UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) James Coleman, ) ) Plaintiff, ) ) v. ) Civil N o. 12-cv-01352 (APM) ) Jeh C. Johnson, ) Secretary of the ) Department of Homeland Security, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION

I. INTRODUCTION Plaintiff James Coleman is a Production Specialist with the Sec retary’s Briefing Staff in the Department of Homeland Security. 1 When a position came available to become a Supervisory Production Specialist, Plaintiff applied but was passed over infavor of two white, younger candidates. Plaintiff now claims that he was discriminated aga inst based on his race and age in violation of Title VII, 42 U.S.C . § 2000e-2, and the Age Discri mination in Employment Act, 29 U.S.C. § 631(a). 2 Before the court is Defendant’s Motion for Summary Judgment. After examining the record, the court concludes that Defendant has pr esented a legitimate, nondiscriminatory reason for not hiring Plaintiff, and that Plaint iff has failed to put forth evidence upon which a reasonable jury could conclude that Defendant’s hi ring decision was a pretext for

discrimination. The court therefor e grants Defendant’s Motion for Summary Judgment.

1 Jeh C. Johnson substituted as Def endant for former Secretary o f the Department of Homeland Security, Janet Napolitano. 2 Plaintiff also alleged in his Complaint retaliation in violati on of Title VII. Compl., ECF No. 1, ¶¶ 50-59. On January 14, 2014, the court granted Defendant’s Motion to Dismiss as to that claim. Op., ECF No. 18.II. BACKGROUND Plaintiff is a 54 year-old male who identifies as African-Ameri can. Compl. ¶ 8. Since March 2008, he has been employed as a GS-13 on the Department o f Homeland Security’s (“DHS”) Secretary’s Briefing Sta ff (“SBS”), which is within DHS ’s Office of the Executive

Secretariat. Id. ¶ 9. “SBS prepares daily, in-depth briefings for the Secretaryand Deputy Secretary for national and global events.” Heiser Decl., ECF No. 9-5, at 34. Its mission is to “provide[ ] the Office of the Secretary timely, accurate, [and] relevant inform ation that supports events, meetings, and decision making.” Rohner Suppl. Decl., ECF No. 33-7, at 3. Plaintiff began his employmentat SBS in 2008 as a Production S pecialist. Compl. ¶ 9. His responsibilities included pre paring briefing books that oth er DHS employees used to brief the Secretary. Coleman Dep., ECF Nos. 33-1, 37-2, at 17. Sometime between 2009 and 2010, Plaintiff temporarily functioned as “the de facto supervisory production specialis t, ensuring that briefing books for the daily Secretarial briefings were complete.” Brou ght Decl., ECF No. 36-11, ¶ 4. Plaintiff had a good rapport with his supervisor, SBS Director Boyden Rohner, who rated Plaintiff as an “exceeds expectations” performer in November 2010. Rohne r Dep., ECF Nos. 33-2, 36-8, & 37-1, at 27. Rohner became the Director of SBS in April 2009. Rohner Decl., ECF No. 9-2, ¶ 1. At that time, SBS did not officially reside within DHS’s Office of the Executive Secretariat (“ESEC”) but was “detailed” to that office. Rohner Suppl. Decl. ¶ 2. By th e beginning of 2010, however, SBS had been “formally transferred” to ESEC. Id. As part of the transiti on, Rohner sought to combine the positions of “briefer”—empl oyees who directly briefed the S ecretary—with the position of Supervisory Production Specialist (the “Supervisory Position”)— employees who prepared the reports used to brief the Secretary. Id. ¶ 3. Prior to SBS’s reorganization, Rohner, as Director ofSBS, was the only SBS employee to brief the Secretary, a concer n that initiated the realignment.

Id. ¶¶ 3-4. In late 2009, Rohner convened a m eeting, which Plaintiff attend ed, during which she delivered a PowerPoint presentation announcing her new vision f or SBS, including the integration of the briefer and the Supervisory Position roles. Coleman Dep . at 25-27. According to Rohner, she explained that those in the integrated position would now b e responsible for briefing the Secretary. Rohner Suppl. Decl. ¶ 5. Plaintiff disputes that R ohner articulated this vision for the Supervisory Position at the m eeting. Coleman 2d Decl., ECF No. 36-4, ¶ 13. In June 2010, Defendant posted Vacancy Announcement No. OS-2010 0328. Compl. ¶ 11. The Announcement described an ope ning for the Supervisory Posit ion in SBS. 3 Id. Plaintiff applied and was interviewed for the position. Id. If selected, he would ha ve been promoted from

a GS-13 to a GS-14. Id. Because the position’s responsibilities included briefing the Secretary, Plaintiff’s interview included a mock briefing exercise. Colem an Dep. at 41. Plaintiff was not selected for the vacancy; nor was any other candidate. Compl. ¶ 11. Afterwards, in an email to Rohner, Plaintiff acknowledged that he had performed poorly during the mock briefing portion of his interview. Heiser Supp l. Decl., ECF No. 33-5, at Ex. 3 (“I

