UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

KELLY STEPHENSON,

Plaintiff, v. No. 21-cv-1209-ZMF PETE BUTTIGIEG, Secretary of Transportation,

Defendant.

MEMORANDUM OPINION

Mr. Kelly Stephenson brings this action against Secretary of Transportation Pete Buttigieg

(“Defendant”) for violating the Age Discrimination in Employment Act (“ADEA”) 1, claiming that

the Federal Aviation Administration (“FAA”) discriminated against him based on his age and

retaliated against him for his prior complaints with the Equal Employment Opportunity

Commission (“EEOC”). Pending before the Court is Defendant’s Motion for Summary Judgment,

which the Court will GRANT in an accompanying order.

I. BACKGROUND

A. Factual Background

Prior FAA Applications and Prior Protected Activity

1 Plaintiff references non-ADEA claims in his briefings but does not raise them as claims. See Pl.’s Am. Compl. ¶ 2, ECF No. 12; Pl.’s Opp’n to Def’s Mot. For Summ. J. 11, ECF No. 30. Defendant flagged these non-ADEA references as “inadvertent error” with no related claim before the Court. See Def.’s Mot. for Summ. J. 1 n.1, ECF No. 29. Plaintiff did not respond to this. “[A]n argument in a dispositive motion that the opponent fails to address in an opposition may be deemed conceded.” Kone v. Dist. Of Columbia,

(D.D.C. 2011). Thus, Plaintiff has conceded he is not pursuing non-ADEA claims.

1 Mr. Stephenson, born in 1966, previously worked in the FAA as an Air Traffic Control

Specialist. Def.’s Response to Pl.’s Statement of Facts (“SOF Response”) ¶ 1, ECF No. 31. In

2005, the FAA placed Mr. Stephenson on disability retirement after he suffered a stroke. SOF

Response ¶ 2. Mr. Stephenson appealed the FAA’s decision to place him on disability retirement

to the EEOC. Pl.’s Opp’n to Def.’s Mot. For Summ. J. (“Pl’s. Opp’n”), Ex. A, Dep. of Kelly

Stephenson (“Stephenson Dep.”) 32-34, ECF No. 30-1. The EEOC ruled in favor of the FAA.

Stephenson Dep., 28-29.

In 2013, Mr. Stephenson applied for a position within the FAA; however, the FAA

inadvertently omitted him from their list of referred applicants. See SOF Response ¶ 4. As a result

of this error, the FAA gave Mr. Stephenson priority consideration status for two years starting on

December 20, 2013. See Pl.’s Opp’n, Ex. B, Priority Consideration Letter (“Priority Consideration

Letter”) 1, ECF No. 30-2. FAA policy specifies that a priority consideration applicant will receive

priority referral for employment vacancies for two years from the date of the formal application

“but selection is at the discretion of the selecting official.” Id.; Pl.’s Opp’n, Ex. C, Policy Manual

3, ECF No. 30-3.

Despite his priority consideration, the FAA did not select Mr. Stephenson for the three

vacancies to which he applied. See SOF Response ¶ 7. Mr. Stephenson appealed these three non-

selections to the EEOC. See Pl.’s Am. Compl. (“Am. Compl.”) ¶¶ 8-11, ECF No. 12. The EEOC

affirmed the FAA’s final decisions. See Def.’s Mot. to Dismiss, Ex. 1, EEOC Decision 1, ECF No.

9-2.

Mr. Stephenson’s Application to VA 44909

On December 11, 2015, Mr. Stephenson applied to the vacancy at issue, AWA-AOV-16-

0025SS-44909 (“VA 44909”). Pl.’s Opp’n ¶ 15. This vacancy was open from December 8-18,

2 2015. Pl.’s Opp’n, Ex. D, VA 44909 Listing 1, ECF No. 30-4. His priority consideration status

ended on December 19, 2015. See Pl.’s Opp’n, Ex. R, Decl. of Lamont Virgil (“Virgil Decl.”)

¶¶ 4-8, ECF No. 30-18. The hiring authority received a certified list of applicants on December

28, 2015, which included Mr. Stephenson as an applicant without priority consideration. See id.

¶ 9.

The same four individuals sat together on a recruitment panel for all four vacancies to

which Mr. Stephenson had applied. See Def.’s Mot. for Summ. J. (“MSJ”) 6, ECF No. 29. Three

of these individuals were older than Mr. Stephenson. See id. at 11-12.

