Vaughan v. Amtrak

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________
)
JOHNNY A. VAUGHAN, )
)
Plaintiff, )
)
v. ) Civil Action No. 10-2184 (ABJ)
)
AMTRAK, )
)
Defendant. )
_________________________________ )
MEMORANDUM OPINION
This matter is before the Court on plaintiff’s partial motions for summary judgment [Dkt.
#30, 42] and defendant’s cross-motion for summary judgment [Dkt. #35]. For the reasons
discussed below, the Court will deny plaintiff’s motions for summary judgment and grant
defendant’s cross-motion for summary judgment.
I. BACKGROUND
In September 2008, plaintiff, a white male born in 1950, applied but was not selected for
the position of Lead Service Attendant (“LSA”) with the National Railroad Passenger
Corporation (“Amtrak”). See Compl. ¶¶ 3–4. According to plaintiff, Amtrak’s decision not to
hire him “was discriminatory because it was based on [his] race and/or age.” Id. ¶ 5. He brought
this action under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. 1
1 In Plaintiff[’s] Motion for Partial Summary Judgment [Dkt. # 30] (“Pl.’s Mot.”), plaintiff
purports to raise, for the first time, a claim under the Vietnam Era Veterans Assistance Act
(“VEVRAA”), see 38 U.S.C. § 4212, by alleging discrimination based on his status as a veteran
of the Vietnam war. At that stage of proceedings, Amtrak already had filed its Answer. Plaintiff
could have amended his complaint “only with the opposing party’s written consent or the court’s
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A. Plaintiff’s Allegations
“Plaintiff applied for a job as Lead Service Attendant (LSA) which duties include serving
food on a train.” Pl.’s Mot. for Partial Summ. J. [Dkt. #30] (“Pl.’s Mot.”) at 3. In relevant part,
the LSA position description reads:
The Lead Service Attendant . . . is primarily responsible for
creating a welcome atmosphere of hospitality for Amtrak
passengers that result[s] in exceeding customer expectations.
Works in a fast-paced environment on board trains. Coordinates
work and supervise[s] a team of food and wait staff responsible for
the provision of food and beverage service to Amtrak passengers
. . . . May also work independently in certain services with no
supporting staff . . . . Maintains cleanliness of rail car interior
. . . . Functions independently while simultaneously supporting the
service staff. Utilizes superior interpersonal skills to communicate
clearly and effectively with passengers and crew to insure
employee and customer satisfaction in both ideal and off schedule
conditions . . . . Responsible for the security, sale, safe handling
and accounting of food and beverage products. Strictly complies
with cash and credit transaction handling procedures and protects
Amtrak funds . . . . Adheres to uniform and grooming
requirements[.]
Id., Ex. D (excerpt from Job Posting, AMT-VAUGHAN 000211). The position required a high
school diploma or equivalent; some college or vocational training was preferred. Id. With
respect to work experience, the posting read:
Some experience in a customer service or similar public contact
role exhibiting responsibility, initiative, physical coordination,
problem solving, creativity, and leadership characteristics. Work
experience must demonstrate strong, clear and effective verbal
communication and interpersonal skills, professionalism, and a
customer-friendly demeanor . . . . Prior experience working in a
team service environment preferred. Some experience in a
food/beverage environment, cash handling, and retail inventory
leave.” Fed. R. Civ. P. 15(a)(2). Had he sought the Court’s leave to amend the complaint, he
would have been required to file “[a] motion for leave to file an amended complaint . . .
accompanied by an original of the proposed pleading as amended.” LCvR 15.1. Amendment of
the complaint would have been futile, however, because there is no private right of action under
the VEVRAA. See, e.g., Wilson v. Amtrak Nat’l R.R. Corp., 824 F. Supp. 55, 58 (D. Md. 1992).
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experience preferred. Supervisory experience in the Hotel,
Restaurant and/or Travel, Hospitality industries preferred.
Id., Ex. D.