3 According to the Vacancy Announ cement, which enumerated the Su pervisory Position’s responsibilities, the individual in that position “[d]irects the preparation of daily operations and intelligence briefings for the Secretary ensuring that the submissions are of the highest quality and ar e anticipatory of any questi ons the Secretary may ask”; “[a]ssists Production Specialists by prioritizing work, organiz ing materials, developing and applying basic analytical techniques and preparing final products for the Secretary’s bri efings”; and “[t]rains and mentors the briefers to ensure that they are equipped and prepared to deliver accurate, articu late, and meaningful briefs. ” Heiser Decl. at 5. The Vacancy Announcement indicated that preferred candidates have e xperience “[p]reparing in-depth briefings for national and/or global events”; “ [d]eveloping written products for senior level management officials to include writing, editing, and coordinatin g briefing presentations”; and“[a]nalyzing information from various sources and prepar[ing] briefings and final products for senior level manag ement.” Id. at 6. The following preferred Knowledge, Skills, Abilities, or Other Characteristics (“KSAOs”) were also listed in the Vacancy Announcement: “[s]kill in communicating with senior level management officials and develo ping and editing written products”; “[a]bility to perform in a fast-paced time-sensitive environment leading a te am and coordinating multiple processes”; and “[a]bility to liaison with communities of national intelligence and law en forcement in order to coordinate critical issues of national importance.” Id.was upset and I whole heartedly agreed with your assessment of my interview (immediately after the interview I was disappointed ).”). Plaintiff asked Rohner f or her assistance in improving his briefings skills: “I only ask that you and I to have a mock br iefing (you and I alone). Where we cover the articles in the briefing book based on the way you th ink the items should be briefed, why you thought it should be briefed in that manner and how you cam e to the conclusions that you

did.” Id. Rohner was receptive to Plainti ff’s request and “offered to hel p [him] . . . in practicing his briefing.” Rohner Dep. at 72-73. In Fall 2010, Defendant posted Vacancy Announcement No. 362712, re-advertising two vacancies for the same Supervisory Position. Coleman Dep. at 4 0-41. Plaintiff reapplied and

received an interview. Id. at 51. Candidates were again tasked with performing a mock bri efing during the interview. Rohner Dep. at 67. According to Rohner, “[Plaintiff] did not significantly improve from his performance in early 2010.” Rohner Decl. ¶ 7. Plaintiff admitted that, even though he performed poorly during his first mock briefing, Heis er Suppl. Decl. at Ex. 3, all he did to prepare for his second mock briefing was to “familiarize[ ] [himself] with certain articles that are presented in front of the S ecretary,” Coleman Dep. at 61-62

. Plaintiff was not selected for t he position. Instead, a select ion board—comprised of Rohner, Donald Swain (Deputy Executive Secretary), and a Ms. Bl ackwell, Rohner EEO Decl., ECF No. 9-3, at 2; Rohner Dep. at 68—unanimously agreed to sele ct two other candidates: John Destry and Alan Eckersley (the “ Selected Candidates”), Heiser D ecl. at 12. Destry was employed by the Defense Intelligence Ag ency (“DIA”) when he applied to S BS. Destry Dep., ECF No. 33- 4, at 12. While at DIA, Destry consistently briefed, Destry De cl., ECF No. 33-6, ¶ 4, and provided “daily morning desk-side briefings on current intelligence” to senior-level officials, Rohner Sealed Decl., ECF No. 8-2, at Ex. 2. He also previously served as a p latoon commander in the MarinesCorps. Id. Eckersley worked for the Joint Chiefs of Staff Directorate fo r Intelligence when he applied for the position. Id. at 9. At that time, he held the rank of Lieutenant Colonel an d had experience managing intelligence-related assignments. Id. Eckersley also had experience conducting briefings—he “[p]rese nt[ed] operations and recommend ations to senior leaders.” Id.

at 10. In addition to having briefing experience, the Selected Candida tes also performed well during the mock briefing portion of their interviews. Accordin g to Rohner, “[b]oth [the Selected Candidates] performed exceptionally during the interview and during the required briefing portion. Not only did both candidates have strong supervisory and manage rial experience, but both candidates already had recent expe rience briefing senior offici als on a day-to-d ay basis.” Rohner

EEO Decl. at 9.

III. LEGAL STANDARD Pursuant to Federal Rule of Civil Procedure 56, “[t]he court sh all grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a ). A dispute over a material fact is genuine when “a reasonable jury co uld return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). “[T]his standard provides that the mere existence

of some alleged factual dispute betweenthe parties will not defeat anotherwise properly supported motion for summary judgment.” Id. at 247-48. In any dispute of fact, the court must “[review the evidence] i n the light most favorable to the nonmoving party and . . . drawall reasonable inferences in favor of the nonmoving party.”

