MEMORANDUM ORDER

JOHN LUNGSTRUM, Chief Judge, District

Plaintiff filed suit against defendant alleging discrimination on the basis of her race, sex and disability arising out of her employment. Plaintiff also asserts that defendant retaliated against her after she filed an EEO complaint. This matter is presently before the court on the parties' cross-motions for summary judgment. As set forth in more detail below, plaintiff's motion is denied, defendant's motion is granted and plaintiff's complaint is dismissed in its entirety.

I. Facts

The court's recitation of the facts is somewhat complicated by plaintiff's failure to follow the local rules both in submitting her motion for summary judgment and in responding to defendant's motion for summary judgment. In her motion, plaintiff fails to set forth specific facts; rather, she sets forth her arguments concerning her claims against defendant. Moreover, plaintiff has not supported her motion with references to depositions, affidavits or any other competent Rule 56(e) evidence. While plaintiff does attach a number of exhibits to her motion, these exhibits have not been authenticated as required by the relevant rules. In response to defendant's motion, plaintiff simply states in general terms that defendant's facts and arguments are "false and misleading" and has not made any effort to specifically controvert defendant's facts as required by the rules. The court, of course, is mindful that plaintiff proceeds pro se and it recognizes that "pro se litigants should not succumb to summary judgment merely because they fail to comply with technical requirements involved in defending such a motion." See Boyd v. Unified Government of Kansas City, 1999 WL 1467229, at *2 (D. Kan. Nov. 10, 1999) (citations omitted). Thus, the court has diligently reviewed plaintiff's briefs, the exhibits submitted by plaintiff (including the exhibits submitted by plaintiff in connection with her motion to amend her summary judgment pleading, which the court hereby grants) and the entire summary judgment record to determine whether genuine issues of material fact exist. After a careful review of the record, the court finds that it must deem admitted all of defendant's facts for purposes of the parties' summary judgment motions, as the court can find no evidence in the record controverting those facts. See id. (citations omitted).

Plaintiff is presently employed as a Computer Specialist with the Federal Aviation Administration (FAA) and she has held that position since 1978. Plaintiff's position is in the FAA Airways Facilities division. In March 1994, three Regional Duty Officers in the Direction, Staff and Support (DSS) division of the FAA retired and it became necessary to fill these positions. Due to an agency-wide hiring freeze, the positions could not be filled on a permanent basis and, thus, the FAA decided to fill the positions on a temporary basis for a period not to exceed six months. Pending approval of an agency-wide staffing plan, the FAA hoped eventually to make the selections permanent. Plaintiff applied for one of the three temporary Regional Duty Officer positions and she was selected for the position in June 1994. Plaintiff was advised that she would return to her regular position and salary at the conclusion of her temporary promotion to the Regional Duty Officer position and that her position in the Airways Facilities division was being kept open for her.

Several months later, the FAA Washington headquarters authorized Joseph Kenny to fill the Regional Duty Officer positions on a permanent basis. However, the FAA determined that the DSS division was overstaffed and, thus, directed that the Regional Duty Officer positions be filled from within the DSS division. Toward that end, the FAA posted an opening in October 1994 for the permanent Regional Duty Officer position and the position announcement specifically stated that only those employees who worked in the organizations within the DSS division would be considered for the position. Plaintiff asked her supervisor, Tom Kilbane, to provide her with the application forms for the position. Mr. Kilbane contacted Mr. Kenny for the purpose of obtaining the application forms for plaintiff and was advised by Mr. Kenny that plaintiff was not eligible to bid for the position because she was not an employee in the DSS division. Mr. Kilbane explained to plaintiff what he had learned from Mr. Kenny and did not provide plaintiff with the application forms. Ultimately, the job posting was cancelled because there were no qualified applicants. In November 1994, the FAA again posted an opening for the permanent Regional Duty Officer position and plaintiff again asked Mr. Kilbane to provide her with the appropriate application forms. Once again, Mr. Kenny advised Mr. Kilbane that plaintiff was not eligible to bid for the position because she was not employed in the DSS division and that the position could only be filled by an employee within the DSS division. Plaintiff was not provided with the application forms and was not permitted to apply for the position. Mr. Kenny selected three people to fill the opening posted in November 1994 — all three individuals were employed in the DSS division. Thereafter, plaintiff's temporary promotion to the Regional Duty Officer position ended and she returned to her position in the Airways Facilities division. She has remained in that position since that time.

