the failure to promote him was based on his age, sex, and race in violation of Title VII and the ADEA. (Compl. ¶¶ 14, 17, 20.) Singleton contends that the decisions to withdraw the position and to consolidate its responsibilities into Ortiz-Garcia's job were made not for race-neutral reasons, but instead "to prevent me and other African-American males from getting promoted to the position." (Singleton Aff. ¶ 10.) Singleton also contends that he was denied the promotion and removed as acting Trust Fund Supervisor in retaliation for an earlier EEO complaint he had filed against the BOP. (Compl. ¶¶ 23, 26; Def. R. 56.1 Statement ¶ 3.)*fn4
Defendant now moves for summary judgment on all of Singleton's claims. As Singleton has not defended his claims for age and sex discrimination in his opposition to the motion, those claims are deemed abandoned and need not be further discussed.
I. Summary Judgment Standard
Summary judgment is appropriate where the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court must draw all "justifiable inferences" and resolve all ambiguities in the non-movant's favor, and construe the facts in the light most favorable to the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A party opposing a properly supported summary judgment motion "may not rely merely on allegations or denials in its own pleading" but must "by affidavits or as otherwise provided . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The affidavits must be based on personal knowledge. Danzer v. ...