Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge:
This is an appeal from an order of the district court, Hogan, J., granting summary judgment for the Export-Import Bank on three counts of unlawful discrimination alleged by a former employee, Regina C. Brown. We affirm the district court's order granting summary judgment for the Bank because Brown has failed to allege any legally cognizable adverse employment action and because her attempts to discredit the Bank's account of its employment decisions as a web of pretextual artifice is thoroughly unconvincing.
Brown "is a 50 year old black female with three separate Master's Degrees." Brief for Appellant at 2. She began working at the Export-Import Bank as a GS-12 loan officer in August 1984. During the next ten years, she received two promotions, rising to the level of a GS-14 senior loan officer. In June 1994, she left the Bank to accept an appointment at the State Department as Deputy Assistant Secretary of State for African Affairs.
Brown spent her first year at the Bank on rotational assignment. After working for a short period in several divisions, including three months in Contracts Administration, she switched to the Africa/Middle
These changes and others prompted the Bank to reorganize its allocation of personnel and shift a number of people into temporary reassignments. Some of the transfers were voluntary, others were not; the rotations fell upon both sexes and upon both black and white employees. It was the Bank's policy to require all senior practitioners to make themselves available for reassignment as required by the Bank's shifting needs. The Bank also considered reassignments of this kind to be an important educational tool for the professional development of its staff.
On September 17, 1993, Brown received word from Raymond Albright—a Senior Vice-President at the Bank, a white male, and Brown's second-level supervisor—that she was to be reassigned to the Contracts Administration Division of the Bank the following month. Brown strongly objected to this reassignment because she believed Contracts was a less prestigious "back-shop" area and because, having worked for a short period in Contracts many years earlier as a GS-12, she felt she had little to learn from such a rotation. The Bank maintained that Brown's presence was needed in Contracts and that the numerous transfers in the fall of 1993 had the effect of balancing the number of senior practitioners between the Bank's various departments.
Unconvinced, Brown thought the "catalyst" behind her transfer was her immediate supervisor, Carl Leik, a white male. By her lights, she was moved because of racial and sexual animus. She first approached one of the Bank's equal employment opportunity counselors with this allegation on September 20, 1993, when she signed a form laying out her rights and responsibilities under the Bank's grievance procedures. Brown made a formal complaint on October 8, naming Leik and Albright as the discriminating officials. Despite her objections, Brown was transferred to Contracts Administration on October 18 along with another GS-14 from the Claims Division, Kenneth Vranich, who is white.
On October 22, 1993, two days after her formal transfer to Contracts Administration, Brown received a copy of her annual performance evaluation from Leik. The evaluation measured her performance in five different categories according to a mathematical scale ranging from five points for an "outstanding" rating to one point for an "unacceptable" rating. Brown received a "superior" rating in the areas of "technical knowledge," "special projects," and "supervision." She received a "fully satisfactory" rating in the "case work" category. This rating was accompanied by remarks which noted the prohibition against further loan activity in West Africa and suggested that Brown lacked enthusiasm for the lesser function of debt collection. Finally, Brown received a two-point "minimally satisfactory" rating for internal and external oral and written communication. The comments attached to that rating stated that "Ms. Brown has consistently been negligent in advising the division's managers of her meetings with the public, developments in her assignments and providing copies of outgoing correspondence. There have been a number of instances of a lack of courtesy." The cumulative average of Brown's scores was 3.4, which, as for any cumulative score between 2.75 and 3.75, meant that Brown received an overall rating of "fully satisfactory." Brown claimed that this was the lowest performance appraisal she had ever received and she met with Leik and Albright to discuss her evaluation one week later on October
During this same period—the fall of 1993—Brown began to receive employment overtures from the State Department. On September 27, Brown was informed that she was being considered for Deputy Assistant Secretary for African Affairs and she was offered that job after an interview on October 8. Although Brown did not accept the position when it was originally offered, she states that she accepted it later that month contingent upon the Bank's agreement to let her return to the Bank after she finished her job at State. She began the process of obtaining a security clearance in December and requested a letter of re-employment from the Bank.