Talavera v. Shah , 638 F.3d 303, 308 (D.C. C ir. 2011) (citing Anderson , 477 U.S. at 2 55). Parties may cite to “materials in the record” or “show[ ] that the mate rials cited do not establish the absenceor presence of a genuine dispute. ” Fed. R. Civ. P. 56(c)(1)(A) -(B). Summary judgment is properly granted if the plaintiff, “after adequate time for discovery an d upon motion, . . . fails to make a showing sufficient to establish the existence of an element ess ential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Therefore, the district court must determine “whet her the evidence presents a sufficient disagreement to requi re submission to a jury or whet her it is so one-sided that one party must prevail as a matter of law.” Anderson , 477 U.S. at 251-52.

IV. ANALYSIS Plaintiff alleges race and age discrimination under Title VII a nd the ADEA, respectively.

Because Plaintiff’s two discrimination claims stem from the sam e adverse employment decision, the court analyzes both of these claims together. See St. John v. Napolitano , 20 F. Supp. 3d 74, 102 (D.D.C. 2013) (citations omitted) (“The ADEA inquiry is sub stantially identical to the Title VII inquiry in that both follow the McDonnell Douglas framework, thus the rationale for rejecting the plaintiff’s Title VII claim apply equally to his ADEA claim.”); see also Chowdhury v. Schafer , 587 F. Supp. 2d 257, 263 (D.D.C. 2008) (noting that the same approach “applies to both Title VII and ADEA claims”).

A. Framework for Analyzing Title VII Race Discrimination and ADEA Age Discrimination Claims Title VII of the Civil Rights Act explicitly prohibits discrimi natory labor practices and provides that “[a]ll personnel ac tions affecting employees or applicants for employment . . . in executive agencies . . . shall be made free from any discrimina tion based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16( a). To prove aTitle VII violation, a plaintiff must demonstrate that the employer’s actions were “more likely than not based on the consideration of impermissible factors.” Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 254 (1981). He maydo so by presenting “direct evidence, and absent direct evidenc e, . . . by establishing a prima facie case under the burden-shifting framework established in McDonnell Douglas .” Kalekiristos v. CTF Hotel Mgmt. Corp. , 958 F. Supp. 641, 665 (D.D.C. 1997). Where “an employer has asserted a legitimate, non-discriminator y reason for the [hiring] decision, the district court need not— and should not —decide whether the plaintiff actually made out a prima facie case.” Brady v. Office of the Sergeant at Arms , 520 F.3d 490, 494 (D.C. Cir. 2008). “[O]nce the employer asserts a legitimate, non-discrimi natory reason, the question whether the employee actually made out a prima facie case is ‘no longer relevant’ and thus ‘disappear[s]’ and ‘drops out of the picture.’” Id. (quoting Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143 (2000); see also St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 502, 510-11 (1993). Consequently, the burden shifts b ack to the plaintiff and the c entral inquiry becomes: “Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual reason and that th e employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?”

Id. (citations omitted). The plaintiff may carry this burden “either directly by persuad ing the court that a discriminatory reason more likely motivated the employer or ind irectly by showing that the employer’s proffered explanation is unworthy of credence.” Burdine , 450 U.S. at 256 (citations omitted). In other words, the plaintiff must show that the rea son presented by the defendant was a “pretext.” Brady , 520 F.3d at 495. To show an employer’s pretext, a plaintiff can offer either qualifications evidence, Adeyemi v. District of Columbia , 525 F.3d 1222, 1227 (D.C. Cir. 2008) (explaining that “when an employer says it made a hiring or pro motion decision based on the relative qualifications of the candidates, a plaintiff can dire ctly challenge that qualifications-basedexplanation”), or other “suffici ent evidence to show that [the defendant’s] reason for [not] selecting [the plainti ff] was pretextual,” Grosdidier v. Broad. Bd. of Govs. , 709 F.3d 19, 25 (D.C. Cir. 2013). Here, Defendant offered a non-discriminatory reason for not hir ing Plaintiff: He was not the best qualified candidate for the position. Def.’s Mot. Sum m. J., ECF No. 33, at 9; Rohner EEO Decl. at 9 (“Both [the Selected Candidates] performed exception ally during the interview and during the required briefing portion.”); Swain Dep., ECF No. 33 -3, at 46 (“I don’t think that [Plaintiff] did as well as the [Se lected Candidates]. . . . [I ]t is about [who is] be st qualified for the position. . . . Best qualified; re sume[;] interview[;] mock br ief.”). Attempting to demonstrate that D efendant’s explanation is a pre text, Plaintiff advances three arguments: (1) Plaintiff “w as the most qualified candidat e,” Pl.’s Opp’n to Def.’s Mot. Summ. J., ECF No. 36, at 18 [hereinafter Pl.’s Opp’n]; (2) “no records were kept of anything having to do with the selection process,” id. at 19; and (3) “Rohner concocted an interviewing scheme that was laden with highl y subjective considerations,” id. The court is not persuaded by any of these arguments.

