1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) KENNY U. RAYMOND, ) ) Plaintiff, ) ) v. ) Civil Action N o. 11-CV-01088 (KBJ) ) THE ARCHITECT OF THE CAPITOL, ) ) ) Defendant. ) )

MEMORANDUM OPINION Plaintiff Kenny Raymond (“Plaintiff” or “Raymond”), a 56-year-old AfricanAmerican man who is origin ally from Jamaica, has wo rked as an employee of Defendant Architect of the Capitol (“Defendant” or “A OC”) since 1975. Raymond alleges that he was not selected for a high er-grade position within the agency due to discrimination based on his natio nal origin and age, in viola tion of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17 (Count I), and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634 (Cou nt II), as made applicable to Raymond through the Congressional Accountability Act (“CAA”), 2 U.S.C. §§ 1401- 1416. ( See Compl., ECF No. 1.) Th e gravamen of Raymond’s complaint is that a certain supervisor who had long discriminated against him was on the panel that made the hiring decision at issue. Pending before the Court is Defendant’s motion for summary judgment. (Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 18, at 1.) 1 In that motion, Defendant

1 Page numbers throughout refer to the numbers assigned by the Court’s electronic filing system.2 maintains that all of the individuals who we re involved in the decision-making process independently concluded that Raymond was le ss qualified than the selected applicant based on his on-the-job experience and intervie w performance, and that this explanation constitutes a legitimate, non- discriminatory reason for th e hiring determination. Because Raymond has failed to produce suffic ient evidence to show that Defendant’s asserted reason for the non-selection was pretext for discrimination, Defendant’s motion for summary judgment will be GRANTED . A separate order consistent with this opinion will follow.

I. BACKGROUND A. Factual Background The following facts are undisputed, unle ss otherwise noted. Raymond is an African-American male of Jama ican descent who was 56 year s old at the time of the alleged discrimination. (Def.’s Statement of Material Facts (“Def. ’s Facts”), ECF No. 18-1, ¶ 1.) Raymond began wo rking for the AOC in 1975. (C ompl. ¶ 8.) Beginning in 2001, he worked in the House Office Buildi ngs (“HOB”) as a Labor Supervisor, at a salary grade level of WS-5. ( Id. ¶ 2; Excerpts of Dep. of Kenny Raymond (“Pl.’s Dep. I”), ECF No. 18-9, at 2.) 2 This case stems from the AOC ’s decision in 2010 to select another AOC Labor Supervisor, Cordell Shie lds, for a promotion to the higher-grade

2 Employees of the federal government are paid sala ries based on the assigned “grade level” of their positions; generally, the higher the grade level, the higher the salary. See Pay & Leave: Pay Systems, Federal Wage System Overview, OPM.GOV, http://www.opm.gov/policy-data -oversight/pay-leave/paysystems/federa l-wage-system/ (last visited June 23, 2014).3 position of Laborer (Recycler) General Supe rvisor—a position for which Raymond also had applied. ( See Def.’s Mot. at 3-4; Def.’s Facts ¶¶ 4, 7, 10.) 3

1. The AOC’s Job Selection Process The AOC’s process for selecting Shields for promotion to th e Laborer (Recycler) General Supervisor position followed the sta ndard procedure that the AOC employs for all hiring and promotion decisions. In shor t, when a position becomes available, the AOC’s Human Resources Office receives and reviews applications and identifies the best-qualified applicants, who are then offered interviews that are conducted by a threeperson panel. ( See Def.’s Facts ¶ 22.) During the interviews, the panel gives each applicant the same 11 predeter mined interview questions. ( Id .) Each interview panelist has his own score sheet and independently sc ores each applicant’s responses to the 11 questions on a scale of 1 to 5 points—5 being the highest rating. ( Id. ) After all of the interviews, the panelists inde pendently rank the applicants ’ responses to each of the 11 questions, and each panelist adds up the cumulative score for each applicant. ( Id. ) Only then do the panelists reveal their scores to each other and discuss the applicants as a group. ( Id .) Based on the scores, the hiring pa nel as a whole recommends the bestqualified applicant to the AOC Superintendent for hire. ( Id. ¶ 23.) And if the Superintendent concurs with the recommendation, the select ed applicant is hired. ( Id. ) In the instant case, the Laborer (Recycler ) General Supervisor position opened in August 2010, and the advertisement for th e vacancy listed skills and qualifications germane to the position, including the require ment that the success ful applicant needed

