Raymond v. Architect of the Capitol , 49 F. Supp. 3d 99 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
KENNY U. RAYMOND, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-CV-01088 (KBJ)
)
THE ARCHITECT OF THE CAPITOL, )
)
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Kenny Raymond (“Plaintiff” or “Raymond”), a 56-year-old African-
American man who is originally from Jamaica, has worked as an employee of
Defendant Architect of the Capitol (“Defendant” or “AOC”) since 1975. Raymond
alleges that he was not selected for a higher-grade position within the agency due to
discrimination based on his national origin and age, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17 (Count I), and the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634 (Count II), as
made applicable to Raymond through the Congressional Accountability Act (“CAA”), 2
U.S.C. §§ 1401-1416. (See Compl., ECF No. 1.) The gravamen of Raymond’s
complaint is that a certain supervisor who had long discriminated against him was on
the panel that made the hiring decision at issue.
Pending before the Court is Defendant’s motion for summary judgment. (Def.’s
Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 18, at 1.) 1 In that motion, Defendant
1
Page numbers throughout refer to the numbers assigned by the Court’s electronic filing system.
1
maintains that all of the individuals who were involved in the decision-making process
independently concluded that Raymond was less qualified than the selected applicant
based on his on-the-job experience and interview performance, and that this explanation
constitutes a legitimate, non-discriminatory reason for the hiring determination.
Because Raymond has failed to produce sufficient evidence to show that Defendant’s
asserted reason for the non-selection was pretext for discrimination, Defendant’s
motion for summary judgment will be GRANTED. A separate order consistent with
this opinion will follow.
I. BACKGROUND
A. Factual Background
The following facts are undisputed, unless otherwise noted. Raymond is an
African-American male of Jamaican descent who was 56 years old at the time of the
alleged discrimination. (Def.’s Statement of Material Facts (“Def.’s Facts”), ECF No.
18-1, ¶ 1.) Raymond began working for the AOC in 1975. (Compl. ¶ 8.) Beginning in
2001, he worked in the House Office Buildings (“HOB”) as a Labor Supervisor, at a
salary grade level of WS-5. (Id. ¶ 2; Excerpts of Dep. of Kenny Raymond (“Pl.’s Dep.
I”), ECF No. 18-9, at 2.) 2 This case stems from the AOC’s decision in 2010 to select
another AOC Labor Supervisor, Cordell Shields, for a promotion to the higher-grade
2
Employees of the federal government are paid salaries based on the assigned “grade level” of their
positions; generally, the higher the grade level, the higher the salary. See Pay & Leave: Pay Systems,
Federal Wage System Overview, OPM.GOV, http://www.opm.gov/policy-data-oversight/pay-leave/pay-
systems/federal-wage-system/ (last visited June 23, 2014).
2
position of Laborer (Recycler) General Supervisor—a position for which Raymond also
had applied. (See Def.’s Mot. at 3-4; Def.’s Facts ¶¶ 4, 7, 10.) 3
1. The AOC’s Job Selection Process
The AOC’s process for selecting Shields for promotion to the Laborer (Recycler)
General Supervisor position followed the standard procedure that the AOC employs for
all hiring and promotion decisions. In short, when a position becomes available, the
AOC’s Human Resources Office receives and reviews applications and identifies the
best-qualified applicants, who are then offered interviews that are conducted by a three-
person panel. (See Def.’s Facts ¶ 22.) During the interviews, the panel gives each
applicant the same 11 predetermined interview questions. (Id.) Each interview panelist
has his own score sheet and independently scores each applicant’s responses to the 11
questions on a scale of 1 to 5 points—5 being the highest rating. (Id.) After all of the
interviews, the panelists independently rank the applicants’ responses to each of the 11
questions, and each panelist adds up the cumulative score for each applicant. (Id.)
Only then do the panelists reveal their scores to each other and discuss the applicants as
a group. (Id.) Based on the scores, the hiring panel as a whole recommends the best-
qualified applicant to the AOC Superintendent for hire. (Id. ¶ 23.) And if the
Superintendent concurs with the recommendation, the selected applicant is hired. (Id.)
In the instant case, the Laborer (Recycler) General Supervisor position opened in
August 2010, and the advertisement for the vacancy listed skills and qualifications
germane to the position, including the requirement that the successful applicant needed
3
Raymond held a grade level of 5 and sought a promotion to level 8. (Compare Appl. of Kenny
Raymond (“Raymond Appl.”), ECF No. 18-8, at 1 (noting that his current job title as labor supervisor
was grade 5), with Laborer Gen. Supervisor Job Vacancy Announcement (“Job Posting”), ECF No. 18-
17, at 1 (noting that the general supervisor position was grade 8).)
