Mayorga v. Ayers ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAVIER A. MAYORGA,
Plaintiff,
Civil Action No. 15-cv-1604 (BAH)
v.
Chief Judge Beryl A. Howell
STEPHEN T. AYERS,
ARCHITECT OF THE CAPITOL
Defendant.
MEMORANDUM OPINION
The plaintiff, Javier A. Mayorga, a Hispanic man of Nicaraguan origin currently
employed as an Electronic Industrial Controls Mechanic in the Office of the Architect of the
Capitol (“AOC”), initiated this action against defendant Stephen T. Ayers, the Architect of the
Capitol, in his official capacity, alleging “employment discrimination based on his race and
national origin” in violation of Title IV of the Congressional Accountability Act of 1995
(“CAA”), 2 U.S.C. § 1311, 1317(a)(1), and Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et seq. Complaint, ECF No. 1 (“Compl.”) ¶ 1. 1 In the summer of 2014, the plaintiff
applied for a promotion within AOC, but two Caucasian individuals were selected instead of
him. The plaintiff claims that although he was the most qualified applicant for this position, he
was not selected because of his race and national origin. Compl. ¶ 8. After the plaintiff’s
request for counseling with AOC’s Office of Compliance and his subsequent request for
mediation ended without resolution, he filed this lawsuit. Pending before the Court is the
defendant’s motion for summary judgment, contending that AOC had legitimate,
1
The CAA makes Title VII of the Civil Rights Act applicable to the legislative branch of the federal
government. See 2 U.S.C. § 1302(a)(2).
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nondiscriminatory reasons for selecting two individuals instead of the plaintiff and that the
plaintiff cannot show that AOC’s reasons for this selection were pretext for discrimination. For
the reasons explained below, the defendant’s motion is granted.
I. BACKGROUND
A. Factual Background
The plaintiff moved to the United States from Nicaragua at age twenty-five to avoid
political turmoil. Def.’s Mot. Summ. J. (“Def.’s Mot.”), Ex. 2, Deposition of Javier Mayorga
(“Pl.’s Dep.”) at 7–8, ECF No. 16-3. 2 In Nicaragua, he completed high school and some
university coursework in electrical engineering and also worked for a refrigeration company. Id.
at 6–8. After coming to the United States, the plaintiff worked in heating and air conditioning
services for nearly nine years at Permanent Solutions Industries before leaving his job to attend
Stratford University, where he earned an associate’s degree in “Network.” Pl.’s Dep. at 10–13,
ECF No. 18-2; Def.’s Mot., Ex. 21, Resume of Javier A. Mayorga (“Pl.’s Resume”) at 4, ECF
No. 16-23. While taking classes at Stratford, the plaintiff worked for the appliance company
Maytag, first as a service technician and then as a store manager. Pl.’s Dep. at 13, ECF No. 18-
2; Pl.’s Resume at 3. After finishing his degree in 2003, he worked as a service technician for
TK Services, Inc., for five months, where he was responsible for installing and troubleshooting
the heating, ventilation, and air conditioning (“HVAC”) equipment. Pl.’s Dep. at 17, ECF No.
18-2; Pl.’s Resume at 5. He then took a job at Advanced Power Control, where he worked for
two and a half years as a service technician installing and troubleshooting HVAC equipment,
2
The parties have submitted different excerpts from the same depositions as exhibits to both moving and
responsive papers and, for ease of review, citations to the depositions will identify the docket number where the
referenced deposition section may be found rather than the exhibit number.
2
communications equipment, transformers, and pressure sensors, among other responsibilities.
Pl.’s Resume at 3.
In late 2007 the plaintiff joined AOC, an independent agency within the legislative
branch responsible for maintaining and operating government buildings and landmarks including
the United States Capitol, the Capitol Visitor Center, the Supreme Court, and the United States
Botanic Garden. Def.’s Mot., Ex. 2, Vacancy Announcement (“Vacancy Announcement”) at 2,
ECF No. 16-4. The plaintiff was hired as an Electronic Industrial Controls Mechanic at the
Wage Grade (“WG”) 12 level, earning approximately $32 per hour. Compl. ¶¶ 3, 6; Pl.’s Dep. at
26, ECF No. 18-2. In this position, the plaintiff primarily works at the Capitol Visitor Center
and is responsible for working on and maintaining the building’s network operations and
building automation system (BAS), which includes HVAC, plumbing, lighting, elevators,
electrical monitoring, generators, utility metering, carbon monoxide and nitrogen oxide
monitoring, and water fountains. Pl.’s Dep. at 30–32, ECF No. 18-2; Def.’s Reply Supp. Mot.
Summ. J. (“Def.’s Reply”), Ex. 26, Declaration of Scott Bieber (“Bieber Decl.”) ¶ 3, ECF No.
20-2. The plaintiff’s supervisors rated his performance as “Outstanding” on his two prior
performance reviews, and he has received numerous awards over the past several years. Compl.
¶ 6.
In 2014, the plaintiff responded to a vacancy announcement advertising multiple
openings for an Electronics Technician in the Energy Management Control Systems (“EMCS”)
Branch of the Planning and Project Management Office within AOC, listed at the GS-10 and GS-
11 salary levels. Def.’s Mot., Ex. 1, Def.’s Statement of Material Facts (“Def.’s SMF”) ¶ 4
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(undisputed); Vacancy Announcement at 2–3. 3 The EMCS Branch is a central office that
performs maintenance and operations services for the various jurisdictions within the AOC’s
purview, including the House Superintendent’s Office, the Senate Superintendent’s Office, and
the Capitol Superintendent’s Office. Def.’s SMF ¶ 4 (undisputed). The people hired for the
vacancies would be responsible for installing, maintaining, troubleshooting, diagnosing,
programming, and operating the AOC’s building automation system network (“BASnet”), direct
digital control (“DDC”) systems, new networks in the buildings, Ethernet routers, network
switches, and fiber-optic cabling in the buildings, among other responsibilities. Vacancy
Announcement at 3.
Between August 20, 2014, and September 10, 2014, candidates applied for the advertised
positions by submitting their resumes and answering an online questionnaire about their
knowledge, skills, and abilities. Def.’s SMF ¶¶ 5–6 (¶ 5 disputed as to other facts; ¶ 6
undisputed). A Human Resources Specialist in AOC’s Employment and Classifications Branch
reviewed the applications and compiled a list of thirty-five candidates, including the plaintiff,
who had applied and were eligible for the GS-11 level position and another list of thirty-four
candidates, not including the plaintiff, who had applied and were eligible for the GS-10 level
position. Id. ¶ 6. The two lists had a substantial overlap of candidates. Def.’s Mot., Ex. 3,
Certificates of Eligible Candidates (“Candidate List”) at 2–4, ECF No. 16-5. These lists were
forwarded to the selecting official, Scott Bieber, a Caucasian man who is a Supervisory
Electronics Technician overseeing the EMCS Branch of the AOC. Def.’s SMF ¶ 7 (undisputed);
Def.’s Mot., Ex. 4, Deposition of Scott Lynn Bieber (“Bieber Dep.”) at 4, ECF No. 16-6. Bieber
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The plaintiff testified that he had unsuccessfully applied for this job twice before, but noted that he did not
file complaints with the Equal Employment Opportunity Commission related to his nonselection for those openings.
Pl.’s Dep. at 51–55, ECF No. 18-2.
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reviewed the candidates and selected six, including the plaintiff, to be interviewed by a three-
member selection panel. Def.’s SMF ¶ 9 (disputed as to other facts). In reviewing the
candidates’ applications, Bieber created a spreadsheet in which he marked each candidate’s
experience, including whether the candidate was employed by AOC; whether the candidate had
experience with BAS, automated logic controls, network, and HVAC; and whether the candidate
had worked with contractors including Alerton and Reliable. Pl.’s Opp’n Def.’s Mot. Summ. J.
(“Pl.’s Opp’n), Ex. 3, Bieber Preinterview Spreadsheet (“Bieber Spreadsheet”) at 1–2, ECF No.
