Full opinion text
MEMORANDUM OPINION COLLEEN KOLLAR-KOTELLY, District Judge. Plaintiff, Barbara Felder (“Plaintiff’) filed the Complaint in this action as Personal Representative of the Estate of her late husband, Marvin Felder (“Felder”), against Defendant Mike Johanns, in his official capacity as Secretary of the United States Department of Agriculture (“USDA” or “the Agency”). Plaintiffs Complaint alleges that the Animal and Plant Health Inspection Service (“APHIS”) and its operating unit, International Services (“IS,” collectively “APHIS-IS”), discriminated against Felder on account of his race asserting disparate treatment and in retaliation for his prior protected EEOC activity, by failing to promote him while promoting a similarly situated IS employee. In 2002, Felder and a fellow USDA employee, Alester van Simmons, prevailed in a jury trial in a race discrimination case against USDA and were subsequently granted equitable relief, including reinstatement to vacancies in IS. Felder now alleges that USDA carried out its obligation to reinstate Felder and' Simmons, but subsequently engaged in a separate act of discrimination by “paper promoting” Simmons while failing to similarly “paper promote” Felder. Currently pending before the Court is Defendant’s Renewed Motion [28] to Dismiss or for Summary Judgment (“Motion”). As Felder has subsequently filed an opposition and USDA a reply, Defendant’s Motion is now ripe. After a seareh-ing review of the parties’ briefing, the exhibits attached thereto, the relevant case law, and the entire record herein, the Court shall GRANT Defendant’s Motion for the reasons that follow. I. BACKGROUND A. The 1999 Lawsuit Marvin Felder, an African American male, was an employee of USDA in the APHIS unit from 1978 through his death in March 2005. Defendant’s Statement of Material Facts Not In Dispute (“Def.’s Stmt.”) ¶ l. In July of 1999, Felder and another USDA employee, Alester van Simmons, filed a civil action in the United States District Court for the District of Columbia, captioned Felder v. Glickman, Civ. A. No. 99-1860(GK) (“1999 Lawsuit”), alleging violations of Title VII of the Civil Rights Act of 1964. Def. Stmt. ¶ 2. Felder and Simmons, both African Americans, alleged, inter alia, that they had been discriminated against on the basis of race (black) when they were not selected from a 1997 roster of qualified applicants to fill management vacancies in the IS unit of APHIS. Id. At that time, both Felder and Simmons were employees of the USDA in the Plant Protection and Quarantine (“PPQ”) unit of APHIS. See Def.’s Stmt. ¶¶ 16-18; see also Pl.’s Opp’n, Ex. S (Decl. Alester van Simmons) (“Simmons Decl.”). However, Felder and Simmons were at different grade levels. See Def.’s Stmt. ¶¶ 17, 18. The 1999 Lawsuit was tried before a jury, with Judge Gladys Kessler presiding. Id. ¶ 3. The jury returned a verdict in favor of Felder and Simmons. Id. By order dated February 4, 2002, 2002 WL 193329 (“February 4, 2002 Order”), Judge Kessler awarded Felder and Simmons equitable relief, including “instatement to the first opening or vacancy which becomes available in IS,” retroactive to February 1997, as well as “back pay to the dates on which the first and second vacancies in IS were filled after creation of the roster on which each Plaintiff was placed (without regard to whether selections were made from those rosters and without regard to whether selections were made from within or without IS).” Id. ¶ 4; see also Def.’s Mot, Ex. 1 (the February 4, 2002 Order and Memorandum Opinion) (“February 4, 2002 Order”). B. Implementation of the Order At the outset, the Court notes that this is not a typical failure to promote case. Rather, Felder’s claims stem from USDA’s efforts to implement a judicial order requiring equitable relief in the form of instatement to a position in the APHIS-IS unit. It is therefore important to make clear what Judge Kessler’s February 4, 2002 Order did — and did not— require. As both Felder and USDA concede, the February 4, 2002 Order did not explicitly require that USDA provide either Felder or Simmons with a promotion upon instatement into IS. Def.’s Stmt. ¶ 5; PL’s Resp. ¶ 5. Rather, the February 4, 2002 Order provided only that Felder and Simmons must be instated “to the first opening or vacancy that becomes available in IS.” See February 4, 2002 Order. Nonetheless, the Agency asserts that it understood the February 4, 2002 Order to require it to determine, as an equitable matter, what positions and FP-grade levels Felder and Simmons would have likely occupied in 2003 had they been selected in 1997 (but for the discrimination as found by the jury in the 1999 Lawsuit). See Def.’s Stmt. ¶ 16. Although Felder disputes this assertion, he has not offered any evidence — other than his own unsupported, conclusory allegations — to contradict Defendant’s assertion. 1. Initial Offers to Felder and Simmons for Instatement in IS In the fall of 2002, Agency counsel and counsel for Felder and Simmons began participating in discussions regarding Felder’s and Simmons’ new positions in IS, as mandated by Judge Kessler’s February 4, 2002 Order. Def.’s Stmt. ¶ 6. By letter dated September 26, 2002, USDA first notified both Felder and Simmons of their initial “selections” — i.e., what specific positions the Agency was offering Felder and Simmons in IS, in accordance with the February 4, 2002 Order requiring instatement. See Def.’s Mot., Ex. 3 (October 9, 2002 Letter from Kim 'D. Mann, counsel for Felder and Simmons, to Assistant United States Attorney Marina Utgoff Braswell, trial attorney for USDA in the 1999 Lawsuit) (“October 9, 2002 Letter”) (noting that “John Wyss has notified Marvin Felder and Van Simmons of their ‘selections’ to fill positions in IS by letters dated September 26, 2002”). Significantly, although Felder and Simmons had both been in the PPQ unit of APHIS at the time they applied for (and were denied) the IS vacancies in 1997, they were at different GS-grade levels at that time. Def.’s Stmt. ¶ 16. They were therefore placed on the selection rosters for the IS vacancies in 1997 at different grade levels. Id. In particular, Simmons was on the FS^I36^4 (GS-12) roster, while Felder was on the FS-436-3 (GS-13) roster. Id. ¶¶ 17, 18. Accordingly, although Simmons and Felder were both awarded positions in IS as part of the February 4, 2002 Order, they were selected for (and ultimately converted into) IS positions at different FP levels. Specifically, Simmons was notified that he had been selected to fill the position of Plant Protection and Quarantines Officer, Officer in Charge, in Hamilton, Bermuda, which was a GS-12 equivalent, and Felder was notified that he had been selected to fill the position of APHIS Area Director in Seoul, Korea. Id. ¶¶ 17,18. As is relevant to the instant lawsuit, in its letter to Felder notifying him of his initial selection, USDA advised Felder that, although the position he was offered was classified as. a GS-14 equivalent, he would be “converted at APHIS’ maximum lateral