UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) OLZIE PERRY, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-1149 (ESH) ) ERIC K. SHINSEKI, ) Secretary, United States Department ) of Veterans Affairs ) ) Defendant. ) _________________________________________ ) MEMORANDUM OPINION Plaintiff Olzie Perry was not promoted to th e position of Chief of Operations of the National Cemetery Administrati on, Memorial Programs Service (“Service”), and now sues her long-time employer, the United States Depart ment of Veterans Affairs (“VA”), alleging discrimination on the basis of race and gender in vi olation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and discrimination on the basis of age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (“ADEA”). The VA has moved for summary judgme nt. For the reasons set forth below, the VA’s motion will be granted. BACKGROUND I. FACTUAL HISTORY Perry, a 51-year old African-American woman, 1 began her career with the VA in 1986, as a secretary. (Def.’s Statement of Material Fact s [“SOMF”] ¶¶ 1, 3.) She currently works as a Program Analyst (a GS-13 level position) in the Service, a subdivision of the VA’s National

1 The ages given for all relevant persons are as of th e date of the employment action at issue in the case.2 Cemetery Administration. ( Id. ¶ 2.) Before joining the VA, sh e spent less than a year in the armed forces, before being discharged because of an injury. ( Id. ¶ 29; Def.’s Mot. for Summ. J., Ex. 9, Supp. Dep. of Olzie L. Perry [Supp. Perry Dep.], at 13.) The period relevant to this case begins in late 2000, when Perry was reporting to David Schettler, the Acting Director of the Service. (Pl.’s Opp’n to De f.’s Mot. for Summ. J. [Pl.’s Opp’n], Ex. 1, Decl. of Olzie Perry [“Perry D ecl.”] ¶ 7.) Perry worked as a Supervisory Management & Program Analyst at the time. ( Id. ) One of Perry’s duties was to interview candidates for a position as a programs analyst. ( Id. ¶ 10.) Although the position apparently reported to Perry ( id. ¶ 11), the duties were that of a staff assistant to Sche ttler. (Pl.’s Opp’n, Ex. 24, Dep. of Lindee Lenox [“Lenox Dep.], at 62.) Pe rry was told by Schettler that Don Murphy, a Site Supervisor with the Service, had app lied for the position and should be considered. 2 (Perry Decl. ¶¶ 7, 11.) Perry did not believe he “int erviewed well,” but Schettler recommended Murphy as “a good person for the job.” ( Id. ¶ 11-12.) Perry hired Murphy, based on this recommendation. ( Id. ¶ 13.) After eight months, Sche ttler promoted Murphy to Program Specialist. ( Id. ¶ 15.) In June 2001, Schettler hired Li ndee Lenox as the Chief of Oper ations. (Perry Decl. ¶ 16; Lenox Dep. at 71.) Perry had also applied for th e job but was not hired. (Perry Decl. ¶ 16.) After Lenox became Chief, Perry began working di rectly for Schettler as a Quality Assurance and Improvement Specialist. ( Id. ¶ 17.) She worked in this capacity from December 2002 until March 2005. ( Id. ) In March 2005, she went to work fo r Lenox, who had replaced Schettler as the Director of the Service. ( Id. ¶ 18.) Lenox’s promotion created a vacancy at the position of Chief of Operations. ( Id. )

2 Schettler had supervised Murphy from the late ‘90s until 2000 or 2001. (Pl.’s Opp’n, Ex. 22, Dep. of David Schettler [“Schettler Dep.”], at 18.). Schettler testified that he thought Murphy was “a good man,” and that he didn’t want to “lose him” to another agency. ( Id. at 21.)3 On December 9, 2005, Perry met with Lenox, a 52-year old Caucasian woman (Pl.’s Opp’n, Ex. 21, Agency’s Mot. for Summ. J., at 4), for her annual performance review. (Supp. Perry Dep. at 153; Perry Decl. ¶ 20.) During the review, Perry mentioned to Lenox that she planned on applying for the Chief position. (Perry Decl. ¶ 20.) According to Perry, Lenox asked “when are you going to retire?” (Perry Dep. at 153.) When Perry asked Lenox why she wanted to know, Lenox replied “no particular reason.” 3 (Perry Decl. ¶ 20.) In February 2006, Perry, who was 51 at the tim e, applied for a position as the Chief of Operations Program Analysis O fficer (a GS-14 level position) in the Cemetery Administration. (SOMF ¶ 3.) Rhonika Howard, a member of the Administration’s human resources office, 4 reviewed the various applications for the position and determined that Perry and six others were minimally qualified. ( Id. ¶ 4.) Howard was only involved for this part of the selection process and took no part afterward until Lenox formally selected Murphy. (Pl.’s Opp’n, Ex. 23, Dep. of Rhonika Howard [“Howard Dep.”] at 60.) The applications were then passed on to Schettler, who Lenox picked as a “subject matter expert” and who was asked to rank the candidates’ written responses. (SOMF ¶ 5; Schettler Dep. at 22.) The parties do not dispute Schettler’s method for ranking – assigning points for responses to questions according to “Factor Quality Level” criteria (SOMF ¶ 5) – although Perry alleges he “inten tionally downgraded” her scores. (Pl.’s Resp. to Def.’s Undisputed Facts [“Pl.’s Resp.”] ¶ 5.) Schettler arrived at four “best qualified” candidates: Murphy (Caucasian male, age 41), Perry (African-American female, age 51), Gina White (Caucasian female, age 42), an d Wanza Lewis (African-American female, age

3 Perry’s 2005 performance review, given on June 10, 2005, noted that she attended a “Retirement Planning Seminar” as part of her training. (Pl.’s Opp’n, Ex. 3, 2005 Performance Appraisal Program [“2005 Eval.”], at 7.)