18-3. Bieber testified that he looked only at the candidates’ resumes to compile this spreadsheet.
Bieber Dep. at 19, ECF No. 16-6.
Bieber asked Clifford Wallace, a Caucasian man who is a GS-12 Electronic Equipment
Controls Mechanic in the EMCS Branch, and Terry Watson, a Caucasian woman who is a GS-14
Energy Program Manager within the Planning and Project Management Division, to serve with
him on the selection committee. Def.’s SMF ¶¶ 10–11 (undisputed); Pl.’s Opp’n, Ex. 5,
Deposition of Clifford Martin Wallace (“Wallace Dep.”) at 4–5, ECF No. 18-5; Def.’s Mot., Ex.
6, Deposition of Terry Watson (“Watson Dep.”) at 5–7, ECF No. 16-8. The plaintiff claims that
“[t]ypically, an impartial member from a department outside the vacancy is included on such a
selection panel, but Bieber did not include such a person.” Pl.’s Opp’n, Ex. 10, Pl.’s Responses
to Def.’s Statement of Material Facts (“Pl.’s SMF”) ¶ 9, ECF 18-10. Bieber compiled a list of
interview questions and provided that list in advance to each of the interviewers. Wallace Dep.
at 16–18, ECF No. 16-7. Some of the questions were general, asking the candidates to describe
their “applicable education, training, and experience,” their “areas/systems of expertise,” and
why they wanted to join EMCS, while other questions were more specific, asking about the
candidates’ knowledge of and experience with “DDC systems and equipment,” “BACnet
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systems and equipment,” “DDC networks and network equipment,” and “Fiber Optic and
Ethernet Cable/Networks.” Def.’s Mot., Ex. 7, Bieber Notes re: Mayorga Interview (“Bieber
Notes”) at 2–3, ECF No. 16-9. Watson also asked Bieber to add a question about project
management experience, which Bieber agreed to do. Watson Dep. at 34–35, ECF No. 16-8.
Bieber took the lead in questioning the candidates and read the same questions, verbatim,
to each candidate. Bieber Dep. at 37–38, ECF No. 16-6; Wallace Dep. at 16–21, ECF No. 16-7;
Watson Dep. at 17, ECF No. 16-8. Watson then asked her question about project management.
Watson Dep. at 34–35, ECF No. 16-8. The panelists would occasionally ask follow-up questions
to clarify a candidate’s answer, although the plaintiff avers that none of the interviewers asked
him any follow-up questions. Id. at 17; Pl.’s SMF at ¶ 13. According to the plaintiff, Wallace
did not ask him any questions during his interview. Pl.’s Dep. at 82–83, ECF No. 18-2. When
the plaintiff asked Wallace why he had not asked any questions, Wallace told the plaintiff that he
was “really doing a good job.” Id. The plaintiff also alleges that during his interview, the
interviewers “did not look at him when he spoke and were instead ruffling their papers,”
although he acknowledges that they were taking notes during the interview. Pl.’s SMF ¶ 13;
Pl.’s Dep. at 83–84, ECF No. 18-2.
After completing the interviews, the panel convened, reviewed their notes from the
interviews, and discussed the strengths and weaknesses of each candidate. Bieber Dep. at 21,
ECF No. 16-6. Bieber testified that in filling the positions, he was looking for “two different
skill sets” since he had two positions to fill: he was hoping for one position to be “network
related” and for the other to be focused on “graphics and program running jobs, coordinat[ing]
with contractors.” Id. at 19. He communicated this desire to the other two members of the
selection committee. See id. at 21; Wallace Dep. at 8, ECF No. 16-7; Watson Dep. at 12–13,
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ECF No. 18-6. In response to the plaintiff’s question about whether the panel was looking for
project management skills, Wallace stated that they were “[n]ot really” looking for that skill but
“it would help” with the position. Wallace Dep. at 8, ECF No. 16-7. Similarly, Watson testified
that, regarding network experience, it would be “a bonus if someone has that particular skill set.”
Watson Dep. at 13, ECF No. 18-6. After reviewing their notes and the candidates’ materials, the
committee decided, by consensus, that Ed Williams, John Coulter, and Alan Gantt would go on
to second-round interviews. Bieber Dep. at 21, ECF No. 16-6; Wallace Dep. at 32–33, ECF No.
16-7; Watson Dep. at 11, ECF No. 16-8. The members of the panel each testified that Williams
and Coulter, both Caucasian men, occupied the top two positions, while the plaintiff fell toward
the bottom of the list of interviewed candidates. Bieber Dep. at 21–23, ECF No. 16-6; Wallace
Dep. at 32–33, ECF No. 16-7; Watson Dep. at 11–12, ECF No. 16-8.
Bieber and his supervisor, Doug Helmann, then conducted second-round interviews with
Williams, Coulter, and Gantt. Def.’s SMF ¶ 15 (disputed as to other facts). Helmann’s
supervisor, Anna Franz, had asked him to meet with the candidates to ensure that he was
comfortable with the panel’s recommendation. Id.; Def.’s Mot., Ex. 10, Deposition of Doug
Helmann (“Helmann Dep.”) at 13–15, 20–21, ECF No. 16-12. After Helmann gave his approval
for the selection of Williams and Coulter, the Employment and Classifications Branch
electronically transmitted Bieber’s decision to Franz for her concurrence, and those two men
were hired. Def.’s SMF ¶ 16 (undisputed); Helmann Dep. at 20–21, ECF No. 16-12; Def.’s
Mot., Ex. 12, Deposition of Anna Franz (“Franz Dep.”) at 12–13, 29–32, ECF No. 16-14.
According to Bieber, who supervises Williams and Coulter, Williams occupies the position
focused on graphics and programming while Coulter occupies the network-oriented position.
Bieber Dep. at 20, ECF No. 16-6.
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On November 28, 2014, the plaintiff learned that he had not been selected for the
available positions. Def.’s SMF ¶ 24 (undisputed); Compl. ¶ 8. The plaintiff subsequently
sought counseling with the AOC’s Office of Compliance Certification, which ended without
resolution on April 21, 2015. Def.’s SMF ¶ 24 (undisputed); Def.’s Mot., Ex. 24, Office of
Compliance Certification (“Compliance Certification”) at 2, ECF No. 16-26. The plaintiff then
sought mediation on May 5, 2015, which ended without resolution on July 6, 2015. Def.’s SMF
¶ 24 (undisputed).
On October 1, 2015, the plaintiff filed the instant lawsuit, alleging that he was the victim
of racial and national origin discrimination when he was passed over for this position. Compl.
¶ 11. The plaintiff claims that Bieber “has a long history of preferring employees who, like him,
are white and speak without a foreign accent.” Pl.’s Opp’n at 2. According to the plaintiff,
Bieber “has specifically displayed a distaste for Mr. Mayorga’s hispanic origin, treating him with
disdain and making fun of his hispanic-sounding name by regularly calling him ‘caviar,’ to his
face.” Id. at 2–3. Bieber also allegedly “mocks and interrupts” the plaintiff when he tries to
speak in meetings, “tells him to his face that he needs to speak better English,” “laughs at him,”
and “has passed him over for promotion three times.” Id. at 3. The plaintiff testified that an
HVAC technician at AOC told him that he “better watch your back with” Wallace and Bieber,
because “they don’t like you.” Pl.’s Dep. at 39–40, ECF No. 18-2. One of the plaintiff’s
coworkers, Hector Molina, claims that he heard Williams, Wallace, and AOC employee Mark
Parker “disparage Mr. Mayorga because of his Hispanic origin” by “intentionally
mispronounc[ing] his name and tell[ing] him he needs to better his English.” Pl.’s Opp’n, Ex. 8,
Statement of Hector Molina (“Molina Statement”) at 1, ECF No. 18-8. In their depositions,
Bieber, Coulter, Wallace, and Williams all said that they had never heard anyone refer to the
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plaintiff as “Caviar” and denied that they had made fun of his accent. Bieber Dep. at 13, ECF
No. 18-1; Deposition of John Coulter (“Coulter Dep.”) at 9–10, ECF No. 16-11; Wallace Dep. at
15, ECF No. 16-7; Pl.’s Opp’n, Ex. 4, Deposition of Edward Williams Jr. (“Williams Dep.”) at
14–15, ECF No. 18-4.
