UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JOHN DANIELS,
Plaintiff,
v. Civ. Action No. 14-1667 (EGS)
CHUGACH GOVERNMENT SERVICES, INC.
Defendant.
MEMORANDUM OPINION Pending before the Court is defendant Chugach Government
Services Incorporated’s (“CGSI”) motion for summary judgment on
plaintiff John Daniels’ claim of discrimination under 42 U.S.C.
Section 1981. Mr. Daniels alleges discrimination on the basis of
race, ancestry and ethnic considerations under Section 1981
based on CGSI’s failure to select him for a Senior IT
Administrator position both when the position was posted in
September 2011 and when it was reposted in November of 2011.
CGSI moves for summary judgment, arguing that Mr. Daniels has
failed to rebut its legitimate reasons for not selecting him for
the position and, in the alternative, failed to provide any
evidence that supports a finding of intentional discrimination.
Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, CGSI’s
motion for summary judgment is GRANTED.
I. Background 1
Plaintiff John Daniels emigrated from Africa, and, in
October of 2009, began working for CGSI at its Potomac Job Corps
Center as a Systems Administrator. See Def.’s Supplemental
Statement of Undisputed Facts (“SOF”), ECF No. 32-2 ¶ 1; see
also Pl.’s SOF, ECF No. 33-4. In 2011, CGSI announced that it
was consolidating its Systems Administrator and Lead Systems
Administrator positions into one position, the Senior
Information Technology (“IT”) Administrator position. Def.’s
SOF, ECF No. 32-2 ¶ 2. CGSI notified Mr. Daniels that due to the
reorganization, the position he currently held would no longer
be funded and that his layoff would be effective November 2011.
Id. ¶ 3. CGSI also notified Mr. Daniels that he could apply for
other available positions as long as he was qualified. Id.
CGSI posted a Senior IT Administrator position on September
13, 2011. Id. ¶ 4. CGSI advertised this position and posted the
opening on the Chugach Job Board. Id. ¶ 32. The mandatory
requirements for the position included a bachelor’s degree from
an accredited college or university and “at least three years
experience[] preferred and demonstrated knowledge of setup,
1 Unless otherwise noted, the following facts are undisputed.
2 problem resolution, network support, etc., related to computer
hardware and software; and providing assistance to users.” CGSI
Job Description, ECF No. 32-6 at 4. Mr. Daniels and two other
individuals, Andy Berhe and Keith Lucas, applied for the
position. Def.’s SOF, ECF No. 32-2 ¶ 6. All three men were
interviewed by two CGSI Human Resource employees and were scored
on a scale of 0-28. Id. ¶¶ 7–12. Mr. Berhe received scores of 20
and 21 out of 28. Id. ¶¶ 7–8. Mr. Daniels received scores of 21
and 22 out of 28. Id. ¶¶ 11–12. Mr. Lucas received the highest
scores by both interviewers, 25 and 26 out of 28. Id. ¶¶ 9–10.
Mr. Daniels and Mr. Lucas advanced in the selection process
and proceeded to a final interview with Leslie Neloms, the
Director of Finance and Administration. Id. ¶ 13. Ms. Neloms had
the ultimate hiring authority for the Senior IT Administrator
position. Id. ¶ 14. Ms. Neloms interviewed Mr. Lucas at the end
of September 2011 and considered him to be a strong candidate.
Id. ¶ 15. Specifically, Ms. Neloms was impressed by his many
years of experience in the IT Field. Id. Mr. Lucas had at least
ten more years of relevant experience in the IT Field than Mr.
Daniels, id. ¶ 21, and had received higher scores based on the
initial round of interviews, id. ¶ 22. It is undisputed that Ms.
Neloms, at the time she selected Mr. Lucas for the position, did
not realize that he did not have a Bachelor’s degree, one of the
mandatory requirements for the job. Decl. of Leslie Neloms
3 (“Neloms Decl.”), ECF No. 32-13 ¶¶ 7-9. When Ms. Neloms was
deciding between Mr. Daniels and Mr. Lucas for the position,
“race, ancestry, and national origin did not have any bearing on
her decision.” Def.’s SOF, ECF No. 32-2 ¶ 19. Mr. Daniels does
not dispute this assertion. Compare id. with Pl.’s SOF, ECF No.