In March 1994, while the State Department had Brown's application for a security clearance under review, the Bank decided to create a new Project Finance section and posted notices for three new positions available for competitive selection. Brown applied for a transfer to one of those positions, but she was not selected during the interviews held on April 29. Albright and Leik were two of three senior managers on the selection board. Brown believed she was not selected in retaliation for having filed an EEO complaint against these individuals the previous fall. However, Brown did not file another complaint. Instead, "[a]s a result of these nonselections and because she remained stuck in the Contracts Division, Brown believed she had no choice but to accept an appointment [as] a Deputy Assistant Secretary of State for African Affairs at the State Department." Brief for Appellant at 6.
On February 14, 1995, Brown commenced this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., charging Kenneth D. Brody, the Chairman of the Export-Import Bank with racial and sexual discrimination as well as retaliation. In her complaint, Brown claimed that the Bank had discriminated against her by involuntarily reassigning her from the Africa/Middle East Division of the Bank to Contracts Administration. She also claimed that the Bank discriminated against her by giving her an evaluation lower than she had been accustomed to receiving, by failing to promote her to a position within the Project Finance Division; and by refusing to provide her with a letter of re-employment after she had accepted a political position with the State Department. After discovery, the Bank moved for summary judgment arguing that Brown's complaint failed to present a genuine issue of material fact and that the Bank was entitled to judgment as a matter of law.
The district court granted the Bank's motion for summary judgment. As to
Brown has abandoned two of the theories she advanced in the proceedings below. She does not now claim that she was constructively discharged from her job because of the Bank's alleged discriminatory practices. See id. at 10-12. Nor does she challenge the district court's ruling that she was not entitled to a letter of re-employment when she left the Bank to accept a higher-paying political appointment at the State Department for an indefinite duration. See id. at 14-17.
Brown sees discrimination, racial and sexual, in three of the Bank's actions: (1) transferring her to Contracts Administration (Claim I); (2) giving her a "fully satisfactory" evaluation and a letter of admonishment (Claim II); and (3) denying her a transfer to a newly created position in Project Finance (Claim III). She also alleges that in taking the last two actions, the Bank unlawfully retaliated against her.
A. Sexual Discrimination
Viewing the record in the light most favorable to Brown, we detect no genuine issue about any material fact relating to Brown's claims of sexual discrimination and we are convinced that no reasonable jury could return a verdict in her favor on this basis. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C.Cir.1998) (en banc). With respect to her first claim—involuntary transfer—Brown argues that she was "exchanged" with a lower-graded white female from Contracts Administration.
B. Racial Discrimination and Retaliation
In Mungin v. Katten, Muchin & Zavis, 116 F.3d 1549, 1556-57 (D.C.Cir.1997), we
1. The Need for an Adverse Personnel Action
Federal employment practices and private employment practices are regulated in separate provisions of Title VII. The provisions differ slightly. Private employers must comply with 42 U.S.C. § 2000e-2(a), which makes it an unlawful employment practice to discriminate on the basis of "race, color, religion, sex, or national origin" in hiring decisions, in compensation, terms and conditions of employment, and in classifying employees in a way that would "adversely affect" their status as employees. Federal employers, including government corporations such as the Export-Import Bank, must adhere to 42 U.S.C. § 2000e-16: "All personnel actions affecting employees ... in executive agencies as defined in section 105 of Title 5 ... shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a).