B. The Candidates’ Qualifications for the Vacant Position
In light of the plaintiff’s claim that he “was the most qualified applicant for the position
but was not selected because of his race and national origin,” Compl. ¶ 8, Williams’s and
Coulter’s qualifications are reviewed in some detail. At the time of his selection, Williams was
already working for Bieber as an Electronic Industrial Controls Mechanic at the WG-12 level
and had been in that position for four years. Def.’s Mot., Ex. 13, Resume of Edward L. Williams
Jr. (“Williams Resume”) at 2, ECF No. 16-15; Bieber Dep. at 7, ECF No. 16-6. In that role, he
designed and installed graphics and programs for the BASnet system, operated and
troubleshooted the BASnet, tested and troubleshooted fiber-optic cables, operated and monitored
LAN Gate routers and LAN Gate Ethernet routers, designed and installed new networks,
installed Ethernet cabling, and installed new DDC systems, among many other tasks. Williams
Resume at 2. Williams also had experience with the AOC’s controls systems and equipment
from his work at the Capitol and the Supreme Court. Williams Dep. at 6–7, ECF No. 16-10.
Bieber’s spreadsheet, in which he noted each candidate’s experience, indicates that Williams had
experience with BAS, automated logic controls, the contractors Alerton and Reliable, network,
and HVAC. Bieber Spreadsheet at 2. Before becoming an Electronic Industrial Controls
Mechanic, Williams worked for ten years as an HVAC Mechanic at the AOC. Williams Resume
at 2–3. Williams is a certified fiber-optics installer and has taken numerous courses in automated
logic operation and troubleshooting. Id. at 3. Williams does not have a college degree. Id.
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Bieber testified that Williams was his top choice because “he had been doing the job of
the GS-11. He was running the jobs, writing the programs, creating the graphics. Of course, he
ran the fiber already previously. He had fiber certifications. He’s ran a lot of Ethernet cabling.”
Bieber Dep. at 14, ECF No. 18-1. According to Bieber, Williams also had project management
experience, and when asked if this was a “big reason” that Williams was selected, Bieber said it
was. Id. at 20. Williams later testified that his project management experience was in flooring,
rather than in the field in which he currently works. Williams Dep. at 6, ECF No. 18-4. Wallace
testified that Williams “had everything that [they] were looking for. He was fiber certified. He
had done multiple projects in building automation.” Wallace Dep. at 8–9, ECF No. 16-7. In
Wallace’s view, they “couldn’t ask for more” and “there’s no doubt after the interview that he
stood out.” Id. at 34. Watson agreed, testifying that Williams “stood out because he had a fairly
detailed resume,” “had specific examples,” “had good controls knowledge,” and “also had
HVAC experience.” Watson Dep. at 15–16, ECF No. 18-6.
At the time of his selection, Coulter was an Electronics Mechanic with AOC and had
worked in that position for approximately four years. Def.’s Mot., Ex. 17, Resume of John C.
Coulter (“Coulter Resume”) at 2, ECF No. 16-19. In that job, he was responsible for installing,
troubleshooting, maintaining, and operating systems including the BASnet, as well as
configuring and maintaining Cisco LAN Gate Routers, switches, and hubs. Id. He was also
responsible for installing, testing, and certifying fiber-optic cables and equipment. Id. Before
joining AOC, he worked as a Cable Splicing Technician for Verizon Communications for five
years. Id. He has certificates in Cisco networks, HVAC, electronics, low-voltage electrical
work, and fiber-optic installation. Id. at 3. Bieber’s spreadsheet indicates that Coulter had
experience with BAS, network, and HVAC. Bieber Spreadsheet at 2. Coulter’s resume indicates
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that he attended Anne Arundel Community College, where he studied “Business Management
and Computer Networking.” Id. at 3.
Bieber testified that Coulter was a top choice because he was, at the time, “maintaining
[the] BAS net network infrastructure, so he was doing all the fiber work, help configuring
switches, the Cisco switches, installing them, certifying all the fiber.” Bieber Dep. at 8, ECF No.
16-6. Thus, he fulfilled Bieber’s goal of hiring someone with particular experience in networks.
Id. at 19–20; Wallace Dep. at 33–34, ECF No. 16-7. In addition, Coulter “had Cisco
certifications, courses. He had experience in programming switches and installing them. He
worked for Verizon prior, so he was certified in fiber, and did all type of fiber work. He also
have [sic] HVAC experience, and he’s a low voltage electrician.” Bieber Dep. at 10, ECF No.
16-6. Wallace was “impressed with his network experience, his low voltage license[ ].” Wallace
Dep. at 56, ECF No. 16-7. Watson agreed and noted that his “resume was detailed” and “listed
specific skill sets,” and that “during the interview he had specific examples” of his work.
Watson Dep. at 18, ECF No. 16-8.
The plaintiff avers that he was more qualified for this position than either Williams or
Coulter. Compl. ¶ 8. In his resume, the plaintiff stated he has “extensive background in the
design, Installation, commissioning, repair and general maintenance of the Building Automation
Systems (BAS)” and that he is “[s]killed in troubleshooting of digital controls.” Pl.’s Resume at
2. In his then-current position as an Electronic Industrial Controls Mechanic with AOC, he was
responsible for checking the BAS server and DDC operation, troubleshooting network
communication, training the service department on the BAS, and troubleshooting the BAS. Id. at
2. His resume also describes his experience as an HVAC service technician with Advance
Power Control and TK Services, his experience with Maytag, and his associate’s degree in
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“Network,” as well as his certificates in DDC programming, electric diagrams and schematics,
heat pumps, air conditioning, and refrigeration, among others. Id. at 3–5. Notably, his resume
does not mention fiber-optic cables, Ethernet, or BASnet. Bieber’s spreadsheet indicates that the
plaintiff’s resume reflected experience with BAS and Alerton but does not check the boxes for
HVAC and network, despite the fact that the plaintiff’s resume states his experience with HVAC
and his degree in network. Bieber Spreadsheet at 1; Pl.’s Resume at 3–5.
Bieber later clarified that when he was looking for “network” experience, he meant
experience with the BASnet. Bieber Dep. at 11, ECF No. 16-6. He testified that the plaintiff
was a lower-ranked candidate in part because he did not have experience with BASnet and did
not discuss any such experience on his resume or in his interview. Id. Bieber also noted that the
plaintiff had said in his interview that he had “very little” experience with fiber work or Ethernet
cabling and that he “did not have any Cisco experience.” Id. According to Bieber, the plaintiff
“didn’t give any details of any of his past experience” during the interview, and when the
interviewers “kept asking him for specifics, he kept saying how he’s been trained in that” but
“wouldn’t give [ ] any examples of his experience with systems or equipment.” Id. at 13, 28.
When asked about the plaintiff’s experience with automated logic controls, Bieber noted that the
plaintiff did have that experience but that it was not listed on his resume. Id. at 19. As for the
plaintiff’s associate’s degree in network, Bieber said that he “d[idn’t] even think it came out in
the interview.” Id. at 27.
Wallace and Watson reacted similarly to the plaintiff’s materials and interview. Wallace
testified that the plaintiff “wouldn’t give [them] anything to go on. He would just say I’ve done
that in my past job. I’ve done that.” Wallace Dep. at 13, ECF No. 16-7. In Wallace’s view, the
plaintiff “didn’t stand out” and “compared to the other interviewees he was far down the list.”
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Id. at 35. Compared to Williams and Coulter, the plaintiff “didn’t have all the programming
graphics, different things on the system that we do, the networking experience, the Cisco
experience,” and he did not have experience with fiber networks. Id. at 35–37. Watson agreed,
noting that “[t]he answers to the resume was [sic] not very detailed” and that the panelists were
“not very successful in getting detail for the questions that were asked.” Watson Dep. at 20, ECF
No. 16-8. According to Watson, “there was just an overall lack of detail on his answers,” and
when they pressed the plaintiff to clarify, “[i]t wasn’t there.” Id. at 21.