entry into the Foreign Service, which is the FP-3 (GS-13 equivalent).” Pl.’s Opp’n, Ex. B (September 26, 2002 Letter from Dr. John H. Wyss, Assistant Deputy Administrator with IS, to Felder) (“September 26, 2002 Letter”). IS assured Felder, however, that his salary would be matched. Id. USDA explains that, since 1994, APHIS-IS has operated under an internal policy, referred to as the “lateral entry policy,” of bringing individuals into IS at a level no higher than the FP-3 (GS-13 equivalent) level. Def.’s Stmt. ¶ 18; see also Defi’s Mot., Ex. 8 (Wyss Affidavit) (“Wyss Aff.”). Prospective employees above the GS-13 grade level are required to sign a statement agreeing to take a downgrade for entry into IS. Def.’s Mot., Ex. 13 (Excerpt of Dr. John H. Wyss Deposition) (“Wyss Depo. I”) at 33-34; see also Wyss Aff. at 3-4. USDA’s internal policy would have therefore required Felder to come into IS at the FP-3 grade level (GS-13 equivalent), assuming Felder had entered IS in 1997, the retroactive date of his instatement. See Wyss Depo. I at 33-34; Wyss Aff. at 3-4. However, because Felder’s salary exceeded the highest salaried step in the FP-3 category, he would have had to accept a downgrade in order to enter into IS in 1997. PL’s Opp’n, Ex. K (Felder Rebuttal Affidavit) (“Felder Rebuttal Aff.”) ¶ 4. That is, strictly requiring Felder to convert into IS at a FP-3 grade level, as mandated by the lateral entry policy, would have therefore resulted in a decrease in his salary. See id. As stated in the September 26, 2002 Letter, USDA offered Felder a FP-3 position, consistent with its internal lateral entry policy, but provided that his current salary would be matched nonetheless. See September 26, 2002 Letter. 2. Simmons’ and Felder’s Initial Acceptances of USDA’s Offers On October 9, 2002, Felder sent USDA a letter accepting the position as APHIS-IS Area Director in Seoul, South Korea, “pending all issues being resolved pursuant to the court order dated February 4, 2002.” Pl.’s Opp’n, Ex. C (October 9, 2002 Letter from Felder to Dr. Wyss) (“Felder’s October 9, 2002 Letter”). By letter dated that same day, Plaintiffs counsel, Kim D. Mann, informed Braswell, trial counsel for USDA during the 1999 Lawsuit, that “Felder has no issues regarding the specific position and location for which he has been selected and assigned.” Defi’s Stmt. ¶ 7; see also Def.’s Mot., Ex. 3 (October 9, 2002 Letter from Mann to Bras-well) (“Mann’s October 9, 2002 Letter”). As to Simmons, Mann stated that he, unlike Felder, did not “believe the position to which he has been assigned conforms with the” February 4, 2002 Order. Mann’s October 9, 2002 Letter. Additionally, in relevant part, Mann informed Braswell that both Felder and Simmons believed they were “entitled to in-grade step increases as a matter of law in accordance with the federal regulations governing positions in IS” and would therefore “like an explanation as to the dates on which those in-grade step increases will be deemed to have become effective and how those increases affect their promotion potential and retirement.” Def.’s Stmt. ¶ 7; see also Mann’s October 9, 2002 Letter. 3. USDA’s Second, More Generous Offers Thereafter, on December 19, 2002, Dr. John H. Wyss, former Assistant Deputy Administrator of APHIS-IS, wrote a letter to Felder informing him that USDA was now offering him the position of APHIS Area Director in Seoul, South Korea, at the FP-2 (GS-14) grade equivalent, rather than the previous offer at the FP-3 grade level. Def.’s Mot., Ex. 9 (Dec. 19, 2002 Letter from Wyss to Felder) (“December 19, 2002 Letter”). Wyss requested Felder acknowledge acceptance of the assignment so that USDA could being processing the transfer. Def.’s Stmt. ¶ 11; see also December 19, 2002 Letter. Wyss subsequently sent a second letter, dated January 15, 2003, to Felder again stating that Felder had been selected to fill the position of APHIS-IS Area Director in Seoul, Korea, and specifying that Felder would be placed at the FP Class 2, Step 9 level. Def.’s Stmt. ¶ 12; Def.’s Mot., Ex. 10 (January 15, 2003 Letter from Wyss to Felder) (“January 15, 2003 Letter”). The January 15, 2003 Letter repeated Wyss’ previous request that Felder acknowledge acceptance of the assignment so that USDA could begin .processing the transfer. Def.’s Stmt. ¶ 12; January 15, 2003 Letter. On February 27, 2003, Wyss sent a similar letter to Simmons, informing Simmons that he had been selected to fill the position of PPQ Officer-in-Charge, in Kingston, Jamaica, at the FP-3 grade level (GS-13 equivalent). Def.’s Stmt. ¶ 15; Def.’s Mot., Ex. 12 (February 27, 2003 Letter from Wyss to Simmons). Noticeably, this second offer, like Felder’s second offer, contained an improved grade level, offering Simmons instatement at the FP-3 grade level rather than the FP-4 grade level originally offered. 4.Ongoing Communications Between Felder and USDA Regarding Felder and Simmons’ Positions Neither Felder nor Simmons immediately accepted these positions, but rather continued to communicate with USDA regarding various concerns as to their respective assignments. As is specific to Felder, by-letter dated January 31, 2003, he raised for the first time, through his counsel, certain issues with IS concerning his FP-grade level. See Def.’s Stmt. ¶ 14; see also Def.’s Mot., Ex. 11 (January 31, 2003 Letter from Mann to Braswell) (“January 31, 2003 Letter”). In particular, the January 31, 2003 Letter stated that “Felder observes that other IS specialists holding FP-3 positions in 1997 have, by the end of 2002, received two promotions, not just one” and that “Felder requests similar treatment.” January 31, 2003 Letter. Thereafter, on April 22, 2003, Felder himself sent an email to Ms. Ayoka Campbell, an attorney in USDA’s Office of the General Counsel, providing a further list of demands. Def.’s Stmt. ¶ 22; Def.’s Mot., Ex. 18 (April 22, 2003 Email from Felder to Campbell) (“April 22, 2003 Email”). In particular, Felder requested “FP-1 upon entry.” Def.’s Stmt. ¶22; April 22, 2003 Email. In response, Campbell sent Mann a letter, dated May 9, 2003, in which Campbell acknowledged Felder’s demand that he receive an FP-1 grade level upon entry, but stated that Felder would be instated at the FP-2 grade level, and would not be given a promotion to the FP-1 grade level. Def.’s Stmt. ¶ 14; Def.’s Mot., Ex. 14 (May 9, 2003 Letter from Campbell to Mann) (“May 9, 2003 Letter”). Specifically, Campbell stated: The Agency has agreed to place Felder into a FP-2 position equivalent to his current salary. The record is clear that most individuals working in IS in 1997 at the FP-3 level remain at the FP-2 level today. Therefore, the Agency has offered Felder a FP-2 position. Felder will be eligible for promotions to the FP-1 level and will be subject to IS promotion rules and regulations. USDA is unable to give Felder preferential treatment with regard to the FP-1 level after one year of service. May 9, 2003 Letter. The letter also requested that Felder and Simmons unequivocally accept or