33-4 ¶ 19. (admitting that Ms. Neloms did not take into account
national origin in her hiring decisions).
Mr. Lucas was notified that he had been selected for the
position on October 6, 2011 but was terminated shortly
“thereafter for reasons unrelated to his qualifications”. Def.’s
SOF, ECF No. 32-2 ¶ 24. Mr. Daniels was made Acting Senior IT
Administrator in November of 2011. Id. ¶ 25. Also in November
2011, CGSI reposted the Senior IT Administrator position. Id. ¶
27. CGSI posted the opening on the Chugach Job Board. Id. ¶ 28.
At the time of the posting, Mr. Daniels was aware of how to
check the Chugach Job Board and had access to the Job Board. Id.
¶ 30. Mr. Daniels had checked the Job Board prior to November
2011, and used the Job Board in September of 2011 when he
submitted his resume for the first Senior IT Administrator
posting. Id. ¶¶ 31–32. Mr. Daniels did not check to see if the
Senior IT Administrator position was posted a second time, and
never applied for the November 2011 Senior IT Administrator
position. Id. ¶¶ 35–36.
4 CGSI interviewed multiple individuals for the November 2011
posting of the Senior IT Administrator position. Id. ¶ 37.
Justin Thomas, an African-American man, applied for the position
on January 8, 2012, by submitting his application online. Id. ¶
38. Mr. Thomas participated in a telephone interview for the
position on January 25, 2012, and was hired on February 3, 2012.
Id. ¶¶ 39–40. Mr. Daniels was terminated from his acting
position and he was offered a position as Substitute Instructor. 2
Id. ¶ 42.
Mr. Daniels filed an administrative complaint with the
Office of Federal Contract Compliance Program (“OFCCP”) alleging
that CGSI violated Executive Order 11246. OFCCP Compl., ECF No.
30-2 at 7. EO 11246 prohibits government contractors from
discriminating against employees on the basis of race, color,
religion, sex, sexual orientation, gender identity, or national
origin. See Executive Action 11246, available at
http://www.dol.gov/ofccp/regs/statutes/eo11246.htm. In his
complaint, Mr. Daniels alleged that CGSI violated EO 11246 by
failing to hire him over a less qualified candidate. See OFCCP
Compl., ECF No. 30-2 at 7. The OFCCP agreed and stated that CGSI
2 The parties disagree as to the date on which Mr. Daniels was notified about the termination of his acting position. However, this fact is not material to the Court’s decision. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)(stating “material” fact is one capable of affecting the substantive outcome of the litigation).
5 “violated Executive Order 11246 when it hired the Selected
Candidate, who did not meet the minimum requirements for the
position, over the Complainant.” Id. at 11. Specifically, the
OFCCP found that the selected candidate did not meet one of the
mandatory requirements for the Senior IT Administrator position
which was a Bachelor’s degree or higher. Id. at 9. OFCCP further
explained that CGSI stated that selected candidate provided
conflicting information about this requirement, and that Ms.
Neloms did not catch the significance of the candidate’s
education in relation to the mandatory requirements. Id. at 10.
Ms. Neloms stated that the candidate should not have been
considered. Id. OFCCP found that the “Selected Candidate was
hired without meeting the minimum qualifications and over a more
qualified applicant, the Complainant.” Id.
Thereafter, Mr. Daniels brought this suit alleging several
claims against CGSI. See generally, Amended Compl., ECF No. 13.
This Court granted in part CGSI’s motion to dismiss, and the
sole claim that remains is the Section 1981 claim for
intentional discrimination. See Daniels v. Chugach Government
Serv.’s, Inc., 149 F. Supp. 3d 183 (D.D.C 2016). The parties
have engaged in discovery pursuant to this Court’s scheduling
order issued September 22, 2016. See ECF No. 23. CGSI served
interrogatories, requests for production of documents, and
requests for admissions on December 9, 2016. See Pl.’s Mot. To
6 Withdraw Admissions (“Mot. to Withdraw”), ECF No. 25. Mr.
Daniels, for his part, served interrogatories and requests for
production of documents, but did not seek to depose any
potential witnesses. Id. Mr. Daniels also failed to respond to
CGSI’s request for admissions, interrogatories, and production
of documents in a timely manner. 3 Id.