4 The parties dispute Howard’s exact title, although her affidavit lists it as “Management & Program Analyst.” (Def.’s Mot. for Summ. J., Aff. of Rhonika Howard [“Howard Aff.”] ¶ 1.4 51). (Pl.’s Opp’n at 7.) Sc hettler awarded Murphy 23 points, White 21 points, Lewis 17 points, and Perry 21 points. (Def.’s Mot., Ex. C, Schettler Rankings, at 2.) Perry and the other three candidates were then interviewed by a thre e-person panel, made up of Jimma Elliott-Stevens (38 years old, African-American, female), Deanna Wilson (50 years old, Caucasian, female) and George Eisenbach (48 years old, Cauc asian, male). (SOMF ¶ 11.) Lenox picked the members of the panel. ( See Pl.’s Opp’n, Ex. 25, Dep. of Jimma Elliott-Stevens [“Elliott-Stevens Dep.”] at 25.) Lenox did not pr ovide the panel with the application packets or other supplemental material s for the candidates. ( Id. at 20.) Howard testified that it was the “practice” to “provide [packets] for all interviews.” (Howard Dep. at 103.) Elliott-Stevens testified that it was “strange” not to have th e package, but that “even when I have the applications, quite honestly, I don’ t review them the way other pe ople do.” (Elliott-Stevens Dep. at 20.) Eisenbach testified that having the p ackages would have saved “much needed time” by allowing the panel to skip “extract[ing]” th e information from the candidates during the interview. (Pl.’s Opp’n, Ex. 26, Dep. of Ge orge Eisenbach [“Eisenbach Dep.”] at 28.) Elliott-Stevens testified that Murphy was the only candidate she was familiar with prior to the interview, and that “going into the pa nel, he was the person that [she] was probably rooting for, but just like any pane list should . . . , [she] based it so lely on the record.” (ElliottStevens Dep. at 66.) She stated that Murphy “did not come across strong in the interview,” and that “[i]f [she] had not known him . . . [she] may have been a little bit more shocked” that he was picked, but that she knew his “work ethic and . . . what he was doing before he got the position[.]” ( Id. ) Elliott-Stevens also testified that she had been concerned that one of the5 questions seemed too “specific” and that, be cause White was the only one to answer the question, she had assumed that “if this we re preselection, it was for Gina White[.]” 5 ( Id. at 89.) The panel awarded scores of 35/37, 6 41, and 35 to Perry. (Pl.’s Opp’n, Ex. 9.) Lewis received scores of 43, 41/43, 7 and 38. 8 (Pl.’s Opp’n, Ex. 10.) Murphy received scores of 41, 35,

and 34. 9 (Pl.’s Opp’n, Ex. 11.) White received scores of 43, 40, and 45. 10 (Pl.’s Opp’n, Ex. 12.) Perry was the only candidate to receive a score for every response. The panel then submitted averaged scores to Lewis for her review, no ting that White’s averag e was 44.3, Lewis’s was 43, Murphy’s was 38.2, and Perry’s was 36.8. 11 (Pl.’s Opp’n, Ex. 13, at 4.) The panel recommended that Lenox interview White and Lewis. 12 ( Id. ) Eisenbach wrote that, although he felt Lewis and White were the best candidates, all the candidates “were very knowledgeable on the technical side” and “ kn[e]w their contracting business.” ( Id . at 1.) However, he testified that he was “surprised” that Lenox did not interview or hire White or

5 Elliott-Stevens’s “shock” over Murphy being hired, which plaintiff refers to, was due to this initial assumption. “[I]f this were preselection, it was for Gina White, which, again, I – which is why I was so shocked that it was Don Murphy that was actually selected.” (Elliott-Stevens Dep. at 89.)

6 It is unclear, based on the photocopies provided, whether one of the numbers on one of the scoresheets is a 3 or a 5. (Pl.’s Opp’n, Ex. 9, at 2.)

7 Again, the photocopies make it unclear what score Lewi s received on one of the ques tions, although it is clear she was awarded some points by the remains of a circled score on the left edge of the page. (Pl.’s Opp’n, Ex. 10, at 4.)

8 One of the panelists did not award Lewis points for one of her answers.

9 One of the panelists did not award Murphy points for one of his answers.

10 One of the panelists did not award White any points for one of her answers.

11 Plaintiff denies this ( see Pl.’s Resp. ¶ 14), but this denial does not comply with Local Civil Rule 7 because it is not supported by a citation to record evidence. See Local Civ. R. 7(h). Thus, plaintiff has not raised any genuine issue with respect to this factual assertion by defendant. See Chavers v. Shinseki , 667 F. Supp. 2d 116, 129 n.7 (D.D.C. 2009).

12 The parties dispute whether the final, averaged panel scores contain significant tabulation errors. (Def’s. Mot. at 15; Pl.’s Opp’n at 18 n.7.) Regardle ss of the specific score each party deserved, the three panel members reviewed and agreed with the way the four app licants were ranked and the difference in points between each. (Pl.’s Opp’n, Ex. 13.)6 Lewis. (Eisenbach Dep. at 55.) Wilson agr eed that the candidates were all “technically proficient,” although she felt that Murphy did not have the “manag ement expertise or ease with the situations that the others did,” and that his answers were “not as strong . . . on several of the questions.” (Pl.’s Opp’n, Ex. 13, at 2.) Wils on emphasized that Lewis was “very impressive.” ( Id. ). Perry concedes that none of the interview panelists discri minated against her. (SOMF ¶ 33; Pl.’s Resp. ¶ 33.) On March 10, 2006, Lenox picked Murphy to be the Chief and issued a memorandum listing the reasons why she chose Murphy over the other applicants. (Pl.’s Opp’n at 1; Pl.’s Opp’n, Ex. 14, Lenox Memorandum [“Lenox Memo”] at2.) Lenox wrote that she had “personal knowledge” of both White and Murphy, whom she la beled the “final top two candidates” based on their combined scores. (Lenox Memo at 2.) Lenox praised Murphy’s “even temperament,” “people skills,” “management style,” experience w ith working from a “remote location,” and his “‘real world’ technical, supervis ory and communication skills.” ( Id. ) She noted that he “ranked number two” behind White, but criticized White’s “somewhat authoritarian ” style and suggested White would “benefit from further leadership experience.” ( Id. at 2-3.) Lenox noted that Lewis lacked experience supervising work in a “remote” environment, and was not as well versed in the “technical complexiti es” of the job. ( Id. ) Lenox did not mention Perry until the final paragraph of her memo. ( Id. ) She observed that Perry “was not recommended” by the panel, “ranked lowest” in the combined ratings, and had a manage ment style that was “not well suited” for the job. 13 ( Id. at 3.)

Howard testified that it was “unusual” for the selecting official not to follow the recommendation of the panel, butthat “[i]t has happened.” (H oward Dep. at 108.) In addition,

13 Though Eisenbach expressed surprise that Lenox had selected Murphy, it was not because he thought Perry was the best candidate. (Eisenbach Dep. at 54-55.) Rather, he had assumed that Lenox would interview White and Lewis. ( Id. )7 she testified that she had never seen a similar memorandum or write-up for a selectee during her time in the HR department. (Howard Dep. at 110.) She also stated that she had never seen scores from an interview panel added together wi th the scores from the subject matter expert. ( Id. at 99-100.) Howard testified that she was not surprised that Murphy had been selected, based on her “observation” and “feeling that [s he] had.” (Howard Dep. at 86.) However, Howard conceded that Lenox had “made a selection from” the “best qualified” list.” ( Id. at 113.)

