Stewart, Howard P. v. Ashcroft, John

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify

the Clerk of any formal errors in order that corrections may be made

before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2003 Decided December 23, 2003

No. 02-5233

HOWARD P. STEWART,

APPELLANT

v.

JOHN D. ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 01cv00265)

Richard L. Swick argued the cause for appellant. With

him on the briefs was David H. Shapiro. Heidi R. Burak-

iewicz entered an appearance.

Anne M. Murphy, Attorney, U.S. Department of Justice,

argued the cause for appellee. With her on the brief were

Roscoe C. Howard, Jr., U.S. Attorney, and Marleigh Dover,

Special Counsel.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Before: GINSBURG, Chief Judge, and SENTELLE and

HENDERSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Opinion concurring in the judgment filed by Circuit Judge

HENDERSON.

SENTELLE, Circuit Judge: Appellant Howard P. Stewart, a

Senior Litigation Counsel in the Environmental Crimes Sec-

tion (‘‘ECS’’) of the Department of Justice (‘‘DOJ’’), brought

this action against John Ashcroft, in his official capacity as

Attorney General of the United States, alleging employment

discrimination pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. Stewart, who is black,

challenges two separate incidents in which white candidates

were selected over him to be Chief of ECS. The first was the

1998 selection of Stephen Solow; the second, the 2000 selec-

tion of David M. Uhlmann. The District Court, considering

both challenges, granted summary judgment to the Govern-

ment. This appeal followed. Stewart contends the District

Court erred in concluding: (1) that his non-selections as Chief

of ECS were not adverse employment actions; and (2) that he

failed to rebut the Government’s legitimate, nondiscriminato-

ry reasons for not selecting him. In addition to Appellant’s

claims, the Government questions whether Stewart’s claims

surrounding the Solow selection were properly before the

District Court. We agree with the Government that only the

claim regarding Uhlmann’s selection was properly before the

District Court. With respect to that claim, we agree with

Appellant that the District Court erred in failing to find his

non-selection to be an adverse employment action, but be-

cause we agree with the District Court that Stewart failed to

rebut the Government’s legitimate, nondiscriminatory reason

for not selecting him, we affirm.

I. Background

A. Stewart’s Employment at DOJ

Appellant Stewart joined DOJ in 1985 as a prosecutor in

the Fraud Section of the Criminal Division. From 1987 to

3

1989, he served as an Assistant United States Attorney

(‘‘AUSA’’) in the Eastern District of Pennsylvania. In 1989

he arrived at ECS, where he has since remained. In 1996,

Stewart was appointed to the position of Senior Litigation

Counsel, a new Senior Executive Service (‘‘SES’’) position.

This made Stewart the only SES-level person inside ECS,

other than the Chief. Throughout Stewart’s career at ECS,

he has repeatedly applied for leadership positions, including:

(1) Chief of ECS in 1994, 1997, and 2000; (2) Deputy Chief of

ECS in 1998; and (3) two Assistant Chief positions in 1998.

In this litigation, Stewart alleges that his non-selection as

Chief in 1998 and 2000 was for reasons of racial discrimina-

tion.

The 1998 appointment of Stephen P. Solow

In 1997, Stewart applied for the then-vacant Chief position.

In October of 1997, Lois J. Schiffer, the Assistant Attorney

General responsible for filling the vacancy, sent a letter to the

Senior Executive Services Board stating that Solow had been

selected for the position. On October 30, 1997, she appointed

Solow Acting Chief of the Division. In order to comply with

federal regulations, the position was re-advertised from Janu-

ary 12 to January 27, 1998, and new applications were consid-

ered. On February 3, 1998, Solow was appointed to the SES,

a requirement to fill the Chief position. Accordingly, he was

appointed on February 3, 1998 to be Chief of ECS.

The 2000 appointment of Uhlmann

When the Chief position again became vacant in 2000,

Stewart again applied. Assistant Attorney General Schiffer

was again responsible for the selection. This time, she

selected Uhlmann. According to Schiffer, Uhlmann had sev-

eral qualities that were critical for the job, particularly his

management and leadership ability. Like Stewart, Uhlmann

had experience working with various United States Attor-

ney’s offices around the country. Uhlmann had handled

complex cases and was ‘‘highly regarded by the Solicitor

General’s Office.’’ Schiffer Dep. 159.

