MEMORANDUM OPINION
Lionel Thomas (“the plaintiff’) brings this action against his employer, the Department of the Treasury (“the defendant”), pursuant to, inter alia, Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. (2000), alleging that he was discriminated against based on his race when he was twice denied a promotion by the Bureau of Engraving and Printing (“BEP”), Facilities Planning and Management Division, and seeking compensatory damages and equitable relief. 2 Complaint (“Compl.”) at 1, 4-6, 13. Currently before the Court is the defendant’s motion for summary judgment (“Def.’s Mot.”) 3 For the reasons set forth below, the defendant’s motion is granted.
I. Factual Background
The following facts are undisputed except where otherwise noted by the Court.
4
The plaintiff, an African-American male with thirty years’ experience in the field of heating, ventilation, and air conditioning (“HVAC”), has been employed at the BEP Power Plant in Washington, D.C., as a Stationary Engineer since 1994.
5
Compl.
A. The Acting Assistant Supervisor Vacancies
In 2001, the BEP advertised two vacancies for the position of Acting Stationary Engineer Assistant Supervisor (“Acting Assistant Supervisor”) through Vacancy Announcement No. 2001-146-VMS. Def.’s Stmt. ¶ 2; PL’s Resp. ¶2.
6
Among other things, the major duties of the position include the supervision of “employees[] engaged in the operation, maintenance and repair of the [BEP] electric substation, high and low pressure steam distribution systems for heating, drying, air-conditioning and refrigerating systems, and air and water pressure systems throughout the 1.2 million square feet of the [BEP].” Def.’s Mot., Ex. 7 (Position Description) at 2;
see also id.
at 3 (stating that an Acting Assistant Supervisor “[h]as general supervision over approximately 12 employees consisting of Stationary Engineers and Maintenance Workers of the Power Plant on one of three shifts”); PL’s Opp. at 16 (stating that an Acting Assistant Supervisor “supervises employees engaged in the operation, maintenance^] and repair of the [BEP] electric substation”). An Acting Assistant Supervisor must also be able,
inter alia,
“to direct emergency repairs requiring a knowledge of areas such as plumbing, steam fitting, [and] machine and electrical systems when journeym[e]n in th[o]se trades are off duty or are not readily available.” Position Description at 3. The plaintiff applied for this position in October 2001, along with four other applicants.
See
Def.’s Stmt. ¶4 (stating that there were “five applicants for the position in question”); PL’s Resp. ¶ 4 (same);
see
B. The Selection Process
In connection with the selection process for the Acting Assistant Supervisor position, a rating panel consisting of BEP employees Daniel Metcalfe, Sandra Tucker, and James Szamstel reviewed each application package in November 2001, ranking them in five categories of evaluation criteria according to the information provided by the applicants. Def.’s Stmt. ¶ 4; Pl.’s Resp. ¶ 4;
see also
Def.’s Mot., Ex. 9 (collection of documents relating to Acting Assistant Supervisor selection process) at
For the position of Acting Assistant Supervisor, the five KSAs by which the application packages were evaluated by the rating panel are (1) the applicants’ “Knowledge of safety, security, and internal control regulations within the Bureau”; (2) the applicants’ “[ajbility to exercise technical supervision over subordinate craft employees”; (3) the applicants’ “[ajbility to communicate effectively, both orally and in writing, on current and emerging production and facility maintenance issues”; (4) the applicants’ “[ajbility to direct the distribution of work in aecor-dance with the work of the program”; and (5) the applicants’ “[ajbility to prepare and/or direct the preparation of reports on production and facility maintenance issues.”
See
Rating Sheets at 4-18;
see also
Personnel Manual at 335-1-13 (stating that “[a]n applicant’s rating for each KSA will be determined by information provided in his/her application package, including information contained in submitted performance appraisals, supplemental statements, and evidence presented of training, education, awards, etc.”). The rating panel then established
&
composite application cut-off score of 16 out of a possible 25 points, which reduced the applicant pool to four candidates (including the plaintiff) for the two. vacancies. Def.’s Stmt. ¶ 4; Pl.’s Resp. ¶ 4. These four individuals comprised the “certificate of eligi-bles,” indicating that they were deemed to be the “best qualified” candidates for the available Acting Assistant Supervisor positions. Def.’s Stmt. ¶¶7, 9; Pl.’s Resp. ¶¶ 7, 9; Def.’s Mot., Ex. 9 at 1 (Certificate of Eligibles);
see also
Personnel Manual at 335-1-13, 335-1-14. Of the four candidates, applicant Kendall Leatherman received a composite score, of 22, the plaintiff and applicant William Turner received composite scores of 17, and applicant Christopher Nicholson received a composite score of 16.
10
Def.’s Stmt. ¶ 6; Pl.’s
The application packages of these four “best qualified” applicants were then forwarded to an interview panel consisting of BEP supervisors Ronald Rye, John Stevenson, and Christopher Bowie. 11 Def.’s Stmt. ¶¶ 10-11; Pl.’s Resp. ¶¶ 10-11; see Bowie Aff. at 2-9 (describing the interview process). Id. at 9. After interviewing each of the four candidates, the panel recommended to the selecting official, James Sir-inakis, that William Turner and Kendall Leatherman, both white males, be selected for the vacant Acting Assistant Supervisor positions. Def.’s Mot., Ex. 4 (December 10, 2001 memo from Ronald Rye to James Sirinakis) at 8 (stating the panel’s belief that Turner and Leatherman “have demonstrated the knowledge, skills[,] and abilities that make them the most desirable for the [position of Acting Assistant Supervisor] from the certificate of eligibles”). In January 2002, Sirinakis followed the recommendation of the interview panel and selected Turner and Leatherman. Def.’s Stmt. ¶ 20; Pl.’s Resp. ¶ 20; see Def.’s Mot., Ex. 4 (Affidavit of James Sirinakis) (“Sirinakis Aff.”) at 5-6. In making this selection, Sirinakis “relied solely on the recommendation provided by [the interview panel] ... [and] did not review any of the [application material provided by the candidates].” Sirinakis Aff. at 6 (also stating that he “had no reason to question the judgment of the recommending officials”). Moreover, Sirinakis represents, and the plaintiff does not dispute, that he “was not aware of [the plaintiffs] ... color or race” at the time the selection was made. Id.; see Def.’s Stmt. ¶ 17; Pl.’s Resp. ¶ 17.
