Obermeyer v. Vilsack (760 F. Supp. 2d 1232, 2010)

Citations

760 F. Supp. 2d 1232

Full opinion text

MEMORANDUM OPINION AND ORDER

JAMES 0. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant’s Motion for Summary Judgment and Memorandum in Support, filed July 20, 2010 (Doc. 29)(“Motion”). The Court held a hearing September 16, 2010. The primary issue is whether Plaintiff Kay Obermeyer has established a question of material fact whether the Defendant discriminated against her because of her disability in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701-794a. The Court finds that Obermeyer has failed to establish a genuine question of material fact whether the Defendant discriminated against her and grants the Defendant’s Motion for Summary Judgment.

FACTUAL BACKGROUND

Obermeyer assets that she is legally deaf and is a handicapped individual within the meaning of 29 U.S.C. § 706(8), and is disabled pursuant to 42 U.S.C. § 12102. See Complaint, filed July 27, 2009 (Doc. 1). She is now on long-term disability retirement and has been since May 2009. See, e.g., Deposition of Kay Obermeyer at 5:23— 6:14 (taken June 8, 2010), filed July 20, 2010 (Doc. 29-1). Obermeyer’s most recent position with the United States Department of Agriculture, Forest Service (“PS”), was as an Accounting Technician, GS-0525-07, at the Albuquerque Service Center (“ASC”), in Albuquerque, New Mexico. See, e.g., Obermeyer Depo. at 15:15-16. Before her reassignment to the ASC in 2005, Obermeyer was a Financial Assistant, GS-0503-07, for the FS’s Geospatial Service and Technology Center (“GSTC”), in Salt Lake City, Utah. See, e.g., Obermeyer Depo. at 16:21; id. at 20:21-21:1. At the GSTC, Charlene V. McDougald was a Budget Officer and Obermeyer’s first-line supervisor. See, e.g., Declaration of Charlene V. McDougald ¶¶ 2-3, at 1 (executed July 19, 2010), filed July 20, 2010 (Doc. 29-2). Roberta “Robin” Carroll was Obermeyer’s Third Line Supervisor while she worked at GSTC. See, e.g., Affidavit of Roberta “Robin” Carroll ¶ 3, at 2 (executed June 15, 2007), filed August 24, 2010 (Doc. 36-3).

Obermeyer had applied for a Budget and Accounting Analyst position in April 2003, and she was on the Certificate of Candidates. See, e.g., McDougald Aff. ¶ 17, at 6; Affidavit of Pam W. Padilla ¶ 7, at 3 (executed June 4, 2007), filed August 24, 2010 (Doc. 36-1). Obermeyer previously filed an Equal Employment Opportunity (“EEO”) Complaint about another matter. See Complaint ¶ 10, at 2; Answer ¶ 10, at 3, filed October 27, 2009 (Doc. 6).

A Budget Analyst, GS-0560-07/09, position with GSTC was classified and advertised in July 2006. See, e.g., Declaration of Roberta “Robin” Carroll ¶ 5, at 1-2 (executed July 20, 2010), filed July 20, 2010 (Doc. 29-3). Obermeyer applied for the Budget Analyst position in August 2006. See, e.g., Carroll Decl. ¶ 4, at 1; McDougald Decl. ¶ 4, at 1. Obermeyer was deemed to be a promotion-eligible candidate and qualified for the position. See, e.g., Carroll Aff. ¶ 17, at 2; McDougald Decl. ¶ 9, at 2. The automated staffing and classification system, AYUE, generated listings of twenty-four qualified candidates for the position. Obermeyer’s name was on the lists for both the GS-7 and GS-9 levels. See, e.g., McDougald Decl. ¶ 9, at 2.

After the applications were submitted, a three-person panel was convened in accordance with GSTC practice (“Panel”). See, e.g., Carroll Decl. ¶ 7, at 2; McDougald Decl. ¶ 6, at 2. As the supervisor of the Budget Analyst position, McDougald served as Panel Evaluation Team Chairperson. See, e.g., Carroll Decl. ¶ 10, at 3; McDougald Decl. ¶ 6, at 2. She was also the Recommending Official. See, e.g., McDougald Decl. ¶ 5, at 1. Marcia A. Thomas, Administrative Officer, was the Selecting Official, and did not participate in the rating and ranking of the candidates. See, e.g., McDougald Decl. ¶ 5, at 1; Affidavit of Marcia A. Thomas ¶¶ 11, 15, at 5, 6 (executed June 11, 2007), filed July 20, 2010 (Doc. 29-6). Carroll was the Approving Official. See, e.g., Carroll Decl. ¶ 6, at 2; McDougald Decl. ¶ 5, at 1. Randy Miles, Administrative Officer, United States Geological Survey, served as a Panel member. See, e.g., McDougald Decl. ¶ 7, at 2; Declaration of Randy Miles ¶¶ 1-3, at 1 (executed July 19, 2010), filed July 20, 2010 (Doc. 29-4). Bradley K. Losito, then Information Technology Specialist in the Program Coordination Unit of GSTC, also served as a Panel member. See, e.g., Declaration of Bradley K. Losito ¶ 11, at 3 (executed July 20, 2010), filed July 20, 2010 (Doc. 29-5); McDougald Decl. ¶ 7, at 2.

The Panel met on two days: August 24 and 31, 2006. See, e.g., Carroll Decl. ¶ 8, at 2. Pam Padilla, then Human Resources Specialist with GSTC, assisted the Panel members, instructing them on the manner in which the Panel should be conducted and, after the scoring, adding up the scores and witnessing the discussions between the Panel members in reaching a consensus on the final scores. See, e.g., McDougald Decl. ¶¶ 6, 8, at 2; Thomas Aff. ¶ 13, at 6. Padilla explained the rating and ranking process, which involved three criteria for the GS-7 level and six for the GS-9 level. See, e.g., Losito Decl. ¶ 6, at 2; McDougald Decl. ¶ 10, at 3. Douglas Johnson, a member of the Human Resource Action Team, also participated on the Panel, but did not score the candidates. See, e.g., Losito Decl. ¶ 6, at 2; McDougald Decl. ¶ 8, at 2.