4

B. Proceedings Below

Stewart first contacted an equal employment opportunity

(‘‘EEO’’) counselor regarding Solow’s selection as Chief on

August 12, 1998, and subsequently filed a formal complaint on

November 21, 1998. That complaint was amended in 2000 to

cover Uhlmann’s selection as Chief in that year. Having

failed to obtain administrative relief, Stewart filed the present

action.

The District Court granted summary judgment to the

Government. We pause to note that first, however, the

District Court ‘‘assume[d] TTT without deciding that TTT the

court TTT ha[d] jurisdiction to hear the case.’’ Stewart v.

Ashcroft, 211 F. Supp. 2d 166, 172 n.1 (D.D.C. 2002), but see

Citizens for a Better Living Env’t, 523 U.S. 83, 101 (1998)

(‘‘Hypothetical jurisdiction produces nothing more than a

hypothetical judgment – which comes to the same thing as an

advisory opinion, disapproved by the Court from the begin-

ning’’); Galvan v. Federal Prison Indus., 199 F.3d 461, 463

(D.C. Cir. 1999) (‘‘Jurisdiction must be established before a

federal court may proceed to any other question’’). This was

an obvious reference to Stewart’s challenge of Solow’s selec-

tion, which the Government had argued was time-barred by

the EEOC’s regulations governing administrative remedies.

Bypassing the time-bar issue, the District Court deter-

mined that the denials of Stewart’s applications were the

denial of lateral transfers, not failures to promote. This was

because Senior Litigation Counsel, Stewart’s position, and

Chief of ECS were both SES positions that have no differ-

ence in pay and benefits. Thus, the Court ruled Stewart had

not been subject to an adverse personnel action, as required

to establish a prima facie case of discrimination. Brown v.

Brody, 199 F.3d 446, 453 (D.C. Cir. 1999).

Alternatively, the Court concluded that Stewart failed to

rebut the Government’s legitimate, nondiscriminatory reason

for not selecting him – that other candidates were more

qualified. Additionally, he failed to present any evidence that

the cause of his non-selection was based on race.

5

II. Analysis

This Court reviews the grant of summary judgment de

novo, applying the same standards as the District Court.

Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Summary

judgment should only be granted where there are no genuine

issues of material fact, and all inferences must be viewed in a

light most favorable to the non-moving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250, 255, 106 S.Ct. 2505,

2511, 2513-14, 91 L.Ed.2d 202 (1986).

A. Exhaustion

As an initial matter, we must determine whether this case

is time-barred. While the District Court framed its ability to

hear these claims as jurisdictional, this Court has noted that

the exhaustion of remedies is not jurisdictional, but more akin

to a statute of limitations. See Bowden v. United States, 106

F.3d 433, 437 (D.C. Cir. 1997) (‘‘The administrative time limits

created by the EEOC erect no jurisdictional bars to bringing

suit’’). While we need not address here the timing require-

ments as a jurisdictional bar, we must still address these

requirements.

The timing requirements for bringing a Title VII claim are

set forth in 29 C.F.R. § 1614.105(a)(1), which states in perti-

nent part:

An aggrieved person must initiate contact with a

Counselor within 45 days of the date of the matter

alleged to be discriminatory or, in the case of per-

sonnel action, within 45 days of the effective date of

the action.

29 C.F.R. § 1614.105(a)(1) (2002). Stewart’s August 12, 1998

initiation of EEO procedures is untimely if he knew, or should

have known, about the alleged discriminatory action prior to

June 27, 1998 – 45 days prior to his initial contact with EEO.

Solow became Chief of ECS on February 3, 1998. Because

Stewart initiated his EEO complaint well after 45 days from

this time, he fails to satisfy the requirements of

§ 1614.105(a)(1). Therefore, Stewart must rely on the tolling

provisions of § 1614.105(a)(2), which provide that the time

6

will be tolled if he ‘‘did not know and reasonably should not

have [ ] known that the discriminatory matter or personnel

action occurred.’’