3 Raymond held a grade level of 5 and sought a promotion to level 8. ( Compare Appl. of Kenny Raymond (“Raymond Appl.”), ECF No. 18- 8, at 1 (noting that his current job title as labor supervisor was grade 5), with Laborer Gen. Supervisor Job Vacancy Announcement (“Job Posting”), ECF No. 18- 17, at 1 (noting that the general supervisor position was grade 8).)4 to be able to “provide[ ] feedback and pe riodically evaluate[ ] employee performance”; provide “advice, counsel and/or instructio n to staff members”; and conduct other management and supervisory functions. (Laborer Gen. Supervisor Job Vacancy Announcement (“Job Posting”), ECF No. 18-17, at 1-2.) Raymond and Shields were among the various applican ts for the position. ( See Appl. of Kenny Raymond (“Raymond Appl.”), ECF No. 18-8 at 1; Appl . of Cordell Shields (“Shields Appl.”), ECF No. 18-12, at 1.) As required, bo th Raymond and Shie lds listed on their applications the prior awards and job traini ng that they had received in their careers thus far. (Raymond A ppl. at 2; Shields Appl. at 7.) Raymond listed three awards and four training courses on his application. (Raymond Appl. at 2.) Shields listed 15 awards and 13 training courses on his applic ation. (Shields Appl. at 7.) Additionally, both applicants included the th ree most recent performance ratings they had received. (Raymond Appl. at 6; Shields Appl. at 8-9.) Raymond was rated “Fully Successful” in his three most recent performance ratings. (R aymond Appl. at 6.) Sh ields, on the other hand, was rated “Outstanding” in his. (Shields Appl. at 8-9.) The AOC Human Resources Office selected Raymond and Shields, along with four other applicants, as the best qualified, and referred the six individuals to a threeperson panel for an interview. (Referra l List, ECF No. 18-11, at 1.) The panel consisted of a significant cas t of AOC characters, includi ng one person who had worked with Raymond in the past. That pers on was Sterling Thomas, an Assistant Superintendent in the HOB who had been Raymond’s second-line supervisor since 2002. (Pl.’s Dep. I at 2; Def.’s Facts ¶ 3; Dep. of Sterling Thomas (“Thomas Dep.”),5 ECF No. 18-13, at 2; Compl. ¶ 5.) 4 Also on the selection panel was Thomas Carroll, one of Sterling Thomas’s supervisors, who se rved as the Deputy Superintendent of the HOB. (Decl. of Thomas Ca rroll (“Carroll Decl.”), ECF No. 18-22, ¶¶ 2-3.) The third member of the panel was W illiam Wood, Jr., the Assistan t Superintendent for the Tenant Services Division at th e HOB. (Decl. of William S. Wood, Jr. (“Wood Decl.”), ECF No. 18-26, ¶ 2.) 5 It is undisputed that Thomas, Carroll, and Wood, interviewed each of the six applicants. (Carroll Decl. ¶ 3; Wood Decl. ¶ 2; Thomas Dep. at 5.) Moreover, in accordance with the standard process, each of the three panelists separately ranked the applicants’ answers to the 11 interview que stions and recorded his applicant rankings on a separate score sheet. ( See Carroll Rating Sheet, ECF N o, 18-5, at 1; Wood Rating Sheet, ECF 18-21, at 1; Thomas Ra ting Sheet, ECF No. 18-16, at 1; see also Wood Decl. ¶ 4; Carroll Decl. ¶ 4.) The record evidence also indicates that prior to interviewing and ranking the applicants, none of the interview pane lists conferred with

4 As explained below, Raymond maintains that Thomas was the perpetrator of ongoing discrimination against him on the basis of national origin and age.

5 Raymond contends that the sham affidavit rule bars this Court from considering the declarations of Thomas Carroll and William Wood that are attached to Defendant’s summary judgment motion because, in Raymond’s view, these affidavits conflict wi th the affiants’ prior deposition testimony. ( See Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”), ECF No. 24, at 6.) The sham affidavit rule “precludes a party from creating an issue of material fact by contradicting prior sworn testimony unless the ‘shifting party can offe r persuasive reasons for believing the supposed correction’ is more accurate than the prior testimony.” Galvin v. Eli Lilly & Co. , 488 F.3d 1026, 1030 (D.C. Cir. 2007) (quoting Pyramid Sec. Ltd. v. IB Resolution, Inc. , 924 F.2d 1114, 1123 (D.C. Cir. 1991)). The sham affidavit rule applies in cases where an affidavit provide d as a supplement to sworn testimony “clearly contradict[s],” rather than clarifies, previous sworn testimony and provides no explanation for the change in testimony. See St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc. , 573 F. Supp. 2d 152, 160 (D.D.C. 2008) (quoting Hinch v. Lucy Webb Hayes Nat’l Training Sch. , 814 A.2d 926, 930 (D.C. 2003)). Here, nothing in the Carroll or Wood affidavits “clearly contradicts” either affiant’s prior deposition testimony; to the contrary, the affida vits provided here only clarify circumstances that were previously addressed in thei r depositions. Accordingly, the sham affidavit rule does not apply, and the Court will consider the affidavits of Thomas Carroll and William Wood. See, e.g. , Johnson v. Shinseki , 811 F. Supp. 2d 336, 344 (D.D.C. 2011) (finding that the sham affidavit rule did not apply where defendant’s affidavit did not clearly contradict prior sworn testimony and only clarified ambiguous testimony).6 one another regarding any of the applicants . (Dep. of William S. Wood, Jr. (“Wood Dep.”), ECF No. 18-18, at 4-7; Dep. of Thom as Carroll (“Carroll Dep.”), ECF No. 25-2, at 4.) According to Wood’ s deposition testimony, for ex ample, Wood completed the ratings and rankings for each of the intervie wed applicants indepe ndently and did not discuss his rankings with any other panel me mber. (Wood Dep. at 6-7.) Carroll also testified that he did not discuss his scores with his fellow pane lists until all of the interviews were over and each panelist had already completed his score sheets. ( See Carroll Dep. at 4 (noting that he did not discu ss scores with other panelists at the close of each interview); id. (“[W]hen all the interviews we re conducted, then we—everyone had a chance to fill out their score sheets and at that time, there was a discussion.”).) In other words, the facts demonstrate that Thomas never discussed Raymond or any of the other applicants with any other member of the selection pa nel until each panelist had already ranked the applicants.