The panel followed standard protocol for reviewing applications and selecting individuals

for an interview. See MSJ, Ex. S, Decl. of Anthony Ferrante (“Ferrante Decl.”) ¶¶ 17-19, ECF No.

29-20. This included an evaluation of the applicants’ experience and education, and scoring

applicants against a Job Analysis Tool with an embedded Knowledge, Skills, and Abilities criteria

specific to the vacancy. See MSJ, Ex. T, Job Analysis Tool (“Job Analysis Tool”) 1, ECF No.

29-20; Ferrante Decl. ¶¶ 28-29. Mr. Stephenson scored an average of 95 out of 300. Pl.’s Opp’n,

Ex. F, Summary of Panel Ratings (“Panel Ratings”) 1, ECF No. 30-6. He was ranked 34th out of

51 total applicants. Id. at 1-2.

For employment vacancies, the FAA on average invites the top five to eight candidates

based on initial application scores for an interview. See Ferrante Decl. ¶ 17. For VA 44909, the

panel selected nine candidates—but not Mr. Stephenson—for interviews. See id. ¶ 20. The panel

did not select Mr. Stephenson because of his poor scores. See id.

The panel selected seven individuals to fill the vacancy for VA 44909. See id. ¶ 25. Of the

seven, four were older than Mr. Stephenson. Stephenson Dep. 77-79.

3 Mr. Stephenson filed a complaint about this non-selection with the EEOC. See Am. Compl.

¶ 8. On March 29, 2021, the EEOC affirmed the FAA’s decision. See Def.’s Mot. to Dismiss, Ex.

2, EEOC Decision 2, ECF No. 9-3.

B. Procedural History

On May 4, 2021, Mr. Stephenson filed this suit. See Compl. 8, ECF No. 1. On November

8, 2021, Defendant filed a Motion to Dismiss. See Def.’s Mot. to Dismiss 16, ECF No. 9. On

December 6, 2021, Mr. Stephenson filed an Amended Complaint. Am. Compl. 9, ECF No. 12. On

March 2, 2022, the parties consented to proceed before a U.S. Magistrate Judge, and the matter

was referred to the undersigned. Meet and Confer Statement 8, ECF No. 16. On April 11, 2022,

the undersigned denied Defendant’s Motion to Dismiss as moot. Min. Order (Apr. 11, 2022).

On August 3, 2023, following discovery, Defendant moved for summary judgment. MSJ.

On September 1, 2023, Mr. Stephenson filed his response in opposition to Defendant’s motion for

summary judgment. Pl.’s Opp’n, ECF No. 30. On September 27, 2023, Defendant filed a reply.

Def.’s Reply in Support of Mot. for Summ. J. (“Def.’s Reply”), ECF No. 31.

II. LEGAL STANDARD

To succeed on a motion for summary judgment, the moving party must show 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 fact is material if it “might affect the outcome of the suit under the

governing law,” and a dispute is genuine “if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Steele v. Schafer,

(D.C. Cir. 2008) (quoting

Anderson v. Liberty Lobby, Inc.,

(1986)). The moving party bears the initial

burden of demonstrating that there is no genuine dispute of material fact. See Celotex Corp. v.

Catrett,

(1986). If the moving party meets this burden, the nonmoving party

4 must identify “specific facts showing that there is a genuine issue for trial.”

at 324 (quoting

Fed. R. Civ. P. 56(e)).

In evaluating motions for summary judgment, the Court must review all evidence in the

light most favorable to the nonmoving party and draw all inferences in the nonmoving party’s

favor. See Tolan v. Cotton,

(2014) (per curiam). In doing so, the Court must

not assess credibility or weigh the evidence. See Barnett v. PA Consulting Grp., Inc.,

(D.C. Cir. 2013). “[T]he nonmoving party must present specific facts, supported by

materials in the record, that would be admissible at trial and that could enable a reasonable jury to

find in its favor.” Jeffries v. Garland, No. 15-cv-1007,

, at *7 (D.D.C. July 27,

2022). A genuine issue for trial must be supported by affidavits, declarations, or other competent

evidence. See Fed. R. Civ. P. 56(c). If the nonmoving party’s evidence is “merely colorable” or

“not significantly probative,” summary judgment may be granted. Liberty Lobby,

.

III. DISCUSSION

A. Discrimination

A successful ADEA claim requires that the plaintiff (i) suffered an adverse employment

action (ii) because of the plaintiff’s age. See Baloch v. Kempthorne,

(D.C.