CGSI filed a motion for summary judgment prior to the
completion of discovery, Def.’s Mot., ECF No. 28, and
subsequently filed a supplemental motion for summary judgment
after discovery closed, Def.’s Supp. Mot., ECF No. 32. Mr.
Daniels has opposed both motions, Pl.’s Opp’n, ECF No. 30; Pl.’s
Supp. Opp’n, ECF No. 33, and the motions are ripe for
adjudication.
3 Mr. Daniels, by failing to respond to CGSI’s request for admissions, admitted the substance of requests. See Fed. R. Civ. P. 36(a). He subsequently filed a motion to withdraw the deemed admissions. Mot. To Withdraw, ECF No. 25. Neither CGSI relies on the deemed admissions in support of its motion, nor does the Court in this Memorandum Opinion. Accordingly, there is no prejudice in allowing Mr. Daniels to withdraw the deemed admissions. Baker v. Potter, 212 F.R.D. 8, 12 (D.D.C. 2002) (”[W]ithdrawal is permissible if a party demonstrates that withdrawal will serve the presentation of the merits without prejudicing the party who requested the admissions.”). The Court also finds that the admissions would effectively bar Mr. Daniels from presenting the case on the merits. Id. Therefore, because withdrawal would serve the presentation of the merits and would not prejudice CGSI, Mr. Daniels’ motion to withdraw is GRANTED.
7 II. Legal Standard
A court may grant summary judgment when “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). A “material” fact is one capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477
U.S. at 248. A dispute is “genuine” if there is enough evidence
for a reasonable jury to return a verdict for the nonmovant. See
Scott v. Harris, 550 U.S. 372, 380 (2007).
When faced with a motion for summary judgment, the district
court may not make credibility determinations or weigh the
evidence; instead, the evidence must be analyzed in the light
most favorable to the non-movant, with all justifiable
inferences drawn in his favor. Liberty Lobby, 477 U.S. at 255.
If material facts are genuinely in dispute, or undisputed facts
are susceptible to divergent yet justifiable inferences, summary
judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66
(D.C. Cir. 2009). In the end, the district court's task is to
determine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.”
Liberty Lobby, 477 U.S. at 251–52 (internal quotation marks
omitted). In this regard, the non-movant must “do more than
simply show that there is some metaphysical doubt as to the
8 material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Liberty Lobby, 477 U.S. at 249–50
(internal citations omitted).
III. Analysis
Section 1981 prohibits racial discrimination in the
“making, performance, modification, and termination of
contracts” and protects classes of persons from intentional
discrimination based on their ancestry or ethnic
characteristics. 42 U.S.C. § 1981(b); St. Francis College v. Al–
Khazraji, 481 U.S. 604, 613 (1987)(defining race as used in §
1981 as including ancestry and ethnicity claims). To establish a
claim under Section 1981, a plaintiff must show that (1) he is a
member of a racial minority group; (2) the defendant intended to
discriminate on the basis of race; and (3) the discrimination
pertained to one of the activities enumerated in the statute.
Dickerson v. District of Columbia, 806 F. Supp. 2d 116, 119
(D.D.C. 2011). A successful Section 1981 claim alleges
discrimination based on ancestry or ethnic characteristics, not
country of origin. Nyunt v. Tomlinson, 543 F. Supp. 2d 25, 35
(D.D.C. 2008)(“Race and national origin are ‘ideologically
distinct categories.’”).
9 Discrimination claims under Section 1981 are analyzed the
same way as discrimination claims under Title VII of the Civil
Rights Act. Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C.
Cir. 2013). Therefore, when there is no direct evidence of
discrimination, as is the case here, courts apply the McDonnell
Douglas Corp. v. Green, 411 U.S. 792, burden-shifting framework.
DeJesus v. WP Company LLC, 841 F.3d 527, 532 (D.C. Cir. 2016).