Plaintiff understood the “job description to include over 80% . . . food handling [and]
customer service,” and emphasized its preference for “[s]upervisory experience in the Hotel,
Restaurant and/or Travel, Hospitality Industries.” Pl.’s Mot. at 3. As indicated on his resume,
plaintiff has managed restaurants, served as the food and beverage director for a hotel, and
managed the daily operations at a banquet venue. Id., Ex. E (plaintiff’s resume, AMT-
VAUGHAN 000214-215). Plaintiff not only considered himself qualified for the position, but
also believed that “his experience ‘outshone’ all other candidates.” Pl.’s Mot. at 4. “[B]ased off
the job duties and educational requirements and [plaintiff’s] experience, [he] could not
comprehend that there possibly could be 15 people that had more experience of doing this job
than [him] at that time.” Mem. of Law in Supp. of Def.’s Opp. to Pl.’s Mot. for Partial Summ. J.
& Def.’s Cross-Mot. for Summ. J. [Dkt. ## 34–35] (“Def.’s Cross-Mot.”), Ex. 3 (“Pl.’s Dep.”) at
84:14–18. His “experience as related to the job posting exceed[ed] the supervisory & food and
beverage experience of all 10 alleged applicants hired combined,” Pl.’s Mot. for Partial Summ. J.
for Violation of Title VII Rights (“Pl.’s 2d Mot.”) at 4; see Pl.’s Mot. at 3, yet Amtrak “hired
younger, lesser qualified individuals that were mostly African Americans after rejecting the
Plaintiff.” Pl.’s 2d Mot. at 2; see Pl.’s Mot. at 2.
Plaintiff posits that Amtrak “hire[d] other applicants based on job criteria that is [sic] not
listed in the job posting,” and deems this “evidence of willful and wanton behavior . . . with a
wrongful motive and reckless indifference to plaintiffs’ [sic] rights.” Pl.’s Mot. at 4. He claims
to have “established a prima facie case of discrimination” based on his age and race, and that
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Amtrak “failed to articulate a legitimate non-discriminatory reason for its actions.” Pl.’s 2d Mot.
at 12.
B. Amtrak’s Representations
1. Hiring Procedure for the LSA Position
“Amtrak was created by Congress in 1970 to take over the passenger rail services
previously . . . operated by private freight railroad companies in the United States.” Def.’s
Cross-Mot., Ex. 4 (“Ray Aff.”) ¶ 3. Its Human Resources (“HR”) department “handles the
recruiting for any vacancies . . . for all departments including, but not limited to, mechanical,
marketing, and transportation.” Ray Aff. ¶ 4. “Recruitment processes vary by position,” and
“[i]n 2008, the recruiting process for the [LSA] position followed a Transportation Hiring Plan
that provided the number of vacancies for which [Amtrak was] to recruit over the fiscal year.”
Id., Ray Aff. ¶ 5. HR posted the LSA position on Amtrak’s Career Rewards website; its staff
attended job fairs, accepted referrals from local representatives and current employees, and
accepted resumes by mail and other means. Ray Aff. ¶ 6. Amtrak received more than 800
applications for the LSA position for which plaintiff applied. Ray Aff. ¶ 8. In such
circumstances with so many applicants, “it [was] unlikely that all applications would be
reviewed” because HR “simply [did] not have the resources to review all 800 applications.”
Ray Aff. ¶ 8.
After receiving resumes, “[a] recruiter would review [them] to determine whether the
candidates met the position’s minimum qualifications, and if there were any ‘red flags’ (i.e.
unexplained gaps in employment).” Ray Aff. ¶ 9. Candidates who met the minimum
qualifications and for whom no “red flags” were identified were “invited to test for the position.”
Id., Ray Aff. ¶ 9. Each candidate was “given an orientation [during which HR] describe[d] in
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detail the position for which [he] applied.” Ray Aff. ¶ 10. If the candidate chose to proceed with
the application process, he took “a math test, a vocabulary test, and an Applicant Potential
Inventory test.” Ray Aff. ¶ 10. The applicant had to pass all tests to be eligible for an interview.
Ray Aff. ¶ 10. Plaintiff was one of ten applicants who both met the minimum qualifications for
the LSA position and passed the required tests. Ray Aff. ¶ 14.
