UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHN DANIELS,

Plaintiff,

v. Civ. Action No. 14-1667 (EGS)

CHUGACH GOVERNMENT SERVICES, INC.

Defendant.

MEMORANDUM OPINION Pending before the Court is defendant Chugach Government

Services Incorporated’s (“CGSI”) motion for summary judgment on

plaintiff John Daniels’ claim of discrimination under

. Mr. Daniels alleges discrimination on the basis of

race, ancestry and ethnic considerations under Section 1981

based on CGSI’s failure to select him for a Senior IT

Administrator position both when the position was posted in

September 2011 and when it was reposted in November of 2011.

CGSI moves for summary judgment, arguing that Mr. Daniels has

failed to rebut its legitimate reasons for not selecting him for

the position and, in the alternative, failed to provide any

evidence that supports a finding of intentional discrimination.

Upon consideration of the motion, the response and reply thereto, the applicable law, and the entire record, CGSI’s

motion for summary judgment is GRANTED.

I. Background 1

Plaintiff John Daniels emigrated from Africa, and, in

October of 2009, began working for CGSI at its Potomac Job Corps

Center as a Systems Administrator. See Def.’s Supplemental

Statement of Undisputed Facts (“SOF”), ECF No. 32-2 ¶ 1; see

also Pl.’s SOF, ECF No. 33-4. In 2011, CGSI announced that it

was consolidating its Systems Administrator and Lead Systems

Administrator positions into one position, the Senior

Information Technology (“IT”) Administrator position. Def.’s

SOF, ECF No. 32-2 ¶ 2. CGSI notified Mr. Daniels that due to the

reorganization, the position he currently held would no longer

be funded and that his layoff would be effective November 2011.

. CGSI also notified Mr. Daniels that he could apply for

other available positions as long as he was qualified.

CGSI posted a Senior IT Administrator position on September

13, 2011.

. CGSI advertised this position and posted the

opening on the Chugach Job Board.

. The mandatory

requirements for the position included a bachelor’s degree from

an accredited college or university and “at least three years

experience[] preferred and demonstrated knowledge of setup,

1 Unless otherwise noted, the following facts are undisputed.

2 problem resolution, network support, etc., related to computer

hardware and software; and providing assistance to users.” CGSI

Job Description, ECF No. 32-6 at 4. Mr. Daniels and two other

individuals, Andy Berhe and Keith Lucas, applied for the

position. Def.’s SOF, ECF No. 32-2 ¶ 6. All three men were

interviewed by two CGSI Human Resource employees and were scored

on a scale of 0-28.

¶¶ 7–12. Mr. Berhe received scores of 20

and 21 out of 28.

¶¶ 7–8. Mr. Daniels received scores of 21

and 22 out of 28.

¶¶ 11–12. Mr. Lucas received the highest

scores by both interviewers, 25 and 26 out of 28.

¶¶ 9–10.

Mr. Daniels and Mr. Lucas advanced in the selection process

and proceeded to a final interview with Leslie Neloms, the

Director of Finance and Administration.

. Ms. Neloms had

the ultimate hiring authority for the Senior IT Administrator

position.

. Ms. Neloms interviewed Mr. Lucas at the end

of September 2011 and considered him to be a strong candidate.

. Specifically, Ms. Neloms was impressed by his many

years of experience in the IT Field.

Mr. Lucas had at least

ten more years of relevant experience in the IT Field than Mr.

Daniels,

, and had received higher scores based on the

initial round of interviews,

. It is undisputed that Ms.

Neloms, at the time she selected Mr. Lucas for the position, did

not realize that he did not have a Bachelor’s degree, one of the

mandatory requirements for the job. Decl. of Leslie Neloms

3 (“Neloms Decl.”), ECF No. 32-13 ¶¶ 7-9. When Ms. Neloms was

deciding between Mr. Daniels and Mr. Lucas for the position,

“race, ancestry, and national origin did not have any bearing on

her decision.” Def.’s SOF, ECF No. 32-2 ¶ 19. Mr. Daniels does

not dispute this assertion. Compare

with Pl.’s SOF, ECF No.

33-4 ¶ 19. (admitting that Ms. Neloms did not take into account

national origin in her hiring decisions).