Cir. 2008). A plaintiff must show by a preponderance of the evidence, direct or circumstantial,

“that age was the ‘but-for’ cause of the challenged employer decision.” Steele v. Esper,

, 107 (D.D.C. 2019).

“We use the three-step framework laid out in McDonnell Douglas Corp. v. Green,

(1973), to evaluate discrimination and retaliation claims [under the ADEA] that rely on

indirect, circumstantial evidence.” Iyoha v. Architect of the Capitol,

(D.C. Cir.

5 2019); see Carter v. George Wash. Univ.,

(D.C. Cir. 2004) (applying McDonnell

Douglas framework to ADEA claims). First, Mr. Stephenson must make out a prima facie case.

Second, the burden shifts to the FAA to articulate a legitimate nondiscriminatory and

nonretaliatory reason for its action. See McGrath v. Clinton,

(D.C. Cir. 2012).

Such reason may include Mr. Stephenson’s “‘seniority, length of service in the same position,

personal characteristics, general education, technical training, experience in comparable work or

any combination’ of such criteria.” Figueroa v. Pompeo,

(D.C. Cir. 2019)

(quoting Steger v. Gen. Elec. Co.,

(11th Cir. 2003)). The “central inquiry”

then becomes “whether the plaintiff produced sufficient evidence for a reasonable jury to find that

the employer’s asserted non-discriminatory [and nonretaliatory] reason was not the actual reason

and that the employer intentionally discriminated [or retaliated] against the plaintiff on a prohibited

basis.” Iyoha,

(quoting Adeyemi v. District of Columbia,

(D.C. Cir. 2008)). In other words, the employee must demonstrate “pretext.” See Jones v.

Bernanke,

(D.C. Cir. 2009).

When the employer properly presents a legitimate nondiscriminatory and nonretaliatory

reason for the challenged action at the summary judgment stage, the district court “need not—and

should not—decide whether the plaintiff actually made out a prima facie case.” Brady v. Off. of

Sergeant at Arms,

(D.C. Cir. 2008).

Defendant’s Legitimate Nondiscriminatory and Nonretaliatory Justification

Four factors are “paramount in the analysis” of whether an employer has met its burden:

(1) the employer must produce admissible evidence; (2) “the factfinder, if it believe[s] the

evidence, must reasonably be able to find that the employer’s action was motivated by a

nondiscriminatory [and nonretaliatory] reason;” (3) the employer’s justification must be “facially

6 credible in light of the proffered evidence;” and (4) the employer must provide a “clear and

reasonably specific explanation” for its action. Figueroa,

(internal quotation

marks omitted).

First, Defendant “supported its justifications with evidence that the Court may consider at

summary judgment, including deposition testimony,” affidavits, and evidentiary records. Arnoldi

v. Bd. of Trs., Nat’l Gallery of Art,

, 115 (D.D.C. 2021) (internal citation

omitted). This includes sworn affidavits from Mr. Ferrante (the selecting official), Mr.

Stephenson’s deposition testimony, documents relating to applicant scoring criteria, scores of all

applications to VA 44909, and testimony relating to applicant interviewing processes. See

generally Ferrante Decl. ¶¶ 17-23; see generally Stephenson Dep. Mr. Stephenson does not

“contest the admissibility of [Defendant’s] evidence” and has provided the same documents in his

own opposition brief. See Pl.’s Opp’n; Moss v. Hayden, No. 18-cv-470,

, at *4

(D.D.C. July 15, 2020).

Second, Defendant need only “raise a genuine issue of fact as to whether the employer

intentionally discriminated [or retaliated] against the employee” to satisfy the second factor.

Figueroa,

(internal quotation marks omitted). An employee’s “lack of

qualifications or the absence of a vacancy in the job sought” are “the two most common legitimate”

explanations for refusing to hire a person. George v. Leavitt,

(D.C. Cir. 2005)

(internal quotation marks omitted). The FAA provided evidence of Mr. Stephenson’s lack of

qualifications via his poor evaluation scores. See Panel Ratings at 1; Pl.’s Opp’n, Ex. G,

Stephenson’s Scorecard (“Stephenson’s Scorecard”) 1, ECF No. 30-7. Simply put, “there were

more qualified candidates.” Jeffries,

, at *10. There is no evidence that the

panel did not genuinely believe this rationale. See Ferrante Decl. ¶¶ 24, 27, 29; MSJ, Ex. P,

7 Supplemental Affidavit of Anthony Ferrante (Supp. Ferrante Decl.) ¶ 3, ECF No. 29-17; Def.’s

Reply at 6. And this is critical given that “the inquiry is limited to whether [the panel] believed the

[information] in good faith and whether [their] decision . . . was based on that belief.” Waggoner

v. City of Garland, Tex.,

(5th Cir. 1993). As such, and given that three of

the four panel members were “members of . . . [P]laintiff’s protected class, any inference of

discrimination [or retaliation], without additional evidence, is not warranted.” Cox v. Nielsen, No.