2. The Panelists’ Selection Of Shields Over Raymond After the panelist’s individual rankings were completed, each panelist revealed his scores to the others and the discussion of each applicant’s strengths and weaknesses commenced. (Wood Decl. ¶ 4; Carroll Decl. ¶ 4.) It was only upon the revelation of the scores that the panelists learned that they had each independently given Cordell Shields the highest score. (Wood Decl. ¶ 4; Carroll Decl. ¶ 4.) Acco rding to two of the panelists, there was a consensus that Shield s was the strongest candidate. (Wood Decl. ¶ 4; Carroll Decl. ¶ 4.) Each panelist has testified that, in his personal view, Shields performed better than Raymond at the interview because Shie lds answered the panel’s questions with7 more specificity. ( See , e.g. , Wood Decl. ¶ 8 (stating that Sh ields “was able to articulate that his focus is attention to detail” wher eas Raymond had “no clea r plan for his first three months”); Carroll Decl. ¶¶ 9-15; Thomas Dep. at 7.) In addition, Carroll testified that, based on his experiences with Raym ond and Shields, Ra ymond’s interview responses “failed to match reality.” (Carroll Decl. ¶ 13.) The panelists also ranked Shields highe r than Raymond based on their personal knowledge of the applicants’ on-the-job perf ormance. For example, Carroll noted that Shields had previously exhibited the type of initiative and problem-solving skills that the higher-level job required. ( Id. ¶ 11.) Giving a specific example, Carroll testified that during a big blizzard, Shields “took the initiative to get the employees fed and was making arrangements for them to stay overnight.” ( Id. ) In contrast, Carroll noted that, “Mr. Raymond, while present, simply did no t exert himself to take the lead.” ( Id. ) After a period of deliberation, the interv iew panel recommended Shields for the position. William Weidemeyer, Superintendent of the HOB, concurred in the recommendation. (Decl. of William Weid emeyer (“Weidemeyer Decl.”), ECF No. 18- 25, ¶¶ 1-2), noting that although Mr. Raymond has performed his job in a fully successful manner, [he] has not distinguished hims elf as a proactive leader as compared to Mr. Shield s. Because of Shield s’[s] superlative work record, I heartily concurred in his selection for the position of Labor (Recycler) General Supervisor. ( Id . ¶¶ 4-5.) Beyond his own personal experien ce with the applicants , Weidemeyer also testified that the “information [he] reviewed showed Mr. Shie lds to be better qualified,” as did the applicants’ interview performances. ( Id. ¶ 5.)8 Several days after the interviews, Raym ond learned that the AOC had offered Shields the position. ( See Thomas Dep. at 9.)

B. Procedural History After learning of his non-selection, Ra ymond filed an admi nistrative complaint with the AOC’s Office of Co mpliance, alleging that his non-selection for the Laborer General Supervisor position was the result of unlawful discrimination. (Compl. ¶ 4.) 6 On June 14, 2011, Ra ymond filed a complaint in this Court against the AOC alleging that the AOC had violated the anti-discrimi nation provisions of Title VII and the ADEA with respect to this hiring determination because Sterling Thomas had been on the selection panel (as described above) and T homas had a long history of discriminating against Raymond, as detailed below. ( Id. ¶ 21.) In the two-c ount complaint, Raymond alleged that the non-selection constituted di scrimination on the ba sis of his race and national origin (Count I), and also discrimi nation on the basis of his age (Count II). ( Id. ¶¶ 23-26.) 7

1. The Complaint’s Allegation Of Di scrimination On The Basis Of National Origin The primary basis for Raymond’s contenti on that the non-selection constituted discrimination on the basis of national origin is the fact that, according to the complaint, “[o]n several occasions prior to th e non-selection of the Plaintiff in the case complained about, Sterling Thomas . . . evid enced hostility and dislike for the Plaintiff

6 Defendant does not dispute that Raymond properly exhausted his administrative remedies, including participating in counseling and me diation and receiving a notice of end of mediation, as the CAA requires. See 2 U.S.C. § 1408.

7 Raymond has since withdrawn his race discrimination claim ( see Pl.’s Opp’n at 2 n.1); therefore, only the national origin and age discrimination claims remain at issue.9 as an African-American male of Jamaican descent.” (C ompl. ¶ 20.) Although the complaint itself does not provide specifics regarding the alleged prior discriminatory “acts and omissions” of T homas in this regard ( id. ¶ 21), the record testimony indicates that the prior instances of discrimination u pon which the complaint relies relate largely to discriminatory comments that Thomas allegedly made about Raymond’s national origin and age. During the 2007 football season, for exam ple, Thomas (a Dallas Cowboys fan) allegedly chided Raymond (a Washington Redski ns fan) at a staff me eting, asking him: “did your team win today, Jamaican?” (Pl’s Dep