deny, in writing, the offered positions at APHIS-IS by May 30, 2003, or USDA would assume the positions had been denied. Def.’s Stmt. ¶ 23; May 9, 2003 Letter. By letter dated May 19, 2003, Mann responded on behalf of Felder and Simmons, stating that “I have been authorized by my clients to express their acceptance of the offers of employment in International Services.” Def.’s Stmt. ¶ 24; Def.’s Mot., Ex. 19 (May 19, 2003 Letter from Mann to Campbell) (“May 19, 2003 Letter”). In a subsequent email from Mann to Braswell, dated June 4, 2003, Mann reconfirmed that “Mssrs. Felder and Simmons did accept positions in IS unequivocally. They are not particularly satisfied with their FP- and grade levels ... but decided to accept the offers. Felder will continue to seek a meeting with the head of IS to discuss his future in IS.” Def.’s Stmt. ¶ 25; Def.’s Mot., Ex. 20 (June 4, 2003 Email from Mann to Braswell) (“June 4, 2003 Email”). Thereafter, Felder continued his efforts to meet with IS officials about his desire to be promoted to the FP-1 grade level upon instatement. Pl.’s Stmt. ¶¶ 36-38; see also PL’s Opp’n, Ex. E (September 25, 2003 Email from Felder to Ralph Iwamo-to) (seeking a meeting with Iwamoto to discuss, inter alia, the “[djifference in handling the particulars of my case in comparison with the handling of Simmons’ case (promotion).”). In particular, while attending orientation for his new IS position in Washington D.C. in October of 2003, Felder met with several IS management officials and discussed his concerns regarding his instatement into IS at the FP-2 grade level. See PL’s Stmt. ¶¶ 37-38; see also PL’s Opp’n, Ex. J (November 18, 2003 Email from Nick Guiterrez to Felder). Such discussions, however, were ultimately unsuccessful. As reconfirmed by Wyss in a letter to Felder dated December 5, 2003: [Pjursuant to Judge Gladys Kessler’s February 4, 2002 Order, you are assigned to the Animal and Plant Health Inspection Service (APHIS), International Services, Foreign Service. Your position is that of APHIS Area Director, Seoul, South Korea. The position is classified as an Agriculturist, FP-401-2 (GS-14 equivalent). On December 23, 2008, at the beginning of Pay Period 26, you will be converted retroactively into the APHIS Foreign Service at the FP-2 level (GS-14 equivalent), effective February 14,1997. At the time of your conversion to the Foreign Service, you will be an FP-2, step 9. Your reporting date is January 6, 2004. See PL’s Opp’n, Ex. G (December 5, 2003 Letter from Wyss to Marvin Felder) (“December 5, 2003 Letter”). C. Procedural Background 1. EEO Complaint On November 4, 2003, Felder contacted USDA’s EEO counselor, and, on December 19, 2003, he filed formal charges with USDA alleging race-based discrimination in connection with IS’ failure to promote him to the FP-1 grade level while promoting Simmons to the FP-3 grade level. First Amended Complaint, Docket No. [18], (“Am. Compl.”) ¶ 15. Felder also alleged that USDA’s decision to promote Simmons but not to promote Felder constituted reprisal for Felder’s role in the 1999 Lawsuit. Id. In particular, Felder noted that Judge Kessler, in ruling on post-trial motions in the 1999 Lawsuit, characterized Felder as “the person who first initiated the EEO activity and in general played a leadership role.” PL’s Opp’n, Ex. A (February 4, 2002 Memorandum Opinion and Order, Civ. No. 99-1860, Kessler, J) at 9 n. 3. 2. USDA’s Proffered Nondiscriminatory, Legitimate Reasons In response to the EEO investigation that followed, USDA provided a more in-depth description of its basis for instating Felder into IS at the FP-2, rather than the FP-1, grade level. Specifically, USDA stated that, in order to comply with the February 4, 2002 Order, the Agency sought to place Felder and Simmons in the FP-grade levels they would have likely occupied in 2003 had they been selected in 1997. Def.’s Stmt. ¶ 16. Accordingly, Agency counsel directed the Director of the Personnel and Travel section of IS, Ms. Frieda Skaggs, to “please track Felder & Simmons as to where they were in 1997 and would possibly be today if in IS.” Def.’s Stmt. IT 7; PL’s Resp. ¶ 7; see also Def.’s Mot., Ex. 4 (October 31, 2002 email from Campbell to Skaggs) (“October 31, 2002 Email”). At this point, it is useful to briefly explain the normal procedure for promotions in IS. Generally, all IS officers’ performance evaluations are automatically reviewed on an annual basis by an intermediate selection board to determine promotions and all other types of incentives. See Def.’s Mot., Ex. 6 (Skaggs Affidavit) (“Skaggs Aff.”) at 4-5; see also Wyss Aff. at 3. The board considers the evaluations of all candidates of the same class level and series, and then ranks them. Wyss Aff. at 3. There is a forced ranking of the employees, such that one employee is ranked number “1” and the next employee is ranked number “2.” Id. If there are one or more promotional opportunities, the top ranked employees would be the ones recommended for the positions. Id. IS has no discretion in who is recommended — ie., the number “1” employee must be recommended for the first promotion. Id. The board makes the recommendations to the IS Deputy Administrator, who in turns makes the recommendations to the APHIS Administrator, who makes the final decision whether to accept the recommendation. Id. The employees are thus competing against each other for promotion. Def.’s Stmt. ¶ 19. As neither Felder nor Simmons was in IS prior to 2003, neither, quite obviously, went through the general promotion process described above. Therefore, USDA states that it decided to determine Felder’s and Simmons’ class levels, salary and conditions by extrapolating what would have happened if they had entered IS in 1997. Wyss Aff. at 1. USDA did so in two specific ways, described below. Before turning to the particular methods USDA used in determining which FP-grade level to place Felder and Simmons at upon instatement, the Court notes that USDA concedes that it did not follow the Agency’s established policy regarding promotions and lateral entries in this instance, given the atypical nature of Felder’s and Simmons’ instatement. See, e.g., Wyss. Aff. at 3 (“I believe the policy was followed as close as possible, but being a court ordered settlement case there may have been some deviation in favor of the Complaint [sic ].”); Pl.’s Opp’n, Ex. P (Excerpt of Wyss Deposition) (“Wyss Depo. II”) at 50-51 (acknowledging that USDA did not follow its lateral entry policy when it permitted Felder to enter into IS at the FP-2, rather than FP-3, grade level). The final decision to place Felder at the FP-2 grade level was made by the Office of General Counsel for USDA, with input provided by Wyss and Skaggs. See Wyss Aff. at 5. a. Comparators First, Agency counsel, Campbell, asked Skaggs to determine if any individual had been converted to IS during the designated time period, which was defined as June 9,1997 to December 9,1998, and to consider any step increases or promotions that Felder or Simmons might have received