Full opinion text
EXPANDED OPINION AND ENTRY SETTING FORTH THE REASONING AND CITATIONS OF AUTHORITY FOR THE COURT’S OPINION OF MARCH 24, 2000 (DOC. # 116), WHICH SUSTAINED IN PART AND OVERRULED IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOC. # 99); CONFERENCE CALL SET RICE, Chief Judge. Plaintiffs Pamela McGinnis (“McGinnis”) and Charlene Reynolds (“Reynolds”) are African-American civilian employees with the United States Air Force (“USAF”). At all relevant times, Plaintiffs were employed as GS-346-11 Logistics Management Specialists with the Air Force Security Assistance Center (“AFSAC”) at Wright Patterson Air Force Base. They allege that, while employed by the USAF, they have suffered “an ongoing pattern of discrimination.” On January 24, 1994, Plaintiffs initiated the instant litigation, setting forth claims of race discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended; violation of their Constitutional right to privacy; and violations of the Privacy Act (Doc. # 1). Plaintiffs subsequently filed three Amended Complaints (Doc. # 2, Doc. # 18, Doc. # 43). Their Second Amended Complaint (Doc. # 18) set forth three claims for relief, to wit: (1) a claim for race and national origin discrimination, in violation of Title VII, due to (a) being assigned low visibility projects, (b) being refused training necessary for career advancement, (c) being refused assignments to temporary duty (TDY’s) necessary for career advancement, (d) being subject to discipline and criticism for acts for which similarly situated white employees were not disciplined, and (e) being rated below similarly situated white employees for their 1991 and 1992 appraisals; (2) a claim that confidential information about them was revealed, in violation of the Privacy Act and their Constitutional right to privacy; and (3) a claim by McGin-nis for retaliatory discharge, in violation of Title VII, due to her EEO activities. Plaintiffs’ Third Amended Complaint added a jury demand. On June 21, 1996, McGinnis requested leave to file an additional Amended Complaint, which the Court granted on June 26, 1996. However, rather than file her proposed Fourth Amended Complaint, McGinnis filed a new action, Case Number C-3-96-236, alleging that subsequent to her reinstatement, she had been subject to retaliation in the form of lower appraisals, assignment of lower-graded work, and comments by her supervisor. On August 22, 1996, the Court ordered that Case Number C-3-96-236 be consolidated with Plaintiffs’ initial lawsuit (Doc. #54). On September 30, 1996, McGinnis initiated another lawsuit, Case Number C-3-96-383, in which she alleged that, on or about July 17, 1995, she received a performance appraisal that “did not meet Plaintiffs expectations, was not an accurate report of her performance, and was motivated by illegal factors such as Plaintiffs race and protected activities.” (Compl. 96-383, ¶ 5-6). On March 6, 1997, this action was likewise consolidated with C-3-94-30 (Doc.' # 64). On February 8, 1995, Defendants filed a Motion to Dismiss or, in the alternative, for Summary Judgment (Doc. # 19). The Court sustained in part and overruled in part that Motion, dismissing Plaintiffs’ national origin discrimination claim and their request for punitive damages (Doc. # 32). On March 16, 1999, following the conclusion of discovery, Defendants filed a Post-Discovery Motion for Summary Judgment (Doc. # 99). On March 24, 2000, the Court sustained in part and overruled in part that Motion, indicating that it would set forth its reasoning and citations of authority in a subsequent Expanded Opinion. The Court does so at this time. I. Factual Background Throughout their employment, Plaintiffs were employed as GS-346-11 “Case Managers,” working on programs with foreign militaries. For the most part, the programs were staffed with a GS-346-12 Program Manager and a GS-346-11 Case Manager. Plaintiffs indicate that it was not unusual for a program not to have a GS-346-12 Program Manager for months at a time and, during those periods, a GS-346-11 Case Manager could run the program in his or her stead. A. Charlene Reynolds Reynolds was hired as a Case Manager in May of 1989. Upon her employment, Reynolds worked in the Acquisition Branch of the AFSAC. Between May, 1989, and August, 1989, she was assigned to work on the Pacer Forge project, following which she worked on the Peach Vector II project (August 1989-February 1990). (Admin. R. at 488-95) In February of 1990, Reynolds was moved to the Pacer Chariot program, a project which she asserts has “low visibility.” Between 1989 and late 1991, she sought to receive training through AFIT/DISAM and through long-term full-time (LTFT) schooling. She states that she was denied training in 1989, 1990, and 1991. In January of 1991, Plaintiff was investigated for an incorrect travel voucher following a TDY in Cairo, Egypt. Reynolds alleges that her supervisor, Georgetta Knight, disciplined her for the voucher, because she complained to upper management about being treated poorly by Ms. Knight while in Egypt. In July of 1991, Plaintiff received her annual performance review, which was signed by Mr. Darrell Williams, her first-level supervisor, and by her second-level supervisor, Colonel William Moravek. Plaintiff received a narrative rating of “Fully Successful.” In July of 1992, Plaintiff received a “Superior” rating, but did not receive the highest possible numerical score. The 1992 evaluation was signed by her first-level supervisor, Mr. Williams, and by her second-level supervisor, Lieutenant Colonel Richard J. Loewenhagen. Reynolds indicates that Mr. Williams informed her that Colonel Moravek told him how to rate his employees and that Reynolds did not receive the highest possible score due to her “color.” Reynolds alleges that each of the above actions by Defendants impaired her promotional opportunities. On July 30, 1992, Reynolds, along with Plaintiff McGinnis, contacted the USAF EEO Office, alleging that they had been subject to discrimination based on their race, color, and national origin, and that they had suffered retaliation due to prior EEO activity. Specifically, Plaintiffs alleged discrimination in promotions, temporary duty, training, disciplinary action, personal documentation, and their 1991 and 1992 performance appraisals. The administrative complaint was initially submitted as a class complaint, with Plaintiffs remaining anonymous. In October of 1992, Plaintiffs were informed by a former employee, Ms. Sharymayne Windsor, that Mr. Thomas Ranney had told her that Plaintiffs had filed a class action EEO complaint. Mr. Ranney is the spouse of Ms. Lynne Ranney, Chief Counselor of the EEO Office. The complaint was later converted to individual complaints by Reynolds and McGinnis. In January of 1993, nine individuals were selected for promotion