. I at 3.) Similarly, during the 2010 football season, Thomas allegedly commen ted on Raymond’s Jamaican origin at supervisory staff meetings approximately twi ce per month, saying things like, “[W]hat [does] this guy know about football . . . he [is] from Jamaica[.]” ( Id. at 3, 5-6.) 8 In another alleged instance of Thomas’s discri minatory statements, Raymond purportedly brought Thomas’s assistant a beef patty fo r lunch one day, and the next day Thomas asked Raymond why Raymond did not get Thomas any beef patty. ( Id. at 6.) Raymond interpreted this conversation as a re flection of his Jamaican origin. ( See id. at 5.) 9 Finally, Raymond points to one incident in wh ich he needed to change his password in order to use an AOC computer program, an d Thomas allegedly typed the password “Jamaica” for Raymond’s account. (Pl.’s Inte rrog. Resp., ECF No. 18-6, at 1; Excerpts

8 Defendant disputes that Thomas ever made any such comments or otherwise expressed any hostility towards Raymond based on his national origin (Def.’s Answer, ECF No. 7, ¶ 20; see also Thomas Dep. at 6), and none of the declarations or other sworn statements in the record besides Raymond’s corroborates Raymond’s contention that any such statements were made.

9 Like the previous incidents, there is no evidence in the record, other than Raymond’s own statement, to corroborate this allegation.10 of Dep. of Kenny U. Raymond (“Pl.’s Dep. II”), Ex. 2 to Pl.’s Opp’n, EC F No. 24, at 28.) 10

2. The Complaint’s Allegations Of Di scrimination On The Basis Of Age In addition to the allegation that Raym ond’s non-selection resulted from illegal discrimination on the basis of national orig in, the complaint also asserts that “the individual selected for the position was a person over whom the Plaintiff clearly and unambiguously had better qualifications, experi ence, training, educa tion and leadership skills” but that “[s]aid selectee was also mu ch younger than the Plaintiff.” (Compl. ¶¶ 18-19.) The complaint notes that “Pla intiff has applied for several different promotional opportunities within the [AOC]” ( id. ¶ 12), and continues: “Sterling Thomas appears to have made it his mission to assure th at the Plaintiff is never promoted[,]” and with respect to the challenged non-selection, “the failure to promote the Plaintiff [over the selected applican t was] a pretext for discrimination.” ( Id . ¶ 21.) To support the allegation that age disc rimination was a motivating factor behind the selection at issue here, Raymond has testified about prior instances in which Thomas and others allegedly made disparagi ng comments about his age. For example, in 2009, at a time when Raymond was forced to use a walking stick at work due to a gout problem, Thomas allegedly stated that Raymond was “getting old” and suggested that Raymond use his many accr ued hours of sick leave inst ead of coming to work in such a condition. (Pl.’s Dep. I at 8.) Furt hermore, at supervisor meetings, Thomas allegedly commented on Raymond’s many accrue d hours of sick leave, contending that

10 Thomas denied using “Jamaica[ ]” as a password in his sworn deposition testimony (Thomas Dep. at 6), and, when asked at his deposition to identi fy any colleague who might have overheard the conversation, Raymond was unable to do so.11 the number was high as a result of his age. ( Id. ) Indeed, according to Raymond, Thomas “joki[ngly]” commented on Raymond ’s age approximately twice each month. ( Id. at 8-9) 11 Raymond also testified about a si ngle remark that Cordell Shields—the eventual selectee—made in February or March 2010, du ring a meeting about a recent blizzard that had caused extra work for th e AOC employees in the HOB department. Shields allegedly made a general comment about Raymond’s age in front of the employees present, including eventual decision makers Thomas, Carroll, and Weidemeyer. (Pl.’s Dep. I at 5.) As Raymond recalled th e incident, Shields told the employees that Raymond was getting older, so the men in the group should perform well so that they could take over his positio n one day. ( Id. ) 12

3. The Course Of The Instant Litigation Defendant answered Raymond’s complaint on November 21, 2011, denying all allegations of discrimination. (Def.’s Answ er, ECF No. 7, ¶¶ 20-22.) The parties then proceeded to engage in extensive discove ry, which took place from December 2011 through early 2013. ( See Scheduling Order, EC F No. 10 (discovery beginning Dec. 25, 2011); Minute Order of Nov. 3, 2012 (extending discovery to January 28, 2013).) Upon the close of discovery, Defendant filed a motion for su mmary judgment in which Defendant asserts that it had a legitimate, non-discriminatory reason for selecting

11 Although Raymond stated in his deposition testimony th at “other staff members” were present when Thomas made these types of comments, Raymond was unable to provide the name of any staff member who overheard the particular age-related comments alleged. ( See Pl.’s Dep. I at 5, 8-9.) It appears that Thomas was not questioned about any specific comment s he allegedly made related to Raymond’s age, and Thomas denied knowing Raymond’s age when questioned about it at his deposition. ( See Thomas Dep. at 6.)