With the tolling provision in mind, we consider the events

prior to June 27, 1998, to determine if Stewart should have

known of Solow’s selection. Of course, on February 3, 1998,

Solow was appointed to SES and officially selected as Chief.

On February 13, 1998, Stewart received a letter that went to

all ECS employees and reorganized the entire section. The

letter was written by Solow and in it he identified himself as

Chief. Further, on June 17, 1998, Stewart wrote a letter to

Solow identifying Solow as Chief. Finally, on June 23, Stew-

art’s lawyer, hired to represent him in this matter, sent a

letter requesting the status of Solow’s appointment.

The evidence shows that at the very least Stewart should

have known by June 27, 1998, that Solow had been appointed

and any alleged discrimination had occurred. As detailed

above, there were several events in February that should

have prompted Stewart to inquire about the status of the job

he sought. Rather, Stewart waited until June to have his

attorney ask. This formalistic event simply does not salvage

Stewart’s claim. Particularly troublesome is Stewart’s letter

to Solow identifying Solow as Chief. Stewart’s response that

calling Solow ‘‘Chief’’ was a mere courtesy does not persuade

this Court that Stewart was not aware of Solow’s selection

prior to June 27, 1998.

Stewart failed to bring his claims regarding Solow’s selec-

tion to the EEO Counselor in a timely manner and failed to

satisfy the tolling provision. Because timely exhaustion of

administrative remedies is a prerequisite to a Title VII action

against the federal government, the Solow selection is not

properly before this Court. Bowden, 106 F.3d at 437.

B. Adverse Employment Action

Stewart contends that the District Court’s determination

that he had not been subjected to an adverse employment

action was erroneous. The District Court correctly noted

that ‘‘plaintiff bears the burden of showing tangible employ-

7

ment action evidenced by firing, failing to promote, a consid-

erable change in benefits, or reassignment with significantly

different responsibilities.’’ Stewart v. Ashcroft, 211 F. Supp.

2d at 173 (citing Brown, 199 F.3d at 452). The District Court

also correctly noted that ‘‘a bruised ego’’ will not suffice to

make an employment action adverse. Id. (quoting Flaherty

v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir. 1994)). The

District Court viewed Stewart’s situation as a denial of a

lateral transfer, with no change in pay, benefits, or other

material consequences. The Court therefore held he had

‘‘not suffered an objectively tangible harm.’’ Id. at 175

(quoting Freedman, 255 F.3d at 848).

We most clearly addressed lateral transfers in Brown,

where we held:

A plaintiff who is made to undertake or who is

denied a lateral transfer – that is, one in which she

suffers no diminution in pay or benefits – does not

suffer an actionable injury unless there are some

other materially adverse consequences affecting the

terms, conditions, or privileges of her employment

or her future employment opportunities such that a

reasonable trier of fact could conclude that the plain-

tiff has suffered objectively tangible harm. Mere

idiosyncrasies are not sufficient to state an injury.

Brown, 199 F.3d at 457. This passage answers one question

immediately – the District Court was correct in considering

this case as one of a lateral transfer. The rule plainly states

that a lateral transfer is one in which there is no diminution

in pay and benefits. Id. It is undisputed that Stewart,

already an SES employee, would receive no different pay or

benefits if selected as Chief of ECS.

On the present facts, however, Brown goes only this far.

The remaining language of Brown suggests that there are

lateral transfers that could be considered adverse employ-

ment actions. The present facts supply a compelling argu-

ment for that case. No matter how one looks at it, the Chief

of ECS is the head of the section. He runs the ECS and,

most important, he supervises and directs the Senior Litiga-

8

tion Counsel. Non-selection as Chief of ECS has objective,

tangible, and ‘‘materially adverse consequences [for] the

terms, conditions, or privileges’’ of Stewart’s employment

because the Government has denied him the opportunity to

advance within the hierarchy of the ECS and the Department

more generally. Brown, 199 F.3d at 457.