3
to be able to “provide[ ] feedback and periodically evaluate[ ] employee performance”;
provide “advice, counsel and/or instruction to staff members”; and conduct other
management and supervisory functions. (Laborer Gen. Supervisor Job Vacancy
Announcement (“Job Posting”), ECF No. 18-17, at 1-2.) Raymond and Shields were
among the various applicants for the position. (See Appl. of Kenny Raymond
(“Raymond Appl.”), ECF No. 18-8 at 1; Appl. of Cordell Shields (“Shields Appl.”),
ECF No. 18-12, at 1.) As required, both Raymond and Shields listed on their
applications the prior awards and job training that they had received in their careers
thus far. (Raymond Appl. at 2; Shields Appl. at 7.) Raymond listed three awards and
four training courses on his application. (Raymond Appl. at 2.) Shields listed 15
awards and 13 training courses on his application. (Shields Appl. at 7.) Additionally,
both applicants included the three most recent performance ratings they had received.
(Raymond Appl. at 6; Shields Appl. at 8-9.) Raymond was rated “Fully Successful” in
his three most recent performance ratings. (Raymond Appl. at 6.) Shields, on the other
hand, was rated “Outstanding” in his. (Shields Appl. at 8-9.)
The AOC Human Resources Office selected Raymond and Shields, along with
four other applicants, as the best qualified, and referred the six individuals to a three-
person panel for an interview. (Referral List, ECF No. 18-11, at 1.) The panel
consisted of a significant cast of AOC characters, including one person who had worked
with Raymond in the past. That person was Sterling Thomas, an Assistant
Superintendent in the HOB who had been Raymond’s second-line supervisor since
2002. (Pl.’s Dep. I at 2; Def.’s Facts ¶ 3; Dep. of Sterling Thomas (“Thomas Dep.”),
4
ECF No. 18-13, at 2; Compl. ¶ 5.) 4 Also on the selection panel was Thomas Carroll,
one of Sterling Thomas’s supervisors, who served as the Deputy Superintendent of the
HOB. (Decl. of Thomas Carroll (“Carroll Decl.”), ECF No. 18-22, ¶¶ 2-3.) The third
member of the panel was William Wood, Jr., the Assistant Superintendent for the
Tenant Services Division at the HOB. (Decl. of William S. Wood, Jr. (“Wood Decl.”),
ECF No. 18-26, ¶ 2.) 5
It is undisputed that Thomas, Carroll, and Wood, interviewed each of the six
applicants. (Carroll Decl. ¶ 3; Wood Decl. ¶ 2; Thomas Dep. at 5.) Moreover, in
accordance with the standard process, each of the three panelists separately ranked the
applicants’ answers to the 11 interview questions and recorded his applicant rankings
on a separate score sheet. (See Carroll Rating Sheet, ECF No, 18-5, at 1; Wood Rating
Sheet, ECF 18-21, at 1; Thomas Rating Sheet, ECF No. 18-16, at 1; see also Wood
Decl. ¶ 4; Carroll Decl. ¶ 4.) The record evidence also indicates that prior to
interviewing and ranking the applicants, none of the interview panelists conferred with
4
As explained below, Raymond maintains that Thomas was the perpetrator of ongoing discrimination
against him on the basis of national origin and age.
5
Raymond contends that the sham affidavit rule bars this Court from considering the declarations of
Thomas Carroll and William Wood that are attached to Defendant’s summary judgment motion because,
in Raymond’s view, these affidavits conflict with the affiants’ prior deposition testimony. (See Pl.’s
Mem. in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”), ECF No. 24, at 6.) The sham affidavit rule
“precludes a party from creating an issue of material fact by contradicting prior sworn testimony unless
the ‘shifting party can offer persuasive reasons for believing the supposed correction’ is more accurate
than the prior testimony.” Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (quoting
Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991)). The sham affidavit
rule applies in cases where an affidavit provided as a supplement to sworn testimony “clearly
contradict[s],” rather than clarifies, previous sworn testimony and provides no explanation for the
change in testimony. See St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 573 F. Supp.
2d 152, 160 (D.D.C. 2008) (quoting Hinch v. Lucy Webb Hayes Nat’l Training Sch., 814 A.2d 926, 930
(D.C. 2003)). Here, nothing in the Carroll or Wood affidavits “clearly contradicts” either affiant’s
prior deposition testimony; to the contrary, the affidavits provided here only clarify circumstances that
were previously addressed in their depositions. Accordingly, the sham affidavit rule does not apply,
and the Court will consider the affidavits of Thomas Carroll and William Wood. See, e.g., Johnson v.
Shinseki, 811 F. Supp. 2d 336, 344 (D.D.C. 2011) (finding that the sham affidavit rule did not apply
where defendant’s affidavit did not clearly contradict prior sworn testimony and only clarified
ambiguous testimony).
5
one another regarding any of the applicants. (Dep. of William S. Wood, Jr. (“Wood
Dep.”), ECF No. 18-18, at 4-7; Dep. of Thomas Carroll (“Carroll Dep.”), ECF No. 25-2,
at 4.) According to Wood’s deposition testimony, for example, Wood completed the
ratings and rankings for each of the interviewed applicants independently and did not
discuss his rankings with any other panel member. (Wood Dep. at 6-7.) Carroll also
testified that he did not discuss his scores with his fellow panelists until all of the
interviews were over and each panelist had already completed his score sheets. (See
Carroll Dep. at 4 (noting that he did not discuss scores with other panelists at the close
of each interview); id. (“[W]hen all the interviews were conducted, then we—everyone
had a chance to fill out their score sheets and at that time, there was a discussion.”).)