Generally, two managers conducted each interview. Ray Aff. ¶ 12. “The managers [did]
not choose whom to interview; they interview[ed] those candidates selected by [HR] who [were
deemed] minimally qualified for the position and who [had] passed the required tests.” Ray
Aff. ¶ 11. Interviewers did not know the candidates’ test scores. Def.’s Cross-Mot., Ex. 1
(“Baylor Aff.”) ¶ 5. HR provided the managers with written interview questions so that each
candidate was asked the same questions, Ray Aff. ¶ 11, and the managers were allowed to take
notes, Baylor Aff. ¶ 6. After an interview, “the managers return the applicant materials,
interview questions, and any notes they took during the interview[] to [HR],” and at that time
they “inform HR of who they selected for the position.” Id., Ray Aff. ¶ 13.
The LSA “position is primarily a customer service job.” Def.’s Cross-Mot., Ex. 2
(“Brewer Aff.”) ¶ 4; Baylor Aff. ¶ 4. Interviewers are particularly interested in a candidate “who
wants to and is capable of providing the high-quality customer service that Amtrak customers
expect.” Baylor Aff. ¶ 8; Brewer Aff. ¶ 4. LSAs “are not simply responsible for serving food
and beverages on a train;” shifts can last as long as “18 hours in a fast-paced environment,” and
LSAs can spend as many as six days per week away from the home base. Brewer Aff. ¶ 4.
Although LSAs “are responsible for coordinating and supervising the work of a team of food and
wait staff who provide food and beverage service to Amtrak’s passengers,” Baylor Aff. ¶ 4, food
service or management experience is therefore preferred, but it is not required for the LSA
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position. Baylor Aff. ¶ 8; Brewer Aff. ¶ 4. “More important are the intangible qualities like
personal presentation, verbal communication skills, approachability, flexibility, and a willingness
and desire to perform the job.” Baylor Aff. ¶ 8. LSAs “must be approachable and welcoming,
even in difficult situations.” Brewer Aff. ¶ 9.
Two Amtrak managers, Patricia Baylor and Kathy Brewer, interviewed plaintiff on
September 10, 2008. Baylor Aff. ¶ 9; Brewer Aff. ¶ 10. For Ms. Baylor, the interview was an
opportunity “to assess . . . an LSA candidate by observing how the candidate presents himself[],
how he[] responds to the interview questions, demeanor, eye contact, facial expressions, posture,
preparedness and dress,” and to “differentiat[e] between those candidates who just look good on
paper and those who have the customer service skills to succeed as an LSA.” Baylor Aff. ¶ 8.
Because “Amtrak thoroughly trains employees in all job functions, . . . intangible qualities like
personal presentation, verbal communication skills, approachability, flexibility, and willingness
and desire to perform the job” are more important than food service, catering, or restaurant
experience. Baylor Aff. ¶ 8. Similarly, Ms. Brewer “look[s] for candidates who appeared
interested and comfortable in the interview, maintained eye contact and smiled during the
interview, and demonstrated a customer service focus.” Brewer Aff. ¶ 9. By “focusing on
attitude and personality,” she could “separate those candidates who appeared great on paper from
those who could perform great on the trains.” Id., Brewer Aff. ¶ 9.
Hiring decisions were made on a rolling basis; the interviewers did “not wait . . . until all
of the candidates [were] interviewed.” Baylor Aff. ¶ 7. The interviewers “did not revisit those
candidates who [were] determined . . . not a good fit after their interview[s].” Brewer Aff. ¶ 8;
Baylor Aff. ¶ 7.
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2. Plaintiff’s Interview
Ms. Baylor described the interview as follows:
When [plaintiff] arrived for the interview on September 10, 2008,
he was not “polished,” meaning, he did not look professional. As
an interviewer, I generally expect candidates to come dressed
appropriately for an interview (and for the job). I do not recall that
[plaintiff] was wearing a tie, and his overall presentation was not
business-like.
During the interview, [plaintiff] made it clear that he was more
interested in a position with the Food and Beverage department
than the LSA position for which he was interviewing. The Food
and Beverage department serves as a liaison between Amtrak and
its vendor, ARAMARK, to ensure the quality of food Amtrak
offers. Food and Beverage positions are management positions in
another department; they are not onboard service[] positions and
do not involve the level of customer service required of an LSA.