Mr. Lucas was notified that he had been selected for the

position on October 6, 2011 but was terminated shortly

“thereafter for reasons unrelated to his qualifications”. Def.’s

SOF, ECF No. 32-2 ¶ 24. Mr. Daniels was made Acting Senior IT

Administrator in November of 2011.

. Also in November

2011, CGSI reposted the Senior IT Administrator position.

. CGSI posted the opening on the Chugach Job Board.

.

At the time of the posting, Mr. Daniels was aware of how to

check the Chugach Job Board and had access to the Job Board.

. Mr. Daniels had checked the Job Board prior to November

2011, and used the Job Board in September of 2011 when he

submitted his resume for the first Senior IT Administrator

posting.

¶¶ 31–32. Mr. Daniels did not check to see if the

Senior IT Administrator position was posted a second time, and

never applied for the November 2011 Senior IT Administrator

position.

¶¶ 35–36.

4 CGSI interviewed multiple individuals for the November 2011

posting of the Senior IT Administrator position.

.

Justin Thomas, an African-American man, applied for the position

on January 8, 2012, by submitting his application online.

. Mr. Thomas participated in a telephone interview for the

position on January 25, 2012, and was hired on February 3, 2012.

¶¶ 39–40. Mr. Daniels was terminated from his acting

position and he was offered a position as Substitute Instructor. 2

.

Mr. Daniels filed an administrative complaint with the

Office of Federal Contract Compliance Program (“OFCCP”) alleging

that CGSI violated Executive Order 11246. OFCCP Compl., ECF No.

30-2 at 7. EO 11246 prohibits government contractors from

discriminating against employees on the basis of race, color,

religion, sex, sexual orientation, gender identity, or national

origin. See Executive Action 11246, available at

http://www.dol.gov/ofccp/regs/statutes/eo11246.htm. In his

complaint, Mr. Daniels alleged that CGSI violated EO 11246 by

failing to hire him over a less qualified candidate. See OFCCP

Compl., ECF No. 30-2 at 7. The OFCCP agreed and stated that CGSI

2 The parties disagree as to the date on which Mr. Daniels was notified about the termination of his acting position. However, this fact is not material to the Court’s decision. See Anderson v. Liberty Lobby, Inc.,

(1986)(stating “material” fact is one capable of affecting the substantive outcome of the litigation).

5 “violated Executive Order 11246 when it hired the Selected

Candidate, who did not meet the minimum requirements for the

position, over the Complainant.” Id. at 11. Specifically, the

OFCCP found that the selected candidate did not meet one of the

mandatory requirements for the Senior IT Administrator position

which was a Bachelor’s degree or higher. Id. at 9. OFCCP further

explained that CGSI stated that selected candidate provided

conflicting information about this requirement, and that Ms.

Neloms did not catch the significance of the candidate’s

education in relation to the mandatory requirements. Id. at 10.

Ms. Neloms stated that the candidate should not have been

considered. Id. OFCCP found that the “Selected Candidate was

hired without meeting the minimum qualifications and over a more

qualified applicant, the Complainant.” Id.

Thereafter, Mr. Daniels brought this suit alleging several

claims against CGSI. See generally, Amended Compl., ECF No. 13.

This Court granted in part CGSI’s motion to dismiss, and the

sole claim that remains is the Section 1981 claim for

intentional discrimination. See Daniels v. Chugach Government

Serv.’s, Inc.,

(D.D.C 2016). The parties

have engaged in discovery pursuant to this Court’s scheduling

order issued September 22, 2016. See ECF No. 23. CGSI served

interrogatories, requests for production of documents, and

requests for admissions on December 9, 2016. See Pl.’s Mot. To

6 Withdraw Admissions (“Mot. to Withdraw”), ECF No. 25. Mr.

Daniels, for his part, served interrogatories and requests for

production of documents, but did not seek to depose any

potential witnesses.

Mr. Daniels also failed to respond to

CGSI’s request for admissions, interrogatories, and production

of documents in a timely manner. 3

CGSI filed a motion for summary judgment prior to the

completion of discovery, Def.’s Mot., ECF No. 28, and

subsequently filed a supplemental motion for summary judgment

after discovery closed, Def.’s Supp. Mot., ECF No. 32. Mr.