In other words, the facts demonstrate that Thomas never discussed Raymond or any of
the other applicants with any other member of the selection panel until each panelist
had already ranked the applicants.
2. The Panelists’ Selection Of Shields Over Raymond
After the panelist’s individual rankings were completed, each panelist revealed
his scores to the others and the discussion of each applicant’s strengths and weaknesses
commenced. (Wood Decl. ¶ 4; Carroll Decl. ¶ 4.) It was only upon the revelation of
the scores that the panelists learned that they had each independently given Cordell
Shields the highest score. (Wood Decl. ¶ 4; Carroll Decl. ¶ 4.) According to two of the
panelists, there was a consensus that Shields was the strongest candidate. (Wood Decl.
¶ 4; Carroll Decl. ¶ 4.)
Each panelist has testified that, in his personal view, Shields performed better
than Raymond at the interview because Shields answered the panel’s questions with
6
more specificity. (See, e.g., Wood Decl. ¶ 8 (stating that Shields “was able to articulate
that his focus is attention to detail” whereas Raymond had “no clear plan for his first
three months”); Carroll Decl. ¶¶ 9-15; Thomas Dep. at 7.) In addition, Carroll testified
that, based on his experiences with Raymond and Shields, Raymond’s interview
responses “failed to match reality.” (Carroll Decl. ¶ 13.)
The panelists also ranked Shields higher than Raymond based on their personal
knowledge of the applicants’ on-the-job performance. For example, Carroll noted that
Shields had previously exhibited the type of initiative and problem-solving skills that
the higher-level job required. (Id. ¶ 11.) Giving a specific example, Carroll testified
that during a big blizzard, Shields “took the initiative to get the employees fed and was
making arrangements for them to stay overnight.” (Id.) In contrast, Carroll noted that,
“Mr. Raymond, while present, simply did not exert himself to take the lead.” (Id.)
After a period of deliberation, the interview panel recommended Shields for the
position. William Weidemeyer, Superintendent of the HOB, concurred in the
recommendation. (Decl. of William Weidemeyer (“Weidemeyer Decl.”), ECF No. 18-
25, ¶¶ 1-2), noting that although
Mr. Raymond has performed his job in a fully successful manner,
[he] has not distinguished himself as a proactive leader as
compared to Mr. Shields. Because of Shields’[s] superlative work
record, I heartily concurred in his selection for the position of
Labor (Recycler) General Supervisor.
(Id. ¶¶ 4-5.) Beyond his own personal experience with the applicants, Weidemeyer also
testified that the “information [he] reviewed showed Mr. Shields to be better qualified,”
as did the applicants’ interview performances. (Id. ¶ 5.)
7
Several days after the interviews, Raymond learned that the AOC had offered
Shields the position. (See Thomas Dep. at 9.)
B. Procedural History
After learning of his non-selection, Raymond filed an administrative complaint
with the AOC’s Office of Compliance, alleging that his non-selection for the Laborer
General Supervisor position was the result of unlawful discrimination. (Compl. ¶ 4.) 6
On June 14, 2011, Raymond filed a complaint in this Court against the AOC alleging
that the AOC had violated the anti-discrimination provisions of Title VII and the ADEA
with respect to this hiring determination because Sterling Thomas had been on the
selection panel (as described above) and Thomas had a long history of discriminating
against Raymond, as detailed below. (Id. ¶ 21.) In the two-count complaint, Raymond
alleged that the non-selection constituted discrimination on the basis of his race and
national origin (Count I), and also discrimination on the basis of his age (Count II).
(Id. ¶¶ 23-26.) 7
1. The Complaint’s Allegation Of Discrimination On The Basis Of
National Origin
The primary basis for Raymond’s contention that the non-selection constituted
discrimination on the basis of national origin is the fact that, according to the
complaint, “[o]n several occasions prior to the non-selection of the Plaintiff in the case
complained about, Sterling Thomas . . . evidenced hostility and dislike for the Plaintiff
6
Defendant does not dispute that Raymond properly exhausted his administrative remedies, including
participating in counseling and mediation and receiving a notice of end of mediation, as the CAA
requires. See 2 U.S.C. § 1408.
7
Raymond has since withdrawn his race discrimination claim (see Pl.’s Opp’n at 2 n.1); therefore, only
the national origin and age discrimination claims remain at issue.
8
as an African-American male of Jamaican descent.” (Compl. ¶ 20.) Although the
complaint itself does not provide specifics regarding the alleged prior discriminatory
“acts and omissions” of Thomas in this regard (id. ¶ 21), the record testimony indicates
that the prior instances of discrimination upon which the complaint relies relate largely
to discriminatory comments that Thomas allegedly made about Raymond’s national
origin and age.