C. BAS versus BASnet
In opposition to the defendant’s motion, the plaintiff’s primary argument is that “there are
issues of fact regarding whether the selecting official honestly believed that Mr. Mayorga did not
have any BASnet experience.” Pl.’s Opp’n at 13. When pressed about the plaintiff’s experience
with BASnet, Bieber noted that all of the interviewees had experience with BAS, but he then
clarified that experience with the BAS is not the same as experience with BASnet. Bieber Dep.
at 11, 18, ECF No. 18-1; see also generally Bieber Decl. Bieber explained that each building
within the AOC’s jurisdiction has an internal BAS that consists of “HVAC, plumbing, lighting,
elevators, electrical monitoring, generators, utility metering, garage carbon-monoxide and
nitrogen-oxide monitoring, and water fountains.” Bieber Decl. ¶ 3. Within each building, these
systems are connected via sensors, controllers, and routers to form the building’s BAS. Id. ¶ 4.
Each building’s internal BAS is connected to a network access switch via fiber-optic cable, and
the building’s access switch is, in turn, connected to routers via an Ethernet cable. Id. ¶ 5. The
connection of the building’s system to the systemwide routers is where a building’s internal BAS
meets the BASnet, a “large, campus-wide infrastructure serving thirty-one buildings and five off-
site facilities over 17.5 million square feet.” Id. Thus, while “individual jurisdictions, such as
the Capitol, House, and Senate jurisdictions, are responsible for other aspects of the BAS,
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including the installation, operation, and maintenance of the sensors, controls, and related
equipment interfaces,” these devices “are not, themselves, the ‘BASnet.’” Id. ¶ 7.
Bieber testified that while the plaintiff had experience working on the BAS within his
jurisdiction (the Capitol Visitor Center), he did not have experience with the BAS network,
which is limited to Bieber’s office. Bieber Dep. at 11–12, 18, ECF No. 16-6. Although Wallace
testified that the plaintiff was an “operator” on the “BAS Net system,” he also testified that he
thought the plaintiff did not have “networking” experience on the BAS. Wallace Dep. at 11, 37–
38, ECF No. 16-7. The plaintiff disputes this account, claiming that he has worked on the
BASnet with Bieber’s team and that “[w]hen the BASnet went down, [he] had to work with
[Bieber’s] subordinates to solve the problem.” Pl.’s Opp’n, Ex. 9, Declaration of Javier Mayorga
(“Pl.’s Decl.”) ¶ 1, ECF No. 18-9. He also averred that “[t]o use the BASnet to communicate
with other buildings, you have to understand Network,” which he learned at Stratford University.
Id. ¶ 2. Bieber testified that he had never worked with the plaintiff and that work on the BASnet
was limited to his department. Bieber Dep. at 12, 23, ECF No. 16-6.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is properly
granted against a party who, “after adequate time for discovery and upon motion, . . . fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The moving party bears the burden to demonstrate the “absence of a genuine
issue of material fact” in dispute, id. at 323, while the nonmoving party must present specific
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facts supported by materials in the record that would be admissible at trial and that could enable
a reasonable jury to find in its favor, see Anderson v. Liberty Lobby, Inc. (“Liberty Lobby”), 477
U.S. 242, 248 (1986); Allen v. Johnson, 795 F.3d 34, 38 (D.C. Cir. 2015) (noting that, on
summary judgment, the appropriate inquiry is “whether, on the evidence so viewed, ‘a
reasonable jury could return a verdict for the nonmoving party’”) (quoting Liberty Lobby, 477
U.S. at 248); see also Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (“[S]heer hearsay
. . . counts for nothing on summary judgment.” (internal quotation marks omitted)); FED. R. CIV.
P. 56(c), (e)(2)–(3).
“Evaluating whether evidence offered at summary judgment is sufficient to send a case to
the jury is as much art as science.” Estate of Parsons v. Palestinian Auth., 651 F.3d 118, 123
(D.C. Cir. 2011). This evaluation is guided by the related principles that “courts may not resolve
genuine disputes of fact in favor of the party seeking summary judgment,” Tolan v. Cotton, 134
S. Ct. 1861, 1866 (2014) (per curiam), and “[t]he evidence of the nonmovant is to be believed,
and all justifiable inferences are to be drawn in his favor,” id. at 1863 (quoting Liberty Lobby,
477 U.S. at 255). Courts must avoid making “credibility determinations or weigh[ing] the
evidence,” since “[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000) (internal quotation marks
omitted); see also Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 296 (D.C. Cir. 2015). In
addition, for a factual dispute to be “genuine,” the nonmoving party must establish more than
“[t]he mere existence of a scintilla of evidence in support of [its] position,” Liberty Lobby, 477
U.S. at 252, and cannot rely on “mere allegations” or conclusory statements, see Equal Rights
Ctr. v. Post Props., Inc., 633 F.3d 1136, 1141 n.3 (D.C. Cir. 2011) (internal quotation marks
15
omitted); Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006); Greene v. Dalton, 164 F.3d
671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993); accord FED. R.
CIV. P. 56(e). If “opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for summary judgment.” Lash v.
Lemke, 786 F.3d 1, 6 (D.C. Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). The
Court is only required to consider the materials explicitly cited by the parties, but may on its own
accord consider “other materials in the record.” FED. R. CIV. P. 56(c)(3).
III. DISCUSSION
In a case involving no direct evidence of discrimination, the court is guided in its analysis
of circumstantial evidence by the familiar burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973), which also applies to claims under the
CAA, see Fields v. Office of Johnson, 459 F.3d 1, 15 n.24 (D.C. Cir. 2006). Under the
McDonnell Douglas framework, the plaintiff has the burden to establish a prima facie case of
discrimination by showing that (1) he or she “is a member of a protected class;” (2) he or she
“suffered an adverse employment action;” and (3) “the unfavorable action gives rise to an
inference of discrimination.” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (quoting
Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). If the plaintiff succeeds in establishing a
prima facie case, the burden then shifts to the employer “to articulate some legitimate,
nondiscriminatory reason” for its actions. McDonnell Douglas, 411 U.S. at 802. If the employer
establishes a legitimate, nondiscriminatory reason, “the burden-shifting framework disappears,
and a court reviewing summary judgment looks to whether a reasonable jury could infer
intentional discrimination . . . from all the evidence.” Carter v. George Wash. Univ., 387 F.3d
16
872, 878 (D.C. Cir. 2004). Thus, courts “need not—and should not—decide whether the
plaintiff actually made out a prima facie case under McDonnell Douglas” where (1) “an
employee has suffered an adverse employment action,” and (2) “an employer has asserted a
legitimate, non-discriminatory reason for the decision.” Brady v. Office of Sgt. at Arms, U.S.
House of Reps., 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in original).
Instead, in such a case, the court “must resolve one central question,” namely, whether
“the employee produced sufficient evidence for a reasonable jury to find that the employer’s
asserted non-discriminatory reason was not the actual reason and that the employer intentionally
discriminated against the employee on the basis of race.” Id. In resolving this central question,
courts look to, inter alia, “(1) the plaintiff’s prima facie case; (2) any evidence the plaintiff
presents to attack the employer’s proffered explanation for its actions; and (3) any further
evidence of discrimination that may be available to the plaintiff (such as independent evidence of
discriminatory statements or attitudes on the part of the employer).” Hampton v. Vilsack, 685
F.3d 1096, 1100 (D.C. Cir. 2012) (internal quotation marks omitted). While the plaintiff need
not “submit evidence over and above rebutting the employer’s stated explanation in order to
avoid summary judgment,” Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012) (internal
quotation marks omitted), the plaintiff must do more than merely state a disagreement with, or
disbelief of, the explanation to satisfy the burden of showing that a reasonable jury could find
that the employer’s asserted reason was not the actual reason and that the employer intentionally
discriminated against the plaintiff on a prohibited basis.