B. Relative Qualifications Claim Plaintiff contends that “[t]he record convincingly shows that . . . by a wide margin, [he] was the most qualified candidate for the [Supervisory Position] .” Id. at 18. He asserts that “there was a substantial ‘qualifications gap’ between Plaintiff and th e successful candidates, that should have tipped the balance in Plaintiff’s favor.” Id. at 22. Defendant counters that “the two selectees were more qualified than [Plaintiff] in the briefing skill set that management considered to be a ‘very important’ aspect of the position, and were equally if no t more qualified than [him] in organizing and gathering intelligence information.” Def.’s Rep ly in Supp. of Mot. Summ. J., ECFNo. 37, at 10 [hereinafter Def.’ s Reply]. Thus, Defendant argu es, Plaintiff “cannot claim superior qualifications sufficient to suppor t an inference of pretext.” Id. at 9. The court agrees with Defendant, finding that Plaintiff has failed to show that there is a genuine dispute of fact as to whether he was “substantially m ore qualified” than the two Sele cted Candidates.

1. Legal Standard A plaintiff may demonstrate that an employer’s proffered non-di scriminatory reason is pretextual by offering evidence regarding his qualifications in comparison to those of the

individual or individuals selected. Ash v. Tyson Foods, Inc. , 546 U.S. 454, 457 (2006). Courts, however, should not second-guess a hiring decision between qual ified candidates. As our Court of Appeals has stated, courts “ will not reexamine governmental promotion decisions where it appears the Government was faced with a difficult decision betw een two qualified candidates.” Stewart v. Ashcroft , 352 F.3d 422, 430 (D.C. Cir. 2003); see also Adeyemi , 525 F.3d at 1227 (citation omitted) (internal quotation marks omitted) (explaini ng that “[i]n cases where the comparative qualifications are close, a reasonable jury would n ot 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”) . For that reason, although “a d isparity in qualifications, st anding alone, can support an inference of discrimination,” the inference is only appropriate “when the plaintiff is ‘markedly more qualified,’ ‘substantially more qualified,’ or ‘ significantly better qualified’ than

the successful candidate.” Hamilton v. Geithner , 666 F.3d 1344, 1352 (D.C. Cir. 2012) (citations omitted); see also Holcomb v. Powell , 433 F.3d 889, 897 (D.C. Cir. 2006) (“In ord er to justify an inference of discrimination, th e qualifications gap must be gre at enough to be inherently indicativeof discrimination.”). Thus, for the plaintiff to prevail, the record must show that the plaintiff’s qualifications were clearly superi or to those of the successful candidate or candidates. 4

2. Briefing the Secretary Was an Important and Clear Responsibility of the Supervisory Position Before considering the candidate s’ qualifications, the court mu st first determine what were the duties and respons ibilities of the job at issue. In this c ase, that means the court must examine whether the Supervisory Position’s duties included briefing the Secretary, a point about which the parties disagree. Plaintiff focuses on the Vacancy Announcemen t, arguing that it does not explicitly state that briefing the Secretary was among the Supe rvisory Position’s responsibilities.

See Pl.’s Opp’n at 18 (“[N]either the job description nor the vacan cy announcements anywhere explicitly state that personally delivering daily briefs to the DHS Secretary is a major or essential job function.”). He argues that Plaintiff’s “substantial exper ience was ignored and supplanted with the phantom daily briefing requirement.” Id. at 23. Defendant, on the other hand, contends that the Vacancy Announcement’s use of the words “notification, coor dination, and synchronization” to describe the job’s “core functions,” Heiser Suppl. Decl. at Ex. 1, made clear that briefing the Secretary was an essential part of the job. Defendant relies o n Rohner’s testimony that the “alternate terms” used were intended to “capture the briefing d uties.” Rohner Suppl. Decl. ¶ 6. “[T]he term synchronization,” Def endant argues, “was intended b y . . . Rohner to be synonymous