During the 2007 football season, for example, Thomas (a Dallas Cowboys fan)
allegedly chided Raymond (a Washington Redskins fan) at a staff meeting, asking him:
“did your team win today, Jamaican?” (Pl’s Dep. I at 3.) Similarly, during the 2010
football season, Thomas allegedly commented on Raymond’s Jamaican origin at
supervisory staff meetings approximately twice per month, saying things like, “[W]hat
[does] this guy know about football . . . he [is] from Jamaica[.]” (Id. at 3, 5-6.) 8 In
another alleged instance of Thomas’s discriminatory statements, Raymond purportedly
brought Thomas’s assistant a beef patty for lunch one day, and the next day Thomas
asked Raymond why Raymond did not get Thomas any beef patty. (Id. at 6.) Raymond
interpreted this conversation as a reflection of his Jamaican origin. (See id. at 5.) 9
Finally, Raymond points to one incident in which he needed to change his password in
order to use an AOC computer program, and Thomas allegedly typed the password
“Jamaica” for Raymond’s account. (Pl.’s Interrog. Resp., ECF No. 18-6, at 1; Excerpts
8
Defendant disputes that Thomas ever made any such comments or otherwise expressed any hostility
towards Raymond based on his national origin (Def.’s Answer, ECF No. 7, ¶ 20; see also Thomas Dep.
at 6), and none of the declarations or other sworn statements in the record besides Raymond’s
corroborates Raymond’s contention that any such statements were made.
9
Like the previous incidents, there is no evidence in the record, other than Raymond’s own statement,
to corroborate this allegation.
9
of Dep. of Kenny U. Raymond (“Pl.’s Dep. II”), Ex. 2 to Pl.’s Opp’n, ECF No. 24, at
28.) 10
2. The Complaint’s Allegations Of Discrimination On The Basis Of Age
In addition to the allegation that Raymond’s non-selection resulted from illegal
discrimination on the basis of national origin, the complaint also asserts that “the
individual selected for the position was a person over whom the Plaintiff clearly and
unambiguously had better qualifications, experience, training, education and leadership
skills” but that “[s]aid selectee was also much younger than the Plaintiff.” (Compl.
¶¶ 18-19.) The complaint notes that “Plaintiff has applied for several different
promotional opportunities within the [AOC]” (id. ¶ 12), and continues: “Sterling
Thomas appears to have made it his mission to assure that the Plaintiff is never
promoted[,]” and with respect to the challenged non-selection, “the failure to promote
the Plaintiff [over the selected applicant was] a pretext for discrimination.” (Id. ¶ 21.)
To support the allegation that age discrimination was a motivating factor behind
the selection at issue here, Raymond has testified about prior instances in which
Thomas and others allegedly made disparaging comments about his age. For example,
in 2009, at a time when Raymond was forced to use a walking stick at work due to a
gout problem, Thomas allegedly stated that Raymond was “getting old” and suggested
that Raymond use his many accrued hours of sick leave instead of coming to work in
such a condition. (Pl.’s Dep. I at 8.) Furthermore, at supervisor meetings, Thomas
allegedly commented on Raymond’s many accrued hours of sick leave, contending that
10
Thomas denied using “Jamaica[ ]” as a password in his sworn deposition testimony (Thomas Dep. at
6), and, when asked at his deposition to identify any colleague who might have overheard the
conversation, Raymond was unable to do so.
10
the number was high as a result of his age. (Id.) Indeed, according to Raymond,
Thomas “joki[ngly]” commented on Raymond’s age approximately twice each month.
(Id. at 8-9) 11 Raymond also testified about a single remark that Cordell Shields—the
eventual selectee—made in February or March 2010, during a meeting about a recent
blizzard that had caused extra work for the AOC employees in the HOB department.
Shields allegedly made a general comment about Raymond’s age in front of the
employees present, including eventual decision makers Thomas, Carroll, and
Weidemeyer. (Pl.’s Dep. I at 5.) As Raymond recalled the incident, Shields told the
employees that Raymond was getting older, so the men in the group should perform
well so that they could take over his position one day. (Id.) 12
3. The Course Of The Instant Litigation
Defendant answered Raymond’s complaint on November 21, 2011, denying all
allegations of discrimination. (Def.’s Answer, ECF No. 7, ¶¶ 20-22.) The parties then
proceeded to engage in extensive discovery, which took place from December 2011
through early 2013. (See Scheduling Order, ECF No. 10 (discovery beginning Dec. 25,
2011); Minute Order of Nov. 3, 2012 (extending discovery to January 28, 2013).)
Upon the close of discovery, Defendant filed a motion for summary judgment in
which Defendant asserts that it had a legitimate, non-discriminatory reason for selecting
11
Although Raymond stated in his deposition testimony that “other staff members” were present when
Thomas made these types of comments, Raymond was unable to provide the name of any staff member
who overheard the particular age-related comments alleged. (See Pl.’s Dep. I at 5, 8-9.) It appears that
Thomas was not questioned about any specific comments he allegedly made related to Raymond’s age,
and Thomas denied knowing Raymond’s age when questioned about it at his deposition. (See Thomas
Dep. at 6.)
12
In the declaration that Shields submitted in the context of this case, Shields agrees that he made
reference to Raymond’s retirement—and, by implication, his age—during a staff meeting. (Shields
Decl. ¶ 11.) But according to Shields, he did so to make an example of Raymond’s exemplary record of
service to the AOC and to encourage other staff members to “step up to the plate” in order to fill
higher-level positions like Raymond’s once Raymond retired. (Id.)