The maximum possible score for the GS-7 level was of 45 and for the GS-9 level was 90. See, e.g., McDougald Decl. ¶ 10, at 3. Each Panel member independently rated the candidates on their Knowledge, Skills, and Abilities (“KSA”). See, e.g., Losito Decl. ¶ 8, at 2; McDougaid Decl. ¶ 11, at 3; Miles Decl. ¶ 9, 2. The Panel then wrote the candidates’ scores on a board, and collectively discussed any significant differences in scores for the highest ranking candidates and reached a consensus for the final scores. See, e.g., Losito Decl. ¶ 9, at 2; McDougald Decl. ¶ 11, at 3; Miles Decl. ¶ 10, at 2.

Out of a possible maximum score of 45 for the GS-7 level, the Panel assigned the top three candidates a score of 45, and the Panel assigned Obermeyer a score of 37, ranking her at about number 9. See, e.g., McDougald Decl. ¶ 10, at 3; Table of Scores, filed July 20, 2010 (Doc. 29-7). Out of a possible maximum score of 90 for the GS-9 level, the Panel assigned the top three candidates scores of 84, 82, and 82, and the Panel assigned Obermeyer a score of 50, ranking her at about number 10. See, e.g., McDougald Decl. ¶ 10, at 3; Table of Scores. There were significant discrepancies between some of the scores of the various individuals who were rated. See Padilla Aff. ¶ 18-19, at 6-7.

The Panel members selected the top three candidates for each grade level, and they decided someone should telephone the supervisors and references for those applicants, which McDougald did on September 1, 2006. See, e.g., McDougald Decl. ¶ 12, at 4. McDougald did not check Obermeyer’s references or supervisors in conjunction with her application for the position, because she was not in the top three. See, e.g., Affidavit of Charlene V. McDougald ¶ 12, at 5(executed June 11, 2007), filed August 24, 2010 (Doc. 36-2). McDougald then prepared a memorandum for Thomas, explaining the means of recruitment for the Budget Analyst position, the rating/ranking process, Padilla’s role in the process, and the strengths and weaknesses of the top three candidates recommended for each level. See, e.g., McDougald Decl. ¶ 13, at 3; Announcement: ADS06-WO-UT-GSTC-001, filed July 20, 2010 (Doc. 29-8).

McDougald and Thomas interviewed the top three candidates for each level. See, e.g., McDougald Decl. ¶ 14, at 3-4; Thomas Aff. ¶ 15, at 6. Based on the rating/ranking results, reference/supervisor checks, and the interviews, McDougald recommended that Kaylee Ly be selected for the Budget Analyst position at the GS-9 level. See, e.g., Carroll Decl. ¶ 12, at 3; McDougald Decl. ¶ 15, at 4. Thomas selected Ly, and Carroll approved the selection. See, e.g., Carroll Decl. ¶ 12, at 3; McDougald Decl. ¶ 15, 4.

Ly was already a GS-9 Budget Analyst on the Angeles National Forest and had a degree in accounting. See, e.g., Carroll Decl. ¶ 13, 3; McDougald Decl. ¶ 14, 4. Ly applied for only the GS-9 position and was rated only on that position. See, e.g., Padilla Aff. ¶ 19, at 7. Ly does not have a physical disability or prior EEO activity. See, e.g., Padilla Aff. ¶ 15, at 6. After accepting the Budget Analyst position, Ly vacated the Budget Analyst position, and the position was re-advertised, and no further selection was made. See, e.g., Padilla Aff. ¶ 19, at 7.

The Defendant alleges, and Obermeyer denies, that Obermeyer’s hearing impairment and prior EEO activity were not factors in her not being selected for the position at issue. See, e.g., Motion ¶ 35, at 8 (citing Carroll Decl. ¶¶ 16-17, at 3-4; Losito Decl. ¶ 12, at 3; McDougald Decl. ¶¶ 17-18, at 4; Miles Decl. ¶ 13, at 2-3; Thomas Aff. ¶ 16, at 7); Response ¶ 3, at 2. McDougald and Thomas were aware of Obermeyer’s hearing disability and her previous EEO Complaint. See, e.g., McDougald Aff. ¶ 4, at 2; Thomas Aff. ¶¶ 4, 6, at 2-3. Carroll and Losito were aware of Obermeyer’s hearing impairment, and Carroll was aware Obermeyer applied for the Budget Analyst position. See, e.g., Carroll Aff. ¶¶ 4, 6, at 2; Affidavit of Bradley K. Losito ¶ 5, at 13 (executed June 6, 2007), filed August 24, 2010 (Doc. 36-1). Thomas informed Carroll that Obermeyer would be “slow” in performing the duties of the Budget Analyst position. E.g., Carroll Aff. ¶ 21, at 2. McDougald and Thomas had made reference to Plaintiffs “limitations.” See Response ¶ 7, at 4 (citing Padilla Aff. ¶ 24, at 7); Reply ¶ 5, at 5 (citing McDougald Aff. ¶ 5, at 2; Thomas Aff. ¶¶ 26-28, at 4-6). McDougald was aware of Obermeyer’s 2003 application for the Budget and Accounting Analyst position. See, e.g., McDougald Aff. ¶ 17, at 6. Thomas has testified that at the time Obermeyer applied for a GS-9 position in 2003, she believed that Obermeyer would have had a difficult time learning and performing the duties of the position within a reasonable period of time. See, e.g., Thomas Aff. ¶ 26, at 4-5.

Obermeyer did not know Losito or Miles at the time she applied for the Budget Analyst position. See, e.g., Obermeyer Depo. at 27:13-21. Miles did not know any of the candidates, but he knew Obermeyer “slightly.” Miles Decl. ¶ 6, at 2. Obermeyer has no reason to believe that Miles knew she had a disability. See, e.g., Obermeyer Depo. 27:22-28:1; id. at 28:21-25; id. at 29:1-5. When they served on the Panel, neither Losito nor Miles was aware that Obermeyer had previously engaged in EEO activity, see, e.g., Losito Decl. ¶ 3, at 1; Miles Decl. ¶ 16, at 3, but Losito knew that Obermeyer had a disability, see Losito Aff. ¶ 5, at 13.

To perform the position of Budget Analyst, Obermeyer would have needed some additional training. See, e.g., Obermeyer Depo. at 25:22-26:6; id. at 26:18-24; id. at 55:20-56:3. McDougald believed that Obermeyer could have performed the duties of a Budget Analyst at the GS-7 level with a “considerable amount of training.” E.g., McDougald Affirm. ¶ 18(2), at 9. Thomas did not know whether Obermeyer could have performed the duties of the GS-7 and GS-9 positions, with or without reasonable accommodation, noting that Obermeyer had left GSTC in April of 2005. See, e.g., Thomas Aff. ¶¶ 23-24, at 4.