4 Compare Hamilton , 666 F.3d at 1353-54 (denying summary judgment for the defenda nt where the plaintiff earned two master’s degrees in public health and worked within the fed eral government for 19 y ears, while the selected candidate had no college degree and only eight years of work experience), and Aka v. Wash. Hosp. Ctr. , 156 F.3d 1284, 1295-97 (D.C. Cir. 1998) (denying summary judgment for th e defendant where the plaintiff earned a master’s degree and worked in a pharmacy f or 19 years, while the selecte d candidate had no college degree and volunteered for two months stocking shelves at a pharmacy), with Grosdidier , 709 F.3d at 25 (granting summary judgment for the defendant where, although the p laintiff “had more experience as an editor,” “the evidence . . . showed that [the selected candidate] had more internet and television broadcasting experi ence”), and Porter v. Shah , 606 F.3d 809, 815-17 (D.C. Cir. 2010) (granting summary judgment on one count where the plaintiff had no law degree and had drafted one appeal, while the selected candidate earned a law degree and pr acticed law for appro ximately ten years).with the actual delivery of the daily brief.” Def.’s Reply at 7 (citing Rohner Suppl. Decl. ¶ 6, Ex. 1). On this point, the court agrees with Plaintiff. It is hard to fathom how an ordinary person would view “notification,” “coor dination,” and “synchronization ” as synonyms for “briefing,” a word whose meaning is clear and unambiguous. Indeed, nowhere d oes the Vacancy Announcement state in clear terms that a major duty of the Supe rvisory Position would be orally briefing the Secretary. See Heiser Suppl. Decl. at Ex. 1. The Vacancy Announcement’s imprecision does not, however, carry the day for Plaintiff.

See Jackson , 496 F.3d at 708 (explaining that “ job descriptions are often phrased in general terms, and employers then make the ultimate hiring decision in light o f more specific factors—such as their strategic priorities and goals at the time, the strengths and weaknesses of the applicant pool, and the overall skills of and gaps in their existing workforce, among many other factors”). The record contains other, undisputed evidence establishing that an essential duty of the Supervisory Position was to orally brief the S ecretary. That same evidence also unquestionably shows that Plaintiff knew that briefing the Secretary was a duty of the Su pervisory Position. The vacancy at issue was the second posted vacancy for the Supe rvisory Position. Plaintiff applied for the first vacancy and received an interview in June 2010, during which he was asked to perform a mock briefing. Coleman Decl., ECF No. 36-5, ¶ 7. Although Plaintiff claims to have been “confused” as to why he was asked to perform a mock briefi ng during the first interview, asserting that he was unaware be fore the interview that briefin g the Secretary was a duty of the Supervisory Position, Coleman 2d Decl. ¶¶ 9, 17, any confusion surely was dispelled before his second interview. Plaintiff admitted at his deposition that, f ollowing his first interview, Rohner personally told him that briefi ng was among the Supervisory Pos ition’s duties. Plaintiff testified:“In June, after the first interv iew, [Rohner] mentioned that I needed to work on my briefing skills. I informed her that I thought the position was production super visor. She informed me after the [first] interview the position was changed to production supervisor/briefer .” Coleman Dep. at 54- 55 (emphasis added). Plaintiff agreed that he understood from this conversation that the Supervisory Position would now require direct briefing of the S ecretary. Id. at 55 (answering “yes” when asked “did you then form the impression that briefin g would be a responsibility of the position”). Additionally, the evidence is undisputed that, after his first interview, Plaintiff acknowledged that he had performed poorly during his mock brief ing and, as a result, asked Rohner to help him improve his b riefing skills. On April 23, 2 010, Plaintiff emailed Rohner and wrote, “I was upset and I whole heartedly agreed with your asse ssment of my interview (immediately after the interview I was disappointed).” Heiser Suppl. Decl. at Ex. 3. Plaintiff then asked Rohner for her assistance in improving his briefings skil ls: “I only ask that you and I to have a mock briefing (you and I alone). Where we cover the articles in the briefing book based on the way you think the items should be briefed, why you thought it s hould be briefed in that manner and how you came to the conclusions that you did. Not asking y ou to adjust your schedule or anything, but for us to meet a few times to see how I progress. ” Id. ; see also Rohner Dep. at 72 (testifying that, afte r the first interview, she had a conversation with Plaintiff explaining that he needed to “improve[ ] his briefing skills or abilities in preparation for the second interview,” so she “offered to help [him] . . . i n practicing his briefing”). Plaintiff’s expressed desire to improve his briefing skills plainly shows that briefing the Secretary w as an essential duty of the Supervisory Position and that he understood that to be so. Why else would he have acknowledged his poor performance and have asked for assistance in improving his brie fing skills?Other evidence also establishes that the Supervisory Position i ncluded among its duties briefing the Secretary. Swain, a member of the selection board for the position, emphasized that briefing was a key responsibility of the Supervisory Position. Swain Dep. at 46 (“[T]he briefing is a very important part of this position. You are sitting in front of a Cabinet level official briefing. It is very important.”). Other candidates who interviewed for the position understood the same. One such candidate, Nathaniel Brought, acknowledged that Rohner changed the Supervisory Position’s duties to include briefing the DHS Secretary. Broug ht Decl. ¶ 3. And John Destry, one of the Selected Candidates, state d that “[he] was not surprised by the mock briefing [portion of the interview] because [he] assumed, based on the title of the organization (Secretary’s Briefing Staff) and the vacancy announcement, that one of the main duties of th e position would be to brief the Secretary.” Destry Decl. ¶ 3. Destry, who accepted the Superv isory Position, would go on to provide “over 40 in-person briefings to the Secretary” during f iscal year 2011. Id. ¶ 5. The court finds, based on the record of evidence, that there is no genuine dispute of material fact that briefing the Secretary was an important, if not the most important responsibility of the Supervisory Position. Thus, the question of whether Plaintiff was “substantially more qualified” for the Supervisory Position turn s on whether his abilities and experience made him more qualified to perform that key function relative to the Selected Candidate s. The court addresses that question

next.