"Despite the difference in language between [the Title VII provisions governing private and federal employers], we have held that Title VII places the same restrictions on federal and District of Columbia agencies as it does on private employers, Barnes v. Costle, [561 F.2d 983, 988 (D.C.Cir.1977)], and so we may construe the latter provision in terms of the former." Bundy v. Jackson, 641 F.2d 934, 942 (D.C.Cir.1981). Our court has therefore applied the familiar test of McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in Title VII suits against federal employers, even though the Supreme Court formulated the test in a private sector discrimination case. See, e.g., Holbrook v. Reno, 196 F.3d 255, 259 (D.C.Cir.1999); Parker v. Secretary, U.S. Dep't of Housing & Urban Dev., 891 F.2d 316, 320 (D.C.Cir.1989); Mitchell v. Baldrige, 759 F.2d 80, 84 (D.C.Cir.1985); McKenna v. Weinberger, 729 F.2d 783, 788 (D.C.Cir.1984); Valentino v. United States Postal Serv., 674 F.2d 56, 63 (D.C.Cir. 1982). The Supreme Court too has assumed the test's applicability to the federal government. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983).
In federal as in private employment cases, our decisions—with an exception to be mentioned in a moment—require plaintiffs to satisfy the first step of the McDonnell Douglas test by showing that they have been subjected to some sort of adverse personnel or employment action. Thus, to state a prima facie claim of disparate treatment discrimination, the plaintiff must establish that (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. See, e.g., McKenna, 729 F.2d at 789.
Realizing the difficulty these formulations pose for her case, as will become clear later, Brown tells us the requirement of an adverse personnel action applies only to private sector Title VII cases, but that in Title VII suits against federal employers, any sort of personnel action undertaken for discriminatory reasons suffices. Strong support for her position seems to come from the following passages in Palmer v. Shultz, 815 F.2d 84, 97-98 (D.C.Cir. 1987):
If we took these statements from Palmer at face value, the opinion would appear to conflict with other federal employment decisions in this circuit. This court's opinion in Mitchell, for example, stated the test for retaliation in terms, not of any personnel action, but of an "adverse personnel action" and it did so in a Title VII suit against a federal agency (the Commerce Department). See 759 F.2d at 86. In McKenna v. Weinberger, 729 F.2d at 789, another Title VII suit against a federal agency, this court held that for a disparate treatment claim to succeed there must be "proof that an adverse personnel action was taken and that it was motivated by discriminatory animus. The inquiry in such a case must focus on the circumstances surrounding the adverse personnel action." Furthermore, Palmer's stress on the language of § 2000e-16(a) as contrasted with the provision applicable to private employers, see 815 F.2d at 97-98, seems at odds with Barnes, 561 F.2d at 988, and with Bundy, 641 F.2d at 942. The cases just mentioned—Bundy, Barnes, Mitchell and McKenna—were decided before Palmer, but Palmer cited none of them.
Since one panel of this court cannot overrule another, LaShawn A. v. Barry, 87 F.3d 1389, 1393, 1395-96 (D.C.Cir.1996) (en banc), we must attempt to reconcile Palmer with our other decisions. This requires us to examine the case in further detail. Palmer reversed a district court's dismissal of a class action brought against the State Department by female employees alleging a host of discriminatory practices. The State Department argued that while there might be statistical evidence showing that it had discriminated against women in certain types of personnel decisions, the plaintiffs could not state a claim regarding other types of employment decisions in the absence of similar evidence. The court rejected that argument, concluding that "when plaintiffs in a Title VII case introduce statistical evidence of an extreme disparity in the selection rates for men and women for a certain type of job, the fact that these plaintiffs have insufficient evidence to establish an inference of discrimination regarding other employment decisions should not block an inference of discrimination on the specific type
Unlike Palmer, but like Mitchell and McKenna, Brown's claim is an individual disparate treatment claim rather than a pattern or practice claim. The very different nature of the claim in Palmer places in context the portion of the opinion we have quoted above. When Palmer stressed § 2000e-16's prohibition against discrimination in "all personnel actions," and concluded that the plaintiffs could state a claim "regardless of whether the personnel action affects promotions or causes other tangible or economic loss," id., it relied on Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), decided just months before. In Meritor, the Supreme Court recognized a cause of action for "hostile work environment" sexual harassment in addition to the more traditional cause of action for so-called quid pro quo harassment. See id. at 64, 106 S.Ct. 2399. After Meritor, plaintiffs could maintain an action even in the absence of a tangible economic effect on employment if the work atmosphere was "so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers." Id. at 66, 106 S.Ct. 2399 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971)); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (explaining the difference between specific claims and hostile work environment claims and noting that the latter requires a showing of "severe or pervasive conduct") (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)); see also id. at 768, 118 S.Ct. 2257 (Thomas, J., dissenting) ("In race discrimination cases, employer liability has turned on whether the plaintiff has alleged an adverse employment consequence, such as firing or demotion, or a hostile work environment.") (emphasis added).