12 In the declaration that Shields submitted in the context of this case, Shields agrees that he made reference to Raymond’s retirement—and, by implicat ion, his age—during a staff meeting. (Shields Decl. ¶ 11.) But according to Shields, he did so to make an example of Raymond’s exemplary record of service to the AOC and to encourage other staff members to “step up to the plate” in order to fill higher-level positions like Raymond’s once Raymond retired. ( Id. )12 Shields instead of Raymond: simply put, the entire AOC interview panel determined that Shields was more qualified than Ra ymond, based on the applicants’ respective work and interview performances. (Def.’s Mo t. at 19, 30.) Defenda nt further contends that there is no evidence that this rati onale is pretext for discrimination. ( Id. at 15.) Raymond counters that the evidentiary suppor t for Shields’s qualifications is itself “specious and suspect”; theref ore, any argument that Shie lds was better qualified is pretext for discrimination. (Pl.’s Opp’n at 5. ) Plaintiff also cont ends that Thomas’s prior comments about Raymond’s national orig in and age are suffic ient evidence from which a reasonable juror could infer discrimination. ( Id. at 5-6.)

II. SUMMARY JUDGMENT STANDARD The Court must grant summary judgment if the moving party demonstrates that there is no genuine dispute as to any material fact and th at the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A fact is material if it ‘might affect the outcome of the suit under the gove rning law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the non-moving party.’” Steele v. Schafer , 535 F.3d 689, 692 (D.C . Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). Under Rule 56, the moving party has the burden of demonstrating the absence of a genuine dispute as to any material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the non-moving party must designate “specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). Although the Court must vi ew the evidence in the light most favorable to the non-moving party and draw all reasonable inference in that13 party’s favor, see, e.g. , Grosdidier v. Broad. Bd. of Governors, Chairman , 709 F.3d 19, 23 (D.C. Cir. 2013), the non-mo ving party must show more than “[t]he mere existence of a scintilla of evidence in support of” his or her position—instead, “there must be evidence on which the jury could reas onably find” for the non-moving party. Anderson , 477 U.S. at 252. Moreover, the non-moving party “may not rest upon mere allegation or denials of his pleading but must present affirmative evidence showing a genuine issue for trial.” Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987) (internal quotation mark s and citation omitted). In determining whether there are genuine is sues of material fact for trial, the Court reviews a defendant’s motion for summar y judgment with a slightly “heightened standard” that reflects caution. Walker v. England , 590 F. Supp. 2d 113, 133 (D.D.C. 2008) (citation omitted). Such caution is warranted because of “the potential difficulty for a plaintiff in an employment discrimina tion or retaliation action to uncover clear proof of discriminatory or retaliatory intent,” Nurriddin v. Bolden , No. 04-2052, 2014 WL 1648517, at *5 (D.D.C. Apr. 25, 2 014) (citation omitted), and also because “[c]redibility determinations, the weighi ng of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge at summary judgment.” Barnett v. PA Consulting Grp., Inc. , 715 F.3d 354, 358 (D.C. Cir. 2013) (citation omitted). Nevertheless, despite the fact that “summary judgment must be approached with specific caution in discrimi nation cases, a plaintiff is not relieved of his obligation to support his allegations” wi th competent evidence showing a genuine issue for trial. Walker , 590 F. Supp. 2d at 132-33 (quoting Morgan v. Fed. Home Loan. Mortg. Corp. , 172 F. Supp. 2d 9 8, 104 (D.D.C. 2001)); see also Marshall v. James , 27614 F. Supp. 2d 41, 47 (D.D.C. 2003) (noting that, even though courts must proceed with caution, summary judgment is still used in discrimination cases).

III. ANALYSIS Raymond contends that Thomas had long discriminated against him on the basis of national origin and age and that, given T homas’s presence on the promotion selection panel, a reasonable jury could infer that th e AOC discriminated against him in selecting Shields over him for the promotion. ( See Compl. ¶¶ 21, 23-26; Pl.’s Opp’n at 3.) Defendant has advanced a non-discrimi natory reason for the selection— i.e. , that Shields was simply more qualified than Raymond—and contends that there is no genuine issue of material fact regarding whether this ra tionale was pretext for discrimination. As explained below, this Court concludes that the Raymond has failed to establish that the AOC’s proffered reason for the non-selection wa s pretext given the record evidence of Shields’s superior qualifications and the fact that each pane list independently arrived at the conclusion that Shields wa s the better man for the job.

A. Applicable Legal Standards For Establishing Discrimination Raymond maintains that the non-sel ection at issue here constituted discrimination in violation of Title VII a nd the ADEA. (Compl. ¶ 1.) As an AOC employee, Raymond can only bring such clai ms under the CAA, which was enacted in 1995 to provide a forum for employees of the legislative branch of the federal government to challenge their employers’ alleged discriminatory actions. See 2 U.S.C. § 1301(3). The CAA makes certain federa l anti-discrimination statutes expressly applicable to legislative branch offices, in cluding, in relevant part, Title VII and the ADEA. 2 U.S.C. § 1302(a). When construing discrimination claims under the CAA,15 courts incorporate much of the substantive law of Title VII. See Blackmon-Malloy v. U.S. Capitol Police Bd. , 575 F.3d 699, 706 (D.C. Cir. 2009); see also Hyson v. Architect of the Capitol , 802 F. Supp. 2d 84, 97 (D.D .C. 2011) (citations omitted); Gordon v. Office of the Architect of the Capitol , 750 F. Supp. 2d 8 2, 90 (D.D.C. 2010) (“Although not necessarily binding preceden t, courts when cons truing the CAA often consider as persuasive case law interpreting Title VII.” (citation omitted)). In cases that involve allegations of natio nal origin or age discrimination, courts in this jurisdiction typically apply the familiar burden-allocati on scheme that the Supreme Court adopted in the case of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See id. at 802-03; see also Stewart v. Ashcroft , 352 F.3d 422, 428 (D.C. Cir. 2003) (applying McDonnell Douglas to Title VII disc rimination claims); Krodel v. Young , 748 F.2d 701, 705 (D.C. Cir. 1984) (applying McDonnell Douglas to ADEA discrimination claims). Pursuant to this sc heme, a plaintiff must first demonstrate by a preponderance of evidence th e existence of a prima facie case of discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 252-53 (1981). 13 If the plaintiff is able to establish a prima facie case, then the burden shifts to the defendant to offer a nondiscriminatory reason for the challenged determination. See McDonnell Douglas , 411 U.S. at 802-03. And once such reason is offe red, the burden shifts back to the plaintiff