The United States Department of Agriculture has a policy of providing equal employment opportunity to all employees, and of prohibiting any discrimination on the basis of disability or retaliation for EEO activity. The policy states that all employees should have the opportunity to compete on a fair and level playing field to achieve their full potential. See, e.g., U.S. Department of Agriculture, Forest Service, National Equal Employment Opportunity Policy at 8, filed August 24, 2010 (Doc. 36-3). As of September 30, 2008, The FS has a special program for recruitment, hiring, and advancement of individuals with targeted disabilities, and has not met its departmental goal in those areas. See, e.g., National Equal Employment Opportunity Policy at 9.

PROCEDURAL HISTORY

Obermeyer brings this action pursuant to the Rehabilitation Act of 1973. She filed a complaint with the EEO division of the FS on December 29, 2006. See Complaint of Employment Discrimination at 1 (dated December 29, 2006), filed September 16, 2010 (Doc. 40-6)(“EEO Complaint”). Obermeyer then filed her Complaint with this Court on July 27, 2009, alleging that: (i) the Defendant discriminated against her on the basis of her disability, because he did not select her for the Budget Analyst position, GS-0560-07/09, in violation of the Rehabilitation Act; (ii) the Defendant discriminated against her, because he used discriminatory screening criteria in violation of the Americans With Disabilities Act, 42 U.S.C. § 12112 (“ADA”); and (iii) the Defendant retaliated against her for her previous EEO claim, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17. See Complaint ¶¶ 19-36, at 4-6.

Obermeyer dismissed her ADA claim, because “there is no waiver of sovereign immunity for Defendant to be sued pursuant to that Act.” Unopposed Motion to Dismiss Count II of Plaintiffs Complaint for Discrimination under the Rehabilitation Act of 1973, Violation of the Americans with Disabilities Act and Retaliation, filed January 20, 2010 (Doc. 18). Obermeyer also withdrew her Title VII retaliation claim. See Response at 1 (“Plaintiff also asserted a claim of retaliation but now withdraws that claim and consents to judgment dismissing the retaliation claim.”).

The Defendant moves for summary judgment, arguing that the Defendant did not discriminate against Obermeyer, that she cannot establish a prima-facie case of disparate treatment, and that even if she could, the Defendant has a legitimate, nondiscriminatory basis for not promoting Obermeyer in that another candidate was more qualified. See Motion at 10-16. Obermeyer responds that the Defendant failed to accommodate her disability, that she has advanced direct evidence of discrimination, and, in the alternative, that she can establish a prima-facie case of discrimination and that the Defendant’s justification is pretextual. See Response 7-13. After carefully reviewing the record and the parties’ arguments, the Court finds that Obermeyer has failed to establish a genuine question of material fact whether the Defendant discriminated against her, and grants the Defendant’s Motion for Summary Judgment.

LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT

Rule 56(c) states that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The movant bears the initial burden of “showing] that there is an absence of evidence to support the nonmoving party’s case.” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (internal quotation marks omitted). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant meets this burden, rule 56(e) requires the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993) (“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.”)(internal quotes omitted).

The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). Rule 56 provides that “an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his [or her] pleadings.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct. 2505. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir.1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980) (“However, ‘once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.’ ” (citation omitted)). Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat’l Ins. Co. v. Omer, No. 07-2123, 2008 WL 2309005, at *1 (D.Kan. June 2, 2008) (citing Fed.R.Civ.P. 56(e) and Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.’ ” Colony Nat’l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988)).

Genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539. Rather, there must be sufficient evidence on which the fact-finder could reasonably find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 251, 106 S.Ct. 2505 (quoting Schuylkill & Dauphin Improv. Co. v. Munson, 81 U.S. 442, 448, 14 Wall. 442, 20 L.Ed. 867 (1871)); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable ... or is not significantly probative, ... summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505 (internal citations omitted). Where a rational trier of fact, considering the record as a whole, could not find for the non-moving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

When reviewing a motion for summary judgment, the court should keep in mind three principles. First, the court’s role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505. Second, the court must resolve all reasonable inferences and doubts in favor of the non-moving party, and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). Third, the court cannot decide any issues of credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505.

LAW REGARDING EXHAUSTION OF REHABILITATION ACT CLAIMS

“The exhaustion of administrative remedies is a jurisdictional prerequisite to instituting an action in federal court under both the Rehabilitation Act and Title VII.” Showalter v. Weinstein, 233 Fed. Appx. 803, 804 (10th Cir.2007) (citing Woodman v. Runyon, 132 F.3d 1330, 1341 (10th Cir.1997) (Rehabilitation Act); Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996) (Title VII)). The failure to exhaust administrative remedies in a timely fashion, however, is not jurisdictional, although it may bar a plaintiff from bringing his or her claims in federal court. See Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1325 (10th Cir.2002) (noting that “a failure to timely file an administrative charge ... is not jurisdictional, [but that] a failure to file an administrative charge at all ... is a jurisdictional bar”). Failing to exhaust administrative remedies does not “bar an employee from using the prior acts as background evidence in support of a timely claim.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

1. Requirements for Exhausting Administrative Remedies.

“Federal employees alleging discrimination or retaliation prohibited by Title VII or the Rehabilitation Act must comply with specific administrative complaint procedures in order to exhaust their administrative remedies.” Showalter v. Weinstein, 233 Fed.Appx. at 804 (citing 29 C.F.R. pt. 1614). Tenth Circuit “applies] Title VII’s jurisdictional requirements to the Rehabilitation Act.” Greenlee v. U.S. Postal Service, 247 Fed.Appx. 953, 955 (10th Cir.2007) (citing Johnson v. Orr, 747 F.2d 1352, 1356-57 (10th Cir.1984)).