Daniels has opposed both motions, Pl.’s Opp’n, ECF No. 30; Pl.’s

Supp. Opp’n, ECF No. 33, and the motions are ripe for

adjudication.

3 Mr. Daniels, by failing to respond to CGSI’s request for admissions, admitted the substance of requests. See Fed. R. Civ. P. 36(a). He subsequently filed a motion to withdraw the deemed admissions. Mot. To Withdraw, ECF No. 25. Neither CGSI relies on the deemed admissions in support of its motion, nor does the Court in this Memorandum Opinion. Accordingly, there is no prejudice in allowing Mr. Daniels to withdraw the deemed admissions. Baker v. Potter,

(D.D.C. 2002) (”[W]ithdrawal is permissible if a party demonstrates that withdrawal will serve the presentation of the merits without prejudicing the party who requested the admissions.”). The Court also finds that the admissions would effectively bar Mr. Daniels from presenting the case on the merits.

Therefore, because withdrawal would serve the presentation of the merits and would not prejudice CGSI, Mr. Daniels’ motion to withdraw is GRANTED.

7 II. Legal Standard

A court may grant summary judgment when “the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A “material” fact is one capable of affecting the

substantive outcome of the litigation. See Liberty Lobby,

. A dispute is “genuine” if there is enough evidence

for a reasonable jury to return a verdict for the nonmovant. See

Scott v. Harris,

(2007).

When faced with a motion for summary judgment, the district

court may not make credibility determinations or weigh the

evidence; instead, the evidence must be analyzed in the light

most favorable to the non-movant, with all justifiable

inferences drawn in his favor. Liberty Lobby,

.

If material facts are genuinely in dispute, or undisputed facts

are susceptible to divergent yet justifiable inferences, summary

judgment is inappropriate. Moore v. Hartman,

(D.C. Cir. 2009). In the end, the district court's task is to

determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.”

Liberty Lobby, 477 U.S. at 251–52 (internal quotation marks

omitted). In this regard, the non-movant must “do more than

simply show that there is some metaphysical doubt as to the

8 material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp.,

(1986); “[i]f the evidence is

merely colorable, or is not significantly probative, summary

judgment may be granted.” Liberty Lobby, 477 U.S. at 249–50

(internal citations omitted).

III. Analysis

Section 1981 prohibits racial discrimination in the

“making, performance, modification, and termination of

contracts” and protects classes of persons from intentional

discrimination based on their ancestry or ethnic

characteristics.

(b); St. Francis College v. Al–

Khazraji,

(1987)(defining race as used in §

1981 as including ancestry and ethnicity claims). To establish a

claim under Section 1981, a plaintiff must show that (1) he is a

member of a racial minority group; (2) the defendant intended to

discriminate on the basis of race; and (3) the discrimination

pertained to one of the activities enumerated in the statute.

Dickerson v. District of Columbia,

(D.D.C. 2011). A successful Section 1981 claim alleges

discrimination based on ancestry or ethnic characteristics, not

country of origin. Nyunt v. Tomlinson,

(D.D.C. 2008)(“Race and national origin are ‘ideologically

distinct categories.’”).

9 Discrimination claims under Section 1981 are analyzed the

same way as discrimination claims under Title VII of the Civil

Rights Act. Ayissi-Etoh v. Fannie Mae,

(D.C.

Cir. 2013). Therefore, when there is no direct evidence of

discrimination, as is the case here, courts apply the McDonnell

Douglas Corp. v. Green,

, burden-shifting framework.

DeJesus v. WP Company LLC,

(D.C. Cir. 2016).

Under that framework, the plaintiff bears the initial burden of

establishing a prima facie case of discrimination. See

The

burden then shifts to the employer to provide a “legitimate,

nondiscriminatory reason” for the adverse employment action.

Wiley v. Glassman,

(D.C. Cir. 2007)(citations

omitted). If the employer can make such a showing, the burden

shifts back to the plaintiff to show that “the legitimate

reasons offered by the defendant were not its true reasons, but

were a pretext for discrimination.” George v. Leavitt,

(D.C. Cir. 2005)(quoting Tex. Dep't of Cmty. Affairs v.