3. Plaintiff Has Failed to Show that He Was Substantiall y More Qualified Than the Selected Candidates No one disputes that Plaintiff performed well and received highmarks in his job as a GS13 Production Specialist, a position he held for approximately two years before interviewing for the Supervisory Position. In th is capacity, Plaintiff “ensure[ d] his team reviewed products for timeliness, accuracy, and relevance and ensured they routinely made recommendations when theydid not meet SBS standards.” 2009 Year Performance Review, ECF No. 11-5, at 3. According to Rohner, Plaintiff fulfilled his duties well. Coleman EEO Decl. , ECF No. 9-6, ¶ 39 (“[Plaintiff’s] greatest strength is his sense o f responsibility and personal a ccountability.”). Rohner rated Plaintiff an “exceeds expectations” performer and recommended h im for a $2,659 bonus. Coleman Decl. ¶¶ 2-3. But, as Plaintiff admitted, his job as a Production Specialist did not require him to use or develop skills critical to the ta sk of briefing a Cabinet-level officer. Coleman Decl. ¶ 4 (“Briefing skills were not a part of the production specialist . . . posit ion”). As a Production Specialist,

Plaintiff attended briefings of the Secretary, but he did not conduct them. Rather, he assisted with the preparation of the books used by briefers. Coleman Dep. at 17. In fact, Plaintiff referred to his role as an “instrument[ ] of preparation.” Id. Plaintiff’s lack of briefing e xperience was evident during the mock briefing portions of his Supervisory Position interviews. Plaintiff acknowledged that h e did not perform well during his first mock briefing. See Heiser Suppl. Decl. at Ex. 3 (writing “I was upset and I whole heartedly agreed with your assessment of my interview (immediately after the interview I was disappointed)” and asking Rohner to help him improve his briefing skills). An d yet, he prepared minimally for his second mock briefing before again performing poorly. Colem an Dep. at 62 (sta ting that all he did to prepare was “familiarize[ ] [himself] with certain artic les that are presented in front of the Secretary”). According to Rohner, Plaintiff “did not significantly improve from his performance in early 2010.” Rohner Suppl. D ecl. ¶ 7. Swain agreed, declar ing, “I don’t think that [Plaintiff] did as well as the [Selected Candidates].” Swain Dep. at 46. Although Plaintiff disputes that his second mock briefing performance was inferior to the Selected C andidates, Pl.’s Response toDef.’s Statement of Undisputed Material Facts, ECF No. 36-1, ¶ 20, he has offered no evidence to support that assertion. Nor has Plaintiff established a genuine dispute of material fac t that the Selected Candidates were substantially less qualified than him. 5 Both Selected Candidates had significant experience briefing officials in the intelligence community. While at DIA , Destry consistently briefed seniorlevel officers. Destry Decl. ¶ 4. He authored “intelligence s ummaries,” provide d “daily morning desk-side briefings on current intelligence” to senior-level of ficials, and consolidated and presented “metrics” for a comprehensive intelligence productionlist. Rohner Sealed Decl. at Ex. 2. Further, he supervised and trained over 100 Marines as a Pl atoon Commander in the Marine Corps. Id. Eckersley was, according to his resume, an “Accomplished Intell igence Operations specialist with a strong record o f achievement managing intelli gence operations and coordinating operations among intelligence agen cies and senior leadership as a Lieutenant Colonel in the US Army and as a civilian employee for the Federal government.” Id. at Ex. 3. In his work at the Joint Chiefs of Staff Directorate for Intelligence, Eckersley “ [p]resent[ed] operations and recommendations to senior leaders”—in other words, he briefed t hem. Id. In this capacity, he also would “[n]ominate, validate and prioritize all intelligenc e-related assignments within the Global Command and Control Syst em (GCCS)”; “[c]onduct identific ation and prioritization for the GCCS Integrated Imagery and Intelligence” system; and “[f]a cilitate joint intelligence fusion