to GS-346-12 positions. The individuals were selected from a list of eligible employees, who were ranked according to a “promotion evaluation pattern.” Due to the number of positions available, a Merit Promotion Certificate and a Supplemental Certificate were created from the eligibility list. Each certificate contained ten names. Reynolds was not on the list of eligible employees, because she did not satisfy the “time-in-grade” requirement for promotion. Consequently, she was not promoted to a GS-346-12 position at that time. Nine Caucasian employees were promoted. On January 27, 1993, Reynolds again contacted the EEO Office, alleging that she had not been considered for promotion due to her race and national origin. In February of 1993, the Program Manager for the Pacer Chariot program was reassigned. Between February and July of 1993, Reynolds performed the Program Manager duties, but she did not receive credit or pay for that work. In July, 1993, Reynolds submitted an EEO Complaint, alleging that the failure to give her a temporary promotion was discriminatory. On August 30, 1993, Reynolds was credited with a detail to the GS-346-12 position for the time period February 1, 1993, to July 6,1993. In December of 1993, Citicorp notified the USAF that certain employees were past due on their Diner’s Club credit cards, which were issued to employees under the Diner’s Club Program (Doc. # 99, Def.Ex. 4). On April 13, 1994, Reynolds received a Notice of Proposed Removal, signed by her supervisor, Major Harris. Her employment with the USAF was terminated on June 10, 1994. In response, Reynolds filed another complaint with the EEO office and appealed her termination to the Merit Systems Protection Board (“MSPB”). Following the MSPB’s decision on McGinnis’ termination for credit card abuse (see, infra), Reynolds settled her complaint for reinstatement with a 60-day suspension. B. Pamela McGinnis McGinnis began her employment with AFSAC in 1988. From 1988 to March of 1992, Plaintiff McGinnis was employed in the Follow-On Support Branch of the Egyptian Program, working on the C-130 Program, a program which Plaintiff alleges is a “low visibility program.” (Admin.R.677) In December of 1990, McGinnis allegedly was informed by her supervisor, John Rodgers, that she would not be permitted to have temporary duty to Egypt for the Security Assistance Management Review, because her program was not visible enough. (Admin.R.696). In July of 1991, McGinnis received her annual performance review, which rated her “Fully Successful.” In 1992, she was reassigned to the Acquisition Branch, working on the ACMI Program (Admin.R.366). Plaintiffs July, 1992, performance appraisal rated her as “Excellent.” She alleges this rating is artificially low, and that she should have received a “Superior” rating, the highest rating possible (McGinnis Depo. at 211). From July, 1992, until September, 1992, McGinnis was temporarily promoted to. a GS-346-12 position. She continued to work at a GS-346-12 level from October 1, 1992, until July 6, 1993. In December of 1993, McGinnis was retroactively given credit for that work as a detail to a GS-346-12 position. In January of 1993, McGinnis learned that nine Caucasians had received promotions to a GS-346-12 position. Plaintiff had satisfied all the eligibility requirements for promotion, and she was ranked 23rd among eligible employees. The names of the top twenty individuals were placed on the Merit Promotion Certificate and the Supplemental Certificate and were forwarded to the promotion committee. Plaintiff was not selected for promotion, ostensibly because she was not among the top twenty individuals. McGinnis alleges that her ranking was low, due to the prior discriminatory performance evaluations and the failure to provide her training and travel opportunities. She alleges that had she' previously been treated fairly, she would have ranked the same as two Caucasian employees who received promotions. In December of 1993, the USAF was informed that $3,725.31 was past due on McGinnis’ Diner’s Club credit card. McGinnis’ supervisor, ■ Mr. Darrell Williams, Chief of Egyptian Acquisitions Program, was contacted by Employee Relations, which indicated that McGinnis had misused her credit card. The USAF had determined that between June 7,1993, and October 13, 1993, Plaintiff had made twenty-five (25) unauthorized purchases, totaling more than $6,500. On March 4, 1994, Mr. Williams issued a Notice of Proposed Removal for her personal use of the credit card. On April 1,1994, McGinnis responded to the charges via correspondence, presenting mitigating arguments. Upon consideration of Plaintiffs response, Colonel Victor Hardin, Director of European, African, and Near Eastern Programs, agreed with the proposal to remove Plaintiff, and on May 12, 1994, he signed a letter to that effect. On May 17, 1994, McGinnis was removed from her position as a Logistics Management Specialist. McGinnis appealed her termination to the Merit Systems Protection Board. She argued that her removal was discriminatory, in that the action was taken because of her race. The MSPB found that McGinnis had not demonstrated that her termination was retaliatory. However, it concluded that termination was an unreasonably severe penalty. The MSPB ordered that the removal be canceled, and that Plaintiff be given a 60-day suspension without pay. As a result of the MSPB Decision, McGinnis was reinstated in September of 1994. She returned to duty on November 15, 1994, and was assigned to the Netherlands Office. Plaintiff alleges that, after returning to duty, she did not receive any meaningful work, despite her repeated requests for same. On May 15, 1995, McGinnis began training to serve as a Reduction-in-Force (“RIF”) monitor and Union Steward. Thereafter, she began full-time employment with the Union. In July of 1995, Plaintiff received a performance evaluation, signed by Major Leven-tis, in which she was rated “Fully Successful.” II. Standard Governing Motions for Summary Judgment Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party: always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir.1991)(The moving party has the “burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.”)(quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)(quoting Fed.R.Civ.P. 56(e)). Thus, “[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial.” Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law, Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989). Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Michigan Protection and Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994)(“The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff”). Rather, Rule 56(e) “requires the nonmoving party to go beyond the [unverified] pleadings” and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Summary judgment shall be denied “[i]f there are ... ‘genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’ ” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir.1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties’ affiants are more credible; rather, credibility determinations must be left to the fact-finder. 10A Wright, Miller & Kane, Federal Practice and Procedure, § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), “[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990); see also L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561 (7th Cir.1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992)(“Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment....”) Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, only upon those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties. III. Defendants’ Motion for Summary Judgment (Doc. # 99) In their Motion, Defendants assert that they are entitled to summary judgment on each of Plaintiffs’ claims. With regard to Plaintiffs’ allegations of wrongful conduct occurring prior to June of 1992, Defendants assert that Plaintiffs have failed to exhaust their administrative remedies. As for Plaintiffs’ discrimination claims, the government asserts that McGinnis and Reynolds cannot establish a prima facie case. Defendants further argue that McGinnis cannot establish a prima facie case that she suffered retaliation. In addition, Defendants contend that Plaintiffs’ Privacy Act claims must be dismissed, because they cannot prove compensable damages, and that their Constitutional claim must fail, as a matter of law. A. Reynolds’ Title VII Discrimination Claims Plaintiffs claim that they suffered race discrimination, in violation of Title VII. Under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff must first establish a prima facie case of discrimination. In order to establish a prima facie case of racial discrimination, the plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was qualified for the position; and (4) other similarly situated employees, who were not members of the protected class, were treated differently. Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992); Nguyen v. City of Cleveland, 229 F.3d 559, 562-63 (6th Cir.2000). Once the plaintiff has established a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the defendant offers such a legitimate reason, the burden of production shifts back to the plaintiff to demonstrate that the defendant’s reason is not real, but a pretext. Id.; McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1817. The plaintiff may meet this burden by showing (1) that the stated reasons had no basis in fact, (2) that the stated reasons were not the actual reasons, or (3) that the stated reasons were insufficient to explain defendant’s action. Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir.1994). The burden of persuasion, however, always remains with the plaintiff. See Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir.1987); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). 1. Failure to Promote Claim Reynolds asserts that she was discriminated against in the promotional process, in that she did not receive a promotion to a GS-346-12 position in January of 1993, and that she did not receive a promotion to the Program Manager position for the Pacer Chariot program (Doc. # 107 at 20). In their Motion, Defendants assert that Reynolds cannot satisfy her prima facie case of discrimination, because she was not qualified for a promotion to a GS-346-12 position in January, 1993, in that she did not satisfy the “time-in-grade” requirement and, therefore, was not eligible for promotion. In response, Reynolds does not contest that she did not meet the time-in-grade requirement. Rather, she focuses on the Pacer Chariot GS-346-12 position, and argues that another employee, a Caucasian, was treated differently. In particular, Reynolds asserts that Ms. Diane Crevonis, a GS-346-11 employee on a different program, “was assured the GS-346-12 job on her program once she obtained the necessary time in grade.” (Doc. # 107 at 20). In contrast, Plaintiff did not receive the GS-346-12 position on the Pacer Chariot program, the program on which she worked, once she had the necessary time in grade. With regard to the January, 1993, promotions, Plaintiff has not provided any evidence that she was eligible for promotion, nor has she provided any evidence that other non-eligible employees were considered during that promotion process. Accordingly, she cannot demonstrate a prima facie case that the failure to consider her for promotion was discriminatory. Defendants are entitled to summary judgment for her failure to promote claim, based on the January, 1993, selections. As for her failure to be selected for a GS-346-12 position for the Pacer Chariot program, even assuming that Ms. Crevonis was assured her GS-346-12 position, Plaintiff has not provided evidence that she was similarly situated. The Sixth Circuit has held that a plaintiff must show that the “comparables” are substantially similar in all respects. Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir.1992). “Thus to be deemed ‘similarly situated,’ the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer’s treatment of them for it.” Id.; Gray v. Toshiba America Consumer Products, Inc., 263 F.3d 595, 599 (6th Cir.2001). Herein, Reynolds has indicated that Ms. Crevonis worked on a different program. There is no evidence that they worked for the same supervisor, or that the two programs required individuals with similar qualifications. In other words, there is no evidence whatsoever that there is any relationship between Ms. Crevonis’ promotion and Reynold’s nonselection. Moreover, Reynolds has provided no evidence to indicate the means by which an individual was selected for the Pacer Chariot Program Manager position. There is no evidence that Reynolds was qualified for the GS-346-12 position in the Pacer Chariot program at the time that a Caucasian was selected, nor is there any evidence that she applied for that position. Accordingly, Plaintiff has failed to establish a prima facie case that she was discriminated against on the basis of race when Defendants failed to promote her to a GS-346-12 position. Defendants’ Motion for Summary Judgment on Reynold’s failure to promote claim, based on both her failure to receive a promotion to a GS-346-12 position in January, 1993, and her failure to receive the GS-346-12 position on the Pacer Chariot program, is SUSTAINED. 2. 