Burdine,

, 252–53 (1981)).

However, once an employer has asserted a legitimate, non-

discriminatory reason for an adverse employment action under the

McDonnell Douglas framework, the Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”) has emphasized

that the inquiry into the prima facie case becomes “an

unnecessary and improper ‘sideshow.’” Jones v. Bernanke, 557

(D.C. Cir. 2009)(citation omitted). Once a

defendant has stated a legitimate, non-discriminatory reason for

the adverse employment action, the question becomes whether “the

employee [has] produced sufficient evidence for a reasonable

jury to find that the employer's asserted non-discriminatory

reason was not the actual reason and that the employer

intentionally discriminated against the employee.” Brady v.

Office of Sergeant at Arms,

(D.C. Cir. 2008).

In answering this question, courts should consider “all the

evidence, including ‘(1) the plaintiff's prima facie case; (2)

any evidence the plaintiff presents to attack the employer's

proffered explanation for its action; and (3) any further

evidence of discrimination that may be available to the

plaintiff (such as independent evidence of discriminatory

statements or attitudes on the part of the employer).’” Carter

v. George Washington Univ.,

(D.C. Cir. 2004)

(citation omitted).

A. CGSI Has Proffered Legitimate, Nondiscriminatory Reasons

“Defendants need only ‘proffer--not prove--a legitimate

nondiscriminatory reason for not offering [a plaintiff] [a] . .

. position.’” Butler v. Ashcroft,

(D.D.C.

2003)(citations omitted). Furthermore, the D.C. Circuit has held

that choosing between applicants “based solely upon their

answers during the interview” is “reasonable and non-

11 discriminatory.” Fischbach v. D.C. Dep’t of Corrs.,

(D.C. Cir. 1996). Indeed, selecting a candidate

“solely upon the basis of the scores . . . assigned to the

applicants. . . . precludes the possibility that [a defendant]

discriminated against [a plaintiff] on the basis of his race.”

CGSI argues that its reason for not offering Mr. Daniels

the September 2011 Senior IT Administrator position is that it

determined, through several interviews conducted by three

employees, that Mr. Lucas was more qualified for the position.

Def.’s Supp. Mot., ECF No. 32–1 at 9. 4 For the November 2011

position, CGSI argues that its reason for not offering Mr.

Daniels that position was because Mr. Daniels never applied for

the position.

CGSI has met its burden in this case to proffer legitimate

non-discriminatory reasons for its selection decisions. With

respect to the September 2011 position, CGSI states that it

determined through the interviews of the three candidates and

comparisons of their relative work experience, that Mr. Lucas

was the most qualified candidate. Two members of the Human

Resources Department interviewed the three candidates for the

4When citing electronic filings throughout this Memorandum Opinion, the Court cites to the ECF header page number, not the original page number of the filed document.

12 position, and based on scores from the initial round of

interviews, Mr. Lucas (who received the highest scores) and Mr.

Daniels (who received the second highest scores) advanced to the

final round of interviews with Ms. Neloms. Def.’s SOF, ECF No.

32-2 ¶¶ 7-13. In a declaration in support of CGSI’s motion, Ms.

Neloms attested that she selected Mr. Lucas for the position

over Mr. Daniels because Mr. Lucas received higher scores during

the initial round of interviews than Mr. Daniels, had many more

years of experience in the IT field than Mr. Daniels; and she

was impressed by Mr. Lucas’s very positive recommendations and

his performance during his interview with her. See Decl. of

Leslie Neloms, ECF No. 32-13 ¶¶ 9–10. These reasons are clearly

nondiscriminatory and reasonable. See Fischbach,

(stating selecting candidate based on interview scores precludes

the possibility of discrimination); see also Kennedy v. D.C.,

(D.D.C. 2007)(stating selection of

applicant with more supervisory experience was a legitimate,

non-discriminatory reason for non-selection).

Mr. Daniels points to the fact that Mr. Lucas only had an

Associate’s degree to show that he was significantly more

qualified than Mr. Lucas. Pl.’s Supp. Opp’n, ECF No. 33 at 3–4.