A plaintiff generally must exhaust his or her administrative remedies before pursuing a Rehabilitation Act claim in federal court. See Khader v. Aspin, 1 F.3d 968, 970 (10th Cir.1993). Exhaustion of administrative remedies is central to these statutory schemes, because it provides the Equal Employment Opportunity Commission (“EEOC”) with the first opportunity to investigate discriminatory practices, and enables it to perform its roles of obtaining voluntary compliance and of promoting conciliatory efforts. See Patterson v. McLean Credit Union, 491 U.S. 164, 180-81, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). See Woodman v. Runyon, 132 F.3d at 1342 (“The twofold purpose of the exhaustion requirement is to give notice of an alleged violation to the charged party and to give the administrative agency an opportunity to conciliate the claim in furtherance of Title VU’s goal of securing voluntary compliance.”); Khader v. Aspin, 1 F.3d at 971 (“The requirement that a Title VII claimant exhaust administrative remedies serves the purpose of ‘giv[ing] the agency the information it needs to investigate and resolve the dispute between the employee and the employer.’ ”)(quoting Wade v. Sec’y of Army, 796 F.2d 1369, 1377 (11th Cir.1986)); Sampson v. Civiletti 632 F.2d 860, 862-63 (10th Cir.1980) (“The requirement that discrimination complaints be first presented to an agency rather than a court encourages informal, conciliation-oriented resolution of disputes and reduces the burden on federal courts.”)(citing Richerson v. Jones, 572 F.2d 89, 97 (3d Cir.1978)). “ ‘[Allowing a complaint to encompass allegations outside the ambit of the predicate EEOC charge would circumvent the EEOC’s investigatory and conciliatory role, as well as deprive the charged party of notice of the charge, as surely as would an initial failure to file a timely EEOC charge.’ ” Welsh v. City of Shawnee, 182 F.3d 934, 935 (10th Cir.1999) (quoting Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 127 (7th Cir.1989)).

The most common method of administrative exhaustion for federal employees is the individual EEO complaint process. The regulations that the EEOC has promulgated, see 29 C.F.R. Part 1614, and the Commission’s Management Directive 110 govern the initial EEO complaint process. Pre-complaint counseling is the first step in that process, see 29 C.F.R. § 1614.105, requiring the aggrieved employee to consult with an agency counselor within forty-five days of the alleged discriminatory act or, in the case of a personnel action, within forty-five days of the effective date of the action, see id. The forty-five day requirement applies to both Title VII and Rehabilitation Act claims. 29 C.F.R. § 1614.105(a)(1) provides:

Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.... An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.

29 C.F.R. § 1614.105(a)(1).

After timely filing a charge of discrimination with the EEOC setting forth the facts and nature of the charge, the plaintiff must next receive notice of the right to sue. See Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999); 42 U.S.C. § 2000e-5(b), (c), (e), (f)(1). “[A] plaintiff normally may not bring a Title VII action based upon claims that were not part of a timely-filed EEOC charge for which the plaintiff has received a right-to-sue letter.” Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d at 1326. Once an individual receives notice of the right to sue, he or she has ninety days in which to file suit. See 42 U.S.C. § 2000e—5(f)(1).

2. The Exhaustion of Administrative Remedies Is Jurisdictional.

Filing a charge of discrimination with the EEOC is a jurisdictional prerequisite to the institution of a lawsuit based on a claim of employment discrimination under Title VII and the Rehabilitation Act. See Alcivar v. Wynne, 268 Fed.Appx. 749, 753 (10th Cir.2008) (“The Tenth Circuit has consistently held that ‘exhaustion ... is a jurisdictional prerequisite to suit under Title VII-not merely a condition precedent to suit.’ ”)(quoting Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir.2005)); Ransom v. U.S. Postal Service, 170 Fed.Appx. 525, 527 & n. 2 (10th Cir.2006) (“[A] claimant under the Rehabilitation Act ... is required to present her claims to the appropriate EEO agency before filing suit.”)(citing 5 U.S.C. § 7702(a)(2); Wells v. Shalala, 228 F.3d 1137, 1142-43 (10th Cir.2000)); Jones v. Runyon, 91 F.3d at 1399 (“Exhaustion of administrative remedies is a jurisdictional prerequisite to suit under Title VII.”); Romero v. Union Pac. R.R., 615 F.2d 1303, 1303 (10th Cir.1980). Without such a filing, federal courts lack subject-matter jurisdiction to entertain discrimination claims under these statutes, and a rule 12(b)(1) motion to dismiss is procedurally proper. See Seymore v. Shawver & Sons, Inc., Ill F.3d 794, 799 (10th Cir.1997); Carmody v. SCI Colo. Funeral Servs., Inc., 76 F.Supp.2d 1101, 1103-04 (D.Colo. 1999).

a. Each Discrete Incident Must be Exhausted.

Before 2002, under the “continuing violation” theory, the Tenth Circuit recognized a limited exception to the “exhaustion rule for Title VII claims when the unexhausted claim is for discrimination like or reasonably related to the allegations of the EEOC charge.” Simms v. Oklahoma ex. rel. Dep’t of Mental Health and Substance Abuse Servs., 165 F.3d at 1327 (internal citations and quotations omitted). The Tenth Circuit “construed the ‘reasonably related’ exception to include most retaliatory acts subsequent to an EEOC filing.” 165 F.3d at 1327 (citing Seymore v. Shawver & Sons, Inc., 111 F.3d at 799). In Martinez v. Potter, 347 F.3d 1208 (2003), however, the Tenth Circuit noted that the “Supreme Court’s recent pronouncement in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), has effected fundamental changes to the doctrine allowing administratively unexhausted claims in Title VII actions.” 347 F.3d at 1210. The Tenth Circuit’s “decisions have unambiguously recognized Morgan as rejecting application of the ‘continuing violation’ theory.” Martinez v. Potter, 347 F.3d at 1211 (citing Davidson v. America Online, Inc., 337 F.3d 1179 (10th Cir. 2003)). The Tenth Circuit stated:

We agree with the government that such unexhausted claims involving discrete employment actions are no longer viable. Morgan abrogates the continuing violation doctrine as previously applied to claims of discriminatory or retaliatory actions by employers, and replaces it with the teaching that each discrete incident of such treatment constitutes its own unlawful employment practice for which administrative remedies must be exhausted.