The Government argues that the two SES positions, Senior

Litigation Counsel and Chief, are objectively the same. The

Government relies particularly on the fact that Stewart would

have the same pay and benefits if he were selected as Chief

as he does as Senior Litigation Counsel. With respect to

other aspects of the Chief position, the Government argues

that Stewart’s denial of these are ‘‘perceived slights,’’ with no

objective harm. For instance, they argue that the denial of

the ability to gain greater supervisory skills is not an objec-

tive harm. We think the government misses the point. Mr.

Stewart was denied the opportunity to take over his supervi-

sor’s position. The failure to select Stewart as Chief clearly

had materially adverse consequences for his present and

future employment opportunities. He was simply denied his

supervisor’s job. Because of the equality of pay and benefits,

we may call it a lateral transfer, but in reality, it is more

similar to a denial of a promotion – which is clearly an

adverse employment action.

Just as withdrawing an employee’s supervisory duties con-

stitutes an adverse employment action, see Burke v. Gould,

286 F.3d 513, 522 (D.C. Cir. 2001), so too failing to select an

employee for a position with substantially greater supervisory

authority is an adverse employment action. As stated above,

in Brown we recognized that while generally lateral transfers,

or the denial of them, could not be considered adverse

employment actions, there are circumstances where they

could be. 199 F.3d at 457. What sets this case outside the

norm is the structure of the SES. Because transfers inside

the SES may not result in different pay or benefits, these

moves will almost always be viewed as lateral. They are,

however, not always truly lateral in all respects. This re-

quested transfer is not. The relationship between the Senior

9

Litigation Counsel and Chief is not purely horizontal. The

record evidence demonstrates that the Chief actively and

directly supervises the Senior Litigation Counsel. Uhlmann

testified that as Chief he assigned duties to Stewart ‘‘includ-

ing specific management duties, and other initiatives.’’ Uhl-

mann Dep. 24.1 Indeed, at oral argument, Government coun-

sel stated affirmatively that ‘‘there is a hierarchy’’ and that

‘‘the Chief’s job is higher in the hierarchy than Mr. Stew-

art’s.’’ This case, therefore, fits squarely in the qualification

in Brown that makes the denial of some lateral transfers

adverse employment actions. By being denied the transfer to

his supervisor’s position, Stewart suffered more than harm to

his reputation, as the Government argued and the District

Court accepted. That harm amounts to ‘‘materially adverse

consequences affecting the terms, conditions, or privileges of

[his] employment or [his] future employment opportunities

such that a reasonable trier of fact could conclude [Stewart]

has suffered objectively tangible harm.’’ Brown, 199 F.3d at

457. We agree with Appellant that the District Court erred

in failing to consider his non-selection an adverse employment

action.

C. Stewart’s Case under McDonnell Douglas

Stewart also challenges the District Court’s finding that he

failed to rebut the Government’s legitimate, nondiscriminato-

ry reason for not selecting him–that Uhlmann was more

qualified. We analyze this case under the familiar McDon-

nell Douglas test. McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). To establish a prima facie case, Appellant

must first show that (1) he is a member of a protected class;

(2) he applied for and was qualified for an available position;

and (3) despite his qualifications he was rejected. Id. at 802.

1 The concurring opinion expresses concern about a lack of record

evidence that Stewart’s Senior Litigation Counsel position was

subordinate to the ECS Chief. To that we simply point to Stew-

art’s application for the Chief position, in which he identifies his

immediate supervisor as Stephen P. Solow, then ECS Chief.

10

Furthermore, Appellant must at least establish that his rejec-

tion was not based on ‘‘the two most common legitimate

reasons on which an employer might rely to reject a job

applicant: an absolute or relative lack of qualifications or the

absence of a vacancy in the job sought.’’ Morgan v. Federal

Home Loan Mortgage, 328 F.3d 647, 651 (D.C. Cir. 2003).

If the plaintiff establishes his prima facie case, the defen-

dant then bears the burden of producing evidence that the

plaintiff was rejected, or someone else was preferred, for a

legitimate, nondiscriminatory reason. Id. If the defendant

produces such evidence, McDonnell Douglas, ‘‘with its pre-

sumptions and burdens disappears and the sole remaining

issue is discrimination vel non.’’ Id.