Additional facts will be provided as they relate to plaintiff's particular claims.

II. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R. C'iv. P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Wright ex rel. Trust Co. of Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Spaulding, 279 F.3d at 904 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Adams v. American Guarantee Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at 671).

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis Co., 256 F.3d 1013, 1017 (10th Cir. 2001). Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1197-98 (10th Cir. 2000) (quoting Adler, 144 F.3d at 671). To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibits incorporated therein." Adams, 233 F.3d at 1246.

Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and in-expensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1); see also Kaster v. Safeco Ins. Co. of Am., 2003 WL 22854633, at *2 (10th Cir. Dec. 3, 2003) (affirming the district court's grant of summary judgment in favor of defendant in an ADEA case where the plaintiff had failed to present evidence sufficient for a reasonable jury to conclude that Safeco's employment decisions were age-related); Young v. White, 2003 WL 21940941, at *1-2 (10th Cir. Aug. 14, 2003) (affirming district court's grant of summary judgment in favor of defendant in race discrimination and retaliation context).

III. Race and Gender Discrimination

Plaintiff alleges that she was not permitted to bid for the permanent Regional Duty Officer position in October and November 1994 on the basis of her race, African-American, and/or on the basis of her gender. As she has no direct evidence of discrimination, her claims are analyzed under the burden-shifting framework first set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, plaintiff has the initial burden of establishing a prima facie case of discrimination. To establish a prima facie case in the failure-to-promote context, plaintiff must demonstrate that (1) she belongs to a protected class; (2) she was qualified for the promotion; (3) despite her qualifications, plaintiff was not promoted; and (4) the position remained open or the position was filled. See Amro v. Boeing Co., 232 F.3d 790, 796 (10th Cir. 2000). If she establishes a prima facie case, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. See Salguero v. City of Clovis, 366 F.3d 1168, 1175 (10th Cir. 2004). If defendant offers a legitimate, nondiscriminatory reason for its actions, the burden reverts to plaintiff to show that defendant's proffered reason was a pretext for discrimination. See id. A. Prima Facie Case

In his motion for summary judgment, defendant contends that plaintiff has failed to establish a prima facie case because plaintiff has no evidence that similarly situated employees outside the protected class were treated more favorably than plaintiff. This argument is easily rejected as the Tenth Circuit has expressly held that a plaintiff is not required to come forward with evidence of similarly situated employees to establish the fourth prong of the prima facie case. See EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1195 n. 6 (10th Cir. 2000) ("Nothing in the case law in this circuit requires a plaintiff to compare herself to similarly situated co-workers to satisfy the fourth element of her prima facie case."). Rather, plaintiff can satisfy the fourth element in a number of ways, including by showing that the position she sought was filled. See id. (citing Mohammed v. Callaway, 698 F.2d 395, 398 (10th Cir. 1983)). Plaintiff has satisfied this prong, then, as the record clearly reflects that the Regional Duty Officer position was filled.

B. The Pretext Analysis

As plaintiff has established a prima facie case with respect to her discriminatory failure-to-promote claims, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for his decision. See English v. Colorado Dep't of Corrections, 248 F.3d 1002, 1008 (10th Cir. 2001) (citing McDonnell Douglas, 411 U.S. at 802). According to defendant, plaintiff was not permitted to bid for the permanent Regional Duty Officer position because she was a permanent employee of the Airways Facilities division rather than the DSS division and only employees in the DSS division were permitted to bid for the position as the division was already overstaffed and the FAA mandated that the position be filled from within the DSS division. Defendant has satisfied his "exceedingly light" burden to provide nondiscriminatory reasons for his actions. See Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1279 (10th Cir. 1999).

Plaintiff, then, may resist summary judgment only by presenting evidence that defendant's reasons are pretextual ( i.e., unworthy of belief) or by otherwise introducing evidence of a discriminatory motive. See Danville v. Regional Lab Corp., 292 F.3d 1246, 1250 (10th Cir. 2002) (citing Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1137 (10th Cir. 2000)). Pretext "can be shown by 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." Id. (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). When assessing whether plaintiff has made an appropriate showing of pretext, the court considers the evidence as a whole. Id. (citation omitted).