C. The Panel’s Stated Reasons for its Recommendations
According to Bowie and Rye, the interview panel based the recommendations they provided to Sirinakis primarily on the basis of the candidates’ ability to demonstrate, through their interviews and application materials, that they possessed the appropriate supervisory qualifications for selection as an Acting Assistant Supervi
Indeed, Bowie elaborates in great detail numerous reasons for his belief that neither the plaintiffs application nor his interview “clearly articulated” the supervisory qualities sought by the interview panel, Bowie Dep. at 57:15-17, particularly when compared to the responses provided by Turner and Leatherman.
13
See, e.g., id.
at
Mr. Thomas was not able[, in his application material,] to extrapolate on the appropriate knowledge, skills, and abilities which would make a correlation from his past to present positions to adequately make him a suitable candidate for [the Acting Assistant Supervisor position]. [His reference to his] past experience at the Naval Research Laboratory provided no elaboration on hissupervisory experience [there] ... [and] does not expand on the actual responsibilities he had, ... the number of subordinates he supervised, or ... the tasks and/or accomplishments he may have initiated or supported. Mr. Thomas mentions supervising employees in their crafts but does not elaborate to show to what extent [he supervised them], or what the crafts responsibilities were and how he may have gained experience in regard to organizing their tasks to reach the goal of the mission/operation. Mr. Thomas did not include any illustrations or examples that would support his experience with employee issues pertaining to specific interventions he had supervising employees.... Mr. Thomas references being a store work leader ... but did not elaborate on his responsibilities while in the leader position.... Mr. Thomas mentions supervising, managing, communicating, reports, etc. but does not specifically elaborate or explain how his past experience shows a correlation to a supervisor’s responsibilities in a HVAC/Utility based mechanical operation. [His] work experience was mainly illustrated using the verbiage of respective [position descriptions] from his past and present positions, and rating element criteria from his present position. Mr. Thomas was not able to adequately illustrate past and present examples of his experience in his own words to quantify his supervisory qualifications.
Bowie Aff. at 8-4 (emphases added). Nor, in Bowie’s view, was the plaintiffs interview any more successful in communicating the supervisory qualities necessary to the position of Acting Assistant Supervisor:
Mr. Thomas’s oral interview resulted in his lacking the ability to precisely answer questions concerning [his manner of] dealing with subordinates in a supervisory capacity. Mr. Thomas did not articulate his understanding of personnel situations, and his answers were weak and not specific [when] offering remedies to different scenarios [posed by the interview questions]. Mr. Thomas did not provide clear[,] decisive answers to the interviewer and the other panel members. Mr. Thomas did not clearly explain his [past] supervisory positions, and he was very apprehensive to offer or give specific suggestions to improve the Power Plant shop. Mr. Thomas’s statements were very general and not specific to his experiences.
Id. at 4. Bowie also details his reasons for recommending that Turner and Leather-man be selected. For example, Bowie states that in his application and interview, Turner
was able to demonstrate a wide range of knowledge from experience as a fill in supervisor for a mechanical contractor before his government career. It was apparent he was able to acquire early[ ] a good working knowledge, skill, and ability to oversee personnel in the HVAC/Utility based mechanical trade. He demonstrated a clear decisive understanding of supervising personnel in the installation, service, and repair of various types of [HVAC] systems, and the ability to work with and interpret blueprints to his subordinates.... He was able to demonstrate various ways his knowledge, skills, and abilities were beneficial [with] regard to the installation, service, and maintenance of various forms of equipment which not only pertained to HVAC, but to the four major utilities ... [for] which [an Acting Assistant Supervisor] would be held responsible ... "within the Power Plant operation. Mr. Turner was able to provide a categorized list of tools and test equipment, as well as how they are used,making it apparent, that he could assist and direct personnel when it was needed.... In his work leader capacity, he orchestrated and prioritized various jobs for personnel assigned to him. He inspected and analyzed the work of his subordinates during each phase of assignment, and upon completion, he would assure complaince. He gave examples of how he trained personnel in proper work procedures and in maintaining a safe work environment.... He also emphasized his ability to delegate and prioritize assignments.... Mr. Turner’s oral interview resulted in his ability to precisely answer questions about dealing with subordinates in a supervisory capacity. He articulated his understanding of personnel situations and gave remedies to resolving different scenarios in the oral questions. He was very focused in his responses and made [them] clear[ly] to the interviewer and other panel members. He explained his supervisory responsibilities in his plu-vious positions[] and offered suggestions of improved communication between shifts at his present position.