Lenox admitted that the selection was a “ver y difficult decision” because she wanted “personally” to do “everything I can to raise wo men into high-level positions,” and felt it was “important for me to justify . . . pick[ing] a man over a woman.” (Lenox Dep. at 140.) She testified that she had difficulty picking someone over White, who “was the top person on the list” and received the highest rankin gs from the interview panel. ( Id. at 139-40.) Lenox denied ever having the impression that Schettler “w as hoping” Murphy would be promoted. ( Id. at 141.) After Lenox selected Murphy, Schettler wrot e Murphy an e-mail congratulating him. (Pl.’s Opp’n, Ex. 15.) The entire text of the e-mail read: “Congratulations Don. It was only a matter of time. It’s well deserved and NCA will be well served with you in a higher leadership position.” ( Id. ) II. PROCEDURAL HISTORY Perry filed a formal complaint with the VA’ s Office of Resolution Management on June 12, 2006. (Def.’s Mot. Ex. F, Complaint of Empl oyment Discrimination.) Her complaint stated that she “believe[d] that [she] was significantl y better qualified for” the position “than the younger white, male selected.” ( Id. at 1.) The VA’s Office of Employment Discrimination Complaint Adjudication issued a Final Agen cy Decision on April 1, 2009, which found that8 Perry “failed to produce any persuasive evidence linking the actions of management . . . to her race, sex and age.” (Def.’s Mot. Ex. G [“Final Agency Decision”] at 1.) Having exhausted her administrative remedies, Perry filed the instant su it on June 23, 2009. (Compl. ¶ 3; Answer ¶ 3.)

The VA now moves for summary judgment. STANDARD OF REVIEW I. SUMMARY JUDGMENT A motion for summary judgment shall be granted “‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavi ts, if any, show that there is no genuine issue as to any material fact, and th at the moving party is entitled to judgment as a

matter of law.’” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986) (quoting Fed. R. Civ. P. 56(c)). “A dispute about a material fact is not ‘genuine’ unless the ‘evidence is such that a reasonable jury could return the verdict for the nonmoving party.’” Haynes v. Williams , 392 F.3d 478, 481 (D.C. Cir. 2004) (quoting Anderson , 477 U.S. at 248). Thus, a moving party is entitled to summary judgment “against ‘a part y who fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’” Waterhouse v. District of Columbia , 298 F.3d 989, 992 (D.C. Cir. 2002) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986)). As the non-moving party, Perry is “entitled to the benefit of all reasonable inferences from the evidence,” and the evidence “is to be viewed in the light most favorable to” her.

Talavera v. Shah , No. 09-5373, 2011 WL 1120285, at *2, *4 (D .C. Cir. Mar. 29, 2011). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Celotex , 477 U.S. at 324; Fed.9 R. Civ. P. 56(e). If the non-movant fails to point to “affirmative evid ence” showing a genuine issue for trial, Anderson , 477 U.S. at 257, or “[i]f the evidence is merely colorable, or is not significantly probative, summary j udgment may be granted.” Id. at 249-50 (internal citations omitted). “While summary judgment must be appr oached with special caution in discrimination cases, a plaintiff is not relieved of her obligation to support her allegations by affidavits or other competent evidence showing that there is a genuine issue for trial.” Calhoun v. Johnson , No. 95- CV-2397, 1998 WL 164780, at *3 (D.D.C. Mar. 31, 1998) (internal citation omitted), aff'd No. 99-5126, 1999 WL 825425, at *1 (D.C . Cir. Sept. 27, 1999). II. CLAIMS UNDER TITLE VII AND THE ADEA Title VII makes it unlawful for “an employer . . . to discriminate against any individual with respect to his compensation, terms, conditi ons, or privileges of employment, because of such individual’s race . . . [or] sex[.]” 42 U.S.C. § 2000e-2. The ADEA similarly makes it “unlawful for an employer” to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). There are “two elements for an employment discrimination case: (i) the plaintiff suffered an adverse employment action (ii) because of the employee’s race, color, religion, sex, or national origin.” Brady v. Office of the Sergeant at Arms , 520 F.3d 490, 493 (D.C. Cir. 2008). Perry “must prove both elem ents to sustain a discrimination claim.” Baloch v. Kempthorne , 550 F.3d 1191, 1196 (D.C. Cir. 2008). Generally, plaintiffs may esta blish that their employer unlaw fully took an adverse action against them in two ways. The “mixed motive” framework of Price Waterhouse v. Hopkins , 490 U.S. 228 (1989), allows plaintiffs to show thata protected criterion was a “motivating” or

“substantial” factor in the decision. Johnson v. Holway , 439 F. Supp. 2d 180, 223 (D.D.C.10 2006). Alternatively, unde r the “pretext” or “single motive” framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), plaintiffs argue thatthe sole reason for the adverse action was discrimination, and the employer’s o ffered justification was pretextual. Nuskey v. Hochberg , 730 F. Supp. 2d 1, 3 (D.D.C. 2010). The McDonnell Douglas framework applies to claims brought under Title VII and the ADEA. See Carter v. George Washington Univ. , 387 F.3d 872, 878 (D.C. Cir. 2004). A. Mixed-Motive Claims The VA argues that Perry has brought suit so lely based on a single-motive theory and, therefore, the standard for mixed motive claims is irrelevant to her Title VII claim. (Def.’s Reply at 4 (citing Ginger v. District of Columbia , 527 F.3d 1340, 1345 (D.C. Cir. 2008).) In Ginger , plaintiffs only presented evidence that di scrimination was “a motivating factor” in the employment action, despite “never contend[ing]” that they had a mixed-motive case. 527 F.3d at 1345-46. The Court held that plaintiffs had never argued that “race was one of multiple motivating factors,” had only “broug ht a single-motive case” in which they argued that “race was the sole reason for the reorganization,” and ther efore could not argue a mixed-motive case at summary judgment. Id. A plaintiff with a “good faith evidentiary basis for asserting both theories,” may argue both “until after both sides have presented their case s to the jury and the

Court has evaluated the evidence.” Nuskey , 730 F. Supp. 2d at 4. However, under Ginger , a single-motive claim does not “encompass” a mixed-motive claim, as Perry seems to believe (Pl.’s Opp’n at 15). See Ginger , 527 F.3d at 1345-46. See also Ford v. Mabus , 629 F.3d 198, 204, 207 (D.C. Cir. 2010) (plaintiffs can establish liability under § 633a of the ADEA in “one of two ways”; district cour t was “persuaded to apply a mixed-mo tives analysis” after first applying McDonnell Douglas ). Perry’s complaint alleges that Lenox preferred Murphy and rejected Perry11 “because of” race, “because of” gender, and “b ecause of” age. (Compl. ¶¶ 40, 42, 45, 48.) Moreover, Perry’s opposition brief focuses solely on the VA’s justifications and does not present evidence suggesting that race, gender, or age were factors in the adverse action. Plaintiff has neither alleged nor argued that she has a mixed motive claim. See Ginger , 527 F.3d at 1345.