13 To prove a prima facie case of discriminatory non-selection, a plaintiff must prove that: (1) he is a member of a protected class; (2) he applied for and was qualified for an available position; (3) despite his qualificati ons he was rejected; and (4) either someone . . . filled the position or the position remained vacant and the employer continued to seek applicants. Jackson v. Gonzalez , 496 F.3d 703, 707 (2007) (quoting Lathram v. Snow , 336 F.3d 1085, 1088 (D.C. Cir. 2003)); see also Walker , 590 F. Supp. 2d at 137 (quoting Brady v. Office of the Sergeant at Arms , 520 F.3d 490, 493 n.1 (D.C. Cir. 2008)); see also Barnett , 715 F.3d at 358 (noting that the D.C. Circuit analyzes claims under Title VII and the ADEA in the same way).16 to demonstrate that the employer’s reason was actually pretext for discrimination. See id. at 804. Significantly, the D.C. Circuit has cl arified that an analys is of the first step in the McDonnell Douglas framework—assessment of the prima facie factors—is “almost always irrelevant” and is “largely [an] unnecessary sideshow.” Brady v. Office of the Sergeant at Arms , 520 F.3d 490, 492, 494 (D.C. Cir. 2008). Th us, where, as here, the defendant employer has as serted a legitimate, non-discriminato ry reason for an employment decision, there is “one centra l question” that the district court must resolve: whether the employee has produced “sufficient evidence for a reasonable jury to find that the employer’s asserted non-di scriminatory reason was not the actual reason and that the employer intentionally di scriminated against the employee on [an improper] basis[.]” Id. at 494. In non-selection cases, there are typically three ways a plaintiff can successfully establish that a reasonable jury could find that the employer’s stated reason for the challenged action was pretext for discriminati on. First, the plaint iff can demonstrate that there is a significant qualifications ga p between him and the selected candidate. Notably, however, for the Court to infer di scrimination on the basis of the candidates’ qualifications alone, “the qualifications ga p must be great enough to be inherently indicative of discrimination.” Holcomb v. Powell , 433 F.3d 889, 897 (D.C. Cir. 2006) (citing Lathram v. Snow , 336 F.3d 1085 , 1091 (D.C. Cir. 2003)); Hamilton v. Geithner , 666 F.3d 1344, 1352 (D.C. Cir. 2012); see also Hyson , 802 F. Supp. 2d at 98 (where “the parties’ quarrel focuses on a dispute over the relative qualifications of candidates for a particular position, the courts have co nsistently declined to serve as a superpersonnel department that reexamines an entity’s business decisions” (internal17 quotation marks omitted) (quoting Holcomb , 433 F.3d at 89 7)). Second, inconsistencies or irregularities in an employer’s establishe d hiring process may support a finding of discriminatory non-selection. See Lane v. Vasquez , 961 F. Supp. 2d 55, 67 (D.D.C. 2013) (the employer’s “adherence to or depart ure from internal hiring procedures is a factor that the trier of fact may deem probative and c hoose to consider in determining the true motivation behind the hiring decision” (quoting Johnson v. Lehman , 679 F.2d 918, 922 (D.C. Cir. 1 982))). Third and finally, a plai ntiff “can also avoid summary judgment” if he can present “other evidence, e ither direct or circumstantial, that permits an inference of discrimination.” Hyson , 802 F. Supp. 2d at 98 (quoting Aka v. Wash. Hosp. Ctr. , 156 F.3d 1284, 12 95 n.11 (D.C. Cir. 199 8) (en banc)). In the absence of direct evidence of discrimination— i.e. , an admission that the selection determination was actually motivated by a candidate’s protected characteristic—circumstantial evidence of discrimination may include d ecision makers’ other comments, interview summary sheets, or other sworn testimony. See, e.g. , Aka , 156 F.3d at 1298-99 (finding that the content of interview summary sheet s and affidavits provided evidence of discrimination.)