Id. at 5-6 (emphasis added). Similarly, Bowie states that Leatherman
was able to demonstrate a diversified range of knowledge, skills, and abilities from his past [supervisory] experience .... In his role as president of Leatherman Electric, he stressed his commitment to communicating to his subordinates the importance of communication and internal control for personnel safety and security. Mr. Leather-man’s experience as a small business owner and [Emergency Medical Technician] always puts him in the position of exercising technical supervision over subordinate^] ... and would enable him to handle emergency situations.... He clearly articulated and referenced in his application his ability to delegate and prioritize assignments. Mr. Leather-man’s oral interview resulted in his ability to precisely answer questions about dealing with subordinates in a supervisory capacity. He provided excellent positive and negative scenarios[] which a supervisor will encounter with subordinates. ... He also expanded on possible resolutions to the examples given to him in the oral interview. He remained very focused and articulated specifics [with] respect to the answers he provided to the questions. He reiterated his supervisory responsibilities in his previous work experiencesf ] and offered suggestions of improved communication between shifts at his present position.
Id. at 6-8 (emphases added) (also comparing the plaintiff to Leatherman and stating that the plaintiff “did not articulate or sufficiently explain the experiences he has had[ ] and how they ... direct[ly] ... correlate] to being suitable for th[e] [Acting Assistant Supervisor] position”).
D. The Present Lawsuit
After unsuccessfully challenging the BEP’s selection decision through the appropriate administrative channels,
see
Def.’s Stmt. ¶ 24; Pl.’s Stmt. ¶ 24, the plaintiff filed this lawsuit on February 5, 2003, arguing that he “was clearly better qualified for the promotion to the position of [Acting Assistant Supervisor] than the selectees” and that his non-selection was the result of intentional racial discrimination by the selecting officials.
15
Compl.
II. Standard of Review
Courts will grant a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). When ruling on a Rule 56(c) motion, the Court must view the evidence in the fight most favorable to the non-moving party.
Holcomb v. Powell,
III. Legal Analysis
Title VII provides, in relevant part, that all “personnel actions affecting employees or applicants for employment ... in executive agencies ... shall be made free from any discrimination based on race.” 42 U.S.C. § 2000e-16(a). In evaluating claims of racial discrimination in employment under Title VII, it is useful to remember the District of Columbia Circuit’s repeated admonition that the statute does not, and was not intended to, transform the Court into “a super-personnel department that reexamines an entity’s business decisions.”
Holcomb,
Where, as here, the plaintiff has not proffered any direct evidence of intentional discrimination, his race discrimination claims under Title VII are evaluated pursuant to the burden-shifting framework first articulated in
McDonnell Douglas Corp. v. Green,
Here, it is undisputed that the plaintiff is a member of a protected class,
see
Compl. ¶4; Def.’s Mem. at 10 n. 6, that he applied, and was not selected, for two vacancies at the BEP Power Plant for the position of Acting Assistant Supervisor,
see
Def.’s Stmt. ¶¶ 2-3, 17; PL’s Resp. ¶¶ 2-3, 17, and that the vacancies were filled instead by other applicants not in the plaintiffs protected class,
see
Def.’s Stmt. ¶ 20; Pl.’s Resp. ¶ 20. It is further undisputed that the plaintiff, along with selec-tees Turner and Leatherman, was deemed to be one of the “best qualified” candidates for the Acting Assistant Supervisor position. Def.’s Stmt. ¶¶ 7, 9; PL’s Resp. ¶¶ 7, 9. As an initial matter, the Court therefore concludes, under the four-pronged test articulated most recently in
Jackson v. Gonzales,
that the plaintiff has established a
prima facie
case of racial discrimination in connection with his non-selection.
See Jackson,
It is also clear from the evidence that the defendant has articulated a legitimate, nondiscriminatory reason for its failure to select the plaintiff for the position of Acting Assistant Supervisor: namely, that the plaintiff, while generally qualified as a Stationary Engineer, did not possess — or, at least, did not sufficiently articulate in his application package and before the interview' panel — the
supervisory
qualifications which would have made him a better overall candidate than selectees Turner or Leatherman for this particular position, which requires the “general supervision [of] approximately 12 employees.” Position Description at 3;
see
Rye Dep. at 38:2-3 (stating that the panel “look[ed] at [the candidates’] overall qualifications”);
see also Holcomb,
The defendant proffers sworn statements from members of the interview panel responsible for recommending the selection of Turner and Leatherman, detailing the reasons for their belief that the plaintiff was not one of the two best-qualified candidates for the Acting Assistant Supervisor position.
See, e.g.,
Bowie Aff.' at 8 (stating that the plaintiff “did not articu
Because the Court finds that the evidence produced by the defendant is more than sufficient to “constitute! ] a legitimate, nondiscriminatory reason for the allegedly discriminatory action,”
Holcomb,
“Once [an] employer has articulated a non-discriminatory explanation for its action, the issue is not the correctness or desirability of [that explanation] but whether the employer honestly believes in the reasons it offers.”
George,
The plaintiff proffers two major bases of support for his assertion that he was “clearly better qualified for the promotion to the position of [Acting Assistant Supervisor] than the selectees.” Pl.’s Suppl. Opp. at 14. First, he adverts to the fact that he is “an experienced Stationary Engineer” with “vast HVAC experience,” including having acquired an HVAC Master’s license and other HVAC-related training that selectees Turner and Leath-erman do not possess.
Id.
at 16;
see id.
at 11-16. Second, the plaintiff provides an affidavit from James Fletcher, a former Acting Assistant Supervisor who supervised both the plaintiff and Leatherman and who believes that the plaintiffs qualifications for the Acting Assistant Supervisor position were “markedly superior.” Pl.’s Opp., Ex. 1 (March 10, 2006 affidavit of James Fletcher) (“Fletcher Aff.”) at 2;
see
Pl.’s Opp. at 5; Pl.’s Suppl. Opp. at 6. For the reasons below, the Court finds that a reasonable jury could not conclude from this evidence that the plaintiff was “significantly better qualified for [the Acting Assistant Supervisor position]” or that “the adverse employment decision was [otherwise] made for a discriminatory reason.”