1992 Performance Appraisal In her Amended Complaint, Reynolds asserts that she was discriminated against, on the basis of race, in her 1992 performance appraisal. The 1992 performance review rated Plaintiff on nine categories, using a scale of 1 (the lowest) to 9 (the highest). Thus, the highest possible score for an employee was 81. Reynolds received a 9 score in four categories: Work Effort, Adaptability to Work, Problem Solving and Work Management. She received an 8 score in five categories: Working Relationships, Communication, Work Productivity, Self-Sufficiency and Skill in Work. Thus, Reynolds’ cumulative score was 76 out of a possible 81. In terms of overall performance, the evaluation form provided five possible ratings: Unacceptable (lowest), Minimally Acceptable, Fully Successful, Excellent, and Superior (highest). Plaintiff was assessed as Superior, which is defined as “Employee exceeds all of the elements of the performance plan.” Plaintiffs 1992 appraisal was signed by Mr. Darrell Williams. (Pl.’s Ex.) Defendants assert that Reynolds cannot establish a prima facie case that she suffered discrimination in her 1992 performance evaluation. First, they assert that Plaintiff cannot demonstrate that she was treated worse than non-minorities. Second, they argue that the evaluation did not constitute an adverse employment action. Reynolds acknowledges that, on its face, the Superior rating is high praise. However, she argues that the numerical total she received was artificially low and that, but for' her race, she would have received a higher score. In support of her argument that the evaluation was discriminatory, Plaintiff argues that she has direct evidence of discrimination by Defendants. She states, in her affidavit, that she was told by her first-level supervisor, Mr. Williams, that he was told by Colonel Moravek how to rate his people, and that the reason Reynolds did not receive a higher numerical score was because of her “color.” (Reynolds Aff. ¶ 4f). The Court agrees with Plaintiff that this is direct evidence of discrimination. In direct evidence cases, once a plaintiff shows that the prohibited classification played a motivating part in an employment decision, the burden of both production and persuasion shifts to the employer to prove that it would have taken the employment action against the employee, even if it had not been motivated by impermissible discrimination. Id.; Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)(plurality opinion); Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1081 (6th Cir.1994). Because Plaintiff herein has presented direct evidence that her 1992 evaluation was lower due to her race, she need not demonstrate that other similarly situated non-minorities were treated differently. Although the burden-shifting analysis set forth in McDonnell Douglas does not apply in a'direct evidence situation, Reynolds is not relieved of the burden of demonstrating that Defendants took an adverse employment action against her. “Even where there is direct evidence of discriminatory comments or remarks, the plaintiff may not prevail unless she shows an actionable injury.” Handshoe v. Mercy Medical Ctr., 34 Fed.Appx. 441, 445, 2002 WL 649070, *4 (6th Cir.2002). An adverse employment action typically must constitute “a materially adverse change in the terms of ... employment,” such as “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.” Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 885-86 (6th Cir.1996)(quoting Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.1993)); Dawson v. Airtouch Cellular, 42 F.Supp.2d 767, 771 (S.D.Ohio 1999)(Marbley, J.)(granting summary judgment where plaintiff had not alleged that she lost any salary, seniority or benefits, or received a less distinguished title or fewer responsibilities as a result of alleged discriminatory remarks); Joiner v. Ohio Dep’t of Transp., 949 F.Supp. 562, 567 (S.D.Ohio 1996) (no adverse employment action, despite loss of overtime and supervisory responsibilities, because no change in pay or benefits and no other conditions existed which would make working conditions intolerable). “A performance evaluation that is lower than an employee feels is warranted is not an adverse employment action sufficient to state a claim of discrimination.” Primes v. Reno, 190 F.3d 765, 767 (6th Cir.1999)(“fully successful” evaluation was not adverse employment action); Dowell v. Rubin, 221 F.3d 1334, 2000 WL 876767, *2 (6th Cir.2000) (rejecting plaintiffs claim, because he did not allege any adverse consequence arising from his above-average performance appraisal); Clark v. Alcan Aluminum Corp., 41 Fed.Appx. 767, 2002 WL 1691447 (6th Cir.2002); Booker v. Budget Rent-A-Car, 17 F.Supp.2d 735, 751 (M.D.Tenn.1998) (“[M]ost courts have concluded that negative performance evaluations cannot standing alone constitute an adverse employment action.”); Elkheir v. Ashcroft, 28 Fed.Appx. 506, 2002 WL 169611 (6th Cir.2002) (plaintiff failed to established a prima facie claim of discrimination, because he did not allege any adverse consequence arising from his 1997 performance rating of “fully successful.”). As expressed by the Sixth Circuit, “[i]f every low evaluation or other action by an employer that makes an employee unhappy or resentful were considered an adverse action, Title VII would be triggered by supervisor criticism or even facial expressions indicating displeasure.” Primes, 190 F.3d at 767. However, “negative evaluations can be used as evidence of an adverse employment action, particularly when they contribute to an employee’s demotion, disadvantageous transfer of positions, or failure to promote.” Booker, 17 F.Supp.2d at 751. In the present case, Reynolds has neither argued nor presented evidence that the 1992 performance appraisal constituted an adverse employment action. She has not demonstrated that the appraisal affected any terms or conditions of her employment. For example, she has not provided evidence that she received less pay or received worse assignments as a direct result of that appraisal. In addition, she has not argued that the 1992 evaluation affected her ranking on the Merit Promotion Certificate for the 1993 promotions to GS 346 12, or that she was denied any other promotions, pay increases, or other benefits as a result of the evaluation. Consequently, Plaintiff has not suffered any harm from the alleged discriminatory evaluation. Accordingly, Plaintiff cannot prevail, as a matter of law, on her claim based on her 1992 performance review. Defendants’ Motion for Summary Judgment on that claim is SUSTAINED. 