Brown also relies upon another decision of this court, Passer v. American Chemical Society, 935 F.2d 322 (D.C.Cir.1991), to show that an employer's actions need not have any effect on the employee's working conditions. Passer held that a retiring employee could state a claim for retaliation under the Age Discrimination in Employment Act when his former employer indefinitely postponed a public symposium in his
In this case, as in Passer, we are less concerned with the kind of employment action involved, than with its effect on the employee. Viewed in this light, there is nothing remarkable about the statement in Palmer that no particular type of personnel action was automatically excluded from serving as the basis of a cause of action under 42 U.S.C. § 2000e-16(a).
In short, in Title VII cases such as Brown's, federal employees like their private counterparts must show that they have suffered an adverse personnel action in order to establish a prima facie case under the McDonnell Douglas framework. How this affects Brown's claims is the next subject.
2. Lateral Transfers
Brown alleges that the Bank discriminated against her in two lateral transfer decisions. It first assigned her to a position she did not desire and later declined to assign her to a newly created position she did desire. There is no dispute that the pay and benefits were the same in Brown's original job, in the job to which she was sent, and in the job she was denied. Brown has argued that the same legal standards should govern both her involuntary transfer to Contracts Administration and the denial of her bid for a desired transfer into Project Finance. See Appellant's Reply Brief at 11. We agree. Unfortunately for Brown, this means that claims one and three both fail as a matter of law.
"The clear trend of authority," as we mentioned in Mungin, 116 F.3d at 1556-57,
The Supreme Court reinforced this approach to discrimination claims in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), which cited many of the cases listed above when it announced a "tangible employment action" standard in cases of vicarious liability. The relevant passage of the Court's opinion deserves full quotation:
Id. at 761, 118 S.Ct. 2257; see also id. at 768, 118 S.Ct. 2257 (Thomas, J., dissenting) ("In race discrimination cases, employer liability has turned on whether the plaintiff has alleged an adverse employment consequence, such as firing or demotion, or a hostile work environment. If a supervisor takes an adverse employment action because of race, causing the employee a tangible job detriment, the employer is vicariously liable for resulting damages.").
These developments allow us to announce the following rule: a plaintiff who is made to undertake or who is denied a lateral transfer—that is, one in which she suffers no diminution in pay or benefits— does not suffer an actionable injury unless there are some other materially adverse consequences affecting the terms, conditions, or privileges of her employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm. Mere idiosyncracies of personal preference are not sufficient to state an injury. See, e.g., DiIenno v. Goodwill Indus., 162 F.3d 235, 236 (3d Cir.1998); Doe, 145 F.3d at 1448 (finding "no case, in [the 11th] or any other circuit, in which a court explicitly relied on the subjective preferences of a plaintiff to hold that plaintiff had suffered an adverse employment action"); Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996) (emphasizing that "not everything that makes an employee unhappy is an actionable adverse action").