Holcomb,
A. The Fletcher Affidavit
In his brief and unadorned affidavit, Fletcher states that he is a former Acting Assistant Supervisor and that he is now retired from the BEP.
22
Fletcher Aff.
The defendant contends that the Fletcher affidavit does not conform to the requirements set forth in Federal Rule of Civil Procedure 56(e) for the submission of affidavits in connection with summary judgment motions because (1) “there is no foundation for Mr. Fletcher’s speculation, conclusions!,] and opinions,” Def.’s Suppl. Reply at 16, and therefore the affidavit is not made on Fletcher’s “personal knowledge,” Fed.R.Civ.P. 56(e); and (2) the “[p]laintiff failed to identify Mr. Fletcher as a relevant witness during the discovery period in this case,” Def.’s Suppl. Reply at 17, and therefore his statements “would [not] be admissible in evidence,” Fed. R.Civ.P. 56(e). The Court will examine each of these arguments in turn.
First, assuming that Fletcher did indeed serve as an Acting Assistant Supervisor who supervised the work of the plaintiff and Leatherman to at least some extent, he .can therefore presumably speak with some measure of experience regarding the duties and demands of the position and, more importantly, share his personal observations as to the respective qualifications of the plaintiff and Leatherman to serve as Acting Assistant Supervisors themselves.
24
The , Court therefore con-
Nevertheless, it is clear that Fletcher’s affidavit cannot be considered in connection with the defendant’s motion for summary judgment. Rule 59(e) states, in relevant part, that “[s]upporting and opposing affidavits ... shall set forth such facts
as would be admissible in evidence.” Id.
(emphasis added). In addition, Federal Rule of Civil Procedure 87(c)(1) states that evidence that was not disclosed to the other party during discovery “is not, unless such failure is harmless, permitted to [be] use[d] as evidence at a trial, at a hearing, or on a motion.” Fed.R.Civ.P. 37(c)(1). The defendant contends, and the plaintiff does not dispute, that “[the] [p]laintiff failed to identify Mr. Fletcher as a relevant witness during the discovery period in this case.” Def.’s Reply at 13 (noting that Fletcher was not mentioned during the plaintiffs deposition or identified in the plaintiffs answers to the defendant’s interrogatories or in the Federal Rule of Civil Procedure 26(a)(1) disclosures); Def.’s Suppl. Reply at 17 (same). As a result, and purely because of what appears to be either the plaintiffs attorney’s lack of diligence in identifying Fletcher as a witness or the plaintiffs failure to timely make Fletcher’s identity known to his attorney, the defendant was denied the opportunity to depose Fletcher and thereby test the statements made in the affidavit.
See Cornwell v. Electra Central Credit Union,
B. The Plaintiff’s HVAC Experience
In arguing that there existed “a wide and inexplicable gulf’ between his qualifications for the Acting Assistant Supervisor position and those of Turner and Leatherman, Pl.’s Suppl. Opp. at 10, the plaintiff expends a great deal of energy attempting to demonstrate his superior qualifications and longer tenure in his
current
position as a Stationary Engineer.
See id:
at 3 (arguing that the plaintiffs “qualification[s] and prior experiences as a [S]tation[a]ry [E]ngineer were markedly superior to those of selectee Kendalfl] Leatherman, who was not experienced or trained as a Stationary Engineer”), 14 (arguing that the plaintiff was “clearly better qualified for the promotion to the position of [Acting Assistant Supervisor] than the selectees” because he “has been in this field for approximately thirty years, at least one decade longer than either of the other two applicants,” and because his “training and experience is in air conditioning and refrigeration”), 15 (comparing the plaintiffs HVAC experience and training to that of Leatherman). In so doing, the plaintiff appears to suggest, without any corroborative evidence, that an individual who is more qualified to be a Stationary Engineer must
also
be more qualified to be an Acting Assistant Supervisor, an argument that is belied by the different skillset and different range of experience applicable to the two positions.
See
Def.’s Suppl. Reply at 7 (arguing that “[the] [p]laintiff is comparing apples to oranges because he ignores the KSAs, the factors actually governing the comparison of the
In particular, the plaintiff leans heavily on what he considers to be his comparatively greater “experience in HVAC/utility based mechanical operation.” Pl.’s Resp. ¶¶ 21-22; see Pl.’s Suppl. Opp. at 16 (contrasting the plaintiffs “vast HVAC experience” with Leatherman’s “limited [HVAC] knowledge or experience”). 27 In this regard, the plaintiff contends that “[t]he obvious comparisons between [his] application and the other selectees, especially Mr. Leatherman, jump off the page with their stark inequalities in education, work experience, tenure at the BEP, certifications, etc.” Id. ¶ 22; see also id. ¶ 28 (stating that “despite his limited knowledge or experience in high or low pressure steam distribution systems for [HVAC] and refrigeration systems, and air and water pressure systems, [Leatherman] was selected over [the] [p]laintiff, an experienced Stationary Engineer”). It is unnecessary for the Court to decide whether the plaintiff has, as he claims, greater experience, education, and qualifications in the HVAC area than either of the two selectees, for it is clear from the record that HVAC experience was neither the determinative nor even the primary criterion for assessing the qualifications of candidates for a position as an Acting Assistant Supervisor. 28 See Rye Dep. at 48:20-49:10 (stating that HVAC experience is “only part of the job” and that there were “certain things that [Leatherman] had more experience [in than the plaintiff]”). Nowhere does the plaintiff satisfactorily address, let alone refute, Bowie’s representation that “having an HVAC license was not necessary [or] required” because the position at issue “is an acting assistant supervisory position, not a mechanic stationary engineer position.” 29 Bowie Dep. at 52:13-17.