3. Pre-1992 Alleged Discriminatory Conduct In the Second Amended Complaint, Reynolds alleges that Defendants discriminated against her in 1991, on the basis of race, by providing her with a performance appraisal that rated her lower than similarly situated Caucasian employees. She further alleges that she was placed on low visibility projects, that she was refused training opportunities, and that she was subject to discipline and criticisms for acts for which similarly situated Caucasians were not disciplined. In her Memorandum in Opposition to Summary Judgment (Doc. # 107), Plaintiff clarified these allegations, stating that, prior to July of 1992, she was told that she needed to have a college degree in order to be hired in the Schedule B program when, in fact, other Caucasian Schedule B employees did not have degrees. Reynolds further asserted that she was ignored by her supervisor during her first overseas trip, and that after she complained of race discrimination, her supervisor retaliated against her. In their. Motion, Defendants assert that Reynold’s claims which occurred more than thirty (30) days prior to the day on which she contacted an EEO counselor are untimely and are barred for failure to exhaust administrative remedies. In response, Reynolds asserts, in a footnote, that her 1991 performance appraisal is a “continuing violation.” Federal employees must exhaust their administrative remedies under Title VII before bringing suit in federal court. See Haithcock v. Frank, 958 F.2d 671, 675 (6th Cir.1992). At the time of the events giving rise to this litigation, federal employees were required to contact an EEO counselor within thirty days of the alleged discriminatory action. If complainants failed to meet this time limit, their complaints are subject to dismissal. See 29 C.F.R. § 1614.107(a)(2), (b). The “continuing violation” doctrine provides that when “there is an ongoing, continuous series of discriminatory acts, they may be challenged in their entirety as long as one of those discriminatory acts falls within the limitations period.” Haithcock v. Frank, 958 F.2d 671, 677 (6th Cir.1992). In other words, when a continuing violation is shown, “a plaintiff is entitled to have a court consider all relevant actions allegedly taken pursuant to the employer’s discriminatory policy or practice, including those that would otherwise be time barred.” Alexander v. Local 496, Laborers’ Int’l Union of N. Am., 177 F.3d 394, 408 (6th Cir.1999). In National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the Supreme Court recently clarified the application of the continuing violation doctrine to Title VII claims. Writing for the Court, Justice Thomas reviewed Title VII’s statutory language, which requires complainants file charges of discrimination within the specified number- of days after an “unlawful employment practice.” He noted that “practice” has repeatedly been interpreted to apply to a discrete act or single occurrence, even when it has a connection to other acts. Id. 536 U.S. at 110-11, 122 S.Ct. at 2070-71. He further noted that prior cases have held that discrete acts that fall within the statutory time period do not make acts that fall outside the time period timely. From these sources, the Court derived several principles: First, discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred. The existence of past acts and the employee’s prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim. Id. The Supreme Court expressly rejected applying the continuing violations doctrine to “serial violations.” In the present case, Reynolds (and McGinnis) contacted an EEO counselor on July 30, 1992. Thus, any alleged discriminatory event that occurred prior to July of 1992 is subject to dismissal for failure to exhaust administrative remedies in a timely manner. Plaintiff has raised, in a footnote, the issue that her 1991 performance appraisal falls within the continuing violation doctrine, but she has failed to provide any arguments in support of that assertion. Construing the evidence in the light most favorable to Plaintiff, Reynolds has not timely exhausted her administrative remedies regarding her 1991 performance appraisal. That evaluation constitutes a discrete act of discrimination, for which the continuing violations doctrine is inapplicable. Plaintiff therefore was required to file a timely EEO complaint as to that appraisal. Because Plaintiff’s EEO complaint was not filed until July of 1992, her allegations regarding her 1991 performance appraisal are untimely. Defendants’ Motion for Summary Judgment on Plaintiffs pre-1992 claims is SUSTAINED. In summary, Defendants are entitled to summary judgment on each of Reynolds’ claims against them. Their Motion for Summary Judgment on Reynolds’ claims is SUSTAINED. B. McGinnis’ Title VII Discrimination Claims In her Second Amended Complaint, McGinnis asserts that she has suffered race discrimination, as demonstrated by (1) being assigned low visibility projects, (2) being refused training necessary for career advancement, (3) being refused assignments to temporary duty (TDY’s) necessary for career advancement, (4) being subject to discipline and criticism for acts for which similarly situated white employees were not disciplined, and (5) being rated below similarly situated white employees on their 1991 and 1992 appraisals. Her Complaints in the consolidated cases allege that she suffered retaliation after her reinstatement. In their Motion for Summary Judgment, Defendants’ arguments do not track the allegations in the Complaints. Rather, they address Plaintiffs allegations, as clarified during her deposition, that they discriminated against her by (1) giving her an artificially low performance appraisal in 1992, (2) failing to promote her to a GS-346-12 position in January, 1993, (3) delaying her temporary promotion to a GS 346-12 position, (4) the negative comments of her supervisor, Colonel Moravek; and (5) giving her an artificially low performance appraisal in 1995. Addressing each allegation separately, Defendants argue that McGinnis cannot establish a prima facie case of de-crimination. Plaintiff responds that Defendants have “improperly attempted] to separate out and minimize each individual job action at issue in this case.” (Doc. # 107 at 13-14). She argues that the cumulative effect of the lack of training, the lack of assignment to high visibility programs and the artificially low appraisals has been to deny her promotions and career advancement (id. at 14). She states that it has also made her subject to reductions-in-foree and emotional distress (id.). 