Under that framework, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination. See id. The
burden then shifts to the employer to provide a “legitimate,
nondiscriminatory reason” for the adverse employment action.
Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007)(citations
omitted). If the employer can make such a showing, the burden
shifts back to the plaintiff to show that “the legitimate
reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination.” George v. Leavitt, 407 F.3d
405, 411 (D.C. Cir. 2005)(quoting Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 252–53 (1981)).
However, once an employer has asserted a legitimate, non-
discriminatory reason for an adverse employment action under the
McDonnell Douglas framework, the Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”) has emphasized
that the inquiry into the prima facie case becomes “an
unnecessary and improper ‘sideshow.’” Jones v. Bernanke, 557
10 F.3d 670, 678 (D.C. Cir. 2009)(citation omitted). Once a
defendant has stated a legitimate, non-discriminatory reason for
the adverse employment action, the question becomes 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.” Brady v.
Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).
In answering this question, courts should consider “all the
evidence, including ‘(1) the plaintiff's prima facie case; (2)
any evidence the plaintiff presents to attack the employer's
proffered explanation for its action; 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).’” Carter
v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004)
(citation omitted).
A. CGSI Has Proffered Legitimate, Nondiscriminatory Reasons
“Defendants need only ‘proffer--not prove--a legitimate
nondiscriminatory reason for not offering [a plaintiff] [a] . .
. position.’” Butler v. Ashcroft, 293 F. Supp. 2d 74, 78 (D.D.C.
2003)(citations omitted). Furthermore, the D.C. Circuit has held
that choosing between applicants “based solely upon their
answers during the interview” is “reasonable and non-
11 discriminatory.” Fischbach v. D.C. Dep’t of Corrs., 86 F.3d
1180, 1182 (D.C. Cir. 1996). Indeed, selecting a candidate
“solely upon the basis of the scores . . . assigned to the
applicants. . . . precludes the possibility that [a defendant]
discriminated against [a plaintiff] on the basis of his race.”
Id.
CGSI argues that its reason for not offering Mr. Daniels
the September 2011 Senior IT Administrator position is that it
determined, through several interviews conducted by three
employees, that Mr. Lucas was more qualified for the position.
Def.’s Supp. Mot., ECF No. 32–1 at 9. 4 For the November 2011
position, CGSI argues that its reason for not offering Mr.
Daniels that position was because Mr. Daniels never applied for
the position. Id.
CGSI has met its burden in this case to proffer legitimate
non-discriminatory reasons for its selection decisions. With
respect to the September 2011 position, CGSI states that it
determined through the interviews of the three candidates and
comparisons of their relative work experience, that Mr. Lucas
was the most qualified candidate. Two members of the Human
Resources Department interviewed the three candidates for the
4When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document.
12 position, and based on scores from the initial round of
interviews, Mr. Lucas (who received the highest scores) and Mr.
Daniels (who received the second highest scores) advanced to the
final round of interviews with Ms. Neloms. Def.’s SOF, ECF No.
32-2 ¶¶ 7-13. In a declaration in support of CGSI’s motion, Ms.
Neloms attested that she selected Mr. Lucas for the position
over Mr. Daniels because Mr. Lucas received higher scores during
the initial round of interviews than Mr. Daniels, had many more
years of experience in the IT field than Mr. Daniels; and she
was impressed by Mr. Lucas’s very positive recommendations and
his performance during his interview with her. See Decl. of
Leslie Neloms, ECF No. 32-13 ¶¶ 9–10. These reasons are clearly
nondiscriminatory and reasonable. See Fischbach, 86 F.3d at 1182
(stating selecting candidate based on interview scores precludes
the possibility of discrimination); see also Kennedy v. D.C.,
519 F. Supp. 2d 50, 62-63 (D.D.C. 2007)(stating selection of
applicant with more supervisory experience was a legitimate,
non-discriminatory reason for non-selection).
Mr. Daniels points to the fact that Mr. Lucas only had an
Associate’s degree to show that he was significantly more
qualified than Mr. Lucas. Pl.’s Supp. Opp’n, ECF No. 33 at 3–4.