In both Ellerth and Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), the Court specifically identified "discharge, demotion, or undesirable reassignment" as three examples of the kind of "tangible employment action" for which an employee may bring a vicarious liability suit against her employer under Title VII. 524 U.S. at 765, 118 S.Ct. 2257; 524 U.S. at 808, 118 S.Ct. 2275. Brown was not discharged; she left the Bank for a more prestigious position and a sixty percent raise. Nor was Brown demoted; she retained the same rank and salary at all times relevant to this litigation. While Brown was temporarily reassigned to a position she thought undesirable, and she was later not selected for a position she did find desirable, there is no objective basis for finding that she was harmed by these decisions in any tangible way. Therefore, the district court properly disposed of claims one and three for failure to state a prima facie case.
3. "Fully Satisfactory" Evaluation and Letter of Admonishment
Brown argues that the district court committed two reversible errors in its consideration of her performance evaluation and letter of admonishment. First, Brown correctly observes that the district court identified a material factual dispute about the circumstances surrounding Brown's failure to file a formal EEO complaint. Brown now argues this question should have been submitted to a jury. One wonders why. The district court assumed that a "reasonable jury" might allow Brown to prevail against the Bank's exhaustion defense, but ultimately concluded that Brown did not make out a prima facie claim. See
On the question whether Brown's "fully satisfactory" performance rating is an adverse employment action, the weight of contemporary authority is once again solidly with the Bank. Just as lateral transfers do not ordinarily constitute "adverse actions," a similarly thick body of precedent, cited in the margin, refutes the notion that formal criticism or poor performance evaluations are necessarily adverse actions.
While Brown's evaluation may have been lower than normal, it was not adverse in an absolute sense. The overall "fully satisfactory" rating is the middle of five grades and Brown was rated "superior" in three of five specific areas. It also appears that such evaluations could be adjusted on appeal before a separate administrative branch and that Leik's tough evaluations had been successfully adjusted by at least one other employee. Although Brown clearly knew of this procedure, there is no evidence that she ever sought such an adjustment.
4. Allegations of Pretext
In addition to Brown's failure to establish a prima facie case of discrimination or retaliation, there is an alternative ground for affirming the grant of summary judgment in favor of the Bank—namely, Brown failed to show that the Bank's explanations for its actions were a pretext for discrimination and retaliation.
The analysis of pretext allegations proceeds as follows:
Aka, 156 F.3d at 1289. Although the presentation of evidence rebutting pretext is sometimes sufficient to defeat a defendant's motion for summary judgment, see Carpenter v. Federal Nat'l Mortgage Ass'n, 165 F.3d 69, 72 (D.C.Cir.1999), Brown, who had the ultimate burden of persuasion, offered nothing beyond her own speculations and allegations to refute the Bank's legitimate, non-discriminatory reasons for its decisions. "As courts are
a. Involuntary Lateral Transfer
Brown alleges that her involuntary transfer to Contracts was not consistent with the treatment of other employees and that the real purpose of the transfer was to provide employment development for a white female, Mrs. El Mohandes, at Brown's expense. Brown's theory, and theory is all that there is, does not stand up in the face of the Bank's explanation.
Brown was transferred because there was almost no work for her to do in her original position: the West African countries she oversaw were barred from taking out more loans and her duties were confined to loan collection. That condition was forecasted to continue and did in fact continue for at least a year. All personnel at Brown's level were required to sign a statement acknowledging that the possibility of transfer to other divisions went with the job and, unlike performance ratings, such transfers were not appealable. Brown's transfer was at all times considered to be temporary, a one year rotation. A white male, Mr. Vranich, was transferred into Contracts Administration at the same time as Brown. The result was to balance employees at Brown's level across each of the Bank's various divisions. Contrary to Brown's persistent suggestion, El Mohandes, who was brought over from Contracts to Brown's division, did not take Brown's job. El Mohandes took a lower-level job in the North African portion of the division and the countries El Mohandes dealt with—Morocco, Algeria, Tunisia—were not barred from receiving new loans. That El Mohandes was later promoted to Brown's level during the next two years as the Middle East-Africa Division merged with the European Division is irrelevant. Promotion is not necessarily a zero-sum game. It does not follow that Brown was harmed because another employee with substantially different area of expertise in an international bank was advanced. Contrary to Brown's selective quotation from Albright's memorandum for the record, see Brief for Appellant at 7 n.4, Albright moved Brown for Brown's benefit—both to reduce tension with her immediate supervisor and to employ Brown productively after West Africa was closed for further business. Brown went on to receive commendations from her new boss, Mrs. Newton. Brown's unsubstantiated anecdotal evidence that Contracts was a "back-shop" dead-end is defeated by two facts: Brown was commended for her work there, and, at the very least, El Mohandes successfully transferred out of Contracts to other divisions in the Bank. Brown's argument that a white female, Mrs. Emmet, had never been rotated to Contracts is inconclusive. Emmet was assigned to countries that were still able to do business with the Bank.
