UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


SAMII, KUROSS

v.

BILLINGTON, JAMES H.


98-5410a

D.C. Cir. 1999


*	*	*


Randolph, Circuit Judge: Dr. Kuross Samii, an employee  of the Library
of Congress who classifies himself as an "Asian  American," appeals
from the district court's order on sum- mary judgment rejecting his
Title VII claims of retaliation  and racial discrimination.


The facts are these. In September 1994, after working  three years at
the Library as a GS-13 research associate, Dr.  Samii applied and was
selected for a GS-14 position as a  program analysis officer within
the Library's Office of the  Associate Librarian for Human Resource
Services ("HRS"),  Affirmative Action and Special Programs Office
("AASPO").  The program analysis officer position is a "budgeted" and 
"funded" position, meaning Dr. Samii's salary is paid from the 
portion of the Library's budget specifically allocated for Hu- man
Resource Services.


Shortly after starting at the AASPO, Dr. Samii was asked  to conduct a
study to generate suggestions for improving the  effectiveness of the
AASPO program. Dr. Samii's study  concluded that an internal
reorganization would enhance the  program's effectiveness. Under a
proposed reorganization,  Dr. Samii would have received a promotion to
the next higher  grade level by accretion of duties. The plan was
presented to  upper management at the Library, who opposed it, as a
result  of which it was never implemented.


Frustrated by the failed reorganization, Dr. Samii began to  explore
the possibility of transferring out of AASPO. In late  1995, he wrote
to Lloyd Pauls, the Associate Librarian for  Human Resources,
indicating his desire to transfer to another  part of the Library. Mr.
Pauls informed Dr. Samii that he  was free to transfer to another
department so long as he  could find an open funded position.
According to Library  policy, HRS employees could not transfer
budgeted salary  funds to other divisions of the Library. Employees
were  permitted to transfer from HRS to other areas of the Library 


only if they found open positions in other divisions with  budgeted
funds. In a memo responding to Dr. Samii's re- quest, Mr. Pauls
explained that he would approve a transfer  to another service unit
but not permit the reassignment of  Dr. Samii's budget number and


Though still intent on transferring out of the AASPO, Dr.  Samii
continued in his position as a program analysis officer.  While
performing his duties, he concluded that the Library  was not fully
complying with the terms of the "Cook settle- ment"--an agreement
settling a lawsuit that alleged discrimi- nation by the Library
against its black employees. See Cook  v. Billington, No. Civ.
82-0400, 1992 WL 276936 (D.D.C. Aug.  14, 1992). In May 1995, Dr.
Samii notified his supervisor,  Denise Banks, that certain reviews
required by the settle- ment, ensuring nondiscrimination in the
Library's hiring pro- cess, were not being conducted. Ms. Banks passed
along this  information to her supervisor, Lloyd Pauls. Concerned that
 the violations had not abated, Dr. Samii conferred with his  former
supervisor, who encouraged him to report the Li- brary's
non-compliance with the settlement agreement. On  March 7, 1996, Dr.
Samii wrote a memorandum to John  Rensbarger, the Inspector General of
the Library, informing  him that the reviews required under the Cook
settlement  agreement were not being performed. Rensbarger allegedly 
discussed the matter with the Library's Senior Advisor for  Diversity,
Jo Ann Jenkins. Dr. Samii claims that Ms. Jen- kins spoke with his
immediate supervisor, Ms. Banks, and  told her to do something about
the "troublemakers" on her  staff, referring to Dr. Samii's


Ms. Banks, however, was soon replaced by Carl Whisenton,  who became
the new Director of the AASPO. Dr. Samii  contends that Mr. Whisenton
stopped the reorganization of  the AASPO, and thereby blocked his
promotion. He also  claims that Mr. Whisenton removed him from certain
man- agement decisions and lessened his duties, and that the 
combination of these made him vulnerable to an eventual  lowering of
his grade level.


After these events, Dr. Samii renewed his request to  transfer to
another division of the Library. In July 1996, he  wrote to the Acting
Deputy Librarian, Thomas Carney, ask- ing to be transferred to the
Library's Office of Scholarly  Programs. After consulting with Lloyd
Pauls, Mr. Carney  responded that Dr. Samii could transfer only if the
Office of  Scholarly Programs provided a budget number and funding 
for the position. Dr. Samii then wrote to Donald Scott, the  Deputy
Librarian, making the same request to transfer. Ms.  Jenkins, at the
direction of Mr. Scott, replied to Dr. Samii's  request, advising him
not to direct any further correspon- dence to top management at the
Library unless cleared by his  immediate superiors.


In November 1996, Dr. Samii filed an Allegation of Dis- crimination
with the Library's Equal Employment Opportuni- ty Complaints Office
("EEOC Office"). He listed Ms. Jenkins  as the discriminating official
and alleged discrimination on the  basis of race, sex and national
origin. Among other things,  Dr. Samii claimed that Ms. Jenkins
discriminated against him  by treating his request for transfer
differently from the  requests of other employees who had transferred
out of  Human Resources. His Allegation of Discrimination did not 
specify a claim for retaliation nor did it identify any Title VII 
related protected conduct. In December 1996, Dr. Samii met  with
Welton Belsches, the EEO counselor assigned to his  case. Though Dr.
Samii contends that in this interview and  in a subsequent one, he
discussed retaliatory actions taken  against him by Ms. Jenkins, Mr.
Belsches maintains that he  did not.