5 Rohner and Swain both testified that the Selected Candidates w ere, in fact, more qualified for the position than was Plaintiff. See Rohner EEO Decl. at 9 (“After i nterviewing the candidates the selection board unanimously agreed on two candidates . . . . Both candidates performed exceptionally during the interview and during the required briefing portion. Not only did both candidates have strong supervisory and managerial experience, but both candidates already had recent experiences briefing senior officials on a day-to-day basis. [Plaintiff]’s briefing did not improve at all from the first interview.”); Swain De p. at 46 (“I don’t think that [ Plaintiff] did as well as the [Se lected Candidates]. . . . [I] t is about [who is] best qualifie d for the position. . . . Best qualified; resume[;] interview[;] mock brief.”).and wartime solutions from nati onal to tactical levels and betw een the DoD and the Intelligence Community.” Id. And he collaborate d with, among others, the Office of the Dir ector of National Intelligence. Id. For obvious reasons, Plai ntiff does not attemp t to make his cas e based on relat ive briefing experience and skill. Instead, he emphasizes his superior perf ormance as a Production Specialist and points to his “functioning as the de facto [Supervisory Position] as defined in the job description, for more than a year and . . . exceed[ing] expecta tions in doing so.” Pl.’s Opp’n at 21. In employment discrimination cases , courts do consider whether plaintiffs previously served in the position sought, but that fact is not dispositive. See, e.g. , Barnette v. Chertoff , 453 F.3d 513, 518 (D.C. Cir. 2006) (“[W]e admonished the district court for secon d-guessing the agency’s decision to pass over the plaintiff in favor of another applicant notwit hstanding that th e plaintiff had previously served in the position he sought in an acting capaci ty and the selectee had not.”); St.

John , 20 F. Supp. 3d at 82, 103-04 (granting s ummary judgment to th e defendant on race and age discrimination claims where the plaintiff served as “Acting Dir ector” for one year before another

candidate was selected to be the “Director” on a full-time basi s). Here, Plaintiff’s “functioning as the de facto [Supervisory Position]” does not create a genuine issue of material fact as to whether he was “substantia lly more qualified” than the Selected

Candidates because the “ de facto ” role Plaintiff fulfilled differed significantly from the new position that Rohner created. Plaintiff only performed some duties of the Supervisory Position before Rohner reorganized SBS, see Coleman Dep. at 31, and he did not perform any briefing. The additional and critical job component of briefing rendered Plaintiff less qualified than the Selected Candidates, notwithstan ding his commendable performanc e as a Production Specialist, aposition that required no briefing skills or experience. There fore, Plaintiff’s argument regarding

his service as the de facto Supervisory Positi on is unavailing. Plaintiff relies heavily on Hamilton v. Geithner in arguing that he was “substantially more qualified” than the Selected Candidates. See Pl.’s Opp’n at 20-22. However, that reliance is misplaced. In Hamilton , despite the plaintiff having a pertinent master’s degree and nineteen years of relevant work experience, the defendant selected a candidate who had no college degree and only eight years of relevant wo rk experience. 666 F.3d at 1353 . There is no comparable qualifications gap here. In short, the court finds that a reasonable juror could not inf er from the evidence that the legitimate, non-discriminatory reason offered by Defendant for selecting other candidates over Plaintiff—that the Selected Candidates were more qualified—was pretextual. Plaintiff simply has not shown that he was “markedly more qualified,” “substantiallymore qualified,” or “significantly better qualified” than the Selected Candidates.

C. Lack of Contemporaneous Documentation Claim Plaintiff also argues that the l ack of contemporaneous document ation allows an inference

that Plaintiff’s non-selection wa s pretextual. Pl.’s Opp’n at 24-25. He asserts that “no records were kept of anything having to do with the selection process, other than U.S.A. Jobs-formatted

resumes from the candidates and their KSAO questionnaires”; “[t ]he questions asked were not retained”; “[n]o notes were retained by the selection panel, ev en though notes apparently were taken during the interview proces s”; “[n]o records were maintai ned concerning the selection panel’s deliberations and how the candidates were ranked or sco red during or immediately following the interviews”; and “[n]o decision-making matrix was prepared.” Id. at 19-20. Defendant does not dispute the l ack of contemporaneous document ation. Rather, it contends that“the absence of interview notes does not support an inference that [Plaintiff] performed better in his interview than [the Selected Candidates] or that he was sig nificantly more qualified for the position than those two individu als.” Def.’s Reply at 16. The court agrees with Defendant. “[T]he absence of contemporaneous evidence is hardly unusual; e mployers ordinarily do not ‘publish a contemporaneous statement of reasons every time they make a hiring or firing

decision.’” Adeyemi , 525 F.3d at 1228 (quoting Jackson v. Gonzales , 496 F.3d 703, 710 (D.C. Cir. 2007)). In some cases, howev er, courts have found that a lack of contemporaneous evidence such as interview notes may allow for “a permissive inference [ in favor of the plaintiff] bounded by constraints of reason.” Grosdidier , 709 F.3d at 28. In Grosdidier , the Court of Appeals determined a “reasonable inference” that the plaintiff performe d well during her interview could be drawn from the fact that members of the interview panel dest royed their notes. Id. However, the Court of Appeals upheld a gr ant of summary judgment in favo r of the defendant because, “even