To “support an inference that the employer’s stated reasons were pretextual, and the real
reasons were prohibited discrimination or retaliation, [a plaintiff may cite] the employer’s better
treatment of similarly situated employees outside the plaintiff’s protected group, its inconsistent
17
or dishonest explanations, its deviation from established procedures or criteria, or the employer’s
pattern of poor treatment of other employees in the same protected group as the plaintiff, or other
relevant evidence that a jury could reasonably conclude evinces an illicit motive.” Walker v.
Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015) (citing Brady, 520 F.3d at 495 & n.3). To
survive summary judgment based solely on evidence of pretext, however, a plaintiff must
demonstrate that a “reasonable jury not only could disbelieve the employer’s reasons, but also
could conclude that the employer acted, at least in part, for a prohibited reason.” Id. at 1096.
Set against the applicable standards, the defendant’s proffered reasons for hiring
candidates other than the plaintiff are reviewed before turning to the sufficiency of the plaintiff’s
pretextual evidence.
A. The Defendant’s Legitimate, Nondiscriminatory Reasons for Hiring Williams
and Coulter over the Plaintiff
The parties do not dispute that the plaintiff suffered an adverse employment action.
Whether the plaintiff successfully established the other elements of a prima facie case of
discrimination is irrelevant because the defendant has offered several legitimate, nondiscriminatory
reasons for hiring Williams and Coulter over the plaintiff.
As to Williams, Bieber testified that he was selected over the plaintiff because he was
already “running the jobs, writing the programs, [and] creating the graphics”; had already
handled Ethernet cabling for EMCS; and had a certification in fiber-optic installation. Bieber
Dep. at 14, ECF No. 18-1. In addition, Williams was the only applicant who was an internal
EMCS candidate and had experience working with that office. Def.’s Mem. Supp. Mot. Summ.
J. (“Def.’s Mem.”) at 7, ECF No. 16-2. The other interviewers likewise testified that Williams
“was fiber certified,” “had done multiple projects in building automation,” “had good controls
knowledge,” and “also had HVAC experience.” Wallace Dep. at 8–9, ECF No. 16-7; Watson
18
Dep. at 16, ECF No. 18-6. In comparison, the plaintiff told the interviewers that he had little
Ethernet experience and little fiber-optic experience. Bieber Dep. at 11, ECF No. 16-6; Wallace
Dep. at 37, ECF No. 16-7. Given the interviewers’ testimony that they were looking for
someone with experience in Ethernet and fiber-optic cabling, they had legitimate,
nondiscriminatory reasons for selecting Williams over the plaintiff. See Bieber Dep. at 19, ECF
No. 16-6; Wallace Dep. at 8, 37, ECF No.16-7.
As to Coulter, Bieber stated that he was selected due to his “network experience,” “Cisco
certifications,” and “experience in programming switches and installing them.” Bieber Dep. at
10, ECF No. 16-6. Bieber also cited the facts that Coulter had previously worked as a Verizon
technician, had certifications in installing fiber-optic cable, had HVAC experience, was a
certified low-voltage electrician, and had worked with Cisco equipment. Id. at 10–11. Likewise,
Wallace and Watson testified that they were “impressed with his network experience” and with
the specific examples he was able to give them during his interview. Wallace Dep. at 56, ECF
No. 16-7; Watson Dep. at 18, ECF No. 16-8. Unlike Coulter’s resume, the plaintiff’s resume
does not reflect any experience with fiber-optic cabling or Cisco equipment. These were
legitimate reasons for selecting Coulter over the plaintiff given the nature of the position.
The defendant also stated that the plaintiff was not chosen because he “had not provided
a sufficient level of detail about his work experience on his resume or in his answers to interview
questions.” Def.’s Mem. at 8. All of the interviewers testified about the difficulty of getting
additional details or specific examples from the plaintiff during his interview. Bieber claimed
that the plaintiff “didn’t give any details of any of his past experience.” Bieber Dep. at 13, ECF
No. 16-6. Wallace stated that while other interviewees “would go into detail of how they used
their tools, what jobs they had done, and different things,” the plaintiff was “vague in his
19
answers,” “wouldn’t give us anything to go on,” and would just say “I’ve done that in my past
job. I’ve done that.” Wallace Dep. at 12–13, 18, 23, ECF No. 16-7. Similarly, Watson averred
that the panelists were “not very successful in getting detail for the questions that were asked”
and that “there was just an overall lack of detail on his answers.” Watson Dep. at 20–21, ECF
No. 16-8. In contrast, Williams “answered everything fully,” “had a fairly detailed resume,” and
gave “specific examples” when he answered questions. Wallace Dep. at 34, ECF No. 16-7;
Watson Dep. at 15–16, ECF No. 18-6. Similarly, Coulter had a detailed resume that “listed
specific skill sets” and “specific projects,” and during the interview, Coulter “had specific
examples” and “was able to answer the question to [their] satisfaction.” Watson Dep. at 18, ECF
No. 16-8. These are legitimate, nondiscriminatory reasons for selecting Williams and Coulter
over the plaintiff, and accordingly, the defendant’s burden on this point is amply met. 4
B. The Plaintiff’s Evidence of Pretext
Given the defendant’s numerous legitimate, nondiscriminatory reasons for hiring
Williams and Coulter over the plaintiff, the Court must determine whether the plaintiff
“produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-
4
The defendant stated that another reason why the plaintiff was not selected was because he “confessed
during the interview that he was not even aware of which position he had applied for.” Def.’s Mem. at 8.
According to Bieber, when the plaintiff was asked why he wanted a job in Bieber’s department, the plaintiff said he
thought he was interviewing for an engineering position in a different branch and that he “didn’t realize it was for
[Bieber’s] shop.” Bieber Dep. at 35, ECF No. 16-6. Wallace likewise testified that when the plaintiff “walked in
the interview one thing was he said, oh, this is for that job. He says, I thought this was a job in engineering. He
said, I didn’t mean to apply for this, so.” Wallace Dep. at 13, ECF No. 16-7. These assertions stand in stark
contrast to the plaintiff’s resume and declaration. The plaintiff avers that “[i]t was very clear on the vacancy
announcement what the job was” and that he “filled out the form knowing what the job was.” Pl.’s Decl. ¶ 3. The
plaintiff’s resume supports his claim, stating that his objective was to “achieve meaningful employment with the
Office of Planning and Project Management as an Electronic Technician,” the exact job title listed in the vacancy
announcement. Pl.’s Resume at 2; Vacancy Announcement at 1.
Although the parties dispute each other’s version of these events, this is not a genuine dispute as to a
material fact. Even taking the plaintiff’s set of facts as true, and assuming he knew the position to which he had
applied, the outcome of this case remains the same, since, as discussed infra at Part III.B, the plaintiff was less
qualified than Williams or Coulter and did not carry his burden of establishing that the defendant’s other legitimate,
nondiscriminatory reasons for hiring Williams and Coulter over him were pretext for discrimination. Nor would
Bieber’s and Wallace’s notes about the plaintiff’s confusion, even if misguided, be sufficient proof of discriminatory
animus to preclude summary judgment.
20
discriminatory reason was not the actual reason and that the employer intentionally discriminated
against the employee on the basis of race.” Brady, 520 F.3d at 494. The plaintiff offers one
theory to establish pretext: that the selecting official, Bieber, falsely claimed that the plaintiff
“had no BASnet experience.” Pl.’s Opp’n at 9. The plaintiff also mentions several additional
facts that could be construed as arguments in favor of a finding of pretext: that he was not hired
despite his superior qualifications, that Bieber misstated the desired qualifications for the two
vacancies, and that his interview was conducted in a manner suggestive of pretext. Finally, the
defendant offers independent evidence of his employer’s discriminatory statements and attitudes.
For the reasons that follow, none of these arguments is persuasive.