Specifically, I remember [plaintiff] commented that he wanted a
Food and Beverage position, but none were available at that time.
[Plaintiff’s] behavior during the interview also indicated to me that
he would not be a successful LSA. Rather than listen to and
answer the questions that were asked in the interview, [plaintiff]
just provided the information he wanted to provide. In so doing,
[he] acted like he wanted to take charge of the interview – to be the
manager/interviewer—which I found to be arrogant. In addition,
his eye contact was poor, he did not seem approachable, and his
manner was condescending.
Baylor Aff. ¶¶ 10–12. Ms. Brewer’s observations were similar:
Although he applied for a position with significant customer
contact, [plaintiff’s] appearance at the interview was not
professional or polished. I recall that his fingernails were dirty and
his shoes were not polished, and I do not recall that he wore a
jacket or tie. In interviewing candidates for LSA positions, I
expected that they would attend their interviews dressed
appropriately and present in a business-like manner – others did,
[plaintiff] did not.
In addition, based on his behavior during the interview, I did not
believe that [plaintiff] would be able to perform successfully as an
LSA. Throughout the interview, [he] seemed much more
interested in telling his own story and relaying the information that
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he wanted to relay, rather than in answering the questions. He did
not seem to listen to the questions asked and did not maintain eye
contact. In my opinion, [plaintiff] acted like he was in charge of
the interview, which gave me the impression that he was full of
himself.
Brewer Aff. ¶¶ 11, 13.
Ms. Baylor recalled a “strange and very inappropriate” comment plaintiff made during
the interview, which she described as follows:
[Plaintiff] described a situation when he was managing a restaurant
and Jewish customers told him that they did not want Black people
serving them, and in response, he threw the Jewish customers out.
In describing this situation, [plaintiff] repeatedly used the terms
“the Blacks” and “the Jews.” It was unclear . . . why [plaintiff]
related this experience, as it was not particularly responsive to any
of the questions asked[.] [M]y impression was that because Ms.
Brewer and I are both African-American, [plaintiff] felt it
necessary to try to indirectly convey that he was okay working
with African-Americans or that he was sensitive to racial issues
involving African-Americans. What the comment conveyed to me,
however, was that [plaintiff’s] judgment was poor and that he did
not have the kind of customer service skills we were looking for.
Baylor Aff. ¶ 13. Ms. Brewer had a similar reaction to plaintiff’s comments. During plaintiff’s
description of the incident, using “the terms ‘the Blacks’ and ‘the Jews,’” she interrupted
plaintiff “and told him something to the effect of, ‘we don’t speak like that at Amtrak.’” Brewer
Aff. ¶ 14. She “got the impression that because both [interviewers] are African-American, he
was trying to show some form of camaraderie – that he was comfortable working with African-
Americans.” Brewer Aff. ¶ 14. She not only found “the comments to be inappropriate, [but]
also thought the sentiment . . . was insincere.” Brewer Aff. ¶ 14. Aside from this incident, there
was no “discuss[ion of plaintiff’s] or anyone else’s race or age.” Brewer Aff. ¶ 15; Baylor
Aff. ¶ 14. Neither interviewer knew plaintiff’s age at the time of the interview, and both
believed plaintiff to be Caucasian. Brewer Aff. ¶ 15; Baylor Aff. ¶ 14.
3. Amtrak’s Hiring Decision
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A hiring decision was based on the candidate’s “total package,” that is, the candidate’s
resume and interview. Brewer Aff. ¶ 8; Baylor Aff. ¶ 7. The interviewers jointly decided
“whether . . . the candidate is a good fit for the LSA position,” Brewer Aff. 8; Baylor Aff. ¶ 7.
Based on plaintiff’s “extremely poor performance during the interview, including his
unpolished appearance, arrogant demeanor, failure to answer interview questions, inappropriate
comment, poor communication skills, and lack of interest in the LSA position,” Ms. Baylor
concluded that he would not “provide the customer service approach required of an LSA.”