On February 14, 1997, Dr. Samii filed a Complaint of  Discrimination
with the EEOC Office alleging retaliation in  addition to
discrimination. Since the retaliation claim was not  "brought to the
attention" of the EEO counselor as required  by Library regulations,
Dr. Samii was notified that it would  not be accepted for processing.
See Library of Congress  Regulation 2010-3.1, s 6(B)(2). On May 13,
1997, in its Final  Agency Decision, the EEOC Office rejected Dr.
Samii's ap- peal of its decision refusing to process his retaliation


Dr. Samii filed this action, invoking Title VII of the Civil  Rights
Act of 1964, as amended, 42 U.S.C. s 2000e et seq.,  shortly
thereafter. The district court granted summary judg- ment for the
Librarian, finding that Dr. Samii had failed to  establish a prima
facie case for retaliation or discrimination.  For the reasons that
follow, we affirm, but on a different  ground.


The parties agree that under McDonnell Douglas, to assert  a successful
Title VII claim, an employee must establish that  the employer's
asserted nondiscriminatory reasons for its  adverse conduct were
pretextual. See McDonnell Douglas  Corp. v. Green, 411 U.S. 792, 804
(1973); Mungin v. Katten  Muchin & Zavis, 116 F.3d 1549, 1553-54 (D.C.
Cir. 1997).  Once an employer articulates a legitimate,
nondiscriminatory  reason for the challenged employment decision, the
employer  prevails unless the employee succeeds in discrediting the 
employer's explanation. See Aka v. Washington Hosp. Ctr.,  156 F.3d
1284, 1288-89 (D.C. Cir. 1998) (en banc). Since the  ultimate burden
of persuasion in proving retaliation remains  with the plaintiff,
summary judgment is appropriate when the  employee is unable to
satisfy this burden. See Texas Dep't of  Community Affairs v. Burdine,
450 U.S. 248, 256 (1981);  Paquin v. Federal Nat'l Mortgage Ass'n, 119
F.3d 23, 27-28  (D.C. Cir. 1997); Chen v. General Accounting Office,
821 F.2d  732, 739 (D.C. Cir. 1987).


The Librarian has provided legitimate nondiscriminatory  reasons for
not transferring Dr. Samii pursuant to his re- peated requests. The
denials of his requests were predicated  on the Library policy
applicable to all HRS employees. Em- ployees transferring to other
divisions were not permitted to  take their budgeted salaries with
them since doing so would  result in the department losing the funds
allocated to those  specific positions.


Dr. Samii never made a request to transfer to an open,  funded position
in another division of the Library. Rather,  he desired that he be
excepted from the general policy and be  allowed to take his HRS
salary with him to a new position.  This, the Librarian points out,
was not possible since the 


program analysis officer position is critical to the AASPO and  HRS
would have no funds to pay for his replacement's salary.  According to
Lloyd Pauls, three HRS employees transferred  to other Library
divisions during the time Dr. Samii made his  requests. Each of these
employees found budgeted and  funded positions in the divisions to
which they transferred.


Dr. Samii failed to discredit the existence of the Library's  stated
transfer policy. He offered no examples of HRS  employees who were
permitted to reassign their salaries to  positions elsewhere in the
Library. If funding was the real  reason for denying his transfer, Dr.
Samii contends that the  Library should have granted his request to be
detailed to the  Office of Scholarly Programs, an action that would
not have  necessitated funding from the granting service. Doing so, 
however, would have left the AASPO with no one to perform  the program
analysis officer's duties and no funding to hire a  replacement. Dr.
Samii thus failed to present evidence that  would lead a reasonable
fact finder to disbelieve the Library's  proffered reasons for denying
his transfer requests. We  therefore conclude that Dr. Samii has not
met his burden, and  that the district court properly granted the
Library's motion  for summary judgment on the retaliation claim. See
Paquin,  119 F.3d at 27-28.


Dr. Samii also believes that he was discriminated against  by the
Library's failure to process his claim for retaliation  even though it
accepted the retaliation claim filed by a black  employee under
allegedly identical circumstances. The Li- brary maintains that the
retaliation claim was not processed  because Dr. Samii failed to bring
it to the attention of the  EEO counselor in accordance with Library
regulations. See  Library of Congress Regulation 2010-3.1, s 6(B)(2).
The  district court nevertheless reviewed the claim1 and, in a ruling 
we now affirm, found that Dr. Samii failed to establish  retaliation.
Any harm resulting from the Library's refusal to 




__________

n 1 The district court reviewed the claim despite determining that  Dr.
Samii failed to exhaust his administrative remedy. We do not  address
the exhaustion question in view of the Librarian's failure to 
preserve it.


entertain the retaliation claim has thus been cured. See  Bowden v.
United States, 176 F.3d 552, 555 (D.C. Cir. 1999).  Since the
discrimination claim is derivative of Dr. Samii's  meritless
retaliation claim, it too must fail.


Affirmed.