11
Shields instead of Raymond: simply put, the entire AOC interview panel determined
that Shields was more qualified than Raymond, based on the applicants’ respective
work and interview performances. (Def.’s Mot. at 19, 30.) Defendant further contends
that there is no evidence that this rationale is pretext for discrimination. (Id. at 15.)
Raymond counters that the evidentiary support for Shields’s qualifications is itself
“specious and suspect”; therefore, any argument that Shields was better qualified is
pretext for discrimination. (Pl.’s Opp’n at 5.) Plaintiff also contends that Thomas’s
prior comments about Raymond’s national origin and age are sufficient evidence from
which a reasonable juror could infer discrimination. (Id. at 5-6.)
II. SUMMARY JUDGMENT STANDARD
The Court must grant summary judgment if the moving party demonstrates that
there is no genuine dispute as to any material fact and that the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A fact is material if it ‘might
affect the outcome of the suit under the governing law,’ and a dispute about a material
fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for
the non-moving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Under Rule 56, the moving party has the burden of demonstrating the absence of
a genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Once the moving party has met this burden, the non-moving party must
designate “specific facts showing that there is a genuine issue for trial.” Id. at 324
(quoting Fed. R. Civ. P. 56(e)). Although the Court must view the evidence in the light
most favorable to the non-moving party and draw all reasonable inference in that
12
party’s favor, see, e.g., Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19,
23 (D.C. Cir. 2013), the non-moving party must show more than “[t]he mere existence
of a scintilla of evidence in support of” his or her position—instead, “there must be
evidence on which the jury could reasonably find” for the non-moving party. Anderson,
477 U.S. at 252. Moreover, the non-moving party “may not rest upon mere allegation
or denials of his pleading but must present affirmative evidence showing a genuine
issue for trial.” Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987)
(internal quotation marks and citation omitted).
In determining whether there are genuine issues of material fact for trial, the
Court reviews a defendant’s motion for summary judgment with a slightly “heightened
standard” that reflects caution. Walker v. England, 590 F. Supp. 2d 113, 133 (D.D.C.
2008) (citation omitted). Such caution is warranted because of “the potential difficulty
for a plaintiff in an employment discrimination or retaliation action to uncover clear
proof of discriminatory or retaliatory intent,” Nurriddin v. Bolden, No. 04-2052, 2014
WL 1648517, at *5 (D.D.C. Apr. 25, 2014) (citation omitted), and also because
“[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 at summary
judgment.” Barnett v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C. Cir. 2013)
(citation omitted). Nevertheless, despite the fact that “summary judgment must be
approached with specific caution in discrimination cases, a plaintiff is not relieved of
his obligation to support his allegations” with competent evidence showing a genuine
issue for trial. Walker, 590 F. Supp. 2d at 132-33 (quoting Morgan v. Fed. Home Loan.
Mortg. Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001)); see also Marshall v. James, 276
13
F. Supp. 2d 41, 47 (D.D.C. 2003) (noting that, even though courts must proceed with
caution, summary judgment is still used in discrimination cases).
III. ANALYSIS
Raymond contends that Thomas had long discriminated against him on the basis
of national origin and age and that, given Thomas’s presence on the promotion selection
panel, a reasonable jury could infer that the AOC discriminated against him in selecting
Shields over him for the promotion. (See Compl. ¶¶ 21, 23-26; Pl.’s Opp’n at 3.)
Defendant has advanced a non-discriminatory reason for the selection—i.e., that Shields
was simply more qualified than Raymond—and contends that there is no genuine issue
of material fact regarding whether this rationale was pretext for discrimination. As
explained below, this Court concludes that the Raymond has failed to establish that the
AOC’s proffered reason for the non-selection was pretext given the record evidence of
Shields’s superior qualifications and the fact that each panelist independently arrived at
the conclusion that Shields was the better man for the job.
A. Applicable Legal Standards For Establishing Discrimination
Raymond maintains that the non-selection at issue here constituted
discrimination in violation of Title VII and the ADEA. (Compl. ¶ 1.) As an AOC
employee, Raymond can only bring such claims under the CAA, which was enacted in
1995 to provide a forum for employees of the legislative branch of the federal
government to challenge their employers’ alleged discriminatory actions. See 2 U.S.C.
§ 1301(3). The CAA makes certain federal anti-discrimination statutes expressly
applicable to legislative branch offices, including, in relevant part, Title VII and the
ADEA. 2 U.S.C. § 1302(a). When construing discrimination claims under the CAA,
14
courts incorporate much of the substantive law of Title VII. See Blackmon-Malloy v.
U.S. Capitol Police Bd., 575 F.3d 699, 706 (D.C. Cir. 2009); see also Hyson v.
Architect of the Capitol, 802 F. Supp. 2d 84, 97 (D.D.C. 2011) (citations omitted);
Gordon v. Office of the Architect of the Capitol, 750 F. Supp. 2d 82, 90 (D.D.C. 2010)
(“Although not necessarily binding precedent, courts when construing the CAA often
consider as persuasive case law interpreting Title VII.” (citation omitted)).
In cases that involve allegations of national origin or age discrimination, courts
in this jurisdiction typically apply the familiar burden-allocation scheme that the
Supreme Court adopted in the case of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See id. at 802-03; see also Stewart v. Ashcroft, 352 F.3d 422, 428 (D.C. Cir.