However he fails to link this fact to his allegation of
intentional discrimination. Moreover, uncontroverted evidence
shows that Ms. Neloms was not aware that having a bachelor’s
13 degree was a mandatory requirement for the position when she
interviewed Mr. Lucas and Mr. Daniels. Neloms Decl., ECF No. 32–
13 ¶ 8. Ms. Neloms’ belief that a Bachelor’s degree was not a
mandatory requirement does not create a material fact because
“[o]nce 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.” Mann
v. WMATA, 168 F. Supp. 3d 71, 82 (D.D.C. 2016)(quoting
Fischbach, 86 F.3d at 1183). Mr. Daniels did not depose Ms.
Neloms and he fails to provide any evidence which puts into
dispute her sworn statement that she did not know at the time
she made the hiring decision that Mr. Lucas’s educational
history precluded him from the position. There is no evidence to
suggest that any mistake made at the time of the hiring decision
was not justified by a reasonable belief in the qualifications
of the position. See Mann, 168 F. Supp. 3d at 82 (“An 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.”). Accordingly, the Court finds that CGSI’s
“qualifications-based justification constitutes a legitimate,
non-discriminatory reason for the allegedly discriminatory”
conduct of not offering Mr. Daniels that September 2011
position. See Holcomb v. Powell, 433 F.3d 889, 896 (D.C. Cir.
14 2006)(selection of application based on relative work-experience
was a legitimate non-discriminatory reason).
With respect to the November 2011 posting, CGSI states that
the reason it selected Mr. Thomas over Mr. Daniels is because
Mr. Thomas applied for the position, as was required. Def.’s
SOF, ECF No. 32-2 ¶ 38. Mr. Daniels, however, failed to apply
for the position, and, CGSI argues it did not consider him for
the position because he failed to do so. Id. ¶¶ 28-30, 33, 35-
36. Mr. Daniels responds that, in his view, he was not required
to formally apply to the position because he was made Acting
Senior IT Administrator soon before the position was posted, and
because it was clear that he was interested in a permanent
position. Pl.’s Supp. Opp’n, ECF No. 33 at 5–8.
The Court finds that CGSI’s explanation that it did not
hire Mr. Daniels because he failed to apply for the position is
a legitimate, non-discriminatory explanation. It is undisputed
that Mr. Daniels did not apply to the position, and under these
circumstances, that fact is fatal to his argument that CGSI has
not proffered a legitimate explanation for the November 2011
position. Mr. Daniels relies on Cones v. Shalala, 199 F.3d 512
(D.C. Cir. 2000), for the proposition that the failure to apply
to a position is not fatal to a discrimination claim based on
failure to hire as long as the applicant made “every reasonable
15 attempt to convey his interest in the job to his employer.”
Pl.’s Supp. Opp’n, ECF No. 33 at 6 (quoting id.).
In Cones, the position the plaintiff was passed up for was
never opened to competition, but rather was filled when the
selected candidate expressed her interest to a superior. See
Cones, 199 F.3d at 518. Critically, the plaintiff in Cones
expressed his interest in the exact same way and therefore, the
Court held, if the selected candidate could get the position by
expressing her interest to a supervisor, the plaintiff doing
“precisely the same thing” was sufficient to show that he also
“applied” for the position. Id.
The key difference in this case is that the November 2011
Senior IT Administrator position was “open to competition” once
it was posted on the Job Board for all employees to see. Mr.
Daniels did not make “every reasonable attempt to convey his
interest in the job to his employer” when he simply served in
the Acting IT Administrator role or by virtue of the fact that
he had applied to the same position two months prior. This case
is more analogous to Davis v. Ashcroft, 355 F. Supp. 2d 330
(D.D.C. 2005), in which the court held that a plaintiff’s
failure to apply to a position that was announced to all
divisions was fatal to his case. As in Davis, Mr. Daniels “has
not provided the court with any authority and the Court has
found none, for the proposition that the agency was required to
16 individually advise [him] of [the] vacancy.” Id. at 357.
Accordingly, Ms. Neloms’ proffered reason for not hiring Mr.
Daniels for the November 2011 position (i.e., because he never
applied) was a legitimate non-discriminatory explanation for the
employment action that shifts the burden back to Mr. Daniels to
show pretext.