had they, like those individuals, been converted into the system in 1997. Skaggs Aff. at 3; October 31, 2003 Email. As Skaggs explained, the 1997 to 1998 time frame was chosen because it encompassed the same roster that Felder and Simmons would have been on at the time they applied for the IS vacancy positions. See Def.’s Mot., Ex. 5 (Excerpt from Skaggs Deposition) (“Skaggs Depo.”) at 41-42. USDA concedes that nothing in the IS policy manuals suggests using a comparator for purposes of determining the likelihood of promotions. See id. at 32-33. Skaggs determined that only one individual, Ken Nagata, had entered APHIS-IS in 1997. Skaggs Aff. at 3; Skaggs Depo. at 43-44. Nagata had entered IS at the FP-5 grade level and had received a promotion to the FP-4 grade level in November of 2001. Skaggs Aff. at 3. Although Nagata entered APHIS-IS at one grade level lower (FP-5) than Simmons (FP-4), USDA determined that Nagata was sufficiently similar to Simmons and therefore determined that Simmons would likely follow, or “parallel,” the same career ladder. Def.’s Stmt. ¶ 9; Skaggs Aff. at 3-4. Consequently, because Nagata had received a promotion in the time period at issue (1997-2002), USDA concluded that Simmons should be brought in at a higher level as well. Def.’s Stmt. ¶ 9. For that reason, USDA offered to place Simmons into APHIS-IS at an FP-3 grade level— i.e., to give him a retroactive paper promotion from the FP-4 grade level at which he otherwise would have entered APHIS-IS. Id. ¶¶ 9,17. As USDA acknowledges, it determined that only one individual — Nagata—entered into IS during the relevant time period (June 9, 1997 to December 9, 1998). Skaggs Aff. at 3; Skaggs Depo. at 43-44. As stated above, Nagata entered into IS at the FP-5 grade level, while Felder would have entered into IS at the FP-3 grade level. Accordingly, with respect to Felder, USDA determined that Nagata was not a sufficient comparator and, as no other individual entered into IS during the relevant time period, USDA concluded that no comparator could be located that would show a promotion from the FP-2 grade level to the FP-1 grade level. Def.’s Stmt. ¶ 10. Felder contests USDA’s determination that no similarly situated comparator received a promotion from FP-2 to FP-1 during the 1997 to 2002 time period. Pl.’s Resp. ¶ 10. According to Felder, USDA, in fact, promoted ten similarly situated IS employees, comparable to Felder, from the FP-2 grade level to the FP-1 grade level during the 1997 to 2002 time period. PL’s Resp. ¶ 10. As Felder points out, each of the ten IS employees were in the same or interchangeable occupational series as Felder (GS-436, GS-401, GS-414). Id. In addition, none of the ten IS employees referenced by Felder is African American. See PL’s Opp’n, Ex. Q (charts detailing 1997 to 2002 promotions from FP-2 to FP-1) (“1997-2002 Promotion Data”); see also Skaggs Aff. at 5-8 (indicating that seven of the IS employees referenced by Felder were white with no EEO activity; two were Hispanic with no EEO activity; and one was white with EEO activity). Nonetheless, it is equally undisputed that all of these ten IS employees had more than five years of service in IS (i.e., the amount of service that Felder would have had at the time of instatement, assuming service from 1997 to 2002), but Felder did not have five years service in IS. Def.’s Stmt. ¶ 19; PL’s Resp. ¶ 19 (“Plaintiff admits that those IS employees promoted from FP-2 to FP-1 between 1997 and 2002 had greater than five years of service in IS.”). Indeed, as review of the record evidence demonstrates, the majority of those individuals Felder points to who were promoted from the FP-2 grade level to the FP-1 grade level had substantially more than five years of service in the Foreign Service. See 1997-2002 Promotion Data (demonstrating that the majority of the ten individuals had entered into the Foreign Service in the 1980’s, three as early as 1983). Significantly, the Court notes that Felder offers no other evidence concerning these ten IS employees. That is, Felder has not provided any information as to the positions, location of job, supervisors, and/or job duties of each of the ten individuals Felder asserts are similarly situated to him. b. Review of 1997-2002 FP-2 to FP-1 Promotions In addition, USDA determined that very few employees are promoted from the FP-2 to FP-1 grade level each year. See Def.’s Stmt. ¶ 20; see also May 9, 2003 Letter. In reaching this determination, USDA reviewed the annual promotions from FP-2 to FP-1 grade level within IS for the years 1997-2002, which USDA counsel had requested Ms. Skaggs to compile. See Wyss Depo. II at 32. Skaggs admits that, in compiling the data requested by USDA counsel, she did not consult or rely upon the Foreign Service policy manual that is typically used in determining promotions. Skaggs Depo. at 32-33. As the record shows, Skaggs determined the following information as to promotions from the FP-2 grade level to the FP-1 grade level from 1992 to 2002; • In 1997, there were three promotions from the FP-2 to the FP-1 level out of a total of 23 employees; • In 1998, there was one promotion from the FP-2 to the FP-1 level out of a total of 17 employees; • In 1999, there were three promotions from the FP-2 to the FP-1 level out of a total of 19 employees; • In 2000, there were zero promotions from the FP-2 to the FP-1 level out of a total of 18 employees; • In 2001, there were four promotions from the FP-2 level to the FP-1 level out of a total of 23 employees; • In 2002, there were three promotions from the FP-2 level to the FP-1 level out of a total of 18 employees; and See Def.’s Stmt. ¶ 20; see also Skaggs Aff. at 5-8; 1997-2002 Promotion Data. Significantly, USDA asserts — and Felder concedes — that all employees promoted from the FP-2 to the FP-1 grade level during the 1997 to 2002 time period had more than five years of experience in IS. Def.’s Stmt. ¶ 19 (“Those individuals who did receive promotions from the FP-2 to the FP-1 level between 1997 and 2003 had greater than the five years of foreign service experience that Mr. Felder would be credited with (presuming service by Felder from 1997 to 2003).”); PL’s Resp. ¶ 18 (“Plaintiff admits that those IS employees promoted from FP-2 to FP-1 between 1997 and 2002 had greater than five years of service in IS.”). Again, the majority of those individuals who were ultimately promoted to the FP-1 grade level had substantially more than five years of experience in the Foreign Service. See 1997-2002 Promotion Data. Indeed, the Court notes that even the majority of those individuals who did not receive a promotion to the FP-1 grade level during the relevant time period also had substantially more than five years of experience in the Foreign Service. See id. (demonstrating, for example, that several had entered into the Foreign Service as early as 1983). USDA therefore concluded that a person first entering onto duty in IS in 1997 at the FP-2 grade level would not have likely obtained a promotion to the