B. Raymond Has Failed To Establish That A Reasonable Jury Could Conclude The AOC’s Proffered Re ason For The Non-Selection Was Pretext For Discrimination The AOC maintains that each of the thre e panel members in charge of making the challenged selection decision indepe ndently concluded that Shields was more qualified for the position than Raymond, base d on the applicants’ relative work and interview performance. (Def.’s Mot. at 1, 32.) Thus, the only question before the Court is whether Raymond has produced sufficient evidence to rebut this legitimate,18 non-discriminatory reason or to s how that it was mere pretext. See Brady , 520 F.3d at 494. In light of the applicable legal stan dards discussed above and for the following three reasons, this Court finds that Ra ymond has failed to demonstrate that the Defendant’s legitimate reason for selecting Shields was pretext for discrimination. First, there is no significant gap in qualifications that would raise any inference of discrimination. As noted, to give rise to an inference of discrimination, “the plaintiff must be ‘substantially more qualified’ than the successfu l candidate to perform the duties listed in the vacancy announcement, a nd the non-selected candidate must have a ‘stark superiority of credentials.’” Warner v. Vance-Cooks , 956 F. Supp. 2d 129, 152 (D.D.C. 2013) (quoting Porter v. Shah , 606 F.3d 809, 815-16 (D.C. Cir. 2010)); see also Grosdidier , 709 F.3d at 25 (“To prevail on a re lative qualifications claim, [the plaintiff] must show that she is ‘ significantly better qualified for the job than [the applicant] ultimately chosen.” (emphasis in original) (second alteration in original)). There is nothing in the record that esta blishes that Raymond is “substantially” or “significantly” better qualified th an Shields, and in fact, when one compares the two applicants’ awards and job training, the record clearly indicates otherwise. ( Compare,

e.g. , Shields Appl. at 7-9 (noting that Shields had won 15 awards, completed 13 training courses, and received “O utstanding” ratings), with Raymond Appl. at 2-6 (noting that Raymond had won 3 awards, completed 4 tr aining courses, and received “Fully Successful” ratings).) 14 The panelists’ impressions of the applicants’ interviews

14 Raymond suggests that Shields fabricated the training and awards listed on his application, calling Shields’s resume “marketing puffery” and stating that th ere is “nothing to authenti cate as true either the training or awards [Shields] received.” (Pl.’s Opp’n at 5-6.) But Raymond offers nothing other than his own accusations that Shields’s statements regardi ng his training or awards are untrue. Such bald allegations are insufficient to establish a genuine issue of fact where, as here, Shields listed his awards, training, and experience on a form that was submitted to panelists who were familiar with him and his19 similarly reflects that Shields was a better performer than Raymond. ( See Wood Decl. ¶ 8 (explaining that while “Shields was ab le to articulate” how he would stress the importance of “attention to detail” to his employees, Raymond’s response was vague and express “no clear plan”); Carroll Decl. ¶¶ 10, 14 (explaining that Shields gave more specific answers than Raymond).) And the panelists had their own prior experiences with, and observations of , Shields and Raymond to dr aw upon as well. ( See Wood Decl. ¶ 5 (testifying that wh ile Shields worked independ ently, Raymond needed more direction); Carroll Decl. ¶ 11 (noting that Shields showed initiative while Raymond did not); see also id. (Shields was better suited for this supervisory and management position based on the “initiative” and “lead [ership]” he exhibited compared to Raymond’s more passive style).) Indeed , rather than demonstrating Raymond’s superior qualifications in a manner that raises an inference of discrimination, the record evidence confirms the correct ness of the panelists’ considered independent judgment that, on a qualifications scale, Shields should be ranked more highly than Raymond. 15 Second, there is no dispute that the AO C followed its ordinary procedures in making the selection determination at issue here . It is clear on this record that the AOC followed its usual hiring procedures: the interview panelists rated each applicant

work. The panel accepted the representations as true, and in the absence of proof to the contrary, so will this Court.

15 Raymond insists nonetheless that his resume shows he was better qualified than Shields ( see Pl.’s Opp’n at 6; Pl.’s Dep. II. at 65), but it is well es tablished that a plainti ff’s own perception of his superior qualifications does not outweigh the record evidence to the contrary. See Ficken v. Clinton , 771 F. Supp. 2d 79, 84 (D.D.C. 2011) (“[A] plaintiff’s personal evaluation of his own qualifications and performance is insufficient to rebut a defendant ’s legitimate, non-discriminatory reason for his non-selection.” (citations omitted)); see, e.g. , Jo v. District of Columbia , 582 F. Supp. 2d 51, 62-63 (D.D.C. 2008) (“Although Plai ntiff clearly values his own creden tials and experiences, a plaintiff’s subjective assessment of his own record is largely irrelevant.” (citations omitted)); Spelke v. Gonzales , 516 F. Supp. 2d 76, 80 (D.D.C. 2007) (noting that th e “plaintiff’s subjective self-assessment” of his qualifications “does not defeat de fendant’s offering a legitimate, nondiscriminatory reason for the nonselection of plaintiff” (internal quotation marks and citation omitted)).20 independently, completed separate ranking sh eets, and did not confer with one another in their ratings. Using this process, all three panelists chose Shields as the betterqualified candidate, and for good reason ( see supra ). Raymond has not offered any evidence to suggest that Defendant strayed from the usual hiring path in any way, let alone in a manner that renders its explanati on for hiring Shields “unworthy of belief.”