B. Mr. Daniels has Failed to Rebut CGSI’s Reasons
Because CGSI’s proffers satisfy its burden under the
McDonnell Douglas framework, the burden shifts back to Mr.
Daniels to demonstrate that the proffered nondiscriminatory
explanations are a pretext for discrimination. See Fischbach, 86
F.3d at 1182. A plaintiff may carry his or her rebuttal burden
by “presenting enough evidence to allow a reasonable trier of
fact to conclude that ‘the employer’s proffered explanation is
unworthy of credence,’ and merely a pretext for discrimination”
Desmond v. Mukasey, 530 F.3d 944, 962 (D.C. Cir. 2008)(internal
citations omitted). If an employer states that it’s hiring
decision was based on the relative qualifications of the
candidates, a plaintiff can challenge that qualification-based
explanation if the plaintiff can show that he or she was
“significantly better qualified” for the job than those
ultimately chosen. Holcomb v. Powell, 433 F.3d at 897. The
qualifications gap must be “great enough to be inherently
indicative of discrimination.” Id. Only then could the fact-
17 finder “legitimately infer that the employer consciously
selected a less-qualified candidate[,] something that employers
do not usually do, unless some other strong consideration, such
as discrimination, enters into the picture.” Jackson v.
Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007)(internal quotation
marks omitted). In cases in which the comparative qualifications
are close, 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.” Aka v. Washington Hosp.
Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998)(en banc).
Mr. Daniels has not shown that he was significantly more
qualified than Mr. Lucas. Mr. Lucas’s resumé profile shows that
he had at least 12 years of experience in the information
technology field, ECF No. 32-15, whereas Mr. Daniels had two and
a half years of experience in the field, ECF No. 32–16. Mr.
Lucas also outperformed Mr. Daniels in the initial round of
interviews and was rated higher for the position by each of his
initial interviewers. Def.’s SOF, ECF No. 32-2 ¶¶ 9–10.
Moreover, Ms. Neloms was more impressed by Mr. Lucas’s final
interview and his many years in the IT field. Id. ¶ 17.
Mr. Daniels does not dispute that Mr. Lucas had ten more
years of relevant experience in the IT field, or that Mr. Lucas
18 received higher scores during the initial rounds of the
interview process. See Pl.’s SOF, ECF No. 33-4 ¶¶ 22-24. Rather,
he relies on the fact that Mr. Lucas had an Associate’s degree
and therefore did not meet the Bachelor’s degree requirement for
the position. Pl.’s Supp. Opp’n, ECF No. 33 at 3–4. However, the
relevant inquiry is what the employer believed at the time of
the hiring, and Ms. Neloms had not known that the Bachelor’s
degree requirement was mandatory. Neloms Decl., ECF 32-13 ¶ 9.
In determining whether an employment action is discriminatory,
the Court “is tasked with evaluating the reasonableness of the
decisionmaker’s belief because honesty and reasonableness are
linked[.]” Jackson v. Gonzales, 496 F.3d 703, 708-09 (D.C. Cir.
2007). Here, it was reasonable for Ms. Neloms to have placed a
greater value on Mr. Lucas’ over ten years of experience in the
IT Field in comparison to Mr. Daniels’ two and a half years of
experience, and to not base her decision on educational
requirements, as she believed at the time both candidates met
the requirements for the position. Neloms Decl., ECF 32-13 ¶ 9.
Mr. Daniels attempts to cast doubt on Ms. Neloms’
credibility and the rationale articulated in her declaration.
Pl.’s Supp. Opp’n, ECF No. 33 at 3–4. Specifically, Mr. Daniels
argues that Ms. Neloms’ assertion that “[o]nly after Mr. Daniels
filed a complaint did [she] become aware that a bachelor’s
degree was a mandatory requirement for the position,” Neloms
19 Decl., ECF No. 32-13 ¶ 8, is false because Ms. Neloms noted in a
December 27, 2011 interview, well before the filing of the
complaint, that an applicant did not meet the Bachelor degree
requirement for the position. Pl.’s Supp. Opp’n, ECF No. 33 at
4. Mr. Daniels argues that Ms. Neloms’ statement is false,
thereby creating a genuine issue of material fact as to whether
CGSI’s reasons for not hiring him was a pretext for
discrimination. Id. Mr. Daniels also argues that Mr. Lucas was
hired five days before his application was submitted, thereby
casting doubt on the rationale for hiring Mr. Lucas. Id.