Plaintiff has failed to meet her burden of establishing pretext. While she has attached a number of exhibits demonstrating that she was a good performer with solid performance reviews, such evidence does not demonstrate that defendant's proffered reasons are false. Defendant does not contend that plaintiff was not permitted to bid on the positions for performance-related reasons. Plaintiff further contends that Mr. Kilbane promised her that she would be promoted to the permanent Regional Duty Officer position and that Mr. Kilbane in essence awarded her the position. Even assuming the truth of these contentions, it is uncontroverted that Mr. Kilbane did not have the authority to award the position to plaintiff and any promise he may have made simply does not show that defendant's proffered reasons for refusing to permit plaintiff to bid for the position are false. Finally, plaintiff asserts that defendant's reasons are pretextual because she was paid from the DSS division's budget while she was a temporary Regional Duty Officer, presumably suggesting that she was, in fact, an employee within the DSS division and should have been considered an employee of that division for purposes of bidding for the permanent position. However, there is no evidence that the FAA actually considered plaintiff an employee of the DSS division rather than the Airways Facilities division, regardless of whether plaintiff was paid out of the DSS division budget. Indeed, the evidence demonstrates that because plaintiff's permanent position was being held open for her in the Airways Facilities division, she was considered an employee of that division. That she may have been paid out of the DSS division's budget only gives rise to an inference that the position she was filling was a position in that division, as indeed it is uncontroverted that it was, but not that her permanent status was as an employee in that division.

In sum, the record is devoid of evidence that defendant's asserted reasons for his decisions are unworthy of belief. Moreover, plaintiff has come forward with no evidence that Mr. Kenny or any other decisionmaker bore any animus toward her because of her race or gender and there is no evidence in the record reflecting that the decisionmakers were in any way motivated by plaintiff's race or gender. Whether the policy basis which underlay the decision to limit the field of candidates here was a wise one is not a question for this court. Even if the decision not to permit plaintiff to apply for the position was unfair, there is no evidence that it was discriminatory. Summary judgment in favor of defendant, then, is granted with respect to plaintiff's claim of race and gender discrimination.

IV. Disability Discrimination

Plaintiff also contends that she was not permitted to bid for the permanent Regional Duty Officer position because of her disability, sickle-cell disease. A plaintiff makes out a prima facie case of disability discrimination under the Rehabilitation Act by showing that (1) she is a disabled person within the meaning of the Act, (2) she is otherwise qualified for the job, and (3) she was discriminated against because of her disability. Wells v. Shalala, 228 F.3d 1137, 1144 (10th Cir. 2000). Because the Rehabilitation Act incorporates the standards from the Americans with Disabilities Act of 1990, see 29 U.S.C. § 791(g), decisions under both Acts apply interchangeably to the court's analysis. See Woodman v. Runyon, 132 F.3d 1330, 1339 n. 8 (10th Cir. 1997).

Assuming, without deciding, that plaintiff's sickle-cell disease constitutes a disability for purposes of the Rehabilitation Act, the court nonetheless grants defendant's motion for summary judgment on this claim because plaintiff has not established the third element of her prima facie case — that defendant discriminated against her because of her disability. This element requires plaintiff "to present some affirmative evidence that disability was a determining factor in the employer's decision." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (citing Ennis v. National Ass'n of Bus. Educ. Radio, Inc., 53 F.3d 55, 59 (4th Cir. 1995)). Of course, a plaintiff's disability cannot have been a determining factor in the employer's decision if the employer did not know about the plaintiff's disability. See Whitney v. Board of Educ. of Grand County, 292 F.3d 1280, 1285 (10th Cir. 2002). Mr. Kenny averred that he did not know that plaintiff had sickle-cell disease (or any potentially disabling condition) until after the selection decisions were made. Plaintiff has failed to controvert this fact in any fashion and the court's review of the record has revealed no facts which might call into question whether Mr. Kenny knew about plaintiff's condition. Thus, defendant could not have discriminated against plaintiff on the basis of her disability when Mr. Kenny made the selection decisions for the permanent Regional Duty Officer positions. See id. (affirming summary judgment on ADA claim where it was uncontroverted that decisionmaker did not know about employee's disability at time of suspension decision). Summary judgment in favor of defendant is appropriate on plaintiff's disability discrimination claim.