16-cv-1966,

, at *21 (D.D.C. Mar. 26, 2019) (internal quotation marks omitted).

Third, an explanation is not facially credible if it is “so internally inconsistent or

implausible on its face that a reasonable factfinder would not credit it.” Bishopp v. District of

Columbia,

(D.C. Cir. 1986). Defendant’s statements and documents are

internally consistent. The panel was supposed to select the top candidates for interviews. See

Ferrante Decl. ¶ 17. And it did. Id. ¶ 20. Mr. Stephenson was far from a top candidate, ranking

34th out of 51 applicants. Id. Thus, the panel terminated his application for VA 44909. See MSJ,

Def.’s Material Facts Not In Dispute ¶ 34, ECF No. 29-1. Being underqualified is a recognized

plausible reason for non-selection. See Chappell-Johnson v. Bair,

(D.D.C. 2008). Moreover “the issue is not the correctness of desirability of the reasons offered but

whether [the panel] honestly believe[d] in the reason [they] offer[ed]” at the time of Plaintiff’s

application. Arnoldi, 557 F. Supp. 3d at 116. It is uncontroverted that the panel believed Plaintiff

was not a top candidate. See Ferrante Decl ¶¶ 24, 27, 29; Supp. Ferrante Decl. ¶ 3. Therefore,

Defendant’s nondiscriminatory explanation “is ‘facially credible’ in light of the evidence of

Plaintiff’s qualifications and scores.” Nagi v. Buttigieg,

, 125 (D.D.C. 2022)

(extending interviews to more qualified candidates after initial evaluation and scoring deemed

facially credible).

8 Fourth, the FAA’s explanation was “sufficiently clear and specific.” Clinton v. Granholm,

No. 18-cv-991,

, at *9 (D.D.C. Mar. 26, 2021). Specifically, it was that Mr.

Stephenson was not qualified. See Ferrante Decl. ¶¶ 24, 27, 29; MSJ, Ex. J, Affidavit of Julia H.

Doherty (“Doherty Aff.”) ¶ 12, ECF No. 29-11; MSJ, Ex. H, Affidavit of Timothy Goddard

(“Goddard Aff.”) ¶¶ 9-18, No. 29-9; MSJ, Ex. G, Affidavit of Tommy Devereaux (“Devereaux

Aff.”) ¶ 18, No. 29-8. The panel’s scoring and evaluation criteria, which Mr. Stephenson received

in discovery, supported this explanation. See Ferrante Decl. ¶¶ 24, 27, 29; Doherty Aff. ¶ 12;

Goddard Aff. ¶¶ 9-18; Devereaux Aff. ¶ 18; Panel Ratings at 1; Stephenson’s Scorecard at 1. The

FAA offered no other explanation. Accordingly, “Defendant has articulated reasons with sufficient

specificity to provide [Plaintiff] a ‘full and fair opportunity to attack the explanation as

pretextual.’” Moss,

, at *5 (quoting Figueroa,

) (concluding

that reasons were enough after a plaintiff challenged employer’s qualifications-based explanation

for not promoting her).

Thus, the Brady shortcut applies as the FAA has presented a legitimate, nondiscriminatory

and nonretaliatory reasons for not hiring Mr. Stephenson. 2 See Barry v. Haaland, No. 19-cv-3380,

, at *6 (D.D.C. Sept. 29, 2022), aff’d, No. 22-cv-5268,

, at

*1 (D.C. Cir. Apr. 10, 2023). “The burden now shifts to [Mr. Stephenson] to provide sufficient

2 The issue of whether Plaintiff should have been afforded priority consideration permeates the parties’ briefs. See Am. Compl. ¶¶ 19-20, 30-32; Pl.’s Opp’n at 8-12; MSJ at 9-15, 18; Def.’s Reply at 2-4. In seeking to establish his prima facie case, Mr. Stephenson argues that the “Defendant’s failure to provide him with priority consideration resulted in his non-selection, which is objectively an adverse employment action.” See Pl.’s Opp’n at 8. However, this argument fails. The Court need not consider whether it was an adverse action because we apply the Brady shortcut. And even if Brady did not apply, “a failure to afford a candidate priority consideration when it is due, standing alone, is not an adverse employment action adequate to support” an ADEA claim. Jeffries,

, at *12 (citing Bridgeforth v. Jewell,

(D.C. Cir. 2013).