347 F.3d at 1210 (internal citations and quotations omitted).

Thus, under National Railroad Passenger Corp. v. Morgan, each discrete act of discrimination must be administratively exhausted. “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 114, 122 S.Ct. 2061 (internal citations and quotations omitted). In National Railroad Passenger Corp. v. Morgan, this rule applied to bar a plaintiff from suing on claims for which no administrative remedy had been sought when those incidents complained of occurred more than 45 days before the filing of Plaintiffs EEO complaint. See Martinez v. Potter, 347 F.3d at 1210. “The rule is equally applicable, however, to discrete claims based on incidents occurring after the filing of Plaintiffs EEO complaint.” Id. at 1210-11. The Tenth Circuit has stated: “Our decisions have unambiguously recognized Morgan as rejecting application of the continuing violation theory.” Martinez v. Potter, 347 F.3d at 1211 (internal quotations omitted). Failing to exhaust administrative remedies does not “bar an employee from using the prior acts as background evidence in support of a timely claim.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 113, 122 S.Ct. 2061. See King v. Salazar, Nos. CIV 05-0575 JB/WDS, 05-0997 JB/WDS, 2009 WL 1311521, at *2 (D.N.M.2009) (Browning, J.)(“[E]vidence about a time-barred discrete act can be used as background evidence for a discrimination or retaliation claim.”).

b. At Least One Related Act that Is the Basis of a Hostile Environment Claim Must Be Exhausted.

A different rule applies to hostile environment claims. Under National Railroad Passenger Corp. v. Morgan, a series of events that constitute a hostile environment claim are considered one unlawful action. See West v. Norton, 376 F.Supp.2d 1105, 1129 (D.N.M.2004) (Browning, J.). “Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 115, 122 S.Ct. 2061 (internal citations and quotations omitted). An “unlawful employment practice” that constitutes a hostile work environment thus cannot be said to occur on any particular day, but rather occurs over a series of days or years. Id. (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Thus, so long as one of the incidents included within the claim of hostile environment occurred within the 300-day time limit provided for under 42 U.S.C. § 2000e-5(e)(1), other conduct that occurred outside of the proscribed time period, but contributing to the hostile work environment, is not time barred. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 105, 122 S.Ct. 2061 (holding “that consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile environment takes place within the statutory time period”); West v. Norton, 376 F.Supp.2d at 1129. “[A] series of alleged events comprises the same hostile environment where ‘the pre- and post-limitations period incidents involved the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers.’ ” Duncan v. Manager, Dep’t of Safety, City & Co. of Denver, 397 F.3d 1300, 1309 (10th Cir.2005) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 120, 122 S.Ct. 2061).

3. Time Requirements for Exhausting Administrative Remedies Are Not Jurisdictional.

While failure to exhaust administrative remedies is a jurisdictional bar to suit, in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court of the United States held that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” 455 U.S. at 393, 102 S.Ct. 1127. See DeWalt v. Meredith Corp., 288 Fed.Appx. 484, 490 (10th Cir.2008) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. at 393, 102 S.Ct. 1127; Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1174-75 (10th Cir.1998)). The Tenth Circuit treats a plaintiffs failure to timely exhaust administrative remedies not “as a jurisdictional issue, [but] rather ... as an affirmative defense to be raised by [defendants].” DeWalt v. Meredith Corp., 288 Fed.Appx. at 490. When a defendant brings a motion to dismiss for lack of subject-matter jurisdiction under rule 12(b)(1) based on a plaintiffs failure to exhaust administrative remedies in a timely manner, a court “analyze[s] th[e] case under 12(b)(6) of the Federal Rules of Civil Procedure,” unless a court considers materials outside the complaint, in which case “it should ... treat[ ][the] motion as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.” Douglas v. Norton, 167 Fed.Appx. 698, 704-05 (10th Cir.2006).

Though not jurisdictional, the forty-five-day limitation period is not an arbitrary barrier. It is designed to give an agency timely notice of potentially illegal conduct, to discover and correct its own errors and possibly to conciliate the claim. Sampson v. Civiletti, 632 F.2d at 863. An employee who fails to comply with the limitation period is barred from seeking judicial relief in federal court, absent a defense of equitable tolling. See Davis v. U.S. Postal Serv., 142 F.3d 1334, 1339 (10th Cir.1998); Wilson v. West, 962 F.Supp. 939, 944 (1997).

THE LAW UNDER THE REHABILITATION ACT

“The Rehabilitation Act prohibits discrimination against an ‘otherwise qualified individual with a disability.’ ” McGeshick v. Principi, 357 F.3d 1146, 1149 (10th Cir.2004) (quoting 29 U.S.C. § 794). The Rehabilitation Act prohibits employers from discriminating against or failing to accommodate employees who are disabled within the meaning of the Act, and creates a private right of action in favor of a qualified victim of such discrimination. See Detterline v. Salazar, 320 Fed.Appx. 853, 856 (10th Cir.2009). “The Rehabilitation Act expressly incorporates and adopts the employment discrimination standards contained in Title I of the Americans with Disabilities Act, 42 U.S.C. § 12111, et seq.” Detterline v. Salazar, 320 Fed.Appx. at 856 (citing 29 U.S.C. § 791(g)). Because of this relationship, “decisions under both Acts apply interchangeably to our analysis.” Detterline v. Salazar, 320 Fed.Appx. at 856 (quoting Vidacak v. Potter, 81 Fed.Appx. 721, 723 (10th Cir.2003)). A plaintiff must support his or her case with either direct or circumstantial evidence. Davidson v. Am. Online, Inc., 337 F.3d 1179, 1189 (10th Cir.2003).

1. Direct Evidence of Discrimination

“Direct evidence is evidence, which if believed, proves the existence of a fact in issue without inference or presumption.” Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 855 (10th Cir.2007). Moreover, “[d]irect evidence demonstrates on its face that the employment decision was reached for discriminatory reasons.” Danville v. Reg’l Lab Corp., 292 F.3d 1246, 1249 (10th Cir. 2002). “A statement that can plausibly be interpreted two different ways—one discriminatory and the other benign—does not directly reflect illegal animus, and, thus, does not constitute direct evidence.” Hall v. U.S. Dep’t of Labor, 476 F.3d at 855 (quoting Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 (1st Cir.2002))(internal quotation marks omitted). “When a plaintiff alleges that discriminatory comments constitute direct evidence of discrimination, ... the plaintiff must demonstrate a nexus exists between the allegedly discriminatory statements and the decision to terminate her.” Hall v. U.S. Dept. of Labor, Admin. Review Bd., 476 F.3d at 857 (quoting McCowan v. All Star Maint. Inc., 273 F.3d 917, 922 n. 3 (10th Cir.2001))(alterations in original). “Direct evidence is that which demonstrates a specific link between the alleged discriminatory animus and the challenged [employment] decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated [the employer’s] decision to take the adverse employment action.” Deneen v. Nw. Airlines, 132 F.3d 431, 436 (8th Cir. 1998). “Statements of personal opinion, even when reflecting personal bias or prejudice, do not constitute direct evidence of discrimination, but at most, are only circumstantial evidence of discrimination because the trier of fact must infer discriminatory intent from such statements” Hall v. U.S. Dep’t of Labor, 476 F.3d at 855 (citing Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir.1999)).