V. Retaliation

As described in the pretrial order, plaintiff asserts that "additional applications for promotion were denied" after she filed her EEO complaint in May 1995 concerning defendant's refusal to permit her to bid for the permanent Regional Duty Officer position. According to defendant, summary judgment is appropriate on this claim because plaintiff failed to exhaust her administrative remedies with respect to the claim. The court agrees. Significantly, plaintiff never filed an EEO complaint regarding any acts that occurred after she filed her EEO complaint in May 1995. As the Tenth Circuit explained in Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003), "unexhausted claims involving discrete employment actions are no longer viable" in light of the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Under Morgan, each retaliatory adverse employment decision — even those occurring after the filing of an EEO complaint — constitutes a separate actionable unlawful employment practice and, thus, a plaintiff must exhaust his or her remedies with respect to each act. See id. at 1211. Because plaintiff failed to file a separate EEO complaint regarding defendant's alleged retaliatory acts occurring after she filed her May 1995 EEO complaint, she has failed to exhaust her administrative remedies. Summary judgment in favor of defendant is warranted on this claim. See id. (affirming grant of summary judgment in favor of defendant on plaintiff's retaliation claim where plaintiff failed to file a separate EEO complaint for retaliatory acts occurring after the filing of his initial EEO complaint).

VI. Plaintiff's Remaining Claims

In the pretrial order, plaintiff attempts to assert discrimination claims under the Constitution, 42 U.S.C. § 1983, 42 U.S.C. § 1981 and Title VI of the Civil Rights Act of 1964. These claims are without merit. Her claims under the Constitution fail because the Supreme Court has clearly stated that a federal employee's only avenue for judicial relief from federal employment discrimination is through Title VII. Belhomme v. Widnall, 127 F.3d 1214, 1217 (10th Cir. 1997) (citing Brown v. General Servs. Admin., 425 U.S. 820, 828-29, 835 (1976)). As a result, Title VII preempts any constitutional cause of action that a court might find for discrimination in federal employment. See id. (citations omitted). Plaintiff's claim under 42 U.S.C. § 1983 fails as a matter of law because this section applies to actions by state and local entities, not to the federal government. See id. (citations omitted). Finally, plaintiff's claims under 42 U.S.C. § 1981 and Title VI fail because of preemption by Title VII — a federal employee may not assert a claim for racial discrimination in his employment relationship except through the mechanism provided in 42 U.S.C. § 2000e-16. See id. (citing Brown, 425 U.S. at 823, 835 (affirming dismissal of section 1981 claim because of failure to meet Title VII requirements); Trotter v. Todd, 719 F.2d 346, 350 (10th Cir. 1983) (holding that Title VII precludes a claim under section 1981 for racial discrimination against a federal employee)); McCray v. Veneman, 298 F. Supp.2d 13, 15 (D.D.C. 2002) (dismissing federal employee's discrimination claim under Title VI because Title VII provides exclusive remedy).

Plaintiff also appears to assert a breach of contract claim against defendant based on Mr. Kilbane's alleged promise to plaintiff that she would be a permanent Regional Duty Officer and/or his alleged assurance that she was, in fact, already a permanent Regional Duty Officer. Any claim for breach of contract, however, is barred as the applicable statute of limitations for such a claim expired before plaintiff filed her complaint. In that regard, plaintiff's breach of contract claim accrued no later than December 1995, when plaintiff learned she was not selected for the permanent Regional Duty Officer position. She did not file her complaint until August 2002 — more than six years after the accrual of her breach of contract claim and beyond the applicable statute of limitations. See 28 U.S.C. § 2401(a). This claim, then, is dismissed. IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff's motion for summary judgment (doc. #43) is denied; defendant's motion for summary judgment (doc. #46) is granted; and plaintiff's motion to amend her summary judgment pleading (doc. #49) is granted. Plaintiff's complaint is dismissed in its entirety.

IT IS SO ORDERED.