                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
_________________________________
                                             )
JOHNNY A. VAUGHAN,                           )
                                             )
                      Plaintiff,             )
                                             )
       v.                                    )       Civil Action No. 10-2184 (ABJ)
                                             )
AMTRAK,                                      )
                                             )
                  Defendant.                 )
_________________________________            )


                                   MEMORANDUM OPINION
       This matter is before the Court on plaintiff’s partial motions for summary judgment [Dkt.

#30, 42] and defendant’s cross-motion for summary judgment [Dkt. #35]. For the reasons

discussed below, the Court will deny plaintiff’s motions for summary judgment and grant

defendant’s cross-motion for summary judgment.

  I.   BACKGROUND

       In September 2008, plaintiff, a white male born in 1950, applied but was not selected for

the position of Lead Service Attendant (“LSA”) with the National Railroad Passenger

Corporation (“Amtrak”). See Compl. ¶¶ 3–4. According to plaintiff, Amtrak’s decision not to

hire him “was discriminatory because it was based on [his] race and/or age.” Id. ¶ 5. He brought

this action under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et

seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. 1



1       In Plaintiff[’s] Motion for Partial Summary Judgment [Dkt. # 30] (“Pl.’s Mot.”), plaintiff
purports to raise, for the first time, a claim under the Vietnam Era Veterans Assistance Act
(“VEVRAA”), see 38 U.S.C. § 4212, by alleging discrimination based on his status as a veteran
of the Vietnam war. At that stage of proceedings, Amtrak already had filed its Answer. Plaintiff
could have amended his complaint “only with the opposing party’s written consent or the court’s
                                                 1
           A. Plaintiff’s Allegations

       “Plaintiff applied for a job as Lead Service Attendant (LSA) which duties include