9 evidence by which a reasonable jury could find [that Defendant’s] stated reason was pretext for

discrimination or retaliation.” Albert v. Perdue, No. 17-cv-1572,

, at *5 (D.D.C.

Sept. 20, 2019) (citing Brady,

).

Mr. Stephenson’s Evidence of Pretext

Plaintiffs may establish pretext three ways. First, a plaintiff may show that the defendant

provided a “false” explanation for its employment decision. See Lathram v. Snow,

,

1089 (D.C. Cir. 2003). “It is not enough for the plaintiff to show that a reason given for a job action

is not just, or fair, or sensible.” Hogan v. Hayden,

, 46 (D.D.C. 2019) (quoting

Pignato v. Am. Trans. Air, Inc.,

(7th Cir. 1994)). Second, an “employer’s failure

to follow established procedures or criteria” may also provide evidence of pretext allowing an

employee to survive summary judgment. Wang v. Wash. Metro. Area Transit Auth.,

, 68 (D.D.C. 2016) (quoting Brady,

n.3). Third, “[a] plaintiff can establish

pretext masking a discriminatory [or retaliatory] motive by presenting ‘evidence suggesting that

the employer treated other employees of a different [group] . . . more favorably in the same factual

circumstances.’” Burley v. Nat’l Passenger Rail Corp.,

(D.C. Cir. 2015)

(quoting Brady,

). 3

a. Pretext: False Explanation

Mr. Stephenson argues that the panel’s proffered reasons for not extending an interview to

him were false. See Pl.’s Opp’n. at 10-11. Specifically, he argues that “Defendant recognized that

3 Mr. Stephenson makes a standalone retaliation claim that because Mr. Ferrante was aware of Mr. Stephenson’s prior EEOC filings, his rejection of Mr. Stephenson’s application to VA 44909 was retaliation based on those prior EEOC filings. See Pl.’s Opp’n at 11-13. But this argument fails for the same reasons as his discrimination claim: the FAA provided a legitimate explanation for his non-selection, and Mr. Stephenson fails to refute that reason through evidence of pretext.

10 Plaintiff had priority consideration status and that he was minimally qualified. Instead of Plaintiff

being hired for the vacancy he applied for, he was placed in a general pool of applicants.” 4

Thus, Mr. Stephenson argues that the FAA’s stated reason for continuing the search—to find better

qualified candidates—was false. 5 He believes instead that the FAA continued the search to “favor[]

younger applicants.” Id. at 11.

But Mr. Stephenson’s dissatisfaction with the interview selection process does not

demonstrate that the panel’s explanation for not interviewing him—his lack of qualifications—

was false. See Moss,

, at *6. The FAA decided which metrics determined

qualified candidates to interview. See Job Analysis Tool at 1-2. “Neither candidates nor courts

define qualifications, however; employers do.” Jeffries,

, at *11. The Court is

not “a ‘super-personnel’ department that reexamines an entity’s business decisions.” Jackson v.

Gonzales,

(D.C. Cir. 2007). And business decisions include

“assessing . . . [employee] qualifications.” Holcomb v. Powell,

(D.C. Cir. 2006).

“[P]laintiff’s disagreement with, or disbelief of, the employer’s explanation cannot, without more,

‘satisfy the burden of showing that a reasonable jury could find that the employer’s asserted reason

was not the actual reason and that the employer intentionally discriminated against the plaintiff on

a prohibited basis.’” Jeffries,

, at *9 (quoting Burton v. District of Columbia,

4 Mr. Ferrante would have been required to review Mr. Stephenson’s application first before any others if Mr. Stephenson had had priority consideration status. However, as noted below, Mr. Stephenson did not have priority consideration status, so this argument fails. Further, Mr. Stephenson conflates interviewing priority with hiring certainty. But Mr. Stephenson “has [not] explained how . . . [Mr. Ferrante’s] failure directly to evaluate him had any impact at all on the likelihood he would win the position.” Jeffries,

, at *13. 5 To the extent that Mr. Stephenson is arguing that his non-selection as a priority consideration candidate was inconsistent with the FAA’s internal policy—as opposed to a false explanation— that is answered below.