1. Any Alleged Mischaracterization of the Plaintiff’s Qualifications Was
Not Indicative of Pretext
The plaintiff’s argument section of his opposition focuses only on the theory that Bieber
falsely claimed the plaintiff had no BASnet experience, thereby showing discriminatory bias
against the plaintiff. Pl.’s Opp’n at 9–13. This argument must be rejected, however, because
even if Bieber did misstate the plaintiff’s experience, that mistake does not give rise to an
inference of discrimination and, in addition, each interviewer cited multiple reasons for why the
plaintiff was not selected besides a lack of BASnet experience.
In attacking the defendant’s qualifications-based explanation of its hiring decision, the
plaintiff “can attempt to show that the employer’s explanation was fabricated after the fact” or
“can attempt to show that the employer’s explanation misstates the candidates’ qualifications.”
Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1295 (D.C. Cir. 1998) (en banc). Thus, for example, “if
the employer says that it did not hire the plaintiff because he did not speak Portuguese, the
plaintiff can show that he did speak Portuguese, and that the employer knew it. Adequate
evidence of this type may suffice to permit a jury to infer that the employer’s explanation is
21
incorrect or fabricated, and thus to infer discrimination.” Id. (emphasis in original). If the
employer made only a “minor mistake of fact on an issue that would not alter the outcome of a
decision,” however, that mistake “does not render an explanation pretextual.” Warner v. Vance-
Cooks, 956 F. Supp. 2d 129, 155 (D.D.C. 2013); see also George v. Leavitt, 407 F.3d 405, 415
(D.C. Cir. 2005) (“[A]n employer’s action may be justified by a reasonable belief in the validity
of the reason given even though that reason may turn out to be false.”); Fischbach v. D.C. Dep’t
of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (“Once the employer has articulated a non-
discriminatory explanation for its action . . . the issue is not the correctness or desirability of the
reasons offered but whether the employer honestly believes in the reasons it offers.”) (internal
quotation marks omitted and alterations adopted).
The parties appear to dispute whether the plaintiff did, in fact, have experience with
BASnet. Compare Bieber Dep. at 12, ECF No. 16-6 (“As far as working on the actual BAS net
network. No, he does not have experience with that. That’s only limited to my shop.”), with
Pl.’s Decl. ¶ 1 (“I have worked with [Bieber’s] team on the BASnet. . . . I work on the BASnet to
control the technology in the Capitol building and the Capitol Visitor Center.”). This dispute
does not preclude summary judgment, however. Even if the defendant did mischaracterize the
plaintiff’s BASnet experience, that potential error alone does not give rise to an inference of
discrimination because no evidence in the record suggests that this explanation was anything
more than an honest mistake. See Warner, 956 F. Supp. 2d at 155 (“[P]retext is a lie, not merely
a mistake.”) (quoting Jordan v. Summers, 205 F.3d 337, 344 (7th Cir. 2000)); Jarmon v.
Genachowski, 720 F. Supp. 2d 30, 40 (D.D.C. 2010) (“The pertinent question is not whether
plaintiff lacked [the relevant] experience, but whether [the employer] ‘honestly and reasonably
believed’ that he lacked it.”) (quoting Brady, 520 F.3d at 496).
22
Bieber explained that he believed the plaintiff lacked BASnet experience because the
plaintiff did not discuss any BASnet experience during his interview and did not list any BASnet
experience on his resume. Bieber Dep. at 11–12, 18–19, ECF No. 18-1. He acknowledged the
plaintiff’s experience with the Capitol Visitor Center’s BAS, but he explained that working on
the BAS is not the same as working on the BASnet. Bieber Decl. ¶ 7; Bieber Dep. at 11–12, 18,
ECF No. 18-1. The spreadsheet Bieber created prior to the interviews, based on the candidates’
resumes, is consistent with his explanation: The plaintiff’s resume makes several mentions of his
experience with BAS, and Bieber noted that experience in his spreadsheet under the heading
“BAS.” Bieber Spreadsheet at 1. The plaintiff’s resume does not, however, make any reference
to the BASnet, and accordingly, Bieber did not note the plaintiff’s “network” experience on his
spreadsheet because the “network” to which Bieber was referring was the “BASnet.” Bieber
Dep. at 11, 18, ECF No. 18-1. Other than his own disagreement with Bieber’s description, the
plaintiff has offered no evidence that Bieber fabricated this reasoning—but “the plaintiff must do
more than merely state a disagreement with, or disbelief of, the explanation” to satisfy his burden
and avoid summary judgment. Warner, 956 F. Supp. 2d at 150. Unlike the plaintiff in Jarmon,
the case on which the plaintiff principally relies, the plaintiff has not “raise[d] doubts as to
whether that mistake was an honest one.” Jarmon, 720 F. Supp. 2d at 40. 5 Thus, even if Bieber
mistakenly concluded that the plaintiff had no BASnet experience, that mistake was only a
“minor mistake of fact on an issue that would not alter the outcome of a decision” and does not
render the defendant’s explanation pretextual. Warner, 956 F. Supp. 2d at 155.
5
In Jarmon, the plaintiff, an African-American male who worked as an auditor at the Federal
Communications Commission, unsuccessfully sought a promotion within the Commission. Jarmon, 720 F. Supp.
2d at 32–33. The selecting official stated that the plaintiff had no experience supervising other auditors, but the
plaintiff offered proof that he had more than thirteen years of experience supervising others and his job application
“specifically point[ed] to two occasions when as Lead Auditor he supervised three other auditors, and one occasion
where he supervised eight accountants.” Id. at 40 (internal citation omitted). The court concluded that, based on this
evidence, “[a] reasonable juror could therefore question whether [the employer’s] mistake was an honest one.” Id.
23
Moreover, even if the plaintiff did have BASnet experience, that fact would not alter the
outcome here given the panelists’ testimony about other reasons why the plaintiff was not
selected. Bieber testified that the plaintiff was not selected because he had “very little”
experience with fiber-optic and Ethernet work and no experience with Cisco, all key components
of the advertised position. Bieber Dep. at 11–12, ECF No. 16-6. In addition, “based on his
interview and his resume he didn’t give any particular details,” and the panel “had no idea what
his skill set was.” Id. at 23. Similarly, Wallace testified that the plaintiff was not selected
because he “didn’t have all the programming graphics, different things on the system that we do,
the networking experience, the Cisco experience” and did not have experience with fiber-optic
networks. Wallace Dep. at 35–37, ECF No. 16-7. The panelists’ notes from the plaintiff’s
interview corroborate this account, each noting that the plaintiff said he lacked fiber-optic
experience. See Bieber Notes at 2; Def.’s Mot., Ex. 15, Wallace Notes re: Mayorga Interview
(“Wallace Notes”) at 2, ECF No. 16-17; Def.’s Mot., Ex. 16, Watson Notes re: Mayorga
Interview (“Watson Notes”) at 2, ECF No. 16-18. In contrast, Williams was chosen in part due
to his experience with Ethernet and fiber-optic cabling, and Coulter was chosen in part due to his
experience with Cisco switches, fiber-optic cabling, HVAC systems, and low-voltage electrical
work. Bieber Dep. at 10, 14, ECF No. 18-1. The plaintiff does not claim that the defendant was
mistaken about his qualifications in these areas. Thus, even taking the plaintiff’s position as true
and assuming that he did have BASnet experience, other legitimate, nondiscriminatory reasons
explain why the plaintiff was not selected for this position such that any purported
mischaracterization about his BASnet experience is not indicative of discrimination.
24
2. The Plaintiff Was Not Significantly Better Qualified than Williams or
Coulter
The plaintiff claims that he was the most qualified applicant for the position but was not
selected because of his race and national origin. Compl. ¶ 8. “[W]hen an employer says it made
a hiring or promotion decision based on the relative qualifications of the candidates, a plaintiff
can directly challenge that qualifications-based explanation only if the plaintiff was ‘significantly
better qualified for the job’ than those ultimately chosen.” Adeyemi v. District of Columbia, 525
F.3d 1222, 1227 (D.C. Cir. 2008) (quoting Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir.