FP-1 grade level by 2002. See Def.’s Stmt. ¶ 19. Felder admits that the numbers cited above by USDA are accurate, but disputes USDA’s conclusion that “very few employees” are promoted from the FP-2 to the FP-1 grade level each year. See PL’s Resp. ¶ 20. Rather, Felder contends that, upon review of IS records, it is apparent that employees at the FP-2 grade level who were not promoted to the FP-1 grade level in a particular year are eligible for promotion again the next year, such that “the total pool of FP-2 employees during the six-year period in question is roughly the same 15 to 20 unpromoted employees.” Id. Felder further asserts that, “[b]y 2003, IS has promoted a majority of them to an FP-1 level.” Id. As an initial matter, the Court notes that Felder’s contention, even if accurate, does not disprove or contradict USDA’s conclusion that “[v]ery few employees are promoted from the FP-2 to the FP-1 level each year.” See Def.’s Stmt. ¶20 (emphasis added). Rather, as the undisputed figures above demonstrate, USDA’s statement is accurate. Therefore, in actuality, Felder is not contesting the accuracy of USDA’s conclusion but rather the method used by USDA (i.e., looking at annual rates of promotion). Moreover, Felder’s own conclusions are not accurate. For example, as reference to the relevant tables and figures (which are attached as Exhibit Q to Plaintiffs Opposition) shows, over the time period at issue, there were 36 different employees at the FP-2 grade level who were eligible for promotion to the FP-1 grade level during the 1997 to 2002 time period. See 1997-2002 Promotion Data. Of these 36 different employees, only 14, or a little more than one-third, received a promotion to the FP-1 grade level. See id. In other words, about two-thirds did not receive a promotion from the FP-2 grade level to the FP-1 grade level during this time. See id. Finally, the Court reiterates the undisputed fact that all employees ultimately promoted from the FP-2 to the FP-1 grade level during the 1997 to 2002 time period had more than five years of experience in IS, unlike Felder. Def.’s Stmt. ¶ 19; PL’s Resp. ¶ 18. Finally, in further explaining why Felder was not promoted from the FP-2 grade level to the FP-1 grade level, but Simmons was promoted from the FP-4 grade level to the FP-3 grade level, USDA explained that “it is normally much easier to come in as an FP-4 and get promoted to an FP-3 than it would be to come in at an FP-3 and get promoted to an FP-2 and then to an FP-1.” Wyss Aff. at 3. Although Felder disputes this assertion, see PL’s Opp’n at 26, Felder has not presented any evidence to contradict the accuracy of this statement. 3. The Instant Lawsuit Felder filed the above-captioned matter on May 15, 2006, alleging that USDA discriminated against him on account of his race and in retaliation for his prior protected EEOC activity (i.e., the 1999 Lawsuit), by failing to promote him while promoting a similarly situated IS employee. See Complaint, Docket No. [I]. Specifically, Felder asserts a claim for disparate treatment on the basis of race, alleging that he was treated less favorably than Simmons and ten other IS employees, as well as a claim for retaliation based upon Felder’s participation in the 1999 Lawsuit. See generally id.; see also PL’s Opp’n. USDA thereafter filed a motion to dismiss or in the alternative for summary judgment, which Felder opposed. Felder also filed a cross-motion for a continuance to obtain discovery pursuant to Rule 56(f). On May 5, 2007, the Court issued an order: (1) denying USDA’s motion insofar as it argued that Felder’s Complaint must be brought as an action before Judge Kessler relating to her February 4, 2002 Order; (2) denying without prejudice USDA’s motion insofar as it argued that Felder’s Complaint should be dismissed for failure to exhaust his administrative remedies; (3) denying without prejudice USDA’s motion insofar as it argued that summary judgment in its favor was appropriate; and (4) granting Felder’s request, pursuant to Rule 56(f), for a continuance to obtain discovery. 5/25/07 Order, Docket No. [13]. Accordingly, the parties thereafter engaged in discovery, at the close of which USDA filed a Renewed Motion to Dismiss or for Summary Judgment, which is now pending before the Court. Docket No. [28]. II. LEGAL STANDARDS A. Federal Rule of Civil Procedure 12(b)(6) In evaluating a Federal Rule of Civil Procedure (“Rule”) 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F.Supp. 914, 915 (D.D.C.1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (“The complaint must be ‘liberally construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be derived from the facts alleged.”). While the court must construe the complaint in a plaintiffs favor, it “need not accept inferences drawn by the plaintiff[] if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Comm’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Moreover, the court is not bound to accept the legal conclusions of the nonmoving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997). The court is limited to considering facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 n. 6 (D.C.Cir.1993). Factual allegations in briefs of memoranda of law may not be considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain contradict those alleged in the complaint. Henthorn v. Dep’t of Navy, 29 F.3d 682, 688 (D.C.Cir.1994); cf. Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (when a motion to dismiss is based on the complaint, the facts alleged in the complaint control). If, on a Rule 12(b)(6) motion, “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.” Fed.R.Civ.P. 12(b). B. Summary Judgment Pursuant to Federal Rule of Civil Procedure 56 A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Too v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Under the summary judgment standard, USDA, as the moving party, “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.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Felder, in response to USDA’s Motion, must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548. Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.Cir.1987); Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505 (the court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”). “If the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). “Mere allegations or denials of the adverse party’s pleading are not enough to prevent the issuance of summary judgment.” Williams v. Callaghan, 938 F.Supp. 46, 49 (D.D.C.1996). The adverse party “must do more than 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). Instead, while the movant bears the initial responsibility of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact, the burden shifts to the non-movant to “come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 587, 106 S.Ct. 1348 (citing Fed.R.Civ.P. 56(e)) (emphasis in original). Importantly, “[w]hile summary judgment must be approached with specific caution in discrimination cases, a plaintiff is not relieved of his obligation to support his allegations by affidavits or other competent evidence showing that there is a genuine issue for trial.” Morgan v. Fed. Home Loan Mortgage Corp., 172 F.Supp.2d 98, 104 (D.D.C.2001) (quoting Calhoun v. Johnson, No. 95-2397, 1998 WL 164780, at *3 (D.D.C. Mar. 31, 1998) (internal citation omitted), aff'd, No. 99-5126, 1999 WL 825425, at *1 (D.C.Cir. Sept. 27, 1999)); see also Marshall v. James, 276 F.Supp.2d 41, 47 (D.D.C.2003) (special caution “does not eliminate the use of summary judgment in discrimination cases”) (citing cases). “Summary judgment is not a ‘disfavored procedural shortcut,’ but is an integral procedural tool which promotes the speedy and inexpensive resolution of every case.” Marshall, 276 F.Supp.2d at 47 (quoting Celotex Corp., 477 U.S. at 327, 106 S.Ct. 2548). Accordingly, the Court reviews USDA’s Motion under a “heightened standard” that reflects “special caution.” Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879 (D.C.Cir.1997) (internal quotations omitted), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc). Nonetheless, while this special standard is more exacting, it is not inherently preclusive. Although more circumspect, the Court shall continue to grant a motion for summary judgment in which the nonmoving party has failed to submit evidence that creates a genuine factual dispute and the moving party is entitled to a judgment as a matter of law. III. DISCUSSION USDA has moved to dismiss Felder’s Complaint, or in the alternative, has moved for summary judgment, arguing that Felder failed to exhaust his administrative remedies and/or because USDA had a legitimate, non-discriminatory and non-retaliatory reason for promoting Simmons to the FP-4 grade level while not promoting Felder to the FP-1 grade level, and for promoting ten other IS individuals to the FP-1 grade level, but not Felder, during the 1997 to 2002 time period. See generally Def.’s Mot.; Def.’s Reply. Felder opposes' USDA’s motion, arguing that he properly exhausted his administrative remedies and that USDA’s asserted reasons are a pretext for the Agency’s discriminatory and retaliatory motives. Finally, Felder argues that, to the extent USDA’s motion seeks dismissal pursuant to Rule 12(b)(6), it must be treated as a request for summary judgment because it relies upon appended materials outside the pleadings and that are not the proper subject of judicial notice. Nee generally PL’s Opp’n. Before reaching the merits of USDA’s Motion, the Court must therefore decide whether the Motion should be treated as a motion to dismiss pursuant to Rule 12(b)(6) or a motion for summary judgment pursuant to Rule 56. The Court notes that USDA’s Motion relies heavily on numerous affidavits, depositions, and other documents. In addressing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a court is limited to considering facts alleged in the complaint, any documents attached to or incorporated by reference in the complaint, matters of which the court may take judicial notice, and matters of public record. See St. Francis Xavier Parochial Sch., 117 F.3d at 624; Marshall County Health Care Auth., 988 F.2d at 1226 n. 6. If on a Rule 12(b)(6) motion, “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.” Fed. R.CivP. 12(b). Here, the documents proffered by USDA in support of its Motion are not referred to or incorporated by-reference in Felder’s Complaint and are, with the exception of the documents pertaining to the 1999 Lawsuit, beyond the scope of judicial notice. As such, because USDA relies on those documents in arguing that Felder failed to exhaust his administrative remedies and that the Agency had a legitimate, non-discriminatory and non-retaliatory reason for promoting Simmons but declining to promote Felder, USDA’s Motion must be addressed pursuant to Rule 56. A. Failure to Exhaust Administrative Remedies USDA first argues that it is entitled to summary judgment on Felder’s discrimination and retaliation claims because Felder failed to make timely EEO contact as required by EEOC regulations. Def.’s Mot. at 1. The EEOC has “established detailed procedures for the administrative resolution of discrimination complaints, including a series of time limits for seeking informal adjustment of complaints, filing of formal charges, and appealing agency decisions to the Commission.” Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997). As is relevant here, aggrieved federal employees must initiate contact with an EEO counselor within 45 days of the date of the matter alleged to be discriminatory or, in the ease of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1). “ ‘Because timely exhaustion of administrative remedies is a prerequisite to a Title VII action against the federal government,’ a court may not consider a discrimination claim that has not been exhausted in this manner absent a basis for equitable tolling.” Steele v. Schafer, 535 F.3d 689, 693 (D.C.Cir.2008) (quoting Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir.2003)); see also Hill v. Kempthorne, 577 F.Supp.2d 58, 64 (D.D.C.2008) (“A federal employee alleging retaliation in violation of Title VII must timely exhaust hir or her administrative remedies.”). USDA argues that Felder was aware, as of June 4, 2003 at the latest, that he would be assigned to a position at the FP-2 level, and was therefore required to contact an EEO counselor within 45 days of that date, which he failed to do. Def. Mot. at 12 — 18; Def.’s Reply at 1-3. As discussed above, Felder received his assignment to the IS position of Area Director in Seoul, Korea, in January 2003 and was notified at that time that the position would be provided at the FP-2 grade level. Def.’s Mot. at 13; see also January 15, 2003 Letter. Additionally, by email dated June 4, 2003, counsel for Felder confirmed with USDA that Felder had “unequivocally” accepted assignment to that position, which he knew was to be provided at the FP-2 grade level. Def.’s Reply at 2-3; see also June 4, 2003' Email. USDA therefore argues that Felder was fully aware, as of June 4, 2003 at the latest, that he would be entering into IS at the FP-2, rather than FP-1, grade level and was therefore required to contact an EEO counselor within 45 days of that date. See Def.’s Mot. at 12-18; see also Def.’s Reply at 2-3. Felder disputes USDA’s argument, asserting that the Agency improperly focuses on the date Felder first became aware of which FP-grade level USDA intended to assign him upon transfer to IS rather than on the effective date of the challenged personnel action at issue, i.e., the date Felder was in fact converted into the IS system at the FP-2 grade level, which occurred on December 23, 2008, see December 5, 2003 Letter. Pl.’s Opp’n at 16. As an initial matter, the Court must decide what alleged discriminatory act or personnel action Felder now challenges. James v. England, 332 F.Supp.2d 239, 246 (D.D.C.2004). The Court recognizes that this is not a typical failure-to-promote case. Rather, here, Felder challenges USDA’s refusal