2. Circumstantial Evidence and Establishing a Prima-Facie Case of Disability Discrimination.

In the absence of direct evidence, courts apply the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Davidson v. America Online, Inc., 337 F.3d 1179, 1189 (10th Cir.2003); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 & n. 3 (10th Cir.1997). To establish a prima-facie case of discrimination under the Rehabilitation Act, a plaintiff must show: (i) she is disabled under the Act; (ii) she is “otherwise qualified” for her position; (in) she works for a federal agency; and (iv) the agency has discriminated against her. McGeshick v. Principi, 357 F.3d at 1150. “A showing that similarly situated employees were treated differently is not ‘an indispensable element of the prima facie case,’ although it may be relevant to show the existence or absence of the ... element of discrimination.” Fox v. Nicholson, 304 Fed.Appx. 728, 730 (10th Cir.2008) (quoting Sorbo v. United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir.2005)).

An employer can discriminate by failing to accommodate an employee’s disability. The Rehabilitation Act requires federal agencies to reasonably accommodate otherwise qualified employees, unless such an accommodation would create an undue hardship. See 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9. To establish a prima-facie case of failure to accommodate, a plaintiff must show: (i) she is disabled within the meaning of the Act; (ii) she is a “qualified” individual; (iii) the defendant was aware of her disability; (iv) she needed an accommodation, meaning a causal relationship existed between the disability and the request for accommodation; and (v) the defendant failed to provide the necessary accommodation. See Whitney v. Bd. of Educ. of Grand County, 292 F.3d 1280, 1285 (10th Cir. 2002) (“If a mental limitation is not ‘known’ to the employer, then any failure to accommodate that limitation is not discrimination within the meaning of the ADA.”); Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 1109-11 (10th Cir.1999); Massari v. Potter, No. 04-CV-02306-EWN-MJW, 2006 WL 318658, at *14 (D.Colo. Feb. 9, 2006).

“An employee has the initial duty to inform the employer of a disability before [Rehabilitation-Act] liability may be triggered for failure to provide accommodations—a duty dictated by common sense lest a disabled employee keep his disability a secret and sue later for failure to accommodate.” Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir.1996). See EEOC v. Convergys Customer Mgmt. Group, Inc., 491 F.3d 790, 795 (8th Cir. 2007) (“[T]he employee must provide relevant details of his disability and, if not obvious, the reason that his disability requires an accommodation.”); Conneen v. MBNA Am. Bank, N.A., 334 F.3d 318, 332 (3d Cir.2003) (“[E]ither by direct communication or other appropriate means, the employee ‘must make clear that the [he/ she] wants assistance for his or her disability.’ ”)(quoting Jones v. United Parcel Serv., 214 F.3d 402, 408 (3d Cir.2000)); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1046 (6th Cir.1998) (“The Commission’s interpretive guidelines indicate that generally ‘it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.’ ’’(quoting 29 C.F.R. pt. 1630 App. § 1630.9); Gantt v. Wilson Sporting Goods Co., 143 F.3d at 1046 n. 4 (“It is well settled in cases brought under the Rehabilitation Act of 1973 ... the precursor to the ADA, that reasonable accommodation is not at issue if the plaintiff has never requested accommodations.”). The employee must provide “the employer with enough information that, under the circumstances, the employer can fairly know of both the disability and the desire for an accommodation.” Ballard v. Rubin, 284 F.3d 957, 962 (8th Cir.2002) (quoting Taylor v. Phoenixville Sch. Dist. 174 F.3d 142, 158-59 (3d Cir.1999)); Pans v. Dep’t of Treasury, 104 M.S.P.R. 331, 339 (2006) (“[A]n employee ... has a general responsibility to inform his employer that he needs accommodation for a medical condition.”).

3. Burden-Shifting Under McDonnell Douglas.

If the plaintiff establishes a prima-facie case for any of his discrimination claims, “the burden shifts to the defendant to come forward with a legitimate nondiscriminatory reason for its employment related decision.” Mitchell v. City of Wichita, Kan., 140 Fed.Appx. 767, 777 (10th Cir.2005). “Upon the employer’s articulation of legitimate, nondiscriminatory reasons ... the presumption of discrimination established by the prima facie case simply drops out of the picture.” Kelley v. City of Albuquerque, 375 F.Supp.2d 1183, 1210 (D.N.M.2004) (internal quotations omitted). “This burden is one of production, not persuasion; it ‘can involve no credibility assessment.’ ” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).

Once the defendant produces a legitimate, nondiscriminatory explanation for the defendant’s action, to survive summary judgment, the plaintiff must establish a genuine question of material fact whether the defendant’s explanation is pretextual. To establish a genuine issue of material fact as to pretext, a plaintiff must demonstrate that the Defendant’s “proffered non-discriminatory reason is unworthy of belief.” Pinkerton v. Colo. Dept. of Transp., 563 F.3d 1052, 1065 (10th Cir.2009) (internal quotation marks and citations omitted). To meet this standard, a plaintiff must produce evidence of “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” Pinkerton v. Colo. Dept. of Transp., 563 F.3d at 1065 (internal quotation marks and citations omitted). “If a plaintiff advances evidence upon which a factfinder could conclude that the defendant’s allegedly nondiscriminatory reasons for the employment decisions are pretextual, the court should deny summary judgment.” Reinhardt v. Albuquerque Public Schools Bd. of Educ., 595 F.3d 1126, 1134 (10th Cir.2010). “[A] plaintiffs prima facie case [of discrimination], combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. at 148, 120 S.Ct. 2097. Consequently, “once a plaintiff presents evidence sufficient to create a genuine factual dispute regarding the veracity of a defendant’s nondiscriminatory reason, we presume the jury could infer that the employer acted for a discriminatory reason and must deny summary judgment.” Bryant v. Farmers Ins. Exchange, 432 F.3d 1114, 1125 (10th Cir.2005).

Debunking one of the employer’s explanations defeats the case for summary judgment “only if the company has offered no other reason that, if that reason stood alone (more precisely if it did not have support from the tainted reason), would have caused the company to take the action of which the plaintiff is complaining.”

Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1310 (10th Cir.2005) (quoting Russell v. Acme-Evans Co., 51 F.3d 64, 69 (7th Cir.1995)).

ANALYSIS

The Defendant argues that the FS did not discriminate against Obermeyer and that she has failed to create a genuine issue of material fact whether she was discriminated against on the basis of her disability. The Defendant argues that Obermeyer has provided no direct evidence of discrimination and has not established a prima-facie case of disparate treatment. The Defendant also argues in the alternative that the FS has a legitimate, nondiscriminatory basis for not promoting Obermeyer in that another candidate was more qualified. See Motion at 10-16.

Obermeyer responds that the Defendant failed to accommodate her disability, that she has advanced direct evidence of discrimination, and, in the alternative, that she can establish a prima-facie case of discrimination and that the Defendant’s justification is pretextual. See Response 7-13. The Defendant replies that Obermeyer did not plead or administratively exhaust a failure-to-aecommodate claim, that she failed to request an accommodation for completing her application for the Budget Analyst position, and that she is consequently precluded from bringing a failure-to-accommodate claim.

For the reasons stated below, the Court finds Obermeyer has not put forth evidence establishing a genuine question of material fact whether the Defendant discriminated against her when he did not promote her. The Court also finds Obermeyer’s failure-to-accommodate claim is not properly before it because the claim was not administratively exhausted. Consequently, the Court grants the Defendant’s motion for summary judgment.

I. OBERMEYER HAS NOT ADMINISTRATIVELY EXHAUSTED HER FAILURE-TO-ACCOMMODATE CLAIM.

The Court does not have jurisdiction over Obermeyer’s failure-to-accommodate claim, because she did not exhaust her administrative remedies. Obermeyer argues that, “when she filled out her KSAs for job applications, she was hampered by her writing ability due to her hearing impairment which left management with the mistaken idea that she was slow, when she was actually performing well based on her disability.” Response at 10 (citing Obermeyer Rebuttal ¶ 3, at 5). She argues that the Defendant failed to accommodate her disability by not providing her with a live interview. See Response at 10. Obermeyer further argues that the Defendant makes “no mention ... of what accommodations were made to adjust [KSA] ratings based upon the Plaintiffs disability. As Plaintiff has stated, her communication abilities are different than a person who hears normally, but no adjustment was made for this fact.” Response at 13. The Defendant replies that Obermeyer’s failure-to-accommodate claim is not properly before the Court, because Obermeyer failed to exhaust her administrative remedies on this claim as she did not address it in her EEO charge, and that she did not plead it in her Compliant. See Reply at 11-13.

The Court agrees that Obermeyer’s failure-to-accommodate claim is not properly before the Court. “The exhaustion of administrative remedies is a jurisdictional prerequisite to instituting an action in federal court under ... the Rehabilitation Act.” Showalter v. Weinstein, 233 Fed. Appx. at 804 (citing Woodman v. Runyon, 132 F.3d at 1341). “Federal employees alleging discrimination ... must comply with specific administrative complaint procedures in order to exhaust their administrative remedies.” Showalter v. Weinstein, 233 Fed.Appx. at 804 (citing 29 C.F.R. pt. 1614).

Obermeyer must exhaust her administrative remedies before pursuing a Rehabilitation Act claim in federal court. See Khader v. Aspin, 1 F.3d at 970. The most common method of administrative exhaustion for federal employees, and the one Obermeyer chose, is the individual EEO complaint process. The regulations that the EEOC promulgated, see 29 C.F.R. Part 1614, and the Commission’s Management Directive 110 govern the initial EEO complaint process. Pre-complaint counseling is the first step in that process, see 29 C.F.R. § 1614.105, requiring Obermeyer to consult with an agency counselor within forty-five days of the alleged discriminatory act or, in the case of a personnel action, within forty-five days of the effective date of the action, see id. The forty-five day requirement applies to Rehabilitation Act claims. 29 C.F.R. § 1614.105(a)(1) provides:

29 C.F.R. § 1614.105(a)(1).

In her EEO Complaint, Obermeyer made a claim only for “Physical disability (Hearing); reprisal (denied promotion on basis of prior filing of EEOC Complaint).” EEO Complaint at 1. The EEO accepted for investigation

Whether the agency subjected the complainant to discrimination based physical disability (hearing impairment) and reprisal (prior EEO activity) when in August 2006, she learned that the review panel for the Budget Analyst, GS-0560-07/09 position ... did not include her name on the list of eligible candidates referred to the selecting official for consideration?

Letter from Denise A. Banks, Division Chief, Employment Complaints Division, to Jeffrey A. Dahl (dated January 31, 2007), filed July 20, 2010 (Doc. 29-11).

Under National Railroad Passenger Corp. v. Morgan, each discrete act of discrimination must be administratively exhausted. “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. at 114, 122 S.Ct. 2061. Neither the EEO Complaint nor the EEO division investigation addressed a claim for failure-to-accommodate, nor do they reference the Defendant requiring Obermeyer to complete the KSA, nor the Defendant’s failure to provide her with an oral interview. Consequently, Obermeyer failed to exhaust her administrative remedies for her failure-to-accommodate claim, and the Court lacks subject matter jurisdiction over the claim.

Additionally, Obermeyer’s Complaint does not include a failure-to-accommodate claim. The only remaining claim states, in relevant part, that, “[a]s a result of Defendant’s unlawful and discriminatory failure to promote the Plaintiff on account of her disability, Defendant has violated the provisions of the Rehabilitation Act 29 U.S.C. § 710, et seq.” Compliant ¶ 20, at 4. In Plaintiffs Answers to Defendant’s First Interrogatories, Obermeyer responded to the following interrogatory:

State whether you claim that you were discriminated against on the basis of your disability(s). If your answer is in the affirmative, state:

(a) Whom you claim discriminated against you and when;

(b) What individuals were similarly situated to you who were not qualified Individuals with a disability within the meaning of the Act; and,

Plaintiffs Answers to Defendant’s First Interrogatories No. 6, at 4, filed September 16, 2010 (Doc. 40-7). She responded:

Yes.

(a) On January 25,2006, I claim I was discriminated against by GSTC managers, Robin Carroll, Marcia Thomas and former supervisor, Charlene McDougald.

(b) I was found to be eligible for the position but was not provided with the information of the other eligibles. I was later informed that Kalee Ly was offered the position. I believe I was the only disabled person on the list of eligibles. The other eligibles would have been similarly situated. Some of the persons who were similarly situated are also referred to in ROI, Ex. 23.