2003) (applying McDonnell Douglas to Title VII discrimination claims); Krodel v.
Young, 748 F.2d 701, 705 (D.C. Cir. 1984) (applying McDonnell Douglas to ADEA
discrimination claims). Pursuant to this scheme, a plaintiff must first demonstrate by a
preponderance of evidence the existence of a prima facie case of discrimination. Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). 13 If the plaintiff is able
to establish a prima facie case, then the burden shifts to the defendant to offer a non-
discriminatory reason for the challenged determination. See McDonnell Douglas, 411
U.S. at 802-03. And once such reason is offered, the burden shifts back to the plaintiff
13
To prove a prima facie case of discriminatory non-selection, a plaintiff must prove that:
(1) he is a member of a protected class; (2) he applied for and was qualified for an
available position; (3) despite his qualifications he was rejected; and (4) either someone
. . . filled the position or the position remained vacant and the employer continued to
seek applicants.
Jackson v. Gonzalez, 496 F.3d 703, 707 (2007) (quoting Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.
Cir. 2003)); see also Walker, 590 F. Supp. 2d at 137 (quoting Brady v. Office of the Sergeant at Arms,
520 F.3d 490, 493 n.1 (D.C. Cir. 2008)); see also Barnett, 715 F.3d at 358 (noting that the D.C. Circuit
analyzes claims under Title VII and the ADEA in the same way).
15
to demonstrate that the employer’s reason was actually pretext for discrimination. See
id. at 804. Significantly, the D.C. Circuit has clarified that an analysis of the first step
in the McDonnell Douglas framework—assessment of the prima facie factors—is
“almost always irrelevant” and is “largely [an] unnecessary sideshow.” Brady v. Office
of the Sergeant at Arms, 520 F.3d 490, 492, 494 (D.C. Cir. 2008). Thus, where, as here,
the defendant employer has asserted a legitimate, non-discriminatory reason for an
employment decision, there is “one central question” that the district court must
resolve: whether the employee has 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 [an
improper] basis[.]” Id. at 494.
In non-selection cases, there are typically three ways a plaintiff can successfully
establish that a reasonable jury could find that the employer’s stated reason for the
challenged action was pretext for discrimination. First, the plaintiff can demonstrate
that there is a significant qualifications gap between him and the selected candidate.
Notably, however, for the Court to infer discrimination on the basis of the candidates’
qualifications alone, “the qualifications gap must be great enough to be inherently
indicative of discrimination.” Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006)
(citing Lathram v. Snow, 336 F.3d 1085, 1091 (D.C. Cir. 2003)); Hamilton v. Geithner,
666 F.3d 1344, 1352 (D.C. Cir. 2012); see also Hyson, 802 F. Supp. 2d at 98 (where
“the parties’ quarrel focuses on a dispute over the relative qualifications of candidates
for a particular position, the courts have consistently declined to serve as a super-
personnel department that reexamines an entity’s business decisions” (internal
16
quotation marks omitted) (quoting Holcomb, 433 F.3d at 897)). Second, inconsistencies
or irregularities in an employer’s established hiring process may support a finding of
discriminatory non-selection. See Lane v. Vasquez, 961 F. Supp. 2d 55, 67 (D.D.C.
2013) (the employer’s “adherence to or departure from internal hiring procedures is a
factor that the trier of fact may deem probative and choose to consider in determining
the true motivation behind the hiring decision” (quoting Johnson v. Lehman, 679 F.2d
918, 922 (D.C. Cir. 1982))). Third and finally, a plaintiff “can also avoid summary
judgment” if he can present “other evidence, either direct or circumstantial, that permits
an inference of discrimination.” Hyson, 802 F. Supp. 2d at 98 (quoting Aka v. Wash.
Hosp. Ctr., 156 F.3d 1284, 1295 n.11 (D.C. Cir. 1998) (en banc)). In the absence of
direct evidence of discrimination—i.e., an admission that the selection determination
was actually motivated by a candidate’s protected characteristic—circumstantial
evidence of discrimination may include decision makers’ other comments, interview
summary sheets, or other sworn testimony. See, e.g., Aka, 156 F.3d at 1298-99 (finding
that the content of interview summary sheets and affidavits provided evidence of
discrimination.)
B. Raymond Has Failed To Establish That A Reasonable Jury Could
Conclude The AOC’s Proffered Reason For The Non-Selection Was
Pretext For Discrimination
The AOC maintains that each of the three panel members in charge of making
the challenged selection decision independently concluded that Shields was more
qualified for the position than Raymond, based on the applicants’ relative work and
interview performance. (Def.’s Mot. at 1, 32.) Thus, the only question before the
Court is whether Raymond has produced sufficient evidence to rebut this legitimate,
17
non-discriminatory reason or to show that it was mere pretext. See Brady, 520 F.3d at
494. In light of the applicable legal standards discussed above and for the following
three reasons, this Court finds that Raymond has failed to demonstrate that the
Defendant’s legitimate reason for selecting Shields was pretext for discrimination.