to instate him at the FP-1 grade level — that is, to “paper promote” him to the FP-1 grade level, effective upon his instatement. That decision and the decision to instate Felder at the FP-2 grade level are thus two sides of the same coin. Accordingly, the Court concludes that the Felder’s Complaint challenges USDA’s instatement decision, which was made effective on December 23, 2003, the date on which Felder converted into the IS system. See December 23, 2003 Letter (“On December 23, 2003, at the beginning of Pay Period 26, you will be converted retroactively into the APHIS Foreign Service at the FP-2 level (GS-14 equivalent). ...”). The Court agrees with Felder that the pertinent date for determining the timeliness of Felder’s EEO contact is December 23, 2008, the effective date of the personnel action challenged, and not the date on which Felder became aware of what that personnel action would be. The EEOC regulations explicitly provide that “in the case of a personnel action,” an aggrieved individual must contact an EEO counselor “within 45 days of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). Accordingly, several of our fellow district court judges in the District of Columbia have “reasoned that ‘[a]s the plain language of the regulations indicates, the 45-day filing period begins to run from the effective date of the [personnel] action not from notice of that action.’ ” James, 332 F.Supp.2d at 246 (emphasis in original) (quoting Scarborough v. Natsios, 190 F.Supp.2d 5, 15-16 (D.D.C.2002)); see also Silver v. Leavitt, Civ. Act. No. 05-0968, 2006 WL 626928, *7 (D.D.C. Mar. 13, 2006) (“The EEOC regulations state that the relevant date is the date on which the personnel action ... became effective, not the date on which plaintiff learned of the personnel action.”) (emphasis in original). “The fact that [Felder] had notice of the [personnel action] in [June] has no bearing on this timeliness analysis because it is not until the effective date of the personnel action that the 45-day window opened.” James, 332 F.Supp.2d at 246. Although these decision are not binding, their reasoning is persuasive. Accordingly, the Court concludes that Felder properly exhausted his administrative remedies, as required by EEOC regulations. B. Discrimination and Retaliation Claims In addition to arguing that Felder failed to timely exhaust his administrative remedies, USDA argues that summary judgment is appropriate because USDA had a legitimate, nondiscriminatory and non-retaliatory reason for giving Simmons a promotion from the FP^l grade level to the FP-3 grade level and for promoting ten other IS employees from the FP-2 to the FP-1 grade level while declining to promote Felder from the FP-2 grade level to the FP-1 grade level. Title VII of the Civil Rights Act prohibits the federal government from discriminating in employment on the grounds of race, 42 U.S.C. § 2000e-16, and from retaliating against employees for engaging in activity protected by Title VII, id. § 2000e-3(a). To prove a violation of Title VII, a plaintiff must demonstrate by a preponderance of the evidence that the actions taken by an employer were “more likely than not based on the consideration of impermissible factors.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (internal quotation marks and citation omitted). Furthermore, a plaintiff may prove his claim with direct evidence, and absent direct evidence, he may prove his claim using indirect evidence pursuant to the burden-shifting analysis created by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Carpenter v. Fed’l Nat’l Mort. Assoc., 165 F.3d 69, 72 (D.C.Cir.1999). Where, as here, the record contains no direct evidence of discrimination or retaliation, it is necessary to employ the familiar McDonnell Douglas tripartite burden-shifting framework. Cones v. Shalala, 199 F.3d 512, 516 (D.C.Cir.2000) (citing McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817). “Like claims of discrimination, claims of retaliation are also governed by the McDonnell Douglas burden-shifting scheme.” Carney v. Am. Univ., 151 F.3d 1090, 1094 (D.C.Cir.1998) (citing McKenna v. Weinberger, 729 F.2d 783, 790 (D.C.Cir.1984)). Under this paradigm, a plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If he succeeds, the burden shifts to the defendant to articulate some legitimate, non-discriminatory or non-retaliatory reason justifying its conduct. Id. If the defendant is successful, then “the McDonnell Douglas framework — with its presumptions and burdens — disappear[s], and the sole remaining issue [is] discrimination vel non.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal citations and quotation marks omitted). For a claim alleging disparate-treatment discrimination, a plaintiff makes out a prima facie case by showing (1) that he is a member of a protected group; (2) that he suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. Wiley v. Glassman, 511 F.3d 151, 155 (D.C.Cir.2007); Mastro v. Potomac Elec. Power. Co., 447 F.3d 843, 850 (D.C.Cir.2006). For a claim of retaliation, the prima facie elements are (1) that he engaged in a statutorily protected activity; (2) that he suffered a materially adverse action; and (3) a causal connection exists between the two. Wiley, 511 F.3d at 155. The D.C. Circuit has clarified that the McDonnell Douglas prima facie factors are “almost always irrelevant” and are “largely [an] unnecessary sideshow” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 492-93 (D.C.Cir.2008). Where an employer asserts a legitimate, non-discriminatory (or non-retaliatory) reason for its challenged conduct, thereby doing “everything that would be required of [it] if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant.” Id., 520 F.3d at 494 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)); see also Adeyemi v. D.C., 525 F.3d 1222, 1226 (D.C.Cir.2008) (holding that the prima fa-cie inquiry “is irrelevant when an employer has asserted a legitimate, non-discriminatory reason for an adverse employment action”). “And by the time the district court considers an employer’s motion for summary judgment or judgment as a matter of law, the employer ordinarily will have asserted a legitimate, non-discriminatory reason for the challenged decision— for example, through a declaration, deposition, or other testimony from the employer’s decisionmaker.” Brady, 520 F.3d at 493. In such circumstances, a district court’s inquiry collapses into a single question: “[h]as the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory [or non-retaliatory] reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?” Id. at 494. Based on this guidance, the D.C. Circuit has stated in no uncertain terms that a lower court should not evaluate whether a plaintiff has established a prima facie case where a defendant sets forth a legitimate, non-diseriminatory and non-retaliatory reason for its conduct: “the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Id. at 495 (emphasis in original); see also Adeyemi, 525 F.3d at 1226 n. 1 (“the prima facie case is ultimately irrelevant here”) (emphasis added); Wiley, 511 F.3d at 156 (D.C.Cir.2007) (“[g]iven this record [which includes articulated, non-discriminatory reasons] we ‘need not address the Government’s contentions that [appellant] failed to make out a prima facie case’ ”) (quoting George v. Leavitt, 407 F.3d 405, .411 (D.C.Cir.2005)). Nevertheless, the Supreme Court also advised lower courts in Reeves v. Sanderson Plumbing Products, Inc. that “a plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated [or retaliated].” 