Indeed, the plaintiff concedes that supervisory responsibilities comprise a significant portion of the duties of an Acting Assistant Supervisor.
See
Pl.’s Suppl. Opp. at 16 (stating that the Acting Assistant Supervisor “supervises employees engaged in the operation, maintenance and repair of the Bureau electric substation”) (quoting Position Description at 2). The plaintiff also does not dispute that the KSAs for the Acting Assistant Supervisor position require,
inter alia,
“[the] [a]bility to exercise technical supervision over subordinate craft employees, ... [the] ability to communicate effectively, both orally and in writingf,] ... [and the] [a]bility to di
At most, the plaintiff has demonstrated that he was more qualified than Turner and Leatherman with respect to certain aspects of the position description of Acting Assistant Supervisor and less qualified with respect to other aspects.
See id.
at 15 (stating that “[the] [p]laintiff has an HVAC Master’s License from the District of Columbia, whereas the two se-lectees do not possess such an important license”). This is plainly not enough to allow a reasonable juror to “infer that the [defendant’s] given explanation was pre-textual and that this pretext shielded discriminatory motives.”
Jackson,
In sum, the plaintiff does not, and cannot, dispute that “[supervisory] experience was clearly encompassed by the qualifications listed in [the BEP’s posted description of the Acting Assistant Supervisor position].”
Jackson,
Therefore, after reviewing the totality of the evidence in the light most favorable to the plaintiff, the Court cannot say that he was better qualified, let alone
significantly
better qualified, for the position of Acting Assistant Supervisor than were Turner and Leatherman, given the emphasis placed on supervisory qualifications and oral and written communication skills in that position’s list of KSAs. It is clear from the sworn statements of members of the recommending panel that they believed that a demonstrated ability to supervise subordinates, as clearly articulated through the applicants’ application packages and interviews, was a more valuable quality in candidates for the Acting Assistant Supervisor position than was technical experience in a specific area such as HVAC or electrical repair. Furthermore, the defendant represents that each candidate was evaluated with this priority in mind,
see
Bowie Aff. at 3-8, and the plaintiff has adduced no facts to suggest that this nondiscriminatory reason for his non-selection is somehow “unworthy of credence.”
George,
IV. Conclusion
As stated above, “[s]hort of finding that the employer’s stated reason [for its selection decision] was indeed a pretext [for unlawful discrimination,] ... the [C]ourt must respect the employer’s
unfettered discretion to choose among qualified candidates.” Fischbach,
Notes
. In his complaint, the plaintiff also alleges violations of the Age Discrimination in Employment Act of 1967 ("ADEA”), 29 U.S.C. §§ 621
et seq.
(2000), the District of Columbia Human Rights Act ("DCHRA”), D.C.Code §§ 2-1401
et seq.
(2001), and the Equal Access to Justice Act ("EAJA”), 28 U.S.C. § 2412 (2000). Complaint ("Compl.") at 1. However, the plaintiff now concedes that he cannot state a claim upon which relief can be granted under the DCHRA because the BEP is a federal agency. Plaintiff's Response to the Defendant's Statement of Material Facts Not in Genuine Dispute ("PL's Resp.”) at 11. The plaintiff further concedes that his ADEA claim is meritless, acknowledging "that age ... was not a determinative factor in his non-selection.” Memorandum of Points and Authorities in Support of Plaintiff’s Opposition to Defendant's Motion for Summary Judgment ("PL's Opp.”) at 1 n. 1. Finally, the EAJA does not provide an independent cause of action for litigants in federal court; instead, it simply "authorizes the payment of fees to the prevailing party in an action against the United States.”
Scarborough v. Principi,
. In addition to those papers listed above, the following papers have been submitted in connection with this motion: (1) Memorandum of Points and Authorities in Support of Defendant's Amended Motion for Summary Judgment ("Def.’s Mem.”); (2) Defendant's Reply to Plaintiff's Opposition to Defendant's Amended Motion for Summary Judgment ("Def.'s Reply”); (3) Defendant’s Statement of Material Facts Not in Genuine Dispute (“Def.’s Stmt.”); (4) Defendant's Reply in Support of its Statement of Material Facts Not in Genuine Dispute ("Def.’s Resp.”); (5) Plaintiff’s Supplemental Opposition to Defendant's Amended Motion for Summary Judgment ("PL's Suppl. Opp.”); and (6) Defendant’s Reply to Plaintiff's Supplemental Opposition to Defendant's Amended Motion for Summary Judgment ("Def.’s Suppl. Reply”)-
. “In deciding whether there is a genuine issue of material fact [precluding a grant of summary judgment pursuant to Federal Rule of Civil Procedure 56(c) ], the [Cjourt must assume the truth of all statements proffered by the non-movant except for conclusory allegations lacking any factual basis in the record.”
Dist. Intown Props. Ltd. v. District of Columbia,
. The plaintiff alleges that "[i]n the past thirty years there have only been three African-American Stationary Engineers and never an African American manager at the BEP [P]ow-er [Pjlant.” PL’s Suppl. Opp. at 3. He also alleges that at the time of the selection decision he is challenging, he was “the only African-American Stationary Engineer employed
. The defendant contends that the plaintiff's response to its statement of material facts not in genuine dispute should be disregarded by the Court because it is unsigned and thereby fails to comply with the express requirement of Federal Rule of Civil Procedure 11(a) that "[e]very pleading, written motion, and other paper shall be signed by at least one attorney of record in the party’s individual name." Fed.R.Civ.P. 11(a) (also stating that "[a]n unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party”); see Def.’s Resp. at 1. The defendant is correct that the plaintiff's unsigned response is in violation of Rule 11(a). See Pl.'s Resp. at 13. Moreover, the plaintiff failed to correct this inexplicable oversight when he refiled his response on October 31, 2006. See Pl.’s Suppl. Opp., Ex. 4 (Plaintiff's Response to the Defendant’s Statement Statement [sic] of Material Facts Not in Genuine Dispute) at 13. However, because the Court concludes that the defendant is entitled to summary judgment on the plaintiff’s claims even if the plaintiff’s response to the defendant's statement of material facts is considered, it need not decide whether the response should be stricken.
. Like the plaintiff, both Turner and Leather-man received the highest possible rating in their respective BEP employee performance reviews. See Turner Application at 2-3; Leatherman Application at 7-8.
. As detailed further below, the defendant alleges, and the plaintiff does not dispute, that both Turner and Leatherman "[were] able to provide information in [their] application^,] from past work experience to [their] present position[s], which showed specific abilities that would make [them] beneficial in a supervisory position.” Def.'s Mot., Ex. 6 (June 21, 2002 Affidavit of Christopher Bowie) ("Bowie Aff.”) at 5, 6. By contrast, the defendant alleges that the plaintiff's application provided a vague and thus uninformative recitation of his previous supervisory experience:
I served as Store Work leader from 1971-1977 for Fort McNair and Cameron Station Commissary’s. Serving as Perishable Manager, Assistant Produce Manager and Assistant Night Manager working with and supervising employees in every task performed to meet production and operations. In 1987 while working at the Naval Research Laboratory as an Acting Supervisor I would manage the daily operations of the jobs. Upon the migration with other Navy Operations and became the Public Works Center [sic] consisting of Small Contracts which involved all trades working together to complete the scheduled contracts. Working with and supervising employees in their crafts.
Thomas Application at 5; see generally id. at 3-8 (comparing the plaintiff's application with the applications of Turner and Leather-man). That is, the defendant alleges that other than an additional sentence stating that his role as Acting Supervisor at the Naval Research Laboratory in 1987 involved "preparing various reports and overseeing subordinates,” id. at 2, the plaintiff's application provided no other details which might "adequately illustrate past and present examples of his experience in his own words to quantify his supervisory qualifications.” Bowie Aff. at 4.
. Deposition transcripts and other documents that have been excerpted by the parties for attachment as exhibits are herein cited according to their original pagination.
. Thus, the rating panel scored the plaintiff's application package equal to Turner's, but significantly lower than Leatherman's.
See
Rating Sheets at 3. An examination of the plaintiff’s rating sheets reveals that Metcalfe and Tucker each gave the plaintiff 1 out of a possible 5 points in the category of his ”[a]bility to direct the distribution of work in accordance with the work of the program,” for which Szamstel gave the plaintiff a score of 3 out of 5.
See id.
at 7, 13, 18. ' By contrast, Leatherman was given a score of 5 in this category by all three raters,
id.
at 8, 11, 15, while Turner was given a score of 5 in this category by Szamstel and Tucker and a score of 3 in this category by Metcalfe,
id.
at 6, 12, 17. Of all'the categories scored by all of the raters, the plaintiff only outscored Turner and/or Leatherman in three instances: (1) Tucker's evaluation of the applicants' “[kjnowledge of safety, security, and internal control regulations within the Bureau,” on which the plaintiff outscored both Turner and Leatherman,
compare id.
at 18
with id.
at 15, 17; (2) Szamstel’s evaluation of the appli
. At the time of the interviews, Rye held the position of Stationary Engineer Supervisor at the Power Plant facility, Bowie held the position of Assistant Stationary Engineer Supervisor at the Power Plant facility, and Stevenson held the position of Supervisor of the BEP's Office of Facilities Engineering Plumbing and Sheet Metal Shop. Def.’s Mot., Ex. 5 (June 12, 2002 Affidavit of John Stevenson) ("Stevenson Aff.”) at 1; Bowie Aff. at 2. Rye retired from the BEP on December 29, 2001. Bowie Aff. at 2. Although Rye, as Stationary Engineer Supervisor, was officially the chair of the interview panel, he delegated the duties of that position to Bowie in light of his impending retirement. Id. Thus, Bowie was responsible during the interview for asking the candidates "all questions pertaining to the interview itself.” Id. at 9. Each of the four candidates was "asked the exact identical questions” during the interview, id.; see Def.'s Stmt. ¶ 10 (stating that "[t]he panel asked the same questions of each of the 'best qualified' applicants”); PL's Resp. ¶ 10 (same), and "each applicant [was] given the same amount of time to respond to the questions,” Def.’s Suppl. Reply, Ex. 4 (September 14, 2006 Deposition of Ronald Rye) ("Rye Dep.”) at 77:17-19. These questions were not generated by the panel itself, but by the BEP Office of Facility Engineering, now called the Office of Facility Support. Bowie Aff. at 9; see id. at 8-9 (describing the "set of bulleted instructions” provided to the panel along with the questions that outlined the interview process).
. Unlike Rye and Bowie, Stevenson does not indicate in his brief affidavit why Turner and Leatherman were recommended for the Acting Assistant Supervisor positions over the plaintiff. See generally Stevenson Aff. Instead, Stevenson states that he “was neither consulted, nor would [he] expect to be consulted by Mr. Rye and/or Mr. Bowie during the selection process,” because "[t]he review of the [candidates' application packages] and the 30 to 45 minute interview panel question process would not qualify [him, as a supervisor in a different BEP office,] to make a promotion decision for the Power Plant.” Id. at 2 (stating also that the plaintiff and Leath-erman "are current employees of the BEP Power Plant, and therefore, each has worked under the direct supervision of Mr. Rye and Mr. Bowie”).
. The plaintiff contests the salience of Bowie's representations as a general matter, asserting that "the defendant relies almost exclusively on the declaration of ... only one of the three interview panel members.” PL's Suppl. Opp. at 16. It is certainly true that Bowie’s detailed account of, and justification for, the interview panel’s recommendations to Sirakis — and, specifically, his impression of the relative performances and qualifications of the interviewees — should not necessarily be imputed to the panel as a whole or assumed automatically to be reflective of the feelings of the other two panel members, Rye and Stevenson. However, it is important to note that nothing in the record before this Court, and certainly nothing provided by the plaintiff, indicates that Rye or Stevenson had opinions different from Bowie's on this topic in any material respect. Rye intimates simply that the candidates’ "answer[s] on the interview questionnaire and their applications” were determinative of his recommendation, Rye Dep. at 58:17-18, and states that while the
. In addition, Bowie stated in his deposition that he believed that the plaintiff does not "have a clear understanding of his duties as [they] pertain[] to electrical to qualify for th[e] position of [Acting Assistant Supervisor].” Bowie Dep. at 66:11-15;
see also
Def.’s Mem. at 12 (arguing that Turner and Leatherman were better qualified than the plaintiff because "they had greater experience in electrical work and could better articulate their supervisory experience and goals”); Def.’s Suppl. Reply at 6 (asserting that "[u]n-like [the][p]laintiff, the selectees had extensive supervisory experience as well as experience and training in
both
HVAC and electrical”) (emphasis in original). However, because (1) the Court concludes that the plaintiff has failed to establish that his qualifications as
a supervisor
"were sufficiently superior to those of [the selectees] to allow a jury to infer discrimination,”
Holcomb v. Powell,
. On January 21, 2004, during the early stages of discovery in this case, the defendant served the plaintiff with interrogatories, discovery requests, and requests for admissions. When the plaintiff did not respond in a timely manner, the defendant moved on May 14, 2004, to dismiss the complaint or, alternatively, to deem the admission requests admitted
The plaintiff delivered his discovery responses, including his responses to the admission requests, on May 17, 2004, three days after the defendant filed its motion to dismiss. In response to the defendant’s motion, the plaintiff contended that the defendant had not been prejudiced by the delay in being provided discovery responses, and argued in consequence that even if the admissions were deemed admitted under Rule 36(a), the Court should permit him to withdraw or amend his admissions pursuant to Rule 36(b), in accordance with "the judicial policy for promoting just and complete resolution on the merits.” Plaintiff's Opposition to Defendant’s Motion to Dismiss at 2; see Fed.R.Civ.P. 36(b).
The Court issued its ruling in November 2004, denying the defendant’s motion to dismiss but deeming the admissions requests admitted. See November 5, 2004 Order at 8. In so doing, the Court noted that
[t]he plaintiff correctly cites Rule 36(b) for the proposition that "the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved [thereby] and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action or defense on the merits.”
Id. at 6 (quoting Fed.R.Civ.P. 36(b)). The Court did not address the plaintiff's arguments regarding Rule 36(b), however. Specifically, it did not evaluate whether "presentation of the merits of the action will be subserved” by amendment or withdrawal of the admissions, nor whether the defendant had demonstrated that it would be prejudiced in maintaining its defense on the merits if the plaintiff were allowed to withdraw or amend the admissions. Rather, the Court simply noted that the plaintiff had failed to respond to the requests for admission within 30 days, and that they were therefore deemed admitted under Rule 36(a). November 5, 2004 Order at 6-7.
Renewing his Rule 36(b) motion for withdrawal or amendment of the admissions in his opposition to the defendant's motion for summary judgment, the plaintiff opined that "[t]he admissions granted by the [C]ourt effectually gut the merits of the plaintiff's
prima facie
case,” Pl.'s Opp. at 8, and argued that "more than a failure to meet deadlines is required to deny a party relief from an admission,”
id.
at 9 (quoting
Raiser v. Utah County,
At a status hearing held on August 15, 2006, the Court concluded that the prejudice that the plaintiff would suffer if the Court were to permit the case to be resolved on the basis of deemed admissions that patently preclude a decision on the merits of the plaintiff's claims clearly outweighed whatever prejudice would be suffered by the defendant if the admissions were to be withdrawn pursuant to Rule 36(b).
See Conlon v. United States,
. The defendant also argues that its motion for summary judgment should be granted on two additional grounds. First, the defendant contends that "[t]he Court's November 5, 2004 Order deeming [the][d]efendant’s requests for admissions as admitted has not been vacated,” Def.’s Suppl. Reply at 3, and that the plaintiff has therefore admitted that his qualifications are not superior to those of the selectees and that he has no independent evidence that "race was a motivating factor or played any role” in his non-selection, Defendant’s Requests for Admission to Plaintiff at 5;
see id.
at 3-5;
see also
Def.'s Mem. at 10 (arguing that the Court should grant judgment as a matter of law on the basis of the deemed admissions). To the extent that the Court did not, at the August 15, 2006 status hearing, formally vacate the portion of its November 5, 2004 Order deeming the defendant’s requests for admissions admitted by the plaintiff, it does so now.
See Conlon,
Second, the defendant asserts that because Sirinakis, as the selecting official, was not aware of the plaintiff's race or color at the time the selection decisions were made, those decisions "could not have been influenced or motivated by any discriminatory animus.” Def.’s Suppl. Reply at 3;
see
Def.’s Mem. at 10; Def.’s Stmt. ¶ 17; PL's Resp. ¶ 17. The plaintiff responds to this argument by claiming that although Sirinakis was the "ultimate decision-maker,” he was "not really the substantive decision-maker at issue in this case,” and "Christopher Bowie and Ronald Rye were the real decision-makers.” PL's Suppl. Opp. at 10. The plaintiff cites no caselaw in support of this claim, instead relying exclusively on Rye's statement that his selection recommendations have been adopted "without exception” by the selecting official.
Id.
at 10-11. Notwithstanding the plaintiff’s tepid rebuttal of the defendant’s argument in this regard, the Court agrees that employers may be liable under Title VII in ”situation[s] in which a decisionmaker gives perfunctory approval for an adverse employment action explicitly recommended by a biased subordinate.”
EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles,
. The plaintiff's briefs devote curiously little time to any discussion of the panel's recommendation of selectee Turner for the Acting Assistant Supervisor position, focusing almost exclusively on a comparison between the plaintiff and selectee Leatherman. See generally PL’s Opp. (mentioning Turner by name only three times in twenty pages, all during the plaintiff's statement of the facts of the case); PL's Suppl. Opp. (same). Indeed, at no point does the plaintiff directly address, in any way whatsoever, Turner's relative qualifications for the position of Acting Assistant Supervisor. Needless to say, this omission makes it more difficult for the Court to fully evaluate the plaintiff's conclusory assertion that "[t]he candidates selected ... had less training, experience, and qualifications than [did he].” Pl.’s Suppl. Opp. at 14 (emphasis added).
. "Direct evidence of discrimination 'is evidence that, if believed by the fact finder, proves the particular fact in question without any need for inference. Such evidence includes any statement or written document showing a discriminatory motive on its face.” Lemmons v. Georgetown Univ. Hosp., 431 F.Supp.2d 76, 86 (D.D.C.2006) (Walton, J.) (internal quotation marks, citations, and ellipsis omitted) (emphases in original). The plaintiff does not argue, nor could he, that the factual record in this case contains any such direct evidence of discrimination.
. In this regard, the Court must consider, “in its full context,” all of the evidence in the record.
Aka v. Washington Hosp. Ctr.,
. To make this showing, plaintiffs are free not simply "to comparte] [their] qualifications against those of the successful applicants],” but "to expose other flaws in the employee’s explanation, including ... showing [that] the employer has misstated [their] qualifications.”
Holcomb,
. In addition, in an attempt to "persuad[e] the [CJourt that a discriminatory reason more likely motivated the employer,”
George,
. Fletcher’s affidavit is two pages long and consists of seven short paragraphs.
. Fletcher also,
inter alia,
represents his belief "that race discrimination was the motivating factor in [the plaintiff's] non-selection for [Acting Assistant Supervisor],” Fletcher Aff. V 6;
see also id.
¶¶ 3 (stating that "[the] BEP's non-selection of [the plaintiff] by management was motivated by discrimination”), 4 (stating his belief that "[the] BEP intentionally promoted a less experienced worker”), a statement that, without any substantiation or explanation grounded in his "personal knowledge” of the selection process, Fed.R.Civ.P. 56(e), is purely conclusory and speculative, . and thus of no evidentiary worth.
See Pub. Citizen Health Research Group v. FDA,
. Of course, it is true that Bowie and Rye have also supervised the plaintiff and Leather-man, and are therefore presumably personally knowledgeable about their performances as Stationary Engineers as well.
See
Bowie Aff. at 2; Rye Dep. at 7-8. It is also true, as the defendant argues, that Fletcher was not involved in the selection process and thus has no informed, personal knowledge of the manner in which the candidates’ .respective qualifications were presented to the recommending panel in their application packages and through their oral interviews.
See
Def.’s Suppl. Reply at 16. Nor is there any indication that Fletcher's views as to the plaintiff's
. As noted below, however, the plaintiff’s relative qualifications as a Stationary Engineer are only relevant to his Title VII claim insofar as they shed light on his relative qualifications as an Acting Assistant Supervisor, as the plaintiff makes no representation that the required KSAs for the two positions are identical, or even substantially similar.
. Indeed, when the plaintiff submitted his supplemental opposition to the defendant’s motion for summary judgment on October 31, 2006, he had been aware for seven months of the defendant's Rule 59(e) objections to the Fletcher affidavit. Yet, not only did the plaintiff again expressly rely on Fletcher's statements, see PL's Suppl. Opp. at 6 (stating that “Fletcher will testify, based on his observations and experience!,] that at the time of the selection at issue,” the plaintiff’s qualifications “were markedly superior to those of [Leatherman]”), but he did not provide any explanation or response whatsoever to the evidentiary objections raised by the defendant.
. The Court again notes the plaintiffs peculiar focus on the comparative qualifications of Leatherman in his pleadings, to the near-total exclusion of any mention of Turner.
. In any event, it is at least somewhat in dispute whether the plaintiff’s performance as Stationary Engineer, let alone his qualifications for Acting Assistant Supervisor, were "markedly superior” to that of Leatherman. Pl.’s Suppl. Opp. at 20. Although Rye stated that the plaintiff knew his job as Stationary Engineer "very well,” Rye Dep. at 28:15-18, he also contended that Leatherman knew "the activities and the requirements of the job as well as [the plaintiff],” id. at 31:5-8. In Rye’s estimation, based on his personal observations as the supervisor of both individuals, the plaintiff is not "vastly more qualified as a [S]tationary [EJngineer than ... Leather-man.” Id. at 31:12-22.
.Furthermore, the simple fact that the plaintiff has had more years of experience, either as a Stationary Engineer at the BEP or in the general field of HVAC, does not itself compel the conclusion that the plaintiff was "significantly better qualified” for the Acting Assistant Supervisor position.
Holcomb,
. It is again helpful to note that the calculation of each candidates' KSA score was not made by the interviewing panel of Rye, Bowie, and Stevenson, but by a completely different panel of individuals. See Rating Sheets at 3.