The Court will therefore limit its analysis to the single-motive, McDonnell Douglas framework. 14

B. The McDonnell Douglas Framework In a disparate treatment case such as this one, where the employee has suffered an adverse employment action and the employer has “asserted a legitimate, non-discriminatory reason” for the action, the district court “need not— and should not —decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas .” Brady , 520 F.3d at 492. Instead, when deciding the employer’s motion for summary judgment, the district court “must resolve one central question” – “[h]as the employee produced sufficient evidence for a reasonable jury to find that the employer’s assert ed non-discriminatory reason was not the actual reason and that the employer inte ntionally discriminated agains t the employee on the basis of race . . . sex” or age? See id. Here, the parties do not disput e that Perry suffered an adverse employment action. Thus, the Court will firs t determine whether the VA has asserted a legitimate reason for the action, then address the “central question” of whether Perry has produced sufficient evidence to establish both that the VA’s reason was “not the actual reason”

and that the VA intentionally discriminated against her.

14 As plaintiff has failed to allege a mixed motive claim, the Court need not consider th e impact of a recent D.C. Circuit opinion, in which the Court held that a plaintiff bringing a mixed motive claim under the ADEA against a federal employer could prevail simply “by proving that age was a factor in the employer’s decision.” Ford , 629 F.3d at 206. The VA appears to agree with Perry that Ford “of course affects Plaintiff’s burden of proof in this action with respect to her ADEA claim.” (D ef.’s Reply at 4.) The Court disagrees. Ford only used the “age was a factor” test to examine the plai ntiff’s mixed-motive claim. See id. at 204 (the district court wrongly applied a “butfor” standard after being “persuaded to apply a mixed-motives analysis”). As Ford makes clear, the McDonnell Douglas framework still applies in single-motive cases brought under the ADEA. Id. at 201-03.12 ANALYSIS I. EVIDENTIARY ISSUES A. Concession By Perry The VA suggests that because Perry stated that Lenox should have selected the “top recommendation of the panel,” and because Perr y was not the panel’s top recommendation, that Perry has essentially conceded that she should no t have been hired. (Def.’s Mot. at 12.) Defendant does not explain why this admission is “dispositive.” ( Id. ) The relevant question for the Court is whether plaintiff has submitted evidence to prove that the VA’s stated reasons for preferring Murphy are pretext and that the VA intentionally discri minated against Perry. Perry’s subjective views on the hiring process are ne ither dispositive nor even relevant. See, e.g. , Waterhouse v. District of Columbia , 124 F. Supp. 2d 1, 7 (D.D.C. 2000) (plaintiff’s “perception” of herself or her work perf ormance is not relevant), abrogated on other grounds by Mastro v.

Potomac Elec. Power Co. , 447 F.3d 843, 850 (D.C. Cir. 2006). B. EEOC Evidence The VA asks the Court to “disregard all portions” of Perry’s opposition that “cite[] and attack[] arguments” made by the Administration duri ng the administrative proc eedings. It argues that, because review of Perry’s claims is de novo , the arguments made before the EEOC are irrelevant and should not be considered. (Def.’s Reply to Pl.’s Opp’n [“Def.’s Reply”] at 4.) The Court is, of course, “entitled to rely on the administrative recordin a case brought under Title VII[.]” Townsend v. Mabus , 736 F. Supp. 2d 250, 253 (D.D.C. 2010). See also Brookens

v. Solis , 635 F. Supp. 2d 1, 5 (D.D.C. 2009) (“the district court may c onsider the administrative

record as evidence to be accorded whatever weight the court deems appropriate.”) (quoting Weahkee v. Perry , 587 F.2d 1256, 1263 (D.C. Cir. 1978)). Howe ver, it is black letter law that13 “lawyers’ arguments are not evidence.” See United States v. Wilson , 240 F.3d 39, 45 (D.C. Cir. 2001). Perry cannot establish discrimination by citing to lawyers’ arguments made at the administrative level. These arguments are in admissible and are not evidence against the VA. II. THE VA’S OFFERED JUSTIFICATIONThe VA argues that Lenox chose Murphy because she concluded that he was the “bestqualified candidate.” (Def.’s Mot. at 10.) A “q ualifications-based just ification constitutes a legitimate, nondiscriminatory reason” for the allegedly discriminatory action. Holcomb , 433 F.3d at 896. In support of this claim, the VA c ites Schettler’s ranking of Murphy as having the “most technical expertise and relevant bac kground experience,” Le nox’s experience with Murphy and knowledge of his “understanding” of the IT systems and his “experience and ability to supervise employees in a virtual envir onment,” and the value Lenox placed on his “even temperament” and “people skills.” (Def.’s Mot. at 10.) The VA also points to Murphy’s experience working from a remote location, his military experience, and Lenox’s personal evaluation of his “technical, supervisor y, and communications skills[.]” ( Id. at 10-11.) The VA also argues that Lenox had a nondiscriminatory reason for choosing Murphy over Perry because Perry received low scores from Schettler and the panel and had a supervisory style that was a “bad fit.” ( Id. at 11.) The VA’s qualifications-bas ed justifications are legitimate, nondiscriminatory reasons for choosing Murphy over Perry. The Court will th erefore turn to the evidence submitted by Perry. III. PERRY’S EVIDENCE OF PRETEXT AND DI SCRIMINATION Perry attacks the VA’s explanation for Murphy’s promotion and suggests that, by establishing that this explanation is pret extual, she can end th e Court’s inquiry. ( See, e.g. , Pl.’s Opp’n at 20-21.) The Court must assess Perry’s challenge to the VA’s explanation “in light of14 the total circumstances of the case,” Aka v. Wash. Hosp. Ctr. , 156 F.3d 1284, 1291 (D.C. Cir. 1998) (en banc), keeping in mind that “[i]t is permissible for the trier of fact to infer the ultimate

fact of discrimination from the fals ity of the employer’s explanation.” Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 147 (2000). See also Fischbach v. Dist. of Columbia Dep’t of Corr. , 86 F.3d 1180, 1183 (D.C. Cir. 1996) (the Cour t’s inquiry focuses on whether the VA “honestly believes in the reasons it offers”). The Court addresse s, in turn, Perry’s arguments that (A) she was better qualified for the job; (B) Lenox considered impermissible “subjective factors”; (C) Lenox made discriminatory comments to her; (D) procedural issues that Perry has identified are evidence of pretext; (E) Lenox impermissibly considered factors beyond those listed in the KSAOs; (F) presel ection occurred, and (G) statisti cal evidence is reflective of pretext. A. Qualifications Gap Perry can establish pretext if she can dem onstrate that “a reasonable employer would have found the plaintiff to be signifi cantly better qualified for the job.” Aka , 156 F.3d at 1294. However, if the evidence does not show the “‘stark superiority’ of plaintiff’s credentials over those of the successful” applic ant, the Court will not infe r pretext or discrimination. McIntyre v.