Baylor Aff. ¶ 15. For these same reasons, based on plaintiff’s “overall poor interview
performance,” Ms. Brewer concluded that plaintiff “lacked the customer service personality
required for an LSA. Brewer Aff. ¶ 16. She, too, noted plaintiff’s “failure to answer the
interview questions, poor judgment, poor communication skills, inappropriate comments,
unprofessional appearance, self-important attitude, and his apparent lack of interest in the LSA
position.” Brewer Aff. ¶ 16. Neither interviewer considered plaintiff’s race or age in reaching
her decision. Brewer Aff. ¶ 16; Baylor Aff. ¶ 15.
Ms. Brewer acknowledged that plaintiff “had more work experience in the
restaurant/food service industry than each of the ten successful candidates.” Brewer Aff. ¶ 19.
She explained her selection of other candidates as follows:
[T]he ten (10) successful candidates all out-performed [plaintiff] in
the interviews. The individuals selected for the LSA position all
demonstrated . . . that they had the appropriate approach to
customer service and would be a good fit for the position. . . .
[W]hile prior experience in restaurants and food/beverage is
helpful, the most important factors in selecting a candidate for an
LSA position are approach to customer service, attitude and
personality – everything else can be taught. All ten (10) of the
candidates selected over [plaintiff] demonstrated that they were
more qualified for the LSA position because they were a better fit
in these areas.
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Brewer Aff. ¶ 19. The races and ages of the successful candidates were:
Candidate 1 (Hispanic, 34); Candidate 2 (African-American, 32);
Candidate 3 (Asian, 28); Candidate 4 (African-American, 32);
Candidate 4 (African-American, 25); Candidate 6 (African-
American, 36); Candidate 7 (African-American, 51); Candidate 8
(African-American, 37); Candidate 9 (Caucasian, 28); Candidate
10 (African-American, 37).
Ray Aff. ¶ 15.
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate “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). The party seeking summary judgment bears the “initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat
summary judgment, the non-moving party must “designate specific facts showing there is a
genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The mere existence of a
factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find
for the non-moving party; a fact is only “material” if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). To
determine which facts are material, a court must look to the substantive law on which each claim
rests. Anderson, 477 U.S. at 248.
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“The rule governing cross-motions for summary judgment . . . is that neither party waives
the right to a full trial on the merits by filing its own motion; each side concedes that no material
facts are at issue only for the purposes of its own motion.” Sherwood v. Washington Post, 871
F.2d 1144, 1148 n.4 (D.C. Cir. 1989), quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C.
Cir. 1982). In assessing each party’s motion, “[a]ll underlying facts and inferences are analyzed
in the light most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia,
709 F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.
Where a plaintiff proceeds pro se, “the Court must take particular care to construe the
plaintiff's filings liberally, for such complaints are held ‘to less stringent standards than formal
pleadings drafted by lawyers.’” Cheeks v. Fort Myers Constr. Co., 722 F. Supp. 2d 93, 107
(D.D.C. 2010), quoting Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
In an employment discrimination case, on the parties’ cross-motions for summary
judgment, the Court must address one question:
Has the [plaintiff] produced sufficient evidence for a reasonable
jury to find that [Amtrak’s] asserted non-discriminatory reason was
not the actual reason and that [Amtrak] intentionally discriminated
against [him] . . . .
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008), citing St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 507–08 (1993). For a Title VII claim, the focus is on two
elements for an employment discrimination case: “(i) the plaintiff suffered an adverse
employment action (ii) because of [his] race.” Id. at 493. The same analysis applies to an
ADEA claim, see O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 310-11 (1996);
Pacquin v. Fed. Nat’l Mortgage Ass’n, 119 F.3d 23, 26 (D.C. Cir. 1997) (“In ADEA cases we
apply the familiar three-step burdenshifting framework announced in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), for Title VII cases.”), but a plaintiff must show that he suffered
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an adverse employment action because of his age. Both elements are required to sustain a claim
of discrimination. Brady, 520 F.3d at 493; Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.
Cir. 2008) (applying Brady to ADEA claim).