The District Court found the Government’s nondiscrimina-

tory reason for hiring Uhlmann over Stewart – that Uhlmann

had more managerial experience – persuasive. This, the

District Court noted, shifted the burden back to Stewart to

provide sufficient evidence such that a jury could find this

‘‘proffered reason was a pretext for discrimination.’’ Pau-

quin v. National Mortgage Ass’n, 119 F.3d 23, 27-28 (D.C.

Cir. 1998). The District Court held that appellant offered no

evidence to rebut the Government’s legitimate, nondiscrimina-

tory reason for selecting Uhlmann. On appeal, the Govern-

ment maintains that position. Stewart, on the other hand,

argues that he is so much more qualified than Uhlmann that a

jury could reasonably determine that relying on Uhlmann’s

qualifications was a pretext for discrimination.

Under the liberal requirements for establishing a prima

facie case, Appellant has met the burden of McDonnell

Douglas only as to the first positive elements. Cones v.

Shalala, 199 F.3d 512, 518 (D.C. Cir. 2000) (‘‘[Plaintiff] estab-

lished that he was substantively qualified and [the Govern-

ment] selected a white person.’’). Here, Stewart has set forth

sufficient facts that he is substantively qualified for the job

and a white person was selected. A recounting here of

Stewart’s many qualifications is not required. It is sufficient

to note that Stewart, along with Deborah Smith, the Deputy

Chief of ECS, and Uhlmann were the final three candidates

11

for the Chief position. Sobeck Dep. 38. Stewart has rebut-

ted two common legitimate reasons for not being selected, an

‘‘absolute TTT lack of qualifications or the absence of a

vacancy in the job sought.’’ Morgan, 328 F.3d at 651.

The Government responds that its selection of ECS Chief

was based on its observations of Stewart’s performance and

determinations that Uhlmann was more qualified. Uhlmann

took a more keen interest in management. Several parties

testified that, although Stewart was a part of management, he

rarely attended management meetings. Ms. Smith, Deputy

Chief of ECS, testified that prior ECS Chiefs ‘‘express[ed]

frustration from time to time that [Stewart] wasn’t there

more often’’ at management meetings, or otherwise involved

in management of ECS. Smith Dep. 35. See also Sobeck

Dep. 84 (Stewart ‘‘had shown little interest or initiative in

administrative or leadership matters’’); Uhlmann Dep. 14

(Stewart ‘‘wasn’t a particularly active member or participant

in [management] meetings, and my sense was, he frequently

absented himself’’).

The Government also points to the application process.

Uhlmann prepared a 21-page application explaining his vision

for ECS in terms of detailed goals. In addition, with each

goal he proposed for ECS, he explained how his qualifications

would enable him to make the goal a reality. Stewart’s

application, on the other hand, was largely a reproduction of a

1995 memorandum sent by Schiffer to the SES board regard-

ing Stewart’s Executive Core Qualifications. Reading the

Schiffer memorandum and Stewart’s application together, it

is clear that much less effort and thought went into it than

the Uhlmann application. The Stewart application caused

‘‘great concern’’ to Schiffer, and others, as ‘‘a piece of writ-

ing.’’ Schiffer Dep. 161. Additionally, as detailed below,

Stewart’s qualifications were simply not superior to Uhl-

mann’s so as to create an inference that the Government’s

selection of Uhlmann was based on any discriminatory rea-

son.

Having set forth a nondiscriminatory reason for Uhlmann’s

selection, McDonnell Douglas, ‘‘with its presumptions and

12

burdens disappears and the sole remaining issue is discrimi-

nation vel non.’’ Morgan, 328 F.3d at 651. The question

then becomes whether a reasonable finder of fact could

determine that the Government’s ‘‘proffered reason was a

pretext for discrimination.’’ Pauquin, 119 F.3d at 27-28.

This case is about a dispute over job qualifications. On

that issue, our decision in Aka v. Washington Hospital, 156

F.3d 1284 (D.C. Cir. 1998) (en banc), is instructive. In that

case, the plaintiff had made out a prima facie case of discrim-

ination under McDonnell Douglas and refuted the employer’s

proffered nondiscrimination reasons. Aka’s qualifications

were quite superior to those of Valenzuela, the candidate the

hospital selected for a pharmaceutical job. In the pharma-

ceutical area, Aka had nineteen years of professional experi-

ence, versus Valenzuela’s two months of volunteer work. Aka

had earned two degrees, while Valenzuela had earned none.