Peters , 460 F. Supp. 2d 125, 136 (D.D.C. 2006) (quoting Stewart v. Ashcroft , 352 F.3d 422, 429 (D.C. Cir. 2003)). Moreover, Perry’s “own self-p erception of her credential s” are “irrelevant for purposes of establishing discriminatory . . . conduct.” Talavera v. Fore , 648 F. Supp. 2d 118, 136 (D.D.C 2009), rev’d in part on other grounds by Talavera v. Shah , 2011 WL 1120285, at *7; accord Waterhouse , 124 F. Supp. 2d at 7. Perry argues th at she was the better choice for the position because the panel awarded her a score th at was one point higher than Murphy’s, and because, had Schettler graded her form appropriate ly, her “best qualified” score would have been15 slightly higher than Murphy’s. (P l.’s Opp’n at 25.) This is hard ly the sort of “stark superiority” that would allow a reasonable juror to infer the pr esence of discrimination. Plaintiff has failed to even come close to showing the sort of “wide a nd inexplicable” gap in qu alifications required for

the Court to infer discrimination. See Lathram v. Snow , 336 F.3d 1085, 1091 (D.C. Cir. 2003). Therefore, there is no infere nce of pretext on these grounds. B. Subjectivity Perry argues that the VA selected Murphy ove r Perry for subjective reasons, which this Court should view skeptically. (P l.’s Opp’n at 17.) Although the Court treats “explanations that rely heavily on subjective considerations with caution,” employers “may of course take subjective considerations into accoun t in their employment decisions.” Aka , 156 F.3d at 1298. However, absent evidence that the subjective judg ment of the selecting officer is inaccurate or incorrect, a reasonable jury cannot infer pretext from th e use of selective factors. Carter , 387 F.3d at 879-80 (positive descripti on of plaintiff’s beha vior from later interview was insufficient to allow reasonable jury to infer that defendant ’s subjective claims were pretextual). Perry neither presents affirmative evidence to s how that Lenox’s assessment was inaccurate or incorrect, nor offers a “sufficiently concrete de scription” of her manage ment style to counter Lenox’s subjective judgment. 15 Thus, a reasonable juror coul d not infer that Lenox’s reasons were pretextual simply because she t ook subjective factors into account. Moreover, the VA has submitted additional, obj ective reasons to justify its decision. Where “reliance” on subjective reasons “is mode st, and the employer has other, well-founded reasons for the employment decision, summary judg ment for the defendant may be appropriate.”

Aka , 156 F.3d at 1298. Here, in addition to subjective justifications such as “management style”

15 Perry states, without explanation, that Lenox never directly supervised Perry. (Pl.’s Opp’n at 31.) Plaintiff does not argue, however, that Lenox lacked direct knowledge of Perry, or that Lenox needed to directly supervise Perry in order to judge her supervisory style.16 and “temperament,” Lenox presented more objectiv e reasons for selecting Murphy, such as the high ranking he received from the subject matter e xpert, his unique experien ce, and his history of military service. Thus, the subjectivity of some of the VA’s criteria does “not require a denial of

defendant’s motion.” Bennett v. Solis , 729 F. Supp. 2d 54, 67 (D.D.C. 2010) (agency entitled to summary judgment despite subjective considerations where agency also presented “legitimate and non-discriminatory reason” fo r adverse employment action). Perry argues that Lenox did notactually pay attention to numerical rankings or, indeed, give them “much thought during the decision- making process,” thus suggesting that her references to the rankings is pret extual. (Pl.’s Opp’n at 19-20.) This argument misrepresents the record. Lenox testified that she “was looking atthe numbers” and that she did not recall whether she attached “significance” to small differences in scores between the candidates. (Lenox Dep. at 137-38.) She neither said nor implied that she did not “attach much importance to numerical rankings.” ( Compare id. with Pl.’s Opp’n at 19.) Her deposition testimony is entirely consistent with the memo setting forth her justificati ons for selecting Murphy, in which she makes

references to where the candidates rank but does not discuss their respective scores. ( See Lenox Memo.) Perry next argues that if sh e was not hired because of her ratings, then Murphy should also have been disqualified. (Pl.’s Opp’n at 17-20.) Perry misreads th e VA’s brief to suggest that the entire basis for hiring Murphy and re jecting Perry were the scoring results. ( Id. at 19.)

Plaintiff constructs an entire ar gument based on this faulty premise, arguing that Lenox’s method of combining the scores from Sc hettler and the panel was “entirel y specious” and therefore could support an inference of discrimination. ( Id. at 20.) However, the VA never claimed that the scores were the only reason Lenox selected Mu rphy and did not select Perry. Rather, it17 introduced as evidence Lenox’s contemporaneous memorandum which contains numerous other justifications for selecting Murphy, including his experience working from remote locations, his military experience, and his strong leadership ab ilities and “even temperament.” (Lenox Memo at 2-3.) Perry lacked Murphy’s extensive military experience and experience supervising remote

locations. Lenox also identified Perry’s supervisory st yle as being unsuited to the job. ( Id. at 2.) Moreover, it is undisputed that panel ranked Pe rry below Murphy. (Def.’s Mot., Ex. E.) Perry “fails to identify any evidence from which a re asonable jury could conc lude” that the VA was “substantively inaccurate or dishonest[]” in asse rting that Lenox chose Murphy, in part, because of the rankings. Pearsall v. Holder , 610 F. Supp. 2d 87, 101 (D.D.C. 2009). Therefore, no reasonable juror could determin e that Lenox’s reasons were pretextual on the grounds that the final decision wa s not based solely on the rankings. C. Stray Remark Perry argues that a single comment made by Lenox to Perry during her performance review meeting on December 9, 2005, three months before Perry applied for the Chief of Operations position, is evid ence of age discrimination. 16 (Pl.’s Opp’n at 5, 33.) The VA argues that this is a “stray remark” that does not create a triable issue of discrimination. (Def.’s Mot. at 20-21.) “‘[S]tray remarks,’ even those made by a supervisor, are insufficient to create a triable

issue of discrimination where . . . they are unrelated to an em ployment decision involving the plaintiff.” Simms v. U.S. Gov’t Printing Office , 87 F. Supp. 2d 7, 9 n.2 (D.D.C. 2000). See also

Sewell , 532 F. Supp. 2d at 139 n.8. Perry claims that wh en she told Lenox that she planned to