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). That is, the Supreme Court suggested that the evidence used to establish a prima face case could be used to aid a jury’s determination on “the issue of whether the USDA’s explanation is pre-textual.” Id. at 143, 120 S.Ct. 2097 (quoting Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. 1089). See also Brady, 520 F.3d at 495 (explaining Reeves requires lower courts to “determine] whether summary judgment or judgment as a matter of law is warranted ... [by] considering] all relevant evidence presented by the plaintiff and defendant”). Accordingly, because USDA in this case has asserted a legitimate, nondiscriminatory and non-retaliatory reason for its challenged conduct, all of the evidence in the record shall be considered, including that which would be used to establish Felder’s prima facie case (but not for the purpose of evaluating whether a prima facie case has been established), to address the ultimate question of discrimination or retaliation vel non. As explained above, Felder claims that USDA’s decision to instate him at the FP-2 grade level, rather than the FP-1 grade level was based on discriminatory and retaliatory motivations. See generally Am. Compl. In response, USDA explains that, in order to comply with Judge Kessler’s February 4, 2002 Order, USDA attempted to determine, in good faith, what positions Simmons and Felder would have likely occupied in 2003, but for the discrimination (as found in the 1999 Lawsuit). Def.’s Stmt. ¶ 16. Accordingly, USDA asserts that it placed Felder in the FP-2 grade level based on its determination that he would not have likely obtained a promotion to the FP-1 grade level by 2003. Def.’s Reply at 4-5. Because USDA has proffered a legitimate, nondiscriminatory and nonretaliatory reason for its decision, whether Felder has established a prima facie case of discrimination or retaliation is “irrelevant.” Adeyemi, 525 F.3d at 1226. Accordingly, the court’s inquiry collapses into the single question of whether Felder has produced sufficient evidence for a reasonable jury to find that USDA’s asserted nondiscriminatory, non-retaliatory reason was not the actual reason for Felder’s instatement at the FP-2 grade level, and that the real reason was based on discrimination and/or retaliation. See Brady, 520 F.3d at 493. “A plaintiff such as [Felder] may try in multiple ways to show that the employer’s stated reason for the employment action was not the actual reason (in other words, was a pretext).” Id. at 495. In particular, a plaintiff may do so by “producing] evidence suggesting that the employer treated other employees of a different race ... more favorably in the same factual circumstances,” or by “attempting] to demonstrate that the employer is making up or lying about the underlying facts that formed the predicate for the employment decisions.” Id. Here, Felder argues that record evidence exists sufficient for a reasonable jury to find that USDA’s asserted non-discriminatory and non-retaliatory reason was a pretext because: (1) IS treated similarly situated employees more favorably than Felder; and (2) other record evidence exists demonstrating that IS’ asserted reason is fabricated. See Pl.’s Opp’n at 23-24. The Court finds that neither of these arguments relies on evidence that is sufficient to raise an inference of discrimination or retaliation. 1. Similarly Situated IS Employees First, Felder attempts to demonstrate that USDA’s proffered legitimate, nondiscriminatory and non-retaliatory reason was a pretext by introducing evidence that USDA treated similarly situated employees more favorably treatment than Felder. One of the “most commonly employed method[s] of demonstrating that an employer’s explanation is pretextual is to show that a similarly situated person of a different race [ ] received more favorable treatment.” Brady, 520 F.3d at 495 (quoting 1 Lex K. Larson, Employment Discrimination § 8.04, at 8-66 (2d ed. 2007)). A plaintiff who attempts to demonstrate that the employer’s reasons are pretextual based upon evidence suggesting favorable treatment of a similarly situated employee outside the plaintiffs protected class must proffer sufficient evidence to show that the comparators are in fact similarly situated to the plaintiff. Generally this requires that the plaintiff show “that all of the relevant aspects of [the plaintiffs] employment situation were ‘nearly identical’ to those of the [other employee].” Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514 (D.C.Cir.1995). Felder sets forth two arguments in support of his claim that USDA treated other similarly situated IS employees more favorably: (1) that USDA treated Simmons more favorably than Felder, by “paper promoting” Simmons but not Felder; and (2) that USDA treated ten other IS employees more favorably than Felder, by promoting those individuals from the FP-2 to the FP-1 grade level but refusing to similarly promote Felder. The Court shall examine each argument in turn. a. Simmons Felder argues that USDA properly implemented the February 4, 2002 Order, but then impermissibly discriminated and retaliated against Felder by promoting Simmons, his co-plaintiff in the 1999 Lawsuit, but refusing to similarly promote Felder. Pi’s Opp’n at 23-24. As an initial matter, the Court notes that Felder’s factual predicate to this argument — i.e., that USDA “paper promoted” Simmons but did not similarly “paper promote” Felder — is not, in fact, accurate. Rather, the evidence in the record makes clear that USDA gave both Simmons and Felder “paper promotions” — Simmons from the FP-4 to the FP-3 grade level, and Felder from the FP-3 to the FP-2 grade level. As discussed above, IS initially offered Felder the Area Director position at the FP-3 grade level, as required by IS’ lateral entry policy. See September 26, 2002 Letter; see supra 50-51. Upon reconsideration, USDA subsequently offered Felder the Area Director position at the FP-2 grade level. Def.’s Stmt. ¶¶ 11-12; December 19, 2002 Letter; January 15, 2003 Letter; see supra 51. The record is therefore clear that Felder was given a “paper promotion” from the FP-3 grade level to the FP-2 grade level, effective upon his instatement into IS. See December 5, 2003 Letter (explaining that Felder would be instated at the FP-2 level). Felder attempts to dispute this fact by arguing that his instatement at the FP-2 grade level was “mandatory.” Pl.’s Opp’n at 12. According to Felder, USDA “had no choice” but to