if a factfinder could reasonabl y infer that the destroyed notes contained information that might be favorable to [the plaintiff], favorable evidence is not in all instances equivalent to evidence that would permit [the plaintiff] to survive summary judgment.” Id. (citation omitted). “The inference [the plaintiff] requires must be sufficient to create a genuine issue of material f act, not simply one that lends some support to he r pretext contention.” Id. Here, the absence of contemporaneous documentary evidence is no t enough to create a genuine dispute of material fact a bout whether Defendant’s hiri ng decision was discriminatory. There is simply nothing in the record—not even Plaintiff’s own self-assessment—that would support the inference that he demonstrated strong briefing skil ls or performed well during the mock briefing portion of his second interview, or that his lack of b riefing experience and skills was not the actual reason for his non-hiring. Thus, the lack of docume ntation does not create a genuinedispute of fact as to whether Def endant’s non-discriminatory re ason for not hiring Plaintiff is “unworthy of credence.” See Burdine , 450 U.S. at 256.

D. Subjective Criteria Claim Plaintiff’s final argument is that his non-hiring was discrimin atory because “[Defendant’s] decision-making process involved . . . highly subjective consid erations.” Pl.’s Opp’n at 24. In addition to the mock briefing exer cise, he points to other “sub jective and non-job-related questions”—such as “‘what was the most recent book that you rea d’”—as evidence that the hiring process was susceptible to discriminatory practices. Id. at 19. But the subjective nature of the interview process here creates no reasonable inference of discr iminatory hiring. To be sure, “courts traditionally treat explanations that rely heavily on subjective

considerations with caution.” Aka , 156 F.3d at 1298. The Court of Appeals, for instance, has found reliance on subjec tive criteria to be evidence of pretextwhere selection boards focused on irrelevant job qualifications. See, e.g. , Hamilton , 666 F.3d at 1356-57 (citation omitted) (reversing denial of summary judgment in favor of the defendant on race an d sex discrimination claims where

the interviewer “ appear[ed] to have based his ass essment of [the plaintiff’s] in terview performance in part on her ‘presentation of self,’ . . . a highly subjectiv e criterion that a jury could well view as ‘lend[ing]’ itself quite ‘read ily’ to gender-based or ‘racially discriminatory abuse’). However, “[w]hile it is true that subjective criteria lend themselves to racially discriminatory abuse more readily than do objective criter ia, there nonetheless are situations where employment decisions can, must, and should be made on the basis of subjective criter ia.” Harris v. Grp. Health Ass’n , 662 F.2d 869, 873 (D.C. Cir. 1981). Here, the court finds it reasonabl e—and Plaintiff has offered n o evidence to the contrary—

that Defendant chose to evaluate a candidates’ briefing skills through a mock briefing exercisewhere the position at issue required regular briefings of a Cab inet Secretary. Defendant was under no compulsion to rely solely on a candidate’s paper application and objective interview questions. Though a mock briefing exercise by its nature invites a subject ive assessment, at least here, it also enabled the selection committee to evaluate how a candidate mig ht deliver a critical briefing to, or respond to aggressive questioning by, the Secretary. There is nothing inherently improper about using such a tool to test a candidate and to compare him to oth er candidates. And there is no evidence on this record to reasonably infer that the mock exerc ise here was conducted in a discriminatory manner or for a discriminatory purpose.

* * * Finally, Plaintiff argues that “combining superior qualificatio ns with other evidence”— namely, the lack of contemporaneous documentary evidence and th e subjective quality of the interview process—“undermines [D efendant’s] proffered explanati on” and could support a reasonable jury’s conclusion that the explanation was pretextua l. Pl.’s Opp’n at 23. The court disagrees. Plaintiff did not, as he claims, possess “superior qualifications,” such that, viewed with other evidence, a reasonable jur y could make a finding of prete xt. The record here is undisputed that (1) a major duty of the revised Supervisory Position was r egular oral briefings of the Secretary; (2) Plaintiff lacked skills and experience in briefing; (3) Pla intiff did not turn in a superior performance during either of his mock briefings; (4) the Select ed Candidates had greater experience briefing high-level gove rnment officials than did Pl aintiff; and (5) one of the Selected Candidates (the other did not accept the position) went on to b rief the Secretary on dozens of

occasions. Further, this is not a case in which a plaintiff has presented any evidence of animus. To the contrary, Plaintiff presente d evidence that he received str ong performance appraisals from hissupervisor. That he was considered a second time for the Supervisory Position even though, by his own admission, he performed p oorly during his first intervi ew, indicates that his supervisors

did not have animus towards him. In short, Plaintiff has failed to show that there is a genuine dispute of fact that Defendant’s proffered reason for his non-hiri ng was a pretext for race or a ge discrimination.

V. CONCLUSION For the foregoing reasons, and based on the record before it, the court grants Defendant’s Motion for Summary Judgment. A separate Order accompanies this Memorandum Opinion.

Dated: August 11, 2015 Amit P. Mehta United States District Judge