16 Perry also suggests that Lenox’s alleged statement that Perry was “in the position that was best suited to her skills” is evidence of discrimination. (Pl.’s Opp’n at 33.) Even if this statement were meant to discourage Perry from applying to be the Chief, plaintiff has failed to connect it to any sort of discriminatory motive. Moreover, Perry herself testified that Lenox said this before either of them discussed the new job opening. (Pl.’s Opp’n, Ex. 21, Agency’s Mot. for Summ. J., Ex. 1 at 93.) No reason able jury could find that this statement could raise an inference of discrimination. See Sewell v. Chao , 532 F. Supp. 2d 126, 139 n.8 (D.D.C. 2008) (where no “nexus” exists between comments and the decisi on-making process, the comments do not support a discriminatory motive).18 apply to be Chief, Lenox asked her how many y ears she had until retirement. Lenox was the ultimate decision-maker, and her statement was allegedly made in direct response to Perry bringing up the job opening. However, the Court cannotview this as evidence of discriminatory

animus. First, this comment hardly sugge sts discrimination based on age. See Shipman v. Vilsack , 692 F. Supp. 2d 113, 118 & n.5 (D.D.C. 2010) (no evid ence of unlawful discriminatory intent where supervisor made repeated inquiries about retirement plans). “Ambiguous statements

cannot be stretched to mean whatever so me one wants them to mean . . . .” Lucas v. Paige , 435 F. Supp. 2d 165, 171 (D.D.C. 2006) (Facciola, Mag. J.). Second, at the time this statement was made, Lenox was 52 years old and a member of the same protectedclass as Perry, (Pl.’s Opp’n, Ex. 21, Agency’s Mot. for Summ. J., at 4), wh ich “weighs further against an inference of

discrimination.” Kelly v. Mills , 677 F. Supp. 2d 206, 223 (D.D.C. 2010). Thus, Lenox’s single statement, wrenched from its context, cannot sup port an inference that she discriminated against Perry based on age. 17

D. Selection Process Perry suggests that the VA’s explanation is pretext because Lenox and Schettler “steer[ed] the position” to Murphy by m eans of a “fishy” selection process. ( Id. at 26, 36.) A violation of protocol “may” be probative of the employer’s “true motivation” if (1) the violation is suspicious, in and of itself, Downing v. Tapella , 729 F. Supp. 2d 88, 97-98 (D.D.C. 2010) (citing Salazar v. Wash. Metro. Transit Auth. , 401 F.3d 504, 509 (D.C. Cir. 2005)), (2) the agency “inexplicably departed ” from its normal procedures, id. (citing Lathram , 336 F.3d at

17 The VA also argues that a panel member’s comment th at Perry had “been around a long time” is not evidence of age discrimination. (Def.’s Mot. at 22 (citing Beatty v. Wood , 204 F.3d 713, 716 (7th Cir. 2000)). Because Perry does not respond to this argument, the Court will treat it as conceded. See Hopkins v. Women’s Div. , Gen. Bd. of Global Ministries , 284 F. Supp. 2d 15, 25 (D.D.C. 2003).19 1093), or (3) the violation inherently raises credibili ty questions. Id. (citing McIntyre , 460 F. Supp. 2d at 138). A violation does not, however, “create a per se inference of a Title VII

violation.” Downing , 729 F. Supp. 2d at 97. Thus, an “overhaul” of selection criteria, carried out by an employee who had already been found to have retaliated agains t plaintiff, did not indicate pretext because (1) the ov erhaul itself affected all the applicants equally and there was

no indication of discrimination in the circumstances or text of th e criteria (and, th erefore, there was nothing inherently suspicious about them), and (2) because it was not “so irregular or inconsistent with” established polic ies (and, therefore, such an inexpl icable departure) as to make the defendant’s explanation “unworthy of belief.” See Porter v. Shah , 606 F.3d 809, 816 (D.C. Cir. 2010) (internal quotation marks omitted). The Court will first consider whether the alleged violations of procedure were i nherently suspicious, and it will th en address whether the agency “inexplicably departed” fr om its normal procedures. 1. Inherently Suspicious Violation ( Salazar )

In Salazar , the plaintiff had asked a supervisor to select the members of his interview panel because he believed that Lewis, another supervisor, selected biased panel members in order to discriminate against Latinos. Salazar , 401 F.3d at 506. The plaintiff had also filed a grievance in the past against Lewi s, alleging racial discrimination. Id. Nevertheless, Lewis was allowed to chose one of the members of the pane l and to help draft and assign weights to the different interview questions. Id. at 506-07. The Court also noted that the candidate eventually chosen by the panel never held the job, and was instead transferred to a lesser position. Id. at 509. The Court determined that, although it was a “close call,” Le wis’s “unexplained participation” and the chosen candidate’s transfer would allow a reasonable jury to find that the process was not “fairly designed” and that, therefore, the defendant’s explanation was pretextual.20 Id. Thus, although Salazar establishes that the “ specific process” used by an employer may support a finding of pretext, it does not hold that mere irregularities alone will suffice. Id.

As in Porter , and unlike in Salazar , Perry has failed to present evidence that the changes in procedure were inherently discriminatory. He r evidence that the selec tion process was “fishy” largely derives from the testimony of Rhoni ka Howard, an employee in the VA’s human resources department. Howard testified that sh e had “never seen” a selecting official combine scores or produce a selection memo, as Le nox did, that failing to follow the panel’s recommendation was unusual, and that she believe d that Lenox’s failure to provide the panel with application packages was “odd.” ( Id. at 26-28.) However, th ere is nothing inherently discriminatory in either the text of the memo or in the various circumstances Howard describes. Nor is there any hint that Lenox (or anyone else involved in the review process) had been accused of discrimination in the past, no indication that Lenox “‘placed h[er]self squarely at the center of a process designed to exclude [her ],’” and no evidence that Lenox attempted to improperly influence the panel. 18 See Salazar , 401 F.3d at 509. “[A]lthough plaintiff’s evidence may show the process to be impe rfect, her evidence is not sufficient to establish that defendant’s proferred explanation is pretex tual absent some actual evid ence that defendant acted on a motivation to discriminate against plai ntiff based on her age, race or sex.” Oliver-Simon v.

Nicholson , 384 F. Supp. 2d 298, 312 (D.D.C. 2005). See also Mason v. DaVita, Inc. , 542 F. Supp. 2d 21, 34 (D.D.C. 2008) (no reasonable jury c ould find discrimination despite allegations that hiring process was “fishy” where “[n]othing in the record intimates” that the process was “tainted by race discrimination”). Thus, no reasonable jury could infer that the process was so “inherently suspicious” as to rais e an inference of discrimination.