b. Job Appraisal and Admonishment Letter
With respect to discrimination, Brown offers only one example to prove that Leik demonstrated a pattern of writing poor evaluations for black employees. That individual did not support Brown's allegations in his deposition, but instead consistently described his relationship with Leik as "good" despite receiving a lower-than-normal performance appraisal.
Brown's retaliation claim is no more substantial. Brown was first informed of Albright's intention to transfer her on September 17, 1993. Brown filed her first informal complaint on October 8, 1993. Brown first received her evaluation on October 22. She then filed an informal complaint alleging retaliation on October 26. Brown discussed the evaluation with Leik and Albright for the first time on October 29, when she signed it "under
The problem with Brown's retaliation claim is that the signature dates listed on the evaluation are September 3 for Leik and September 8 for Albright. In other words, the evaluation was completed by Leik two weeks before Brown was first informed of her upcoming transfer and more than a month before Brown filed her first informal complaint. Hence, the evaluation could not have been retaliatory. Brown offered no evidence that her evaluation was backdated or that a delay between the preparation and delivery of performance reviews was abnormal.
Brown's insistence in claim two that there was no reason for her to anticipate either a poor evaluation or a letter of admonishment is greatly undermined by her arguments advanced in support of claim one that significant tension existed between her and Leik in the months leading up to her involuntary transfer. Brown cannot have it both ways. Either the relationship was bitter, which very slightly supports claim one, or the relationship seemed smooth, which very slightly supports claim two. Furthermore, Albright's letter of admonishment thoroughly documents numerous conflicts between Brown and Leik, and her conflicts with employees in other divisions of the bank.
c. Non-Selection for Desired Lateral Transfer
Despite Brown's consistent representations to the contrary, the Bank did not deny Brown a promotion. The Bank did not select her for a lateral transfer into one of three newly created GS-14 positions Brown thought to be more appealing. A higher GS-15 position was also advertised, but the Bank canceled that position and no one was hired to fill it. See Brown, mem. op. at 12 n.4.
The Bank's explanation of its decision to transfer three other employees is sufficient to defeat Brown's claims of pretext. First, it is undisputed that two of the three people transferred into the new positions were senior to Brown. Thus, the alleged discrimination or retaliation cannot be considered a pattern. The differences between Brown and the third selectee are too nebulous to support an inference of either discrimination or retaliation. "[T]he employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); see Aka, 156 F.3d at 1294; Fischbach v. District of Columbia, 86 F.3d 1180, 1182 (D.C.Cir.1996).
Brown presses her retaliation claim by observing that Leik and Albright were two of the three people on the panel which made the transfer decision. Their participation on the panel is hardly surprising. Who else would have served on such a panel? The position was squarely within their area of expertise—lending. Their involvement might matter if Brown had successfully demonstrated discrimination or retaliation at an earlier stage in their relationship or a pattern of discrimination against other similarly situated black people, but she has not. See Aka, 156 F.3d at 1289; Fischbach, 86 F.3d at 1182.
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For the reasons set forth above, the district court's order granting summary judgment for the Export-Import Bank is