2006)) (emphasis in original). The gap in qualifications must be “great enough to be inherently
indicative of discrimination.” Jackson v. Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007) (internal
quotation marks and citation omitted). In cases where the comparative qualifications are close,
however, “a reasonable jury would not usually find discrimination because the jury would
‘assume that the employer is more capable of assessing the significance of small differences in
the qualifications of the candidates, or that the employer simply made a judgment call.’”
Adeyemi, 525 F.3d at 1227 (quoting Aka, 156 F.3d at 1294). In such cases, courts must “respect
the employer’s unfettered discretion to choose among qualified candidates.” Fischbach, 86 F.3d
at 1183. To conclude otherwise would render the court a “super-personnel department that
reexamines an entity’s business decisions,” a role that courts have repeatedly disclaimed.
Jackson, 496 F.3d at 707.
The facts of this case indicate that the plaintiff was not better qualified, let alone
“significantly better qualified,” than Williams or Coulter for the available positions. The
interviewers testified that experience with Ethernet, fiber-optic cables, and Cisco equipment is
highly relevant to the vacant position. See Bieber Dep. at 10–11, 14, ECF No. 18-1; Wallace
Dep. at 8–9, 42, 57, ECF Nos. 16-7, 18-5; Watson Dep. at 30–31, ECF No. 16-8; see also
25
Vacancy Announcement at 3. The interviewers also stated, and the plaintiff does not dispute,
that the plaintiff told them he had little experience with Ethernet or fiber-optic work and that he
had no experience with Cisco. See Bieber Dep. at 11, ECF No. 16-6; Wallace Dep. at 32–33,
35–37, ECF No. 16-7; Bieber Notes at 2; Wallace Notes at 2; Watson Notes at 2. By contrast,
both Williams and Coulter were lauded for their experience with Ethernet and their certifications
in fiber-optic work, and Coulter’s experience with Cisco equipment was repeatedly mentioned.
See Bieber Dep. at 8, 10–11, 14, ECF No. 18-1; Wallace Dep. at 8–9, 33–34, 56–57, ECF No.
16-7; Watson Dep. at 30–31, ECF No. 16-8; Williams Resume at 3; Coulter Resume at 3. On
this basis, no reasonable factfinder could conclude that the plaintiff was significantly better
qualified for the job than either Williams or Coulter and, accordingly, no inference can be drawn
that this choice was “inherently indicative of discrimination.” Jackson, 496 F.3d at 707 (internal
quotation marks omitted).
3. Any Misstatements of the Desired Qualifications for the Two Vacancies
Are Not Indicative of Pretext
Next, the plaintiff claims that Bieber misstated the qualifications he was seeking for the
vacancies and that this misstatement is evidence of pretext. Pl.’s Opp’n at 3. As the D.C. Circuit
has repeatedly said, “courts are not super-personnel departments that reexamine an entity’s
business decisions.” Stewart v. Ashcroft, 352 F.3d 422, 429 (D.C. Cir. 2003) (internal quotation
marks omitted and alterations adopted). Rather, courts will defer to an employer’s decision of
what nondiscriminatory qualities it seeks in filling an open position, see id., and “[t]he fact that
an employer based its ultimate hiring decision on one or more specific factors encompassed
within a broader and more general job description does not itself raise an inference of
discrimination sufficient to overcome summary judgment.” Jackson, 496 F.3d at 709. “The
discretion to package certain skills in a single position, as here, remains with the employer,
26
unless it involves an attempt to exclude members of a protected class from gaining access to the
position.” Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 26 (D.C. Cir. 2013).
Again, the plaintiff’s claims do not establish that the defendant’s reasons for selecting
Williams and Coulter over the plaintiff were pretext for discrimination. The plaintiff alleges that
Bieber’s testimony that he wanted one of the selectees to focus on networking and the other to
focus on graphics and programming is called into question by Watson’s testimony that “network
was not among the primary skills the panel was seeking.” Pl.’s Opp’n at 3. While Watson did
testify that having network experience would be “an add on, a bonus if someone has that
particular skill set,” she also said that networking “would be a skill that is a good skill to have.”
Watson Dep. at 13, ECF No. 18-6. Moreover, both Bieber and Wallace emphasized that they
were looking for network experience. Bieber stated that the panel was looking for “two different
skill sets,” one that was “network related” and another that was “for graphics and program
running jobs,” Bieber Dep. at 19, 21, ECF No. 16-6, while Wallace testified that they were
looking for a technician with “network capability” who was a “network manager type,” Wallace
Dep. at 8, ECF No. 16-7. The job description comports with this account, as it discusses
installing and maintaining “the AOC Building Automation System Network,” “installing new
network(s) in the buildings,” and installing and testing “Riser and Horizontal Network Cabling
(Ethernet cabling)”—all tasks that involve network experience. Vacancy Announcement at 3.
Finally, all of the panelists testified about their views on the comparative network experience of
Williams, Coulter, and the plaintiff. See Bieber Dep. at 8, 10–12, ECF No. 16-6; Wallace Dep.
at 8–9, 23, 33, 35–37, 56–57, ECF No. 16-7; Watson Dep. at 30–31, ECF No. 16-8. Contrary to
the plaintiff’s assertion, network experience was evidently a large consideration in the panel’s
decision.
27
The plaintiff’s claims about project management are no more successful. The crux of this
claim is that while Bieber testified that project management experience was “the ‘big reason’”
that he selected Williams, Williams in fact did not have any project management experience in
electronics or building automation. Pl.’s Opp’n at 4. This is a mischaracterization of Bieber’s
testimony. In response to plaintiff’s counsel’s question about whether project management
experience was “a big reason” that Williams was selected, Bieber responded affirmatively—but
he also detailed Williams’s other qualifications for the position. Bieber Dep. at 14, 20, ECF No.
18-1 (emphasis added). In addition, Wallace testified that they “weren’t really looking for”
people with project management experience because they “usually had project managers that
manage our projects.” Wallace Dep. at 8, ECF No. 16-7. According to Wallace, project
management experience “would help, but it wasn’t our goal.” Id. Finally, it is undisputed that
Williams did have some project management experience, even if that experience was in a
different field. See Williams Dep. at 5–6, ECF No. 16-10 (noting that he has project
management experience in the private flooring industry). Taken together, this evidence shows
only that different panelists weighed the candidates’ various qualities slightly differently and
does not raise an inference of discrimination sufficient to overcome summary judgment.
4. The Manner in Which the Plaintiff’s Interview Was Conducted Does
Not Establish Pretext
The plaintiff also claims that the way in which his interview was conducted establishes
pretext. In this Circuit, “[a]n employer’s failure ‘to follow its own regulations and procedures,
alone, may not be sufficient to support’ the conclusion that its explanation for the challenged
employment action is pretextual.” Fischbach, 86 F.3d at 1183 (quoting Johnson v. Lehman, 679
F.2d 918, 922 (D.C. Cir. 1982)). “Even if a plaintiff ‘was victimized by poor selection
procedures,’ we may not ‘second-guess an employer’s personnel decision absent demonstrably
28
discriminatory motive.’” Hairston v. Vance-Cooks, 773 F.3d 266, 272 (D.C. Cir. 2014) (quoting
Fischbach, 86 F.3d at 1183).
The record in this case shows no demonstrably discriminatory motive behind the manner
in which the plaintiff’s interview was conducted, nor does it support the plaintiff’s claim that the
defendant eschewed its typical selection process. The plaintiff first complains that “the panelists
appeared disinterested in his candidacy” and “did not look at him when he spoke and were
instead shuffling their papers,” but he also admits that they were taking notes during the
interview and looking down at their printed interview questions. Pl.’s Opp’n at 3–4; see also
Pl.’s Dep. at 83–85, ECF No. 18-2. A lack of eye contact does not evince discriminatory bias,
particularly given these circumstances. The plaintiff also claims that the interviewers did not ask
him any follow-up questions and instead “simply wrote question marks or negative comments on
their papers,” Pl.’s Opp’n at 4, but he testified that when he asked why Wallace had not asked
any questions, Wallace told him he was “really doing a good job.” Pl.’s Dep. at 82–83, ECF No.