1. Pre-July, 1992 Allegations In her Complaints, McGinnis alleges that she was assigned to low visibility projects, was refused training necessary for promotion, was refused TDY’s, and received an artificially low performance appraisal in 1991. As with Reynolds, Defendants assert that McGinnis’ claims based on conduct which occurred prior to July of 1992 must be dismissed for failure to exhaust administrative remedies. McGinnis has responded, in a footnote, that her 1991 performance review was a continuing violation. She did not assert that any other pre-July of 1992 conduct was timely raised. In her deposition, McGinnis concedes that she did not file an EEO complaint based on the 1991 appraisal and, rather, that she intended the 1991 appraisal to constitute background evidence regarding her timely discrimination claims. (McGinnis Depo. at 210-211). Specifically, she testified: A.... I didn’t file on that one [the 1991 appraisal]. That was background. I didn’t file on that one, I filed on the one George Kern signed. I didn’t file on that one, that was just listed because that was background. Q. That '91 appraisal is background? A. Yes. The first appraisal I filed was the one where George Kern signed it, which would have been the Excellent. Q. We’ll move on to the '92 appraisal.... (Id.) In light of the foregoing testimony, the Court will not consider Plaintiffs’ claims to the extent that they are based on incidents that took place prior to July of 1992, including her 1991 performance appraisal. However, although those incidents will not be viewed as separate claims of discrimination, they may constitute relevant background evidence for her exhausted discrimination claims. See Morgan, 536 U.S. 101, 109-11, 122 S.Ct. 2061, 2070-71, 153 L.Ed.2d 106; Boykin v. Michigan Dept. of Corrections, 211 F.3d 1268, 2000 WL 491512,*3 (6th Cir.2000) (“we will still consider incidents which occurred outside of either of these statutes of limitations to the extent they are relevant to show that the conduct within the respective dates created a race based hostile work environment.”); United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) (evidence of conduct that is time-barred “may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue”); Jackson v. Quanex Corp., 191 F.3d 647, 668 (6th Cir.1999) (same). 2. 1992 Performance Appraisal In her Second Amended Complaint, McGinnis asserts that Defendants discriminated against her on the basis of race when they evaluated her performance in 1992. The 1992 performance review rated McGinnis on nine categories, using a scale of 1 (the lowest) to 9 (the highest). Thus, the highest possible score for an employee was 81. McGinnis received a 9 score in four categories: Work Effort, Adaptability to Work, Problem Solving and Work Management. She received an 8 score in three categories (Work Productivity, Self-Sufficiency and Skill in Work), and a 7 score in the remaining two categories (Communication and Working Relationships). Thus, McGinnis’ cumulative score was 74 out of a possible 81. In terms of overall performance, the evaluation form provided five possible ratings: Unacceptable (lowest), Minimally Acceptable, Fully Successful, Excellent and Superior (highest). Plaintiff was assessed as Excellent, which is defined as “Employee exceeds more than one-half of the critical elements and meets all other elements.” Plaintiffs 1992 appraisal was signed by Mr. George Kern. Defendants assert that McGinnis’ 1992 performance evaluation is not actionable in two respects. First, they assert that it does not constitute an adverse employment. Second, they argue that Plaintiff cannot show that similarly situated non-minorities were treated differently. McGinnis contends that the evidence demonstrates that the 1992 appraisal was the product of discrimination, and that it constituted an adverse employment action, because it prevented her from being placed higher on the promotion eligibility list in 1993. a. Similarly Situated Employees Beginning with whether similarly situated non-minorities were treated differently, McGinnis asserts that she should be compared with Ms. Paula Lyons, the GS-346-12 Program Manager for the ACMI program. Plaintiff contends that she and Ms. Lyons were similarly situated in all relevant respects: they worked on the same program; they shared the same first-level supervisor, John Rodgers; they had the same second-level supervisor, Colonel Moravek; and they performed essentially the same duties. Although Ms. Lyons was a GS-346-12 Program Manager rather than a GS-346-11 employee, Plaintiff argues that these similarities render her a more appropriate employee for comparison than other GS-346-11 Case Managers. McGinnis states, in her affidavit (Doc. # 107, App.l), that Ms. Lyons, a Caucasian, was frequently drunk or absent from work without receiving any disciplinary action. Despite her absences and inability to work, she received a Superior rating, whereas Plaintiff, who allegedly did the majority of the work, received an Excellent rating. Thus, McGinnis contends that Ms. Lyons, a similarly situated employee, was treated better than she was. Defendants contest McGinnis’ assertion that Ms. Lyons is an appropriate employee for comparison. They argue that, as a GS-346-12 Program Manager, Ms. Lyons had different performance criteria on which she was judged, and that Plaintiff should be compared to other GS-346-11 employees. Turning to the evaluations for other GS-346-11 case managers, Defendants provide evidence that of the twelve employees who were rated by Mr. Kern (based on the recommendation of her prior supervisor, Mr. Rodgers), nine employees .received lower numerical scores, and received equal or lower narrative ratings, as indicated by the Table, below. Total Numerical Narrative Name Race Score Rating Ziolek W 75 Superior Pent W 75 Superior McGinnis B 74 Excellent Stroud B 72 Excellent Peters B 72 Excellent Bentley W 71 Excellent Gibson W 71 Excellent Liming W 70 Excellent Lintzenich W 70 Fully Successful Kravos W 68 Fully Successful Richardson W 60 Fully Successful Hufford W 40 Fully Successful Seven of those co-workers were Caucasian. (A.R. at 488-511, 609). Construing the evidence in the light most favorable to Plaintiff, the Court concludes Plaintiff can compare herself to Ms. Lyons for her prima facie case. Plaintiff has provided evidence that Ms. Lyons shared the same supervisors and worked on the same program. Although McGinnis held a permanent GS-346-11 Case Manager position while Ms. Lyons held a GS-346-12 Program Manager position, Plaintiff received a temporary detail to a GS-346-12 position from February, 1992, until July, 1992 (Doc. # 99, Ex. 2). Thus, McGinnis was performing the same duties for a portion of the evaluation period. Accordingly, Plaintiff has demonstrated that Ms. Lyons was a comparable employee for the July, 1992, performance appraisal. Comparing McGinnis with Ms. Lyons, Plaintiff has presented evidence that she was treated differently. Plaintiff testified that she performed the bulk of the work on the program during that time period, and that she was a more than able employee. Despite her stellar job performance, she received an Excellent evaluation. In contrast, Plaintiff has presented evidence that Ms. Lyons was an alcoholic who was frequently drunk during work hours and was incapable of adequately fulfilling her job requirements. Despite these deficiencies, Ms. Lyons received the highest possible evaluation, a Superior rating. Construing this evidence in light most favorable to Plaintiff, McGinnis has raised a genuine