However he fails to link this fact to his allegation of

intentional discrimination. Moreover, uncontroverted evidence

shows that Ms. Neloms was not aware that having a bachelor’s

13 degree was a mandatory requirement for the position when she

interviewed Mr. Lucas and Mr. Daniels. Neloms Decl., ECF No. 32–

13 ¶ 8. Ms. Neloms’ belief that a Bachelor’s degree was not a

mandatory requirement does not create a material fact because

“[o]nce the employer has articulated a non-discriminatory

explanation for its action . . . the issue is not the

correctness or desirability of the reasons offered but whether

the employer honestly believes in the reasons it offers.” Mann

v. WMATA,

(D.D.C. 2016)(quoting

Fischbach,

). Mr. Daniels did not depose Ms.

Neloms and he fails to provide any evidence which puts into

dispute her sworn statement that she did not know at the time

she made the hiring decision that Mr. Lucas’s educational

history precluded him from the position. There is no evidence to

suggest that any mistake made at the time of the hiring decision

was not justified by a reasonable belief in the qualifications

of the position. See Mann,

(“An employer’s

action may be justified by a reasonable belief in the validity

of the reason given even though that reason may turn out to be

false.”). Accordingly, the Court finds that CGSI’s

“qualifications-based justification constitutes a legitimate,

non-discriminatory reason for the allegedly discriminatory”

conduct of not offering Mr. Daniels that September 2011

position. See Holcomb v. Powell,

(D.C. Cir.

14 2006)(selection of application based on relative work-experience

was a legitimate non-discriminatory reason).

With respect to the November 2011 posting, CGSI states that

the reason it selected Mr. Thomas over Mr. Daniels is because

Mr. Thomas applied for the position, as was required. Def.’s

SOF, ECF No. 32-2 ¶ 38. Mr. Daniels, however, failed to apply

for the position, and, CGSI argues it did not consider him for

the position because he failed to do so. Id. ¶¶ 28-30, 33, 35-

36. Mr. Daniels responds that, in his view, he was not required

to formally apply to the position because he was made Acting

Senior IT Administrator soon before the position was posted, and

because it was clear that he was interested in a permanent

position. Pl.’s Supp. Opp’n, ECF No. 33 at 5–8.

The Court finds that CGSI’s explanation that it did not

hire Mr. Daniels because he failed to apply for the position is

a legitimate, non-discriminatory explanation. It is undisputed

that Mr. Daniels did not apply to the position, and under these

circumstances, that fact is fatal to his argument that CGSI has

not proffered a legitimate explanation for the November 2011

position. Mr. Daniels relies on Cones v. Shalala,

(D.C. Cir. 2000), for the proposition that the failure to apply

to a position is not fatal to a discrimination claim based on

failure to hire as long as the applicant made “every reasonable

15 attempt to convey his interest in the job to his employer.”

Pl.’s Supp. Opp’n, ECF No. 33 at 6 (quoting id.).

In Cones, the position the plaintiff was passed up for was

never opened to competition, but rather was filled when the

selected candidate expressed her interest to a superior. See

Cones,

. Critically, the plaintiff in Cones

expressed his interest in the exact same way and therefore, the

Court held, if the selected candidate could get the position by

expressing her interest to a supervisor, the plaintiff doing

“precisely the same thing” was sufficient to show that he also

“applied” for the position.

The key difference in this case is that the November 2011

Senior IT Administrator position was “open to competition” once

it was posted on the Job Board for all employees to see. Mr.

Daniels did not make “every reasonable attempt to convey his

interest in the job to his employer” when he simply served in

the Acting IT Administrator role or by virtue of the fact that

he had applied to the same position two months prior. This case

is more analogous to Davis v. Ashcroft,

(D.D.C. 2005), in which the court held that a plaintiff’s

failure to apply to a position that was announced to all

divisions was fatal to his case. As in Davis, Mr. Daniels “has

not provided the court with any authority and the Court has

found none, for the proposition that the agency was required to

16 individually advise [him] of [the] vacancy.”

.

Accordingly, Ms. Neloms’ proffered reason for not hiring Mr.