First, there is no significant gap in qualifications that would raise any inference
of discrimination. As noted, to give rise to an inference of discrimination, “the plaintiff
must be ‘substantially more qualified’ than the successful candidate to perform the
duties listed in the vacancy announcement, and the non-selected candidate must have a
‘stark superiority of credentials.’” Warner v. Vance-Cooks, 956 F. Supp. 2d 129, 152
(D.D.C. 2013) (quoting Porter v. Shah, 606 F.3d 809, 815-16 (D.C. Cir. 2010)); see
also Grosdidier, 709 F.3d at 25 (“To prevail on a relative qualifications claim, [the
plaintiff] must show that she is ‘significantly better qualified for the job than [the
applicant] ultimately chosen.” (emphasis in original) (second alteration in original)).
There is nothing in the record that establishes that Raymond is “substantially” or
“significantly” better qualified than Shields, and in fact, when one compares the two
applicants’ awards and job training, the record clearly indicates otherwise. (Compare,
e.g., Shields Appl. at 7-9 (noting that Shields had won 15 awards, completed 13 training
courses, and received “Outstanding” ratings), with Raymond Appl. at 2-6 (noting that
Raymond had won 3 awards, completed 4 training courses, and received “Fully
Successful” ratings).) 14 The panelists’ impressions of the applicants’ interviews
14
Raymond suggests that Shields fabricated the training and awards listed on his application, calling
Shields’s resume “marketing puffery” and stating that there is “nothing to authenticate as true either the
training or awards [Shields] received.” (Pl.’s Opp’n at 5-6.) But Raymond offers nothing other than
his own accusations that Shields’s statements regarding his training or awards are untrue. Such bald
allegations are insufficient to establish a genuine issue of fact where, as here, Shields listed his awards,
training, and experience on a form that was submitted to panelists who were familiar with him and his
18
similarly reflects that Shields was a better performer than Raymond. (See Wood Decl.
¶ 8 (explaining that while “Shields was able to articulate” how he would stress the
importance of “attention to detail” to his employees, Raymond’s response was vague
and express “no clear plan”); Carroll Decl. ¶¶ 10, 14 (explaining that Shields gave more
specific answers than Raymond).) And the panelists had their own prior experiences
with, and observations of, Shields and Raymond to draw upon as well. (See Wood
Decl. ¶ 5 (testifying that while Shields worked independently, Raymond needed more
direction); Carroll Decl. ¶ 11 (noting that Shields showed initiative while Raymond did
not); see also id. (Shields was better suited for this supervisory and management
position based on the “initiative” and “lead[ership]” he exhibited compared to
Raymond’s more passive style).) Indeed, rather than demonstrating Raymond’s
superior qualifications in a manner that raises an inference of discrimination, the record
evidence confirms the correctness of the panelists’ considered independent judgment
that, on a qualifications scale, Shields should be ranked more highly than Raymond. 15
Second, there is no dispute that the AOC followed its ordinary procedures in
making the selection determination at issue here. It is clear on this record that the AOC
followed its usual hiring procedures: the interview panelists rated each applicant
work. The panel accepted the representations as true, and in the absence of proof to the contrary, so
will this Court.
15
Raymond insists nonetheless that his resume shows he was better qualified than Shields (see Pl.’s
Opp’n at 6; Pl.’s Dep. II. at 65), but it is well established that a plaintiff’s own perception of his
superior qualifications does not outweigh the record evidence to the contrary. See Ficken v. Clinton,
771 F. Supp. 2d 79, 84 (D.D.C. 2011) (“[A] plaintiff’s personal evaluation of his own qualifications
and performance is insufficient to rebut a defendant’s legitimate, non-discriminatory reason for his
non-selection.” (citations omitted)); see, e.g., Jo v. District of Columbia, 582 F. Supp. 2d 51, 62-63
(D.D.C. 2008) (“Although Plaintiff clearly values his own credentials and experiences, a plaintiff’s
subjective assessment of his own record is largely irrelevant.” (citations omitted)); Spelke v. Gonzales,
516 F. Supp. 2d 76, 80 (D.D.C. 2007) (noting that the “plaintiff’s subjective self-assessment” of his
qualifications “does not defeat defendant’s offering a legitimate, nondiscriminatory reason for the non-
selection of plaintiff” (internal quotation marks and citation omitted)).
19
independently, completed separate ranking sheets, and did not confer with one another
in their ratings. Using this process, all three panelists chose Shields as the better-
qualified candidate, and for good reason (see supra). Raymond has not offered any
evidence to suggest that Defendant strayed from the usual hiring path in any way, let
alone in a manner that renders its explanation for hiring Shields “unworthy of belief.”
Porter, 606 F.3d at 816 (citation omitted).