Stewart’s evidence presents no such stark superiority of

credentials over those of the successful candidates.

As a threshold matter, Stewart, a highly regarded litigator

who has handled very complex environmental litigation, incor-

rectly and perhaps wishfully, states that litigation experience

is the most critical trait to be Chief of ECS. The Govern-

ment takes the position that while litigation experience is

required, management experience is the most critical. Spe-

cifically, the DOJ required the Chief to have: experience in

managing complex organizations, creating training programs,

establishing and prioritizing enforcement initiatives, and de-

veloping ECS policy. It is clear Uhlmann had these skills

and Stewart lacked them. Because courts are not ‘‘super-

personnel department[s] that reexamine[ ] an entity’s busi-

ness decision[s],’’ we defer to the Government’s decision of

what nondiscriminatory qualities it will seek in filling the

Chief position. Dale v. Chicago Tribune Co., 797 F.2d 458,

464 (7th Cir. 1986).

Turning to the comparison of qualifications that Stewart

presents, he was simply not discernibly better than Uhlmann.

Stewart relies heavily on the fact that he was already an SES

employee, whereas Uhlmann was not. While this is true, it

13

says little about the level of relative qualifications between

the two men to serve as Chief. Indeed, Uhlmann was

immediately accepted into the SES when he was recom-

mended. Stewart, in accordance with his view that litigation

experience should be the driving factor, argues that he has

more extensive prosecutorial experience than Uhlmann.

While the record does reveal that Stewart had more prosecu-

torial experience in environmental matters, Uhlmann also had

substantial experience as a prosecutor, with over 25 jury

trials to his credit. Stewart essentially argues that these

don’t really count, because 20 of them were in District of

Columbia Superior Court and did not involve environmental

matters. We don’t find Stewart’s detailed challenges to the

substance of Uhlmann’s particular trials persuasive. The

Government looks at trial experience as one factor in select-

ing the Chief, and both Uhlmann and Stewart had prosecuto-

rial experience. The fine distinctions over the substance of

those trials are not sufficient to give rise to suspicion of

pretext or a jury finding of discrimination. Had Uhlmann

never tried a case, perhaps we would have to look further, but

that is simply not what occurred here. Schiffer testified that

he was ‘‘highly regarded by the Solicitor General’s Office.’’

Schiffer Dep. 159. This is no small indication of his ability as

a litigator. Additionally, prior to his selection as Chief, he

served for two and a half years as Assistant Chief of the

division, a position that provided him with substantial man-

agement and leadership experience in ECS.

Stewart also states he is better prepared to work with the

various United States Attorney’s offices around the country,

owing to his two years of service as an AUSA in the Eastern

District of Pennsylvania. In this realm, he challenges Uhl-

mann’s relative inexperience – only six months as an AUSA

as part of a DOJ training program. Again, like Stewart’s

detailed testing of Uhlmann’s trial experience, these distinc-

tions are too fine to make Uhlmann’s selection questionable.

Both Stewart and Uhlmann had served as AUSAs, and an 18-

month longer tour for Stewart does not set him that far

ahead of Uhlmann.

14

In discussing a Court’s review of an employer’s decision to

promote based on superior qualifications, this Court stated:

We must assume that a reasonable juror who might

disagree with the employer’s decision, but would find

the question close, would not usually infer discrimi-

nation on the basis of a comparison of qualifications

alone. In a close case, a reasonable juror would

usually assume that the employer is more capable of

assessing the significance of small differences in the

qualification of the candidates, or that the employer

made a judgment call.

Aka, 156 F.3d at 1294. The selection of ECS Chief necessari-

ly depends on ‘‘assessing the significance of small differences

in the qualifications’’ and making ‘‘a judgment call.’’ Id.