Porter , 606 F.3d at 816 (citation omitted). Third and finally, this Court concludes th at no valid inference of discrimination with respect to the selection arises from any other evidence that Raymond presents, including, in particular, Raymond’s contention that panelist Thomas had previously demonstrated discriminatory animus to wards Raymond in the workplace by making comments related to his national origin and ag e. While discriminatory comments made by one member of a selection committee may raise an inference of pretext, see Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 152 (2000), whether such an inference arises depends on the particular circum stances of the committee’s determination, id. , and this Court finds that the circumstan ces here do not permit an inference that Thomas’s alleged prior discriminatory stat ements tainted the selection process for several reasons. First of all, there is no record evidence (other than Raymond’s own testimony) to support the vigorously disputed contention that Thomas actually made any discriminatory statements about Raymond. This threshold hurdle is one that Raymond would need to surmount successfully before he could even begin to assert that Thomas’s discriminatory animus tainted the selection process. Moreover, even if it could be shown that Thomas had previously made comments about Raymo nd’s national origin and age, there are no facts in the record that suggest that any such discriminatory21 thoughts or animosity necessarily carried over into Thomas’s own assessment of Raymond’s qualifications in the context of th e selection process, mu ch less that such discriminatory animus influenced the as sessments of Thomas’s fellow panelists. 16 And it is this latter point that most clearly reveals the flawed nature of Raymond’s pretext argument. It is undisputed that Thomas was not the sole decision maker, and there is no genuine issue regardi ng the fact that the panelists reached their selection decisions entirely independently. Independent assessments of candidate qualifications in the form of separate ratings was an established part of the AOC hiring process, and under the circumstances presen ted here, it is clear that the independent assessment process effectively insulated th e selection determination from challenge based on Thomas’s alleged discriminatory animus. See Hampton v. Vilsack , 685 F.3d 1096, 1101-02 (D.C. Cir. 2012) (affirming the distri ct court’s grant of summary judgment to the employer where the termina tion decision was based on an “independent assessment” of the plaintiff’s conduct an d was not influenced by the plaintiff’s supervisor who was alleged to harbor discriminatory animus); Hall v. Giant Food , 175 F.3d 1074, 1079-80 (D.C. Cir. 1999) (eviden ce of one supervisor’s discriminatory remarks is not probative of discrimina tion where the decision maker “made an independent assessment” of the plaintiff’s conduct); cf. George v. Leavitt , 407 F.3d 405, 416 (D.C. Cir. 2 005) (finding evidence of discrimination where a supervisor is alleged to harbor discriminatory animus a nd to have “influenced” the decision maker’s ultimate determina tion (citation omitted)); Griffin v. Wash. Convention Ctr. , 142 F.3d

16 It is well established that, while a plaintiff’s history with an alle ged discriminatory supervisor may be “relevant” to the question of whether discrimination was the motivation for a particular hiring decision, that alone is “not enough to impute sinister motivations” for that determination. See, e.g. , Porter , 606 F.3d at 816 (quoting Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1330 (10th Cir. 1999)).22 1308, 1310 (D.C. Cir. 1998) (evidence of a co lleague’s bias is relevant where “the ultimate decision maker is not insulated from th[at employee’s] influence” (citation omitted)). Significantly, Raymond nowhere alleges that either of the other two panelists, or for that matter, HOB Superi ntendent Weidemeyer, ever harbored any ill will towards him or discriminated against him in any way, and there is no evidence that Thomas’s alleged discriminato ry animus “influen ced the committee’s deliberations by portraying [the plaintiff’s] performance to the committee in the wo rst possible light.” Shager v. Upjohn Co. , 913 F.2d 398, 405 (7th Cir. 1990). And in the absence of such evidence, the Court concludes that there is no genuine issue of material fact about the independent and untainted nature of the eval uations of two of the three panel members, and thus the non-discriminatory nature of the selection at issue. 17 In sum, nothing in the record regarding the relative qualifications of Shields and Raymond or the selection process used to fill the Laborer (Recycler) General Supervisor Position raises any inference of discrimination, nor can such an inference be based either on a deviation in the hiring process (there was none) or on Thomas’s allegedly discriminatory remarks made earlie r and in a different context. Raymond would like to move forward with his discrimination case based on his belief that Thomas was a discriminatory actor, but even if it can be shown th at Thomas harbored discriminatory animus, there is no dispute that the other two panelists independently concluded that the selected applicant was be tter-qualified (a finding that the record

17 The only possible factual basis in the record for any contention that the panel may have been improperly influenced is Raymond’s testimony that Cordell Shields mentioned Raymond’s age in a disparaging way during a February 2010 meeting that Thomas, Carroll, and Weidemeyer attended. (Pl.’s Dep. I at 5.) But there is no evidentiary support for any conclusion that those individuals even heard or otherwise acknowledged those stray remarks, which were made months earlier and in a different context, and thus, there is no basis for any inference that those remarks influenced the panel’s selection decision in any way. ( Cf. Shields Decl. ¶¶ 10-11.)23 confirms), and the final decision maker (the Superintendent) heartily concurred with that conclusion. Thus, there is no genuine issue of material fact as to whether the panel’s selection of Shields was truly mo tivated by discrimination against Raymond, nor has any material question been rais ed regarding whether Thomas’s alleged discriminatory animus somehow tainte d the challenged selection process.

IV. CONCLUSION For the reasons stated above, Raymond has failed to show that Defendant’s asserted reason for selecting Shields was a pretext for discrimination, and Defendant’s motion for summary j udgment must be GRANTED . Summary judgment will be entered in favor of Defendant pursuan t to the separate order that accompanies th is memorandum opinion. DATE: June 23, 2014 

## Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge