UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GEORGE R. BANKER,

Plaintiff,

v. No. 22-cv-01445 (DLF) MARK AVERILL, ACTING SECRETARY, DEPARTMENT OF THE ARMY,

Defendant.

MEMORANDUM OPINION AND ORDER

George Banker brings this discrimination action against Mark Averill, the Acting Secretary

of the Department of the Army, under Title VII of the Civil Rights Act (Title VII), 42 U.S.C.

§§ 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 29 US.C. §§ 621 et

seq. Am. Compl., Dkt. 28. Before the Court is the Secretary’s Motion for Judgment on the

Pleadings, Dkt. 38. For the reasons that follow, the Court will grant the motion.

I. BACKGROUND

In April 2019, Banker worked as a Sports Specialist for the Department of the Army, Am.

Compl. ¶ 3, where he was responsible for the “development, planning, and management of the

operations" of the Army Ten-Miler (ATM) weekend events, id. ¶ 14. That month, ATM Race

Director James Vandak retired. Id. ¶ 16. William McGarrity, a 54-year-old Caucasian male and

the hiring official for Vandak’s replacement, id. ¶ 21, informed Banker and Marketing Manager

Maida Johnson that “they could both apply” for the position, id. ¶ 20. At this time, Banker also

learned that Johnson was selected as the Deputy Race Director, a position which Banker was not

aware of nor considered for. Id. ¶¶ 51–52. In June, Banker applied for the Race Director position as a 69-year-old African American

male. Id. ¶¶ 3, 23. At that time, he had a “Bachelor of Arts degree in Accounting,” “almost 16

years of experience as a Sports Specialist,” “25 years of proven leadership at IBM in financial

administration and management,” “eight years of active service” in the Air Force, and “over 45

years’ experience in the sport of running.” Id. ¶ 47. Though Banker’s resume satisfied the “Best

Qualified” criteria of a “Bachelor’s Degree” and “5 or more years’ experience in coordinating

internal/external security, medical, and event operations for a major sporting event, national

security event or DoD event involving 35,000 or more participants,” HR Specialist Nicole Bell did

not place him on the list of “Best Qualified” applicants from which interviewees were selected.

Id. ¶¶ 24–25. Matthew Zimmerman, a 50-year-old Caucasian male, was selected as Race Director

in July. Id. ¶¶ 26–27. Zimmerman had a “Bachelor of Science degree in History,” a “Master of

Arts degree in National Security,” a “Master of Science degree in National Security and Strategic

Studies,” and “five years’ experience in operations and planning of DoD ceremonial and special

events, which included coordinating military support . . . for three ATM races.” Id. ¶ 48.

After learning of Zimmerman’s selection, Banker contacted an Equal Employment

Opportunity counselor to allege discrimination from the denial of an opportunity to interview. Id.

¶¶ 31–32. Based on the ensuing report, Banker alleges that McGarrity “bias[ed] the selection

process to favor Matthew Zimmerman, the younger, less-qualified Caucasian candidate McGarrity

had pre-selected.” Id. ¶ 32. For example, McGarrity “took Zimmerman out for a beer to talk to

him about taking the Race Director position,” id. ¶ 33, requested “the position description for Race

Director [to be] rewritten . . . with Zimmerman in mind,” id. ¶ 34, and “patt[ed] Zimmerman on

the back telling him ‘Don’t worry brother. We got you,’” id. ¶ 37. Zimmerman also previously

succeeded McGarrity as the Chief of Staff of the Military District of Washington, D.C. Id. ¶ 30.

2 In August 2019, Banker was first told that he was excluded from the “Best Qualified” list

because he did not have a secret security clearance, id. ¶ 40, and then because he “failed to submit

his college transcripts and/or diploma,” id. ¶ 41. A year later, Banker was told that he was excluded

because Bell “had ‘overlooked’ [his] college degree on his resume.” Id. ¶42. When Bell

discovered her error, Zimmerman had “already been appointed” and “the Human Resources Office

had been told to hold off on forwarding the corrected list.” Id. ¶ 43. Banker alleges that McGarrity

“acted with a discriminatory purpose when he told Human Resources to hold off on forwarding

the corrected list . . . to avoid the likelihood that [Banker] would be interviewed and then selected

as the Race Director, instead of Zimmerman, given [Banker’s] superior qualifications.” Id. ¶ 46.

On February 29, 2024, Banker filed this operative complaint alleging race and age

discrimination under Title VII and the ADEA as to the Race Director and Deputy Race Director

positions. See Dkt. 28. On January 15, 2025, the Secretary moved for judgment on the pleadings

for failure to state a claim. See Dkt. 38.

II. LEGAL STANDARD

Under Rule 12(c) of the Federal Rules of Civil Procedure, “a party may move for judgment

on the pleadings.” Fed. R. Civ. P. 12(c). “To prevail on a Rule 12(c) motion, the moving party

must show that no material issue of fact remains to be resolved and that it is entitled to judgment

as a matter of law.” Tapp v. WMATA,

(D.D.C. 2016) (citation modified).

The Court relies on “the facts alleged in the complaint, documents attached to the complaint as

exhibits or incorporated by reference, and matters about which the court may take judicial notice.”

Allen v. U.S. Dep’t of Educ.,

(D.D.C. 2010) (citation modified). In

evaluating a motion for judgment on the pleadings, the Court applies the same standard that

governs motions to dismiss made under Rule 12(b)(6), see Garcia v. Stewart,

,

3 203 (D.D.C. 2021), assuming the truth of “all of the well pleaded factual allegations in the

adversary’s pleadings” and taking as false “all contravening assertions in the movant’s pleadings,”

Tapp,

(citation modified).

Rule 12(b)(6) allows a defendant to move to dismiss a complaint for failure to state a claim

upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a

complaint must contain factual matter sufficient to “state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly,

(2007). The Court need not accept “a legal

conclusion couched as a factual allegation” nor an inference unsupported by the facts alleged in

the pleadings. Trudeau v. FTC,

(D.C. Cir. 2006) (quoting Papasan v. Allain,

(1986)).

III. ANALYSIS

To state a discrimination claim under Title VII, a plaintiff must show that “(1) [he] is a

member of a protected class; (2) [he] suffered an adverse employment action; and (3) the

unfavorable action gives rise to an inference of discrimination.” Wiley v. Glassman,

(D.C. Cir. 2007). Similarly, to state a discrimination claim under the ADEA, a plaintiff must

show that he (1) was at least forty years of age; (2) suffered an adverse employment action; and

(3) that there was some reason to believe that the adverse employment action was based on the

employee’s age. Badwal v. Bd. of Trs. of the Univ. of D.C.,

(D.D.C.

2015). Under both statutes, where a plaintiff offers only circumstantial evidence of discrimination

and the defendant provides legitimate, non-discriminatory reasons for the adverse action, the

plaintiff must then show that the defendant’s proffered reasons were a pretext for unlawful

discrimination. See McDonnell Douglas Corp. v. Green,

(1973); Chappell-

Johnson v. Powell,

(D.C. Cir. 2006). To determine whether the plaintiff

4 “produced sufficient evidence . . . that the employer’s asserted nondiscriminatory reason was not

the actual reason and that the employer intentionally discriminated against the [plaintiff],” Allen

v. Johnson,

(D.C. Cir. 2015) (citation modified), a court considers “the total

circumstances of the case, including strengths and weaknesses in the plaintiff’s prima facie case,”

Casselle v. Chao,

(D.D.C. 2017) (citation modified) (citing Evans v.

Sebelius,

(D.C. Cir. 2013)).

A. Discrimination Claims Concerning the Race Director Position

Banker claims he was discriminated against when he was denied an opportunity to

interview for the Race Director position. The Secretary contends that Banker was excluded

because of a clerical mistake. Answer ¶ 42, Dkt. 30. Though Banker alleges facts to show that

the Secretary’s proffered reason is pretextual, he fails to support that it is pretext for unlawful

discrimination.

First, Banker argues that he held “superior qualifications.” Am. Compl. ¶ 46; see Pl.’s

Opp’n at 12, Dkt. 40. While facts showing that a job applicant was “significantly better qualified

for the job” than the person hired may raise an inference of discrimination, Aka v. Wash. Hosp.

Ctr.,

(D.C. Cir. 1998) (en banc), “the qualifications gap must be great enough

to be inherently indicative of discrimination,” Holcomb v. Powell,

(D.C. Cir.