issue of material fact as to whether similarly situated employees were treated differently. b. Adverse Employment Action In the present case, Plaintiff has asserted that the 1992 evaluation constitutes an adverse employment action, because it led to her being placed lower on the 1993 list of candidates for promotion than she would have been placed, absent discrimination. In other words, Plaintiff does not assert that the evaluation, by itself, constitutes an adverse employment action. Rather, she argues that it constituted an adverse employment action, because it formed the basis for the subsequent failure to be considered for promotion. The Court disagrees. As discussed, supra, the Sixth Circuit has made clear that an unfavorable (or, in this case, not favorable enough) performance evaluation, standing alone, is not actionable, because it does not constitute an adverse employment action. E.g., Dowell, 221 F.3d 1334, 2000 WL 876767, *2 (6th Cir.2000); Primes, supra. Herein, McGinnis’ performance evaluation did not, itself, result in a materially adverse change in the conditions of her employment. In other words, upon receipt of the 1992 performance evaluation, she did not suffer a demotion, termination, or a loss in benefits due solely to that evaluation. The fact that the performance appraisal allegedly was used as a basis for a subsequent adverse employment action, ie., the denial of a promotion, does not render the performance appraisal actionable. Rather, the performance appraisal is merely evidence in support of that subsequent adverse employment action. See Booker, supra. Consequently, Plaintiff cannot maintain an action based on the 1992 performance appraisal. Defendants’ Motion for Summary Judgment on this claim is SUSTAINED. The Court notes, however, that although Plaintiff cannot maintain her claim based on the 1992 performance appraisal itself, that appraisal is relevant evidence as to whether the roster of employees who could be considered for promotion in January of 1993 was tainted with discrimination. Accordingly, the Court can, and will, consider McGinnis’ argument that the artificially low performance appraisal resulted in her nonconsideration for promotion when addressing her failure to promote claim, to which it now turns. 3. Failure to Promote In a failure to promote case, a plaintiff must show that (1) she is a member of a protected class; (2) she applied for and was qualified for a job for which the employer was seeking applicants; (3) that she was considered for the position and, despite her qualifications, she was rejected for the job; and (4) that other employees of similar qualifications who were not members of the protected class were promoted at the time plaintiffs request for a promotion was denied. Russell v. Drabik, 24 Fed.Appx. 408, 412, 2001 WL 1556996, *3 (6th Cir.2001). In the present litigation, Defendants do not disagree that McGinnis was a member of a protected class or that she was qualified for a promotion to a permanent GS-346-12 position and had applied for such a position in 1993. In addition, it appears undisputed that no minorities were promoted at that time. Rather, Defendants assert that McGinnis was not “considered for” the GS-346-12 position, because she had been ranked 23rd on the list of eligible candidates, and only the top 20 candidates were considered. Plaintiff responds that the reason she was not among the top 20 candidates is that the ranking was based on her 1991 and 1992 performance evaluations, which, although good, were artificially low. In other words, she asserts that the ranking of eligible candidates was tainted, because it was based on discriminatory performance evaluations and training opportunities. McGinnis asserts that, had she received the evaluations that she deserved, she would have ranked higher on the list, at the same level of two individuals who were promoted. In support of their argument that McGinnis cannot set forth a failure to promote claim, Defendants provide the affidavit of AFSAC Staffing Specialist Charles J. Smith (Def.Ex.5), in which he describes the method used to select individuals for promotions. According to Mr. Smith’s affidavit, in the later part of 1992, he received nine requests to fill GS-346-12 Logistic Management Specialist positions. Using a “promotion evaluation pattern,” he created a candidate referral roster of persons eligible for promotion to one of the GS-346-12 positions. From this roster, he drafted a Merit Promotion Certificate and, due to the number of positions to be filled, a Supplemental Certificate. Each of the two certificates had ten names on it, for a total of twenty names. Selections for promotion were to be made from the Merit Promotion Certificate and the Supplemental Certificate. (Id.) Mr. Smith further indicates that Plaintiff was eligible for promotion. She ranked 23rd on the candidate referral roster. Because she was not among the top twenty candidates, she did not appear on the Merit Promotion Certificate or the Supplemental Certificate, and her name was not forwarded to the individuals responsible for selecting who would be promoted. Based on this evidence, Defendants assert McGinnis was not considered for promotion and, therefore, she cannot establish a prima facie case. The Court agrees with Defendants that McGinnis has not presented evidence that she was considered for promotion by the promotion committee. Mr. Smith’s uncontested evidence indicates that only twenty names were made available to the promotion committee, and that the committee was to select from these individuals. Plaintiff has repeatedly acknowledged that she was ranked 23rd, and that her name was not listed on the Merit Promotion Certificate or the Supplemental Certificate. Although McGinnis has asserted that Colonel Moravek chose not to consider the individuals who were ranked 21st through 30th on the eligibility list, in order to avoid considering Plaintiff, Mr. Smith has stated that the committee was to select only from the Merit Promotion Certificate or the Supplemental Certificate. There is no evidence that he had the authority to consider anyone other than those who were listed on those Certificates. However, in creating the Merit Promotion Certificate and the Supplemental Certification, Mr. Smith applied the “promotion evaluation pattern” to McGinnis and she was given a rank among eligible candidates accordingly. Although McGin-nis did not rank highly enough to be placed on the Merit Promotion Certificate or the Supplemental Certification, she was “considered” as part of the process of creating the lists. Accordingly, McGinnis has satisfied every element of her prima facie case of discrimination for her failure to promote claim. In addition, although the uncontroverted evidence indicates that McGinnis was not considered by the promotion committee, the