Based on this framework, Stewart’s pointing to differences in

qualifications that merely indicate a ‘‘close call’’ does not get

him beyond summary judgment. This Court will not reexam-

ine governmental promotion decisions where it appears the

Government was faced with a difficult decision between two

qualified candidates, particularly when there is no other

evidence that race played a part in the decision.

Finally, we address Stewart’s argument that the Govern-

ment used his involvement in a faction at ECS as a pretext

for discrimination. Apparently, during a period in the mid–

1990s, ECS had serious personnel problems resulting in

balkanization of the office. While the parties do not fully

explain the problems involved, it is sufficient to note that it

involved competing interests by groups inside ECS and was

serious enough to affect the ECS’s dealings with other agen-

cies. Stewart asserts that his membership in one of the

factions provided Schiffer and the Government with the origi-

nal reason for not selecting him as Chief. Stewart claims,

however, that this is self-contradictory, as Schiffer has subse-

quently selected Chiefs who were involved in the infighting,

including Uhlmann. According to Stewart, this proves that

relying on his involvement in a faction as a grounds for

denying him the position is a pretext. This argument fails.

Stewart points to nowhere in the record where Schiffer

15

contradicts herself. He merely assumes that it would be a

contradiction for her to not select him partly based on the

fact that he was involved in Section infighting, yet select

someone who was also involved. The record does not provide

any force to Stewart’s argument. First, Schiffer did not rely

solely on Stewart’s involvement in the infighting as a reason

for not selecting him. Furthermore, it appears that anyone

in ECS at the time of the factionalization would be identified

with some aspect of it. Uhlmann, according to Schiffer’s

testimony, was never identified with the more intense faction-

al activity.

Lastly, there is a complete lack of evidence in the record

that indicates race was a factor in the selection of Uhlmann as

Chief of ECS. The only evidence Stewart offers is the

testimony of Nadira Clark, an administrative assistant to

Schiffer. This testimony is wholly unpersuasive. When

asked if she thought race was a factor, Ms. Clark testified

that ‘‘I don’t know. I don’t know. I can’t speculate one way

or another about that. I guess what I would say is that TTT

any selection of a minority candidate TTT is always going to

be scrutinized a little bit moreTTTT’’ Clark Dep. 33-34. She

further testified that Schiffer was ‘‘very interested in finding

minority candidates for management positions.’’ Id. at 80.

Clarke’s testimony, in whole, is unpersuasive and admittedly

based on speculation. It would not support a jury finding of

liability.

III. Conclusion

Stewart’s claims regarding the Solow selection as ECS

Chief are dismissed, as they were not timely filed. While the

District Court erred in determining that Stewart’s non-

selection as Chief of ECS was not an adverse employment

action, it was correct in concluding that Stewart did not rebut

the Government’s legitimate, nondiscriminatory reason for his

nonselection. Stewart simply presented no evidence showing

that the Government’s nondiscriminatory reasons for select-

ing Uhlmann were pretextual. Furthermore, the record

shows no evidence that race played a factor in Stewart’s non-

16

selection. Therefore, the judgment of the District Court is

affirmed.

1

KAREN LECRAFT HENDERSON, Circuit Judge, concurring in

the judgment:

I concur in the majority opinion’s disposition and, for the

most part, in its reasoning. I disagree, however, with its

conclusion that Howard P. Stewart suffered an ‘‘adverse

employment decision’’—a necessary element of an employ-

ment discrimination claim—when he was not selected to be

Chief of the Environmental Crimes Section in the United

States Department of Justice.

In Brown v. Brody, 199 F.3d 446 (D.C. Cir. 1999), we

announced the ‘‘rule’’ that an employee like Stewart who is

simply ‘‘denied a lateral transfer—that is, one in which [ ]he

suffers no diminution in pay or benefits—does not suffer an

actionable injury unless there are some other materially

adverse consequences affecting the terms, conditions, or privi-

leges of [his] employment or [his] future employment oppor-

tunities such that a reasonable trier of fact could conclude

that the plaintiff has suffered objectively tangible harm.’’ 199

F.3d at 452 (emphasis added). There is no evidence in this

record to support a finding of ‘‘objectively tangible harm.’’