2006). Considering the “qualifications necessary for the position at issue,” Alford v. Providence

Hosp.,

(D.D.C. 2011), both Banker and Zimmerman possessed the

necessary education and the event-planning experience to satisfy the “Best Qualified” criteria. See

Am. Compl. ¶¶ 25, 47, 48. A court does not “second-guess how an employer weighs particular

factors in the hiring decision,” Jackson v. Gonzales,

(D.C. Cir. 2007), and

though Banker had a longer history of planning ATM-specific events, Zimmerman had more

5 degrees and a broader range of event-planning experience, see Am Compl. ¶¶ 47, 48. Thus,

“[Banker] plainly lacked the stark superiority of credentials over [Zimmerman]” from which the

Court may infer pretext. Porter v. Shah,

(D.C. Cir. 2010) (citation modified);

cf. Aka,

(finding a significant difference between nineteen years of work

experience and two months of volunteer experience).

Second, Banker argues that the Secretary proffered shifting reasons for his exclusion from

the list. Am. Compl ¶¶ 39–42; see Pl.’s Opp’n at 6; see Geleta v. Gray,

(D.C.

Cir. 2011) (“Shifting and inconsistent justifications” can be “probative of pretext.”) (citation

modified). But the fact that “[the Secretary’s] proffered reason is unpersuasive” does not mean

that “[Banker’s] proffered reason is correct.” Reeves v. Sanderson Plumbing Prods.,

,

146–47 (2000) (citation modified). To state his claim, Banker must still show that McGarrity

engaged in intentional discrimination which “only occurs when any employer acts ‘because of’ the

plaintiff’s status as a member of a protected class.” Pollard v. Quest Diagnostics,

(D.D.C. 2009). While Banker’s pleadings establish his membership in protected classes, see

Am. Compl. ¶ 32, this alone cannot raise a reasonable inference of discrimination, see Pollard,

; Easaw v. Newport,

, 29 n.4 (D.D.C. 2017).

And instead of “dispel[ling] any obvious alternative explanations,” Ho v. Garland,

, 54 (D.C. Cir. 2024), Banker’s pleadings undermine any plausible inference of unlawful

discrimination. At most, McGarrity’s alterations of the position description, Am. Compl. ¶ 34, his

former ties to Zimmerman, id. ¶ 30, his hallway comments, id. ¶ 37, and his order to withhold the

corrected list, id. ¶ 46, establish that McGarrity “bias[ed] the selection process to favor Matthew

Zimmerman,” id. ¶ 32. While these facts support the notion that McGarrity “pre-selected”

Zimmerman for the role because of personal bias, id., they do not show that McGarrity did so

6 because of Baker’s race or age, see Baylor v. Powell,

, 59 (D.D.C. 2020). Since

“favoritism based on criteria other than race, color, age, or other protected characteristics does not

violate the federal anti-discrimination laws and does not raise an inference of discrimination,”

Kilby-Robb v. Devos,

(D.D.C. 2017) (citation modified); see Oliver-

Simon v. Nicholson,

(D.D.C. 2005), Banker “shoots himself in the foot

by showing that the real explanation for the employer’s behavior is not discrimination, but some

other motivation.” Thompson v. McDonald,

(D.D.C. 2016) (citation

modified) (quoting Aka,

). Because Banker has not asserted any facts to support

that McGarrity’s favoritism was the product of race or age discrimination, the Court will dismiss

his discrimination claims concerning the Race Director position.

B. Discrimination Claims Concerning the Deputy Race Director Position

As to the Deputy Race Director position, the Secretary contends that Banker failed to

timely exhaust his discrimination claims under Title VII and the ADEA. Mot. For J. on Pleadings

at 12–13; see 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 633a(d). Banker “does not oppose the

dismissal” of these claims. Pl.’s Opp’n at 2. Given Banker’s concession, the Court will dismiss

his discrimination claims concerning the Deputy Race Director position.

7 CONCLUSION

For the foregoing reasons, it is

ORDERED that the defendant’s Motion for Judgment on the Pleadings, Dkt. 38, is

GRANTED.

ORDERED that this action is DISMISSED without prejudice. The Clerk of Court is

directed to close this case. This is a final appealable order.

SO ORDERED.

________________________ DABNEY L. FRIEDRICH August 1, 2025 United States District Judge

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