Ms. Neloms’ credibility does not create a genuine issue of
material fact for at least two reasons. First, independent of
what Ms. Neloms understood at the time of the December 2011
interview, it is undisputed that at the time she interviewed Mr.
Lucas, Ms. Neloms did not know that the job required a
Bachelor’s degree. Neloms Decl., ECF No. 32-13 ¶ 8. Second, and
relatedly, even if Ms. Neloms did know that Mr. Lucas was not
qualified and chose him anyway, Mr. Daniels has not disputed
that his “race, ancestry, and national origin did not have any
bearing on [Ms. Neloms’] decision to hire Mr. Lucas.” Pl.’s SOF,
ECF No. 33-4 ¶ 19. ¶ In other words, despite attacking Ms.
Neloms’ credibility generally, he has provided no support for
20 his assertion that Ms. Neloms’ actions were motivated by racial
animus. 5
As for the November 2011 position, Mr. Daniels has not
shown he was significantly more qualified than Mr. Thomas. It is
undisputed that Mr. Daniels did not apply for the November 2011
position whereas Mr. Thomas applied for the position. Def.’s
SOF, ECF No. 32-2 ¶ 36. Although Mr. Daniels concedes he never
applied for the position, he argues that he was not required to
because he had applied for the September position and was
rejected. Pl.’s Supp. Opp’n, ECF No 33 at 5–7. He argues that he
was made Acting Senior IT Administrator days before the November
2011 posting, and therefore it would make little sense for him
to apply for a job he had already obtained. Id. Mr. Daniels also
argues that he was never notified of the job posting, or that
his position of Acting Senior IT Administrator was temporary.
5 Mr. Daniels argument that Mr. Lucas was hired five days before he applied for the position is belied by the record. Although Mr. Lucas’ application bears the date of October 11, 2019, CGSI has submitted documents that show that Mr. Lucas applied for the position on September 13, 2019. ECF No. 32-15. Moreover, the interview notes submitted as exhibits to CGSI’s supplemental motion show that Mr. Lucas’s interview was on September 29, 2019, the same day that Mr. Daniels was interviewed. ECF No. 32- 9 at 2 (Mr. Lucas’ interview notes); ECF No. 32-11 at 2 (Mr. Daniels’ interview notes). Therefore, Mr. Daniels’ implication that Mr. Lucas’ job offer was predetermined is not persuasive.
21 Mr. Daniels’ arguments are not persuasive. The undisputed
evidence shows the Senior IT Administrator position was posted
on the Chugach Job Board in November 2011 for all employees to
see; and that Mr. Daniels was aware of the Job Board. Def.’s
SOF, ECF No. 32-2 ¶ 28. Mr. Daniels’ arguments that he did not
believe he was required to apply for the position are beside the
point. He points to no authority for the proposition that an
agency is required to notify an employee of a particular
opening. To the contrary, this Circuit has repeatedly stated
that if an employer posts a job opening a plaintiff must apply
to the position to maintain a discrimination claim. See, e.g.,
Thomas v. Ghandi, 525 F. Supp. 2d 103, 107–108 (D.D.C.
2007)(granting summary judgment when plaintiff failed to apply
for a position and rejecting argument that plaintiff should have
been automatically considered). The record shows that Mr.
Daniels did not apply for the job, and therefore the Court
cannot find that he was significantly more qualified for the
Senior IT Administrator position than Mr. Thomas, who did apply
for the position. 6
6 Put differently, Mr. Daniels has failed to make a prima facie case of discrimination. The D.C. Circuit has instructed that when a defendant provides a legitimate non-discriminatory reason for an employment decision the prima facie case inquiry falls out of the analysis. Brady, 520 F.3d at 494. However, when considering whether an employer’s reason is not the actual reason but rather pre-text for intentional discrimination, the Court should consider all the evidence including “the
22 Based on the undisputed facts, a reasonable jury could not
conclude that Mr. Daniels was significantly more qualified than
either Mr. Lucas or Mr. Thomas. Therefore Mr. Daniels has failed
to meet his burden of demonstrating that CGSI’s reasons for not
hiring him for September 2011 or the November 2011 Senior IT
Administrator position were a pretext for discrimination.