Plaintiffs Answers to Defendant’s First Interrogatories No. 6, at 4 (citation omitted). Obermeyer again makes no mention of the Defendant’s failure-to-aceommodate her disability. Consequently, Obermeyer failed to exhaust her administrative remedies for a claim of failure-to-accommodate, and she does not plead a failure-to-aecommodate claim in this case. As a consequence, the Court lacks subject-matter jurisdiction and dismisses Obermeyer’s failure-to-accommodate claim.

II. OBERMEYER HAS NOT ESTABLISHED A GENUINE ISSUE OF MATERIAL FACT WHETHER THE DEFENDANT DISCRIMINATED AGAINST HER BASED ON HER DISABILITY.

Obermeyer has not presented direct evidence of discrimination. Accordingly, she must rely upon McDonald Douglas’ burden-shifting analysis to defeat the motion for summary judgment. While Obermeyer establishes a prima-facie case of disability discrimination, she does not show that there is a genuine issue of material fact whether the Defendant’s stated legitimate, nondiscriminatory reason for not promoting her was pretextual.

A. OBERMEYER HAS NOT PRESENTED DIRECT EVIDENCE OF DISCRIMINATION TO ESTABLISH A GENUINE QUESTION OF MATERIAL FACT WHETHER SHE WAS DISCRIMINATED AGAINST ON THE BASIS OF HER DISABILITY.

The Defendant argues that Obermeyer has not put forth any direct evidence that she was discriminated against. See Motion at 11. Obermeyer responds that she has provided at least two pieces of direct evidence of disability discrimination. First, Obermeyer asserts that Padilla testified that she heard McDougald and Thomas state that they mentioned Obermeyer’s “limitations” when giving references for other positions to which Obermeyer applied. Response at 8. In her Affidavit, Padilla states:

In my presence on two occasions, I heard Ms. McDougald and Ms. Thomas saying that when references called about Complainant, they would provide the references with information about Complainant’s “limitations.” On one occasion not related to the position at issue, I heard Ms. McDougald saying that she had talked to the budget people in the ASC and that they told her that Complainant was moved from one job to another in the ASC. Ms. McDougald said that the budget folks in the ASC had “found out what Kay’s limitations are.” In talking to the budget staff in the ASC, management made sure that Complainant could not get another job.

Padilla Aff. ¶24, at 9.

Second, Obermeyer alleges that Tomas and McDougald stated that Obermeyer is “slow.” Response at 8. Obermeyer alleges McDougald stated in a prior EEO affidavit—three months after selecting Ly for the Budget Analyst position at issue in this case—that Obermeyer was “a little slow.” Response at 8. Additionally, the parties admit that Thomas informed Carroll that Obermeyer would be “slow” in performing the duties of the Budget Analyst position. Response ¶ 15, at 4 (citing Carroll Aff. ¶ 2 1, at 2 (“Ms. Thomas stated to me that Complainant would be slow in performing the duties of the position at issue. She said she based this statement on her experience when Complainant worked for GSTC.”)); Reply ¶ 9, at 5.

The Defendant replies that these comments fall short of the standard for establishing direct evidence under Tenth Circuit precedent. See Reply at 7-9. The Defendant argues that these statements are susceptible to nondiscriminatory interpretations and are therefore not direct evidence. See Reply at 8 (citing Hall v. United States Dep’t of Labor, Admin. Review Bd., 476 F.3d at 855 (“A statement that can plausibly be interpreted two different ways—one discriminatory and the other benign-—does not directly reflect illegal animus, and, thus, does not constitute direct evidence.”) (citation and internal quotation marks omitted)). The Defendant asserts that Thomas’ statement that Obermeyer “would be slow in performing the duties of the position at issue” can be interpreted in at least two ways. Reply at 8. First, the Defendant argues, it could mean that Obermeyer “worked at a slow pace, not necessarily because of her hearing difficulties.” Reply at 8. Second, he continues, it could mean that Obermeyer “would need a considerable amount of training for the position because she did not have any significant Budget Analyst experience.” Reply at 8. The Defendant further argues that the statement “does not relate Plaintiffs hearing loss ‘to any dissatisfaction with her work,’ ” id. at 8 (quoting Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1118 (10th Cir.2007)), and that “McDougald has testified that Plaintiffs ‘work was acceptable and accurate,’ ” Reply at 8 (quoting McDougald Aff. ¶ 18(1), at 8).

The Defendant similarly argues that “the pm-ported statements about ‘limitations’ to which Ms. Padilla referred ... can be interpreted in more than one way not necessarily relating to Plaintiffs ability to perform the requirements of the position at issue,” Reply at 9, though the Defendant does not provide an example of what that might be. The Defendant further argues that Obermeyer fails to establish a sufficient nexus between the alleged statements about her “limitations” and the decision not to select her for the Budget Analyst position, because the statements “are not temporally connected to her non-selection.” Id. at 9 (citing Hall v. U.S. Dep’t of Labor, 476 F.3d at 856-57 (stating that a plaintiff must demonstrate a nexus exists between the allegedly discriminatory statements and the employment decision concerning her)). The Defendant argues that the nexus does not exist because the alleged statements were made after Obermeyer left the OSTC. See Reply at 9. The Defendant also notes that Padilla, who testified to the alleged statements, witnessed the Panel discussion and testified that she did not detect any discriminatory motives concerning the selection of Ly. See Reply at 9 (citing Padilla Aff. ¶ 21, at 8).

The Court finds that these statements do not amount to direct evidence of discrimination. “Direct evidence is evidence, which if believed, proves the existence of a fact in issue without inference or presumption.” Hall v. U.S. Dep’t of Labor, 476 F.3d at 855. Moreover, “[d]irect evidence demonstrates on its face that the employment decision was reached for discriminatory reasons.” Danville v. Reg’l Lab Corp., 292 F.3d at 1249. “A statement that can plausibly be interpreted two different ways—one discriminatory and the other benign—does not directly reflect illegal animus, and, thus, does not constitute direct evidence.” Hall v. U.S. Dep’t of Labor, 476 F.3d at 855 (quoting Patten v. Wal-Mart Stores East, Inc., 300 F.3d at 25) (internal quotation marks omitted). “When a plaintiff alleges that discriminatory comments constitute direct evidence of discrimination, ... the plaintiff must