18-2. The plaintiff also testified that he felt he had the opportunity to provide answers to all of
the interviewers’ questions. Id. at 82. Finally, the plaintiff claims that the selection committee
typically includes “an impartial member from a department outside the vacancy” but that no such
member was included in his interview. Pl.’s SMF ¶ 9. No record evidence supports the
existence of such a policy, let alone that the defendant violated the policy due to discriminatory
bias. The plaintiff cannot rely on his own conclusory assertion to avoid summary judgment. See
Equal Rights Ctr., 633 F.3d at 1141 n.3. Accordingly, none of these facts establishes that the
defendant’s stated reasons for hiring Williams and Coulter were pretextual.
5. The Plaintiff’s Evidence of Discrimination Does Not Show Pretext
Finally, the plaintiff offers evidence, in the form of his deposition testimony, his
declaration, and the declaration of his coworker, Hector Molina, as additional proof of the
29
defendant’s discriminatory animus toward him. To avoid summary judgment, the plaintiff bears
the burden of “showing that a reasonable jury could conclude that he had suffered
discrimination.” Aka, 156 F.3d at 1290. In doing so, the plaintiff may point to “independent
evidence of discriminatory statements or attitudes on the part of the employer.” Hampton, 685
F.3d at 1100 (internal quotation marks omitted). Although a supervisor’s single egregious
remark may constitute direct evidence of discrimination entitling a plaintiff to a jury trial, see
Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (supervisor’s explicit statement
that he “denied [plaintiff] a raise because of his race” was a sufficient basis to deny summary
judgment), “‘[s]tray remarks,’ even those made by a supervisor, are insufficient to create a
triable issue of discrimination where . . . they are unrelated to an employment decision involving
the plaintiff.” Perry v. Shinseki, 783 F. Supp. 2d 125, 138 (D.D.C. 2011) (quoting Simms v. U.S.
Gov’t Printing Office, 87 F. Supp. 2d 7, 9 n.2 (D.D.C. 2000)).
Here, the plaintiff’s evidence of discrimination is primarily found in his own deposition.
In this circuit, “there is no rule of law that the testimony of a discrimination plaintiff, standing
alone, can never make out a case of discrimination that could withstand a summary judgment
motion.” Johnson v. Perez, 823 F.3d 701, 710 (D.C. Cir. 2016) (quoting Desmond v. Mukasey,
530 F.3d 944, 964 (D.C. Cir. 2008)). Nonetheless, “[c]ourts may grant summary judgment to a
defendant where a plaintiff’s evidence is vague or conclusory.” Id. That is, the plaintiff’s
testimony must be “specific and relevant” in order to avoid summary judgment. Id. at 711.
As detailed above, the plaintiff’s evidence includes claims that Wallace and two
coworkers, Williams and Parker, mispronounce the plaintiff’s name and tell him he needs to
improve his English, and that Bieber has made fun of his accent in the past, treats him with
disdain, calls him “Caviar” to his face, and mocks and interrupts him when he tries to speak in
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meetings. See Pl.’s Dep. at 37–38, 41–46, 51–55, 78–79, ECF No. 18-2; Pl.’s Opp’n at 2–3, 12.
The plaintiff also alleges that Bieber has passed him over for promotion three times and that
Bieber has never promoted nonwhite individuals during his tenure at AOC. Pl.’s Opp’n at 2–3.
Preliminarily, any claims about Williams’s and Parker’s discriminatory acts is irrelevant to the
plaintiff’s claim because Williams and Parker played no part in the selection, interviewing, and
hiring process. See Sewell v. Chao, 532 F. Supp. 2d 126, 138 n.8 (D.D.C. 2008) (“Evidence of
discrimination does not include stray remarks in the workplace, particularly those made by
nondecision-makers.”) (internal quotation marks omitted). In addition, the plaintiff has not
pressed any claims about prior attempts at promotion, and therefore only the 2014 promotion is
at issue. See generally Compl.
The plaintiff’s other claims of discriminatory acts are substantially weakened by the fact
that he has offered no evidence or testimony that these acts occurred in relation to the
employment decision at issue. See Perry, 783 F. Supp. 2d at 138. First, the plaintiff claims that
after the selection, he went to a meeting that Bieber and Watson also attended and that when they
saw him, “they started laughing” and “looking at [him] like, we can do whatever we want.” Pl.’s
Dep. at 78, ECF No. 18-2. The plaintiff did not ask them why they were laughing and did not
overhear them say anything at all, let alone anything pertaining to him. Id. Notably, this
instance occurred after the selection at issue, and the plaintiff has offered no reason to think that
Bieber and Watson were actually laughing at him. Id. (stating that this incident occurred “after
they already hired the two guys that are working there”). The plaintiff also claims that Bieber
“mocks and interrupts Mr. Mayorga when he tries to speak in meetings,” Pl.’s Opp’n at 3, but he
offers only one vague instance of Bieber interrupting him at a meeting, claiming that “[o]ne time
when we got meetings, talking about technology things, so when I tried to talk, so as soon I tried
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to open my mouth, he tried to interrupt me, interrupt me and talk about something else, like
avoiding my opinion. When I talk he start smiling because I’m funny, funny way.” Pl.’s Dep. at
37, ECF No. 18-2. Again, there is no indication that this is a habitual occurrence and no
evidence that this incident occurred in relation to the selection at issue. The plaintiff’s retelling
of these events does not, on its own, give rise to an inference of discrimination. See Warner, 956
F. Supp. 2d at 156 (rejecting the plaintiff’s claims of discrimination based on an isolated incident
in part because “the plaintiff’s interpretation of the statement as discriminatory is not self-
evident”). In fact, the plaintiff provided reason to think that Bieber’s interruptions may even
have been well-intentioned: the plaintiff stated that he “has such a heavy accent that the court
reporter for his deposition” had to interject twenty-seven times to clarify his statements. Pl.’s
Opp’n at 4 n.1; Pl.’s SMF ¶ 13.
As for the plaintiff’s claims that people tell him he needs to improve his English and that
they mispronounce his name by calling him “Caviar,” he has again offered no proof or details of
specific instances other than his own vague testimony and an equally vague, unsworn statement
by his coworker Hector Molina. See Molina Statement at 1. The plaintiff’s Memorandum in
Opposition claims that Bieber is the one who deliberately mispronounces his name, but the
plaintiff’s testimony seems to indicate that it is Wallace and Parker that call him “Caviar.” Pl.’s
Opp’n at 2–3; Pl.’s Dep. at 45–46, ECF No. 18-2. The only details the plaintiff provided about
when and how often this behavior takes place was that they say it “all the time, all the time.”
Pl.’s Dep. at 46, ECF No. 18-2. This statement offers no details about any relation to the adverse
employment decision at issue and is too vague and conclusory to avoid summary judgment on its
own. See Johnson, 823 F.3d at 710. Moreover, when asked in their depositions, Bieber, Coulter,
Wallace, and Williams all said that they had never called the plaintiff “Caviar” and that they had
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never heard anyone else call him “Caviar.” See Bieber Dep. at 13, ECF No. 18-1; Coulter Dep.
at 9–10, ECF No. 16-11; Wallace Dep. at 15, ECF No. 16-7; Williams Dep. at 14, ECF No. 18-4.
Finally, as to the plaintiff’s assertion that Bieber “has never hired or promoted a non-caucasian
or anyone who was born outside of the United States,” Pl.’s Opp’n at 2, the plaintiff omits the
necessary context that Bieber has made only two hires in his career other than the positions at
issue in this case. See Bieber Dep. at 39–44, ECF No. 20-1. Without more evidence, this history
does not give rise to an inference of discriminatory intent.
IV. CONCLUSION
For the foregoing reasons, the defendant’s Motion for Summary Judgment is GRANTED
as the plaintiff has not established that the defendant’s legitimate, nondiscriminatory reasons for
hiring Williams and Coulter over the plaintiff were pretext for discrimination. An appropriate
Order accompanies this Memorandum Opinion.
Date: December 7, 2017
__________________________
BERYL A. HOWELL
Chief Judge
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