Third and finally, this Court concludes that no valid inference of discrimination
with respect to the selection arises from any other evidence that Raymond presents,
including, in particular, Raymond’s contention that panelist Thomas had previously
demonstrated discriminatory animus towards Raymond in the workplace by making
comments related to his national origin and age. While discriminatory comments made
by one member of a selection committee may raise an inference of pretext, see Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152 (2000), whether such an inference
arises depends on the particular circumstances of the committee’s determination, id.,
and this Court finds that the circumstances here do not permit an inference that
Thomas’s alleged prior discriminatory statements tainted the selection process for
several reasons. First of all, there is no record evidence (other than Raymond’s own
testimony) to support the vigorously disputed contention that Thomas actually made any
discriminatory statements about Raymond. This threshold hurdle is one that Raymond
would need to surmount successfully before he could even begin to assert that Thomas’s
discriminatory animus tainted the selection process. Moreover, even if it could be
shown that Thomas had previously made comments about Raymond’s national origin
and age, there are no facts in the record that suggest that any such discriminatory
20
thoughts or animosity necessarily carried over into Thomas’s own assessment of
Raymond’s qualifications in the context of the selection process, much less that such
discriminatory animus influenced the assessments of Thomas’s fellow panelists. 16
And it is this latter point that most clearly reveals the flawed nature of
Raymond’s pretext argument. It is undisputed that Thomas was not the sole decision
maker, and there is no genuine issue regarding the fact that the panelists reached their
selection decisions entirely independently. Independent assessments of candidate
qualifications in the form of separate ratings was an established part of the AOC hiring
process, and under the circumstances presented here, it is clear that the independent
assessment process effectively insulated the selection determination from challenge
based on Thomas’s alleged discriminatory animus. See Hampton v. Vilsack, 685 F.3d
1096, 1101-02 (D.C. Cir. 2012) (affirming the district court’s grant of summary
judgment to the employer where the termination decision was based on an “independent
assessment” of the plaintiff’s conduct and was not influenced by the plaintiff’s
supervisor who was alleged to harbor discriminatory animus); Hall v. Giant Food, 175
F.3d 1074, 1079-80 (D.C. Cir. 1999) (evidence of one supervisor’s discriminatory
remarks is not probative of discrimination where the decision maker “made an
independent assessment” of the plaintiff’s conduct); cf. George v. Leavitt, 407 F.3d
405, 416 (D.C. Cir. 2005) (finding evidence of discrimination where a supervisor is
alleged to harbor discriminatory animus and to have “influenced” the decision maker’s
ultimate determination (citation omitted)); Griffin v. Wash. Convention Ctr., 142 F.3d
16
It is well established that, while a plaintiff’s history with an alleged discriminatory supervisor may
be “relevant” to the question of whether discrimination was the motivation for a particular hiring
decision, that alone is “not enough to impute sinister motivations” for that determination. See, e.g.,
Porter, 606 F.3d at 816 (quoting Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse
Servs., 165 F.3d 1321, 1330 (10th Cir. 1999)).
21
1308, 1310 (D.C. Cir. 1998) (evidence of a colleague’s bias is relevant where “the
ultimate decision maker is not insulated from th[at employee’s] influence” (citation
omitted)). Significantly, Raymond nowhere alleges that either of the other two
panelists, or for that matter, HOB Superintendent Weidemeyer, ever harbored any ill
will towards him or discriminated against him in any way, and there is no evidence that
Thomas’s alleged discriminatory animus “influenced the committee’s deliberations by
portraying [the plaintiff’s] performance to the committee in the worst possible light.”
Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990). And in the absence of such
evidence, the Court concludes that there is no genuine issue of material fact about the
independent and untainted nature of the evaluations of two of the three panel members,
and thus the non-discriminatory nature of the selection at issue. 17
In sum, nothing in the record regarding the relative qualifications of Shields and
Raymond or the selection process used to fill the Laborer (Recycler) General
Supervisor Position raises any inference of discrimination, nor can such an inference be
based either on a deviation in the hiring process (there was none) or on Thomas’s
allegedly discriminatory remarks made earlier and in a different context. Raymond
would like to move forward with his discrimination case based on his belief that
Thomas was a discriminatory actor, but even if it can be shown that Thomas harbored
discriminatory animus, there is no dispute that the other two panelists independently
concluded that the selected applicant was better-qualified (a finding that the record
17
The only possible factual basis in the record for any contention that the panel may have been
improperly influenced is Raymond’s testimony that Cordell Shields mentioned Raymond’s age in a
disparaging way during a February 2010 meeting that Thomas, Carroll, and Weidemeyer attended.
(Pl.’s Dep. I at 5.) But there is no evidentiary support for any conclusion that those individuals even
heard or otherwise acknowledged those stray remarks, which were made months earlier and in a
different context, and thus, there is no basis for any inference that those remarks influenced the panel’s
selection decision in any way. (Cf. Shields Decl. ¶¶ 10-11.)
22
confirms), and the final decision maker (the Superintendent) heartily concurred with
that conclusion. Thus, there is no genuine issue of material fact as to whether the
panel’s selection of Shields was truly motivated by discrimination against Raymond,
nor has any material question been raised regarding whether Thomas’s alleged
discriminatory animus somehow tainted the challenged selection process.
IV. CONCLUSION
For the reasons stated above, Raymond has failed to show that Defendant’s
asserted reason for selecting Shields was a pretext for discrimination, and Defendant’s
motion for summary judgment must be GRANTED. Summary judgment will be entered
in favor of Defendant pursuant to the separate order that accompanies this memorandum
opinion.
DATE: June 23, 2014 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
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