Daniels for the November 2011 position (i.e., because he never

applied) was a legitimate non-discriminatory explanation for the

employment action that shifts the burden back to Mr. Daniels to

show pretext.

B. Mr. Daniels has Failed to Rebut CGSI’s Reasons

Because CGSI’s proffers satisfy its burden under the

McDonnell Douglas framework, the burden shifts back to Mr.

Daniels to demonstrate that the proffered nondiscriminatory

explanations are a pretext for discrimination. See Fischbach,

. A plaintiff may carry his or her rebuttal burden

by “presenting enough evidence to allow a reasonable trier of

fact to conclude that ‘the employer’s proffered explanation is

unworthy of credence,’ and merely a pretext for discrimination”

Desmond v. Mukasey,

(D.C. Cir. 2008)(internal

citations omitted). If an employer states that it’s hiring

decision was based on the relative qualifications of the

candidates, a plaintiff can challenge that qualification-based

explanation if the plaintiff can show that he or she was

“significantly better qualified” for the job than those

ultimately chosen. Holcomb v. Powell,

. The

qualifications gap must be “great enough to be inherently

indicative of discrimination.”

Only then could the fact-

17 finder “legitimately infer that the employer consciously

selected a less-qualified candidate[,] something that employers

do not usually do, unless some other strong consideration, such

as discrimination, enters into the picture.” Jackson v.

Gonzales,

(D.C. Cir. 2007)(internal quotation

marks omitted). In cases in which the comparative qualifications

are close, a reasonable jury would not usually find

discrimination because the jury would “assume that the employer

is more capable of assessing the significance of small

differences in the qualifications of the candidates, or that the

employer simply made a judgment call.” Aka v. Washington Hosp.

Ctr.,

(D.C. Cir. 1998)(en banc).

Mr. Daniels has not shown that he was significantly more

qualified than Mr. Lucas. Mr. Lucas’s resumé profile shows that

he had at least 12 years of experience in the information

technology field, ECF No. 32-15, whereas Mr. Daniels had two and

a half years of experience in the field, ECF No. 32–16. Mr.

Lucas also outperformed Mr. Daniels in the initial round of

interviews and was rated higher for the position by each of his

initial interviewers. Def.’s SOF, ECF No. 32-2 ¶¶ 9–10.

Moreover, Ms. Neloms was more impressed by Mr. Lucas’s final

interview and his many years in the IT field. Id. ¶ 17.

Mr. Daniels does not dispute that Mr. Lucas had ten more

years of relevant experience in the IT field, or that Mr. Lucas

18 received higher scores during the initial rounds of the

interview process. See Pl.’s SOF, ECF No. 33-4 ¶¶ 22-24. Rather,

he relies on the fact that Mr. Lucas had an Associate’s degree

and therefore did not meet the Bachelor’s degree requirement for

the position. Pl.’s Supp. Opp’n, ECF No. 33 at 3–4. However, the

relevant inquiry is what the employer believed at the time of

the hiring, and Ms. Neloms had not known that the Bachelor’s

degree requirement was mandatory. Neloms Decl., ECF 32-13 ¶ 9.

In determining whether an employment action is discriminatory,

the Court “is tasked with evaluating the reasonableness of the

decisionmaker’s belief because honesty and reasonableness are

linked[.]” Jackson v. Gonzales,

(D.C. Cir.

2007). Here, it was reasonable for Ms. Neloms to have placed a

greater value on Mr. Lucas’ over ten years of experience in the

IT Field in comparison to Mr. Daniels’ two and a half years of

experience, and to not base her decision on educational

requirements, as she believed at the time both candidates met

the requirements for the position. Neloms Decl., ECF 32-13 ¶ 9.

Mr. Daniels attempts to cast doubt on Ms. Neloms’

credibility and the rationale articulated in her declaration.