B. Plaintiff Fails to Rebut Amtrak’s Nondiscriminatory Explanation for its
Hiring Decision 2
There is no genuine issue in dispute as to five material facts: (1) plaintiff is a white male;
(2) for purposes of the ADEA he is a member of a protected class; 3 (3) plaintiff was qualified for
the LSA position; (4) plaintiff suffered an adverse employment action; and (5) individuals who
are neither white nor members of plaintiff’s protected class were selected for the LSA position
for which plaintiff applied.
Amtrak did not select plaintiff for the LSA position based on his performance during the
interview. Both interviewers remarked on plaintiff’s unprofessional and unpolished appearance,
his demeanor, and other intangible qualities deemed unsuitable for the intense customer service
2 Plaintiff inexplicably relies on statements and events by Amtrak employees who played
no role in the decision not to hire him and which occurred after Amtrak made its hiring decision.
For example, plaintiff submitted a complaint to Amtrak’s Dispute Resolution Office, which
investigated the matter and found no evidence, and plaintiff provided none, suggesting that race
or age was a factor in the hiring decision. See Pl.’s Mot., Ex. B (Letter to plaintiff from Lisa
Alvarado Coleman, Senior Dispute Resolution Officer, DRO, Amtrak, dated January 26, 2009,
AMT-VAUGHAN 000441-443). He also finds fault with Amtrak’s response to his complaint to
the Equal Employment Opportunity Commission denying the claim of discrimination. See id.,Ex. C (Letter to Mindy E. Weinstein, Acting Director Washington Field Office, EEOC, from
Theodore M. Campbell, Sr. EEO Compliance, Labor and Employment, Amtrak, dated June 10,
2009, AMT-VAUGHAN 00584-586). The relevance of these submissions in unclear.
3 As a white male, plaintiff is not considered a member of a protected class for purposes of
his Title VII claim. See Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993). Instead, he is
expected “to show additional ‘background circumstances [that] support the suspicion that the
defendant is that unusual employer who discriminates against the majority.’” Id., quoting Parker
v. Baltimore & Ohio R.R., 652 F.2d 1012, 1017 (D.C. Cir. 1981) (alteration in original). For
example, a plaintiff may introduce “evidence that the particular employer . . . has some reason or
inclination to discriminate invidiously against whites, . . . [or] there is something ‘fishy’ about
the facts of the case at hand that raises an inference of discrimination.” Id. (citations omitted).
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role an LSA plays on board Amtrak’s passenger trains. Neither interviewer found plaintiff to
have the verbal communication skills, good judgment, or particular willingness to perform the
LSA job.
Plaintiff maintains that he was qualified for the LSA position, that he was 57 years old at
the time he applied for the position, and that younger, less qualified applicants were selected
instead. Pl.’s Mot. at 7. These facts are not disputed. He further asserts that his “experience as
compared to the requirements on the job posting not only exceeded individual applicants but his
food and beverage customer services exceeded all 10 alleged hired applicants[’] combined
experience.” Pl.’s 2d Mot. at 7. Plaintiff argues that Amtrak’s reliance on subjective
assessments of personality and a determination by the interviewers that a candidate is a “good
fit” for the LSA position are pretextual. See id. at 15. He opines that neither interviewer
“considered the value of someone trained in food handling and food storage procedures . . . [and]
sanitation procedures,” id., for example, while “not car[ing] what skills to assess in order to fill
the position with the most qualified candidate,” id. at 16. Fundamentally, plaintiff asserts, Ms.
Brewer “did not like” him, id. at 16, and that she and Ms. Baylor “devalued organizational values
and . . . experience,” id. at 17. Plaintiff dismisses as “absurd” any company hiring plan to recruit
the most qualified candidates for a position which “ignor[es] the experience and educational
requirements or . . . laws by not identifying members of a protected class and replace those
requirements with a congenitally contest.” 4 Id. at 28.
In support of his motion for summary judgment on his ADEA claim, plaintiff relies on
the job posting, his resume, and a document listing the ten successful applicants’ names, ages,
races, supervisory and food and beverage experience (if any), and education. See Pl.’s Mot. at 4;
4 The Court presumes that plaintiff intends to use the term “congeniality contest,” not
“congenitally contest.”