Court concludes that Plaintiff has presented evidence that she was discriminated against when the eligibility rankings were prepared, thus rendering her failure to be considered for promotion by that committee a product of discrimination. Construing Plaintiffs evidence in the light most favorable to her, it is evident that Plaintiff was a minority and was recognized as an eligible employee. McGinnis has provided evidence that the ranking for the Merit Promotion Certificate was based, in part, on her performance evaluations. Colonel Moravek chaired the promotion board, and was aware that Plaintiff was among the eligible employees. Plaintiff has stated that Colonel Moravek told her that he thought black employees were average compared to whites, and that he told Paula Lyons that McGinnis would never receive a permanent promotion to a GS-346-12 position. In addition, Colonel Moravek was McGinnis’ second-level supervisor, who signed Plaintiffs evaluations. Furthermore, McGinnis has provided evidence that she was treated differently than a Caucasian co-worker, Ms. Lyons, with regard to her 1992 performance evaluation. In light of the foregoing, a reasonable jury could conclude that Plaintiffs performance evaluations were artificially low, in order to ensure that Plaintiff would not be ranked highly on an eligibility list and, therefore, would not receive a promotion. In other words, there is a genuine issue of material fact as to whether the ranking of employees from the list of eligible employees was tainted by discrimination, due to the use of discriminatory performance evaluations in the ranking process. See Cross v. City of Ontario, 97 F.3d 1458, 1996 WL 525378 (9th Cir.1996) (“Given the allegations that the staff evaluations were subjectively tainted with bias and racism, the allegations of racial slurs and jokes by staff evaluators, and the statistical evidence showing that blacks were under represented in the Department, there is a genuine issue of material fact as to defendants’ motive in rejecting Cross for promotion”). Accordingly, Defendants’ Motion for Summary Judgment on Plaintiffs failure to promote claim is OVERRULED. 4. Delay in Temporary Promotion to GS-3A6-12 Defendants seek summary judgment on Plaintiffs claim that she was discriminated against, on the basis of race, when her temporary promotion to a GS-346-12 position was delayed. They argue that Plaintiff ultimately received her temporary promotion, that it was made retroactive, and that she received all back-pay. Thus, Defendants argue, Plaintiff did not suffer an adverse employment action. Courts which have addressed whether a delay in a promotion constitutes an adverse employment action have consistently held that it does not. For example, in Pennington v. City of Huntsville, Ala., 93 F.Supp.2d 1201 (N.D.Ala.2000), the plaintiff, an African-American, asserted that he had suffered from discrimination when his promotion was delayed. The plaintiff had voiced his concerns about the delay, and his promotion went forward. The district court rejected the plaintiffs claim, reasoning that he ultimately received the promotion and he had suffered no real consequences from the initial contrary decision. Id. at 1220; see also Benningfield v. City of Houston, 157 F.3d 369 (5th Cir.1998); Shabat v. Blue Cross Blue Shield of the Rochester Area, 925 F.Supp. 977 (W.D.N.Y.1996) (delay in promotion did not constitute adverse employment action). The Sixth Circuit has likewise held that delays in granting promotions are not adverse employment actions. Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 546 (6th Cir.1999) (delay in grant of tenure was not adverse employment action under Title VII when plaintiff ultimately received tenure), cert. denied, 529 U.S. 1019, 120 S.Ct. 1421, 146 L.Ed.2d 313 (2000). Herein, McGinnis asserts that the delay did have adverse effects. First, she contends that there was a loss of pay, because she could have had the promotion earlier and for a longer period of time. Second, Plaintiff asserts that because the promotion was delayed, she lost the opportunity for a permanent GS-346-12 position. In her deposition, Plaintiff testified that she lost pay, because Mr. Rodgers did not put the temporary promotion package together properly, thus causing a delay. She states that the paperwork provided that she would receive a temporary promotion not to exceed 120 days, when Mr. Rodgers could have recommended a temporary promotion for a period up to one year. (McGinnis Depo. at 190-93). Although Plaintiff did not receive the longest possible temporary promotion, there is no evidence that the delay in processing the forms resulted in this alleged loss in pay. In addition, the undisputed evidence indicates that Plaintiff received retroactive pay once the promotion was processed. Accordingly, Plaintiff has not raised a genuine issue of material fact that she suffered a loss in pay due to the delay in processing her temporary promotion. Defendants are entitled to summary judgment on this claim. Plaintiff further argues that the delay resulted in the loss of an opportunity for a permanent GS-346-12 position. She testified that at the time that the temporary promotion should have occurred, there was a permanent GS-346-12 position on the ACMI Program that would have been available, and she would have been the only person within that directorate who was qualified for it. (McGinnis Depo. at 193). At the time that the temporary promotion went through, there was a list of “surplus” individuals, who received preferential treatment for available positions (id. at 193-202). Accepting Plaintiff’s statements that the delay caused her to loss a promotional opportunity, such a loss may constitute ah adverse employment action. Gagnon v. Sprint Corp., 284 F.3d 839, 851 (8th Cir.2002) (written reminder resulted in the outright closing of job openings to him and the loss of opportunity to compete for any position, which, if true, might support a claim of retaliation); de la Cruz v. New York City Human Res. Admin. Dep’t of Social Serv., 82 F.3d 16, 21 (2d Cir.1996) (holding that transfer to a unit with less opportunity for advancement was sufficient to meet third prong of McDonnell Douglas test); Tanay v. St. Barnabas Hosp., 2001 WL 262695, *6 (S.D.N.Y. Mar. 15, 2001) (loss of opportunity for advancement due to transfer sufficient to allege adverse employment action); Kostenbader v. Kelly-Springfield Tire Corp., 2001 WL 910383 (N.D.Ill.2001)(loss of opportunity for promotion constitutes adverse employment action). Defendants’ Motion for Summary Judgment on Plaintiffs claim, based on a delay in her temporary promotion, is OVERRULED, to the extent Plaintiff asserts that she lost opportunities for advancement as a result of the delay. 5. Comments by Colonel Moravek Defendants assert that they are