C. Mr. Daniels Fails to Provide Evidence of Intentional Discrimination
Even if Mr. Daniels could show the reasons given by CGSI
were pretextual, he has failed to provide any evidence
demonstrating that the reason he was not selected was due to
intentional discrimination. See Brady, 520 F.3d at 494 (stating
plaintiff must prove pre-text “and that the employer
intentionally discriminated against the employee.”) In fact, Mr.
Daniels agreed that “race, ancestry, and national origin did not
have any bearing on [Ms. Neloms’] decision to hire Mr. Lucas.”
Def.’s SOF, ECF No. 32-2 ¶ 19; Pl.’s SOF ECF No. 33-4 ¶ 19
(admitting this fact). With regard to the November 2011
position, Mr. Daniels fails to offer any evidence that his
ancestry was the reason he was not offered the position.
plaintiff’s prima facie case.” Carter, 387 F.3d at 878. Moreover, when determining if an applicant is significantly more qualified than the selected applicant, whether the plaintiff applied for the position at all is clearly relevant to the Court’s analysis.
23 In lieu of any evidence of intentional discrimination, Mr.
Daniels simply points to the OFCCP report as support for his
claims in this case. Pl.’s Supp. Opp’n ECF No. 33 at 3.
Specifically, the report outlines the chronology of Mr. Daniels’
employment at CGSI, the interview process through which Mr.
Lucas was selected, and the reposting of the position which led
to the selection of Mr. Thomas. OFCCP Compl., ECF No. 30-2 at 7–
11. The report then determined there was discrimination because
Mr. Lucas was hired despite only possessing an Associate’s
degree. Id. at 11. The report also notes that CGSI admitted that
its selection procedures were not perfect and Ms. Neloms stated
that hiring Mr. Lucas although he did not meet the minimum
requirements “was clearly an error.” See id. at 10. This was,
according to the report, enough evidence to show discrimination.
Id. at 11.
Although this evidence was enough for the OFCCP
investigation to make a finding of discrimination, review of the
fully developed record does not lead to the same conclusion by
the Court. See Francis v. District of Columbia, 731 F. Supp. 2d
56, 72, n.7. (stating agency determination of discrimination
“does not have any binding effect in a collateral Title VII
civil action.”). The report fails to explain why CGSI’s “error”
of hiring Mr. Lucas was motivated by discriminatory animus as is
required by law. As the D.C. Circuit has explained “[e]ven if a
24 court suspects that a job applicant ‘was victimized by poor
selection procedures it may not second-guess an employer's
personnel decision absent demonstrably discriminatory motive.’”
Fischbach, 86 F.3d at 1183 (citation omitted). CGSI’s selection
procedures can be described as poor in this case because CGSI
clearly erred when it failed to appreciate the import of Mr.
Lucas’s educational history. However, the undisputed fact is
that in selecting Mr. Lucas “race, ancestry, and national origin
did not have any bearing on [Ms. Neloms’] decision.” See Pl.’s
SOF ECF 33-4 ¶ 19. The same holds true for Mr. Thomas since Mr.
Daniels failed to apply for the position.
Mr. Daniels has failed to proffer any evidence of
intentional discrimination. Fischbach, 86 F.3d at 1183 (stating
a court may not “second-guess an employer's personnel decision
absent demonstrably discriminatory motive”). Based on this
record, the Court concludes Mr. Daniels failed to meet his
burden of showing that a reasonable jury could conclude that
CGSI’s actions were based on a discriminatory motive. See
Jackson, 496 F.3d at 707. Therefore, the Court GRANTS CGSI’s
motion for summary judgment.
IV. Conclusion
For the foregoing reasons, the defendant’s motion for
summary judgment and its supplemental motion for summary
25 judgment are GRANTED. An appropriate Order accompanies this
Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan United States District Judge October 18, 2019