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see id., Ex. D-G. With respect to his Title VII claim, plaintiff relies on the “EEOC Compliance
manual Section 15.” Pl.’s Mem. of Law in Opp. to Def.’s Cross-Mot. for Summ. J. & in Supp.
of Pl.’s Partial Summ. J. at 3; see id., Ex. A (EEOC Directives Transmittal No. 915.003 dated
April 19, 2006). This document appears to be a revision to the EEOC’s Compliance Manual
concerning employer credibility. According to this document, “[i]f an employer’s explanation
for the employee’s treatment ultimately is not credible, that is powerful evidence that
discrimination is the most likely explanation.” Id., Ex. A at 1. Plaintiff appears to argue that, if
Amtrak purports to hire the most qualified candidates, and if his experience far exceeded that of
the successful candidates, Amtrak’s explanation for its decision not to hire him is not credible –
meaning that discrimination is the most likely explanation for its action.
There is no dispute that plaintiff was qualified for the LSA position. He proceeds,
however, as if rigid adherence to the criteria set forth in the job posting is the only acceptable
basis for hiring a particular candidate. See Kranz v. Gray, 842 F. Supp. 2d 13, 22 (D.D.C. 2012)
(noting that “plaintiff’s focus on his ‘outstanding’ qualifications misses the mark because
defendant’s reason is not that [plaintiff] lacked credentials, but rather, he provided inadequate
essay responses”). Without question work experience is a factor to consider, but nothing in the
ADEA and Title VII prevents an employer from considering intangible qualities in making an
employment decision. See Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183–84 (D.C. Cir.
1996) (“[S]electing a pool of qualified candidates based upon their written credentials and then
making a final selection based upon personal interviews is an obviously reasonable method of
hiring a professional employee.”); Bailey v. Washington Metro. Area Transit Auth., 810 F. Supp.
2d 295, 303 (D.D.C. 2011) (selecting an applicant who “conducted herself more impressively
during the interview” than the plaintiff); Onyewuchi v. Mayorkas, 766 F. Supp. 2d 115, 121
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(D.D.C. 2011) (finding that defendant presented legitimate, non-discriminatory justification for
plaintiff’s non-selection: that plaintiff was less qualified and did not interview as well as the
selectee); Oliver v. Napolitano, 729 F. Supp. 2d 291, 201 (D.D.C. 2010) (explaining that selectee
was “more qualified” for the position “based on her interview” and that she “seemed ‘more
aware of what [the Department was] looking for and how her skills would add to the office’”)
(alteration in original).
Plaintiff misunderstands his obligation here. His success on summary judgment depends
on his ability to point to evidence in the record to show that Amtrak’s stated reason for not
selecting him for the LSA position – poor interview performance – is pretextual. See Brady, 520
F.3d at 494. Amtrak’s burden is “one of production, not persuasion.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). It need only articulate a legitimate
nondiscriminatory reason for its hiring decision and offer admissible evidence in support of that
reason. See id. Amtrak has done so in this case. Plaintiff fails to point to evidence in the record
to rebut Amtrak’s explanation by showing that race and age discrimination were the actual
reasons for the hiring decision. Instead, plaintiff relies on his own statements, opinions, and
assessment of his interview performance and the competence of the interviewers. In light of
plaintiff’s failure, defendant’s cross-motion for summary judgment will be granted. See Andrum
v. Washington Metro. Area Transit Auth., 710 F. Supp. 2d 112, 119-20 (D.D.C. 2010) (granting
summary judgment for employer where plaintiff “ha[d] not presented a single argument or piece
of evidence” that the employer enforced a policy based on plaintiff’s race). “Short of finding
that the employer’s stated reason was indeed a pretext, however–- and here one must beware of
using 20/20 hindsight – the court must respect the employer’s unfettered discretion to choose
among qualified candidates.” Fischbach, 86 F.3d at 1183.
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III. CONCLUSION
Amtrak has demonstrated a legitimate nondiscriminatory reason for its decision not to
hire plaintiff for the LSA position, and plaintiff has not rebutted Amtrak’s showing.
Accordingly, the Court will deny plaintiff’s motions for summary judgment [Dkt. # 30 and # 42]
and grant defendant’s cross-motion [Dkt. # 35]. A separate order will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: September 21, 2012
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