18 Although Perry filed an EEO complaint against Wayne Simpson in the mid 1990s (Perry Decl. ¶ 29), it is uncontested that he played no role in the selection process, and thus, this issue is not material. ( See Def.’s Reply at 16-17 n.14.)21 2. Inconsistent With Established Policies Furthermore, Perry has failed to establish th at Lenox’s acts were so inconsistent with established policies as to make the VA’s explan ation unworthy of belief. The source of this

doctrine is Lathram v. Snow , a D.C. Circuit case in which the U.S Customs Service inexplicably decided to allow non-Customs employees to apply for the position of Press Director. 336 F.3d at 1092-93. At the same time, it refused to allow non-Customs employees to apply for two other directorships that were cr eated at the same time. Id. As a result, a male applicant from outside Treasury received a “veteran’s preference” and was chosen over the plaintiff to be Press Director, though Lathram had received a perfect rating. Id. The government submitted no “evidence in the record” to explain why it chose to open that specific pos ition while refusing to do the same for the other directorship s, which were also filled by men. Id. at 1094. The Circuit found this “unexplained inconsiste ncy” could justify an inference of discriminatory motive. Id.

at 1093. Porter then clarified Lathram by requiring any alleged inconsistencies to be “so irregular . . . with . . . established policies as to make [the agency’s] hiring explanation unworthy

of belief.” Porter , 606 F.3d at 816. Perry has not satisfied this test, since any “unexplained in consistenc[ies]” are not “so irregular” as to make the VA’s explanation unworthy of belief. See Porter , 606 F.3d at 816. Based on Howard’s testimony, Perry argues that there are four “incons istencies”: 1) Lenox’s decision to write a selection memo; 2) Lenox’s decision not to follow the panel’s recommendation; 3) Lenox’s decision to combine scores; and 4) Lenox’s decision not to provide the panel with the applicati on packages. (Howard Dep. at 100, 103, 108, 110). Lenox explained, however, that she drafted the memorandum in orde r to better explain a “v ery difficult decision” and to explain why she was choosing a male candi date, as opposed to a female, Gina White, who22 was rated highest by the panel. (Lenox Dep. at 139-40.) Moreover, Howard testified that selecting officers do, on occasion, disregard pane l recommendations (Howard Dep. at 108), and Lenox has submitted numerous legitimate reasons for choosing Murphy rather than one of the panel’s recommended choices. Thus, unlike the agency in Lathram , Lenox has offered explanations, under oath, for two of the acts, on e of which, according to Howard, is not even particularly unusual. Perry has fail ed to undercut these explanations with any contrary evidence. Because these acts are not “inexplicable,” they do not permit a reasonable jury to infer

discrimination without further evidence that Len ox was actually “motivated by discrimination.” See Downing , 729 F. Supp. 2d at 98. Lenox has not, however, explained her failure to provide application packets to the panel

members and her decision to combine the scores from the panel and Schettler’s evaluations. But these acts do not satisfy Porter because they were not “so irregul ar” as to make the agency’s justification “unworthy of belief.” The plaintiff in Lathram showed that Customs had opened up three directorships, kept two of the positions closed to non-Customs employees, opened only the position she had applied for (without any explanation), and hired men to fill all three positions.

Lathram , 336 F.3d at 1093. The “unusual” and “unexplai ned” acts here do not approach that level of irregularity, for failing to provide application packets or combining evaluation scores do not render the explanation that Murphy was the most qualified applicant “unworthy of belief.” 19 See Hampton v. Vilsack , Civ. No. 07-2221, 2011 WL 108383, at *12 (D.D.C. Jan. 13, 2011) (minor irregularities were “simply not e nough from which to reas onably infer that” the employer’s “true motivation for [its ] treatment of [plaintiff] was” discriminatory). Thus, because

19 The Court need not consider whether Childs’ affidavit is admissible, because it establishes only that it was “permissible” for Lenox to combin e the scores of the subject matter expert w ith the scores of the panel, and does not address whether it was consistent with established procedures. (Def.’s Opp’n, Aff. of R. Steven Childs ¶ 13.) A Court may infer pretext from “unexplained inconsistenc[ies]” without proof that the agency violated regulations. See Lathram , 336 F.3d at 1094.23 Perry has also failed to introduce evidence that “d iscrimination played any role in” these alleged violations of agency procedures, they do not “implicate” Title VII or the ADEA. 20 Downing , 729 F. Supp. 2d at 98 (technical violations insuffi cient where plaintiff introduced no evidence that they were motivatedby discrimination). E. Criteria Beyond KSAOs Perry also argues that the VA’s explanati on is pretextual because Lenox considered

factors that were not listed in the KSAOs. Le nox offers Howard’s testimony as evidence that Lenox’s knowledge of Murphy’s cap abilities (Pl.’s Opp’n at 28), his even temperament ( id. ), her opportunities to observe his skills ( id. at 29), his status as a vetera n and her belief that Perry had an unsuitable supervisory style ( id. at 30) should have been irre levant because they were not included in the description of the job requirement s or were otherwise “unfair.” The Court is

mindful that “Title VII . . . does not authorize a Federal court to become a ‘super-personnel department that reexamines an entity’s business decisions[.]’” Barbour v. Browner , 181 F.3d 1342, 1346 (D.C. Cir. 1999) (quoting Dale v. Chi. Trib. Co. , 797 F.2d 458, 464 (7th Cir. 1986)).

See also Fischbach , 86 F.3d at 1183 (court may not “second-guess an employer’s personnel decision absent demonstrably discriminatory motive”) (quoting Milton v. Weinberger , 696 F.2d 94, 100 (D.C. Cir. 1982)). Moreover, as the Circ uit has noted, “reasonable employers” are not limited to a “mechanistic checkoff of qualifications required by the written job descriptions.” Jackson v. Gonzales , 496 F.3d 703, 709 (D.C. Cir. 2007) (quoting Aka , 156 F.3d at 1297 n.15). Thus, no inference of discrimination is raised when an employer “base[s] its ultimate hiring decision on one or more specific factors encomp assed within a broader and more general job description.” Jackson , 496 F.3d at 709. The job description provided by the VA notes that the