Pl.’s Supp. Opp’n, ECF No. 33 at 3–4. Specifically, Mr. Daniels

argues that Ms. Neloms’ assertion that “[o]nly after Mr. Daniels

filed a complaint did [she] become aware that a bachelor’s

degree was a mandatory requirement for the position,” Neloms

19 Decl., ECF No. 32-13 ¶ 8, is false because Ms. Neloms noted in a

December 27, 2011 interview, well before the filing of the

complaint, that an applicant did not meet the Bachelor degree

requirement for the position. Pl.’s Supp. Opp’n, ECF No. 33 at

4. Mr. Daniels argues that Ms. Neloms’ statement is false,

thereby creating a genuine issue of material fact as to whether

CGSI’s reasons for not hiring him was a pretext for

discrimination.

Mr. Daniels also argues that Mr. Lucas was

hired five days before his application was submitted, thereby

casting doubt on the rationale for hiring Mr. Lucas.

Ms. Neloms’ credibility does not create a genuine issue of

material fact for at least two reasons. First, independent of

what Ms. Neloms understood at the time of the December 2011

interview, it is undisputed that at the time she interviewed Mr.

Lucas, Ms. Neloms did not know that the job required a

Bachelor’s degree. Neloms Decl., ECF No. 32-13 ¶ 8. Second, and

relatedly, even if Ms. Neloms did know that Mr. Lucas was not

qualified and chose him anyway, Mr. Daniels has not disputed

that his “race, ancestry, and national origin did not have any

bearing on [Ms. Neloms’] decision to hire Mr. Lucas.” Pl.’s SOF,

ECF No. 33-4 ¶ 19. ¶ In other words, despite attacking Ms.

Neloms’ credibility generally, he has provided no support for

20 his assertion that Ms. Neloms’ actions were motivated by racial

animus. 5

As for the November 2011 position, Mr. Daniels has not

shown he was significantly more qualified than Mr. Thomas. It is

undisputed that Mr. Daniels did not apply for the November 2011

position whereas Mr. Thomas applied for the position. Def.’s

SOF, ECF No. 32-2 ¶ 36. Although Mr. Daniels concedes he never

applied for the position, he argues that he was not required to

because he had applied for the September position and was

rejected. Pl.’s Supp. Opp’n, ECF No 33 at 5–7. He argues that he

was made Acting Senior IT Administrator days before the November

2011 posting, and therefore it would make little sense for him

to apply for a job he had already obtained.

Mr. Daniels also

argues that he was never notified of the job posting, or that

his position of Acting Senior IT Administrator was temporary.

5 Mr. Daniels argument that Mr. Lucas was hired five days before he applied for the position is belied by the record. Although Mr. Lucas’ application bears the date of October 11, 2019, CGSI has submitted documents that show that Mr. Lucas applied for the position on September 13, 2019. ECF No. 32-15. Moreover, the interview notes submitted as exhibits to CGSI’s supplemental motion show that Mr. Lucas’s interview was on September 29, 2019, the same day that Mr. Daniels was interviewed. ECF No. 32- 9 at 2 (Mr. Lucas’ interview notes); ECF No. 32-11 at 2 (Mr. Daniels’ interview notes). Therefore, Mr. Daniels’ implication that Mr. Lucas’ job offer was predetermined is not persuasive.

21 Mr. Daniels’ arguments are not persuasive. The undisputed

evidence shows the Senior IT Administrator position was posted

on the Chugach Job Board in November 2011 for all employees to

see; and that Mr. Daniels was aware of the Job Board. Def.’s

SOF, ECF No. 32-2 ¶ 28. Mr. Daniels’ arguments that he did not

believe he was required to apply for the position are beside the

point. He points to no authority for the proposition that an

agency is required to notify an employee of a particular

opening. To the contrary, this Circuit has repeatedly stated

that if an employer posts a job opening a plaintiff must apply

to the position to maintain a discrimination claim. See, e.g.,

Thomas v. Ghandi,

, 107–108 (D.D.C.

2007)(granting summary judgment when plaintiff failed to apply

for a position and rejecting argument that plaintiff should have

been automatically considered). The record shows that Mr.