Stewart argues, without elaboration, that the Chief job ‘‘car-

ried with it significantly elevated supervisory duties and

responsibilities,’’ Appellant’s Br. at 13; see also id. at 14

(Chief position ‘‘by its very nature carried tremendous super-

visory and managerial responsibilities’’); id. at 15 (Stewart

‘‘applied for a position that would have given him a more

distinguished title and greater supervisory responsibilities’’);

cf. 211 F. Supp. 2d at 174 (‘‘plaintiff asserts that these losses

stem directly from the defendant’s failure to promote him to a

position that carries ‘significantly elevated duties and respon-

sibilities’ ’’) (record citation omitted). He fails to explain,

however, how the responsibilities are ‘‘elevated’’ over his own.

His bare allegations may reflect Stewart’s ‘‘own subjective

interest’’ in the position of Chief. See 211 F. Supp. 2d at 175.

They do not support a finding of objectively tangible harm.1

1Stewart’s complaint alleged in addition that he suffered ‘‘dam-

age to his career and to his professional and personal reputation,

embarrassment, humiliation, and emotional pain.’’ Compl. ¶ 14.

These intangible harms are plainly not actionable. See Stewart v.

Evans, 275 F.3d 1126, 1136 (D.C. Cir. 2002) (‘‘public humiliation or

2

As evidence that Stewart’s position was subordinate to the

Section Chief’s, the majority opinion states that Chief Uhl-

mann ‘‘testified that as Chief he assigned duties to Stewart

‘including specific management duties, and other initiatives.’ ’’

Maj. Op. at 8–9 (quoting Uhlmann Dep. at 24). Uhlmann

testified that during his tenure Stewart ‘‘ha[d] continued to

serve as TTT the reviewing official for [the Section’s] legal

support staff,’’ as he had done before Uhlmann became Chief.

Id. Uhlmann further stated he had asked Stewart ‘‘to meet

with all the trial teams in the section after cases were

charged, to work with their assistant chiefs, and to work with

them on formulating trial strategy,’’ and ‘‘to participate in

every management meeting.’’ Id. at 24–25. To me, this

testimony does not reflect the kind of supervisory hierarchy

that the majority opinion suggests.2

In pressing his claim of adverse employment action, Stew-

art relies heavily on Burke v. Gould, 286 F.3d 513 (D.C. Cir.

2002), in which the court concluded a government employee

suffered an adverse employment action when he ‘‘was relieved

of his supervisory responsibilities as section chief and as-

signed to unspecified duties.’’ 286 F.3d at 516. To lose

supervisory authority through a job change is a far cry from

failing to acquire different supervisory authority through non-

selection. It is undisputed that Stewart has long exercised

supervisory responsibilities over junior lawyers in his current

position. See 211 F. Supp. 2d at 175 (‘‘plaintiff himself

acknowledges that in his current position as Senior Litigation

Counsel, he has had years of experience supervising other

attorneys’’). These responsibilities may be different in kind

loss of reputation does not constitute an adverse employment action

under Title VII’’).

2 I ascribe little weight to the conclusionary support the majority

cites for the proposition that the Chief was Stewart’s supervisor, see

Maj. Op. at 8 & n.1, namely the government’s non-record ‘‘hierar-

chy’’ comments at oral argument and Stewart’s own, self-serving

characterization of the Chief as his ‘‘supervisor,’’ see also Schiffer

Dep. at 165–66 (also calling Chief Stewart’s ‘‘supervisor’’). They

tell us nothing specific about the relationship between the Chief’s

position and Stewart’s.

3

from those attendant upon the Chief’s position but such

differences as exist do not negate the fact that Stewart’s

current position entails supervisory responsibility or make

the position inferior to the Chief’s.

In sum, while I agree with the majority opinion that no

reasonable juror could find the defendant’s legitimate, nondis-

criminatory reason for not selecting Stewart in 2000 was

pretextual, I do not believe we need reach pretext. I would

affirm the summary judgment with regard to Stewart’s non-

selection in 2000 on the ground that Stewart failed at the

prima facie stage to show that he suffered an adverse employ-

ment action. In all other respects, I concur in the majority

opinion.