11

(D.D.C. 2015), aff’d sub nom. Nelson v. District of Columbia,

(D.C. Cir. 2017) (per curiam)).

b. Pretext: Inconsistency

It is the Plaintiff’s burden to “provide some evidence of the standard procedures themselves

in order for the Court to evaluate whether there has been a deviation.” Brisbon v. Tischner,

, 175 (D.D.C. 2022) (internal quotations omitted). Mr. Stephenson argues that the

FAA ignored “well-settled policy and case law” by not affording him priority consideration status.6

See Pl.’s Opp’n at 11. However, Mr. Stephenson’s priority consideration lapsed between vacancy

closure and certification of the referral list. See MSJ, Def.’s Material Facts Not In Dispute ¶¶ 19-

21, ¶ 26. Mr. Stephenson counters that because he had priority status prior to application closure,

the status should have still been effective at the time of referral list generation. However, the FAA’s

internal human resources policy is “silent as to the necessary date of priority consideration for the

status to be effective.” MSJ ¶ 7. Thus, there simply was no policy here.

And without an

established policy, Mr. Stephenson cannot demonstrate inconsistency. See Brisbon, 639 F. Supp.

3d at 175-76.

Additionally, the window of time from vacancy closure to referral list generation “was an

entirely normal turnaround period.” See MSJ, Ex. N, Decl. of Lamont Virgil 2, ECF No. 29-15.

Mr. Stephenson does not show how this interval was inconsistent with the FAA’s past practice or

internal policy. See Brisbon, 639 F. Supp. 3d at 175-76. At most, Mr. Stephenson has raised

complaints about the pace of the FAA’s hiring process. But “[e]ven if a court suspects that a job

applicant ‘was victimized by . . . poor selection procedures’ it may not ‘second-guess an

6 Mr. Stephenson does not raise a stand-alone claim regarding his priority consideration status. See supra n.2.

12 employer’s personnel decision absent demonstrably discriminatory motive.’” Fischbach v. D.C.

Dep’t of Corrs.,

(D.C. Cir. 1996) (quoting Milton v. Weinberger,

(D.C. Cir. 1982)). Indeed, “[m]inor procedural irregularities without discriminatory intent are

not enough to demonstrate pretext.” Breiterman v. U.S. Capitol Police,

(D.C.

Cir. 2021). Mr. Stephenson has failed to establish such motive here.

Mr. Stephenson also argues that the FAA deviated from its policy of always interviewing

candidates with priority status whom the FAA had deemed as “minimally qualified.” See Pl.’s

Opp’n at 12-13. Again, Mr. Stephenson did not have priority status. See supra Part I. Additionally,

the FAA followed its policy here. The FAA typically invites the top five to eight candidates based

on initial application scores for an interview. Ferrante Decl. ¶ 17. The panel selected nine

candidates for interviews, but not Mr. Stephenson because of his poor initial scores. Id. ¶ 20.

Further, the priority consideration policy specifically provides the selecting official with

discretion. See Priority Consideration Letter at 1; Pl.’s Opp’n ¶ 5; Stephenson Dep. at 44-45. Thus,

even if Mr. Stephenson had received an interview via priority consideration, he still may not have

received the job given his low scores. See Panel Ratings at 1; Stephenson’s Scorecard at 1. “[A]

failure to follow [the FAA’s] own policies” does not demonstrate pretext without something more

where the “policy confer[red] substantial discretion on the decision maker.” Chambers v. Fla.

Dep’t of Transp.,

(11th Cir. 2015).

c. Pretext: Comparators

Mr. Stephenson offers no comparators to show evidence of pretext. In fact, the age of those

selected for VA 44909 cuts against pretext. Four of the seven individuals selected were older than

Mr. Stephenson. See MSJ ¶¶ 34-42; Stephenson Dep. 77-79. “[T]hat other employees in a

protected group analogous to [Mr. Stephenson] were treated well suggests that” Mr. Stephenson’s

13 age was not the reason for his non-selection. Geter v. Gov’t Publ’g Off.,

, 240

(D.D.C. 2020).

Because Mr. Stephenson has not demonstrated pretext by any of the three means, summary

judgment is appropriate. See Clinton,

, at *9-11.

IV. CONCLUSION

Judgment is entered as a matter of law in favor of Defendant. Zia M. Faruqui 2024.01.18 Date: January 18, 2024 17:43:36 -05'00' ________________________________________ ZIA M. FARUQUI UNITED STATES MAGISTRATE JUDGE

14