Daniels did not apply for the job, and therefore the Court

cannot find that he was significantly more qualified for the

Senior IT Administrator position than Mr. Thomas, who did apply

for the position. 6

6 Put differently, Mr. Daniels has failed to make a prima facie case of discrimination. The D.C. Circuit has instructed that when a defendant provides a legitimate non-discriminatory reason for an employment decision the prima facie case inquiry falls out of the analysis. Brady,

. However, when considering whether an employer’s reason is not the actual reason but rather pre-text for intentional discrimination, the Court should consider all the evidence including “the

22 Based on the undisputed facts, a reasonable jury could not

conclude that Mr. Daniels was significantly more qualified than

either Mr. Lucas or Mr. Thomas. Therefore Mr. Daniels has failed

to meet his burden of demonstrating that CGSI’s reasons for not

hiring him for September 2011 or the November 2011 Senior IT

Administrator position were a pretext for discrimination.

C. Mr. Daniels Fails to Provide Evidence of Intentional Discrimination

Even if Mr. Daniels could show the reasons given by CGSI

were pretextual, he has failed to provide any evidence

demonstrating that the reason he was not selected was due to

intentional discrimination. See Brady,

(stating

plaintiff must prove pre-text “and that the employer

intentionally discriminated against the employee.”) In fact, Mr.

Daniels agreed that “race, ancestry, and national origin did not

have any bearing on [Ms. Neloms’] decision to hire Mr. Lucas.”

Def.’s SOF, ECF No. 32-2 ¶ 19; Pl.’s SOF ECF No. 33-4 ¶ 19

(admitting this fact). With regard to the November 2011

position, Mr. Daniels fails to offer any evidence that his

ancestry was the reason he was not offered the position.

plaintiff’s prima facie case.” Carter,

. Moreover, when determining if an applicant is significantly more qualified than the selected applicant, whether the plaintiff applied for the position at all is clearly relevant to the Court’s analysis.

23 In lieu of any evidence of intentional discrimination, Mr.

Daniels simply points to the OFCCP report as support for his

claims in this case. Pl.’s Supp. Opp’n ECF No. 33 at 3.

Specifically, the report outlines the chronology of Mr. Daniels’

employment at CGSI, the interview process through which Mr.

Lucas was selected, and the reposting of the position which led

to the selection of Mr. Thomas. OFCCP Compl., ECF No. 30-2 at 7–

11. The report then determined there was discrimination because

Mr. Lucas was hired despite only possessing an Associate’s

degree. Id. at 11. The report also notes that CGSI admitted that

its selection procedures were not perfect and Ms. Neloms stated

that hiring Mr. Lucas although he did not meet the minimum

requirements “was clearly an error.” See id. at 10. This was,

according to the report, enough evidence to show discrimination.

Id. at 11.

Although this evidence was enough for the OFCCP

investigation to make a finding of discrimination, review of the

fully developed record does not lead to the same conclusion by

the Court. See Francis v. District of Columbia,

. (stating agency determination of discrimination

“does not have any binding effect in a collateral Title VII

civil action.”). The report fails to explain why CGSI’s “error”

of hiring Mr. Lucas was motivated by discriminatory animus as is

required by law. As the D.C. Circuit has explained “[e]ven if a

24 court suspects that a job applicant ‘was victimized by poor

selection procedures it may not second-guess an employer's

personnel decision absent demonstrably discriminatory motive.’”

Fischbach,

(citation omitted). CGSI’s selection

procedures can be described as poor in this case because CGSI

clearly erred when it failed to appreciate the import of Mr.

Lucas’s educational history. However, the undisputed fact is

that in selecting Mr. Lucas “race, ancestry, and national origin

did not have any bearing on [Ms. Neloms’] decision.” See Pl.’s

SOF ECF 33-4 ¶ 19. The same holds true for Mr. Thomas since Mr.

Daniels failed to apply for the position.

Mr. Daniels has failed to proffer any evidence of

intentional discrimination. Fischbach,

(stating

a court may not “second-guess an employer's personnel decision

absent demonstrably discriminatory motive”). Based on this

record, the Court concludes Mr. Daniels failed to meet his

burden of showing that a reasonable jury could conclude that

CGSI’s actions were based on a discriminatory motive. See

Jackson,

. Therefore, the Court GRANTS CGSI’s

motion for summary judgment.

IV. Conclusion

For the foregoing reasons, the defendant’s motion for

summary judgment and its supplemental motion for summary

25 judgment are GRANTED. An appropriate Order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge October 18, 2019

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