20 Indeed, given that Murphy received the highest marks during Schettler’s review of the applications, he may have suffered most from having his application withheld from the panel, especially because his interview skills, according to Lenox, were not very strong. (Lenox Memo at 2.)24 Chief’s responsibilities include s upervision of fifty-five employees , including “employees in five remote processing sites.” (Def.’s Mot., Ex. A (“Job Description”), at 2). Thus, Murphy’s experience with remote locations and his superi or management style were clearly relevant factors. Moreover, Lenox’s selection memorandum also provi des uncontroverted reasons why Murphy’s significant military experience was useful. (Lenox Memo at 1-3.) Because the factors Lenox considered were encompassed in the j ob description and were clearly useful to performance of the job, Perry cannot overc ome summary judgmenton this basis. Perry also argues that it is “revealing” and “very relevant” that Lenox only noted Murphy’s military experience when co mparing him to Lewis and White. ( Id . at 29-30.) But Perry again has provided no evidence to contradict Lenox’s explanation that she did not view Perry on the same level as Murphy, White, or Le wis, because of her management style and overall low scores, and therefore did not need to take Perry’s more limited military service (as compared to Murphy’s) into account in making he r decision. (Lenox Memo at 3.) Moreover, as noted above, Perry has failed to connect Lenox’s c onsideration of military service to any kind of discriminatory motive. Thus, no reasonable ju ror could find that Lenox ’s failure to make reference to Perry’s military record in her selection memorandu m indicates pretext. F. Preselection Perry argues that the VA’s explanation is pretextual because Murphy was Schettler’s “right hand man” and was pre-selected for the position. (Pl.’s Opp’n at 20-21.) Perry has produced evidence suggesting that, in 2001, Sc hettler recommended Murphy for a job ( id. at 26 n.10), that Schettler and Lenox t hought Murphy was valuable to the VA (Pl.’s Opp’n at 21, 23),

that Lenox selected Schettler to review the qualified candidates knowing that Schettler and Murphy had a close relationship ( id. at 21) and that Schettler congratulated Murphy on his25 promotion ( id. at 25). 21 Plaintiff also alleged that Schettle r told Perry that he did not score the applications, when, in fact, he had. ( Id. ) Plaintiff also expends cons iderable effort arguing that Schettler improperly scored Perry ’s application, awarding her fe wer points than she deserved. 22 ( Id. at 22-25.) In other words, Perry argues that, although Sc hettler was not the ultimate decision-maker, he orchestrated the hiring pro cess in order to ensure that Murphy, his chosen candidate, was selected. (Pl.’s Opp’n at 21-25.) The Supreme Court recently held that an employer will be liable for discrimination against the military where a supervisor “performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action” if “that act is a proximate cause of the ultimate em ployment action,” even if a different, “ultimate decisionmaker[] exercise[s ] . . . judgment.” Staub v. Proctor Hosp. , 131 S. Ct. 1186, 1192-94 (2011). Here, however, there is no evidence that Schettler had any discriminatory animus or bias against Perry. Other than Schettler’s innocuous congratulatory e-mail to Murphy, Perry’s only “evidence” in support of her “cat’s paw” theory is her argument that she should have received higher scores from Schettler. But Perry’s own subjective assessment of her performance is

irrelevant. Stoyanov v. Winter , 643 F. Supp. 2d 4, 14 (D.D.C. 2009); Felder v. Johanns , 595 F. Supp. 2d 46, 70 (D.D.C. 2009). Nor is it clear “o n its face” that Murphy’s responses were inferior to Perry’s, so “it is not the Court’s pl ace to second-guess [Schettler]’s preference for one response over the other.” Chavers , 667 F. Supp. 2d at 131 n.10. Therefore, her “cat’s paw” theory fails.

21 Perry argues that Lenox’s “good faith” is called into qu estion because, in an affidav it, Perry claimed that Lenox praised Murphy’s supervisory skills despite not supervising him in a management position. (Pl.’s Opp’n at 29.) Even if Perry’s allegation were true, Lenox could easily have observed Murphy’s management style despite not being his formal supervisor. Perry’s self-serving stat ement alone does not create an issue of material fact.

22 Perry does not argue that she received lower-than-deserv ed rankings because of di scrimination. Rather, she argues only that the rankings are evidence of Schettle r’s bias toward Murphy and, therefore, that the VA’s justifications are pretextual . (Pl.’s Opp’n at 21-26.)26 Plaintiff also argues that Lenox directly pre- selected Murphy for th e promotion, and that the VA’s offered explanation is therefore pretextu al. (Pl.s’ Opp’n at 21-33.) “Pre-selection, regardless of its propriety, is only relevant to th is lawsuit inasmuch as plaintiff can demonstrate that the pre-selection itself was discriminatorily motivated.” Downing , 729 F. Supp. 2d at 97.

See also Kolstad v. Am. Dental Ass’n , 139 F.3d 958, 969 (D.C. Cir. 1998) (“evidence of preselection is relevant only insofar as it logically supports an infere nce of discriminatory intent”), vacated on other grounds by 527 U.S. 526 (1999). As this Court has previously noted, the D.C. Circuit distinguishes between underlying claims of discrimination and allegations of preselection that “do not direc tly suggest discrimination.” Downing , 729 F. Supp. 2d at 97 (collecting cases). This is especially true wher e, as here, “the selec tion is to be made from among a narrow band of current employees well known to the selectors.” Kolstad , 139 F.3d at 969. Perry argues that the “strange manne r” in which Lenox conducted the process, see supra Part III.D, is evidence that Le nox was “steering” the position to ward Murphy. (Pl.’s Opp’n at 26.) Again, however, because of Perry’s failure to produce evidence th at Lenox’s decision was “based on a motive prohibited by Title VII or ADEA, the conduct is not actionable.” OliverSimon , 384 F. Supp. 2d at 310. Thus, the pre-selec tion claim does not “implicate Title VII.” Downing , 729 F. Supp. 2d at 98. G. Statistical Evidence Perry offers a conclusory statement by one of the panel members that African-Americans are underrepresented in management at the Agen cy as evidence of the “factors at play in deciding who would be Chief,” presumably inte nding for the Court to in fer the existence of discrimination on the basis of a sugg estion of statistical evidence. (Pl.’s Opp’n at 33.) However, evidence that consists solely of the “subjective impressions of current” employees provides “no27 basis from which the Court may draw an inference of discrimination.” 23 Simpson v. Leavitt , 437 F. Supp. 2d 95, 104 (D.D.C. 2006). Perry provides no other information that would allow the Court to determine whether the Agency “employs African-Americans at rates significantly below their number in the applicant pool or general population.” Id. Thus, this statement does not

allow the Court to infer the presence of discrimination. CONCLUSION For the foregoing reasons, defendants’ mo tion for summary judgment [Dkt. No. 24] is granted. An Order consistent with this Memora ndum Opinion is also being issued this date.

/s a ELLEN SEGAL HUVELLE

United States District Judge

Date: May 10, 2011

23 Although Perry has attached a summary of an EEO report on the National Cemetery Administration as an exhibit, she does not cite to it as evidence of discrimination in her brief. Indeed, the report su ggests that “promotions are roughly proportionate to the representation in the leadersh ip pipeline of grades 13-15 and in grades 3-12 with the exception of Asian men.” (Pl.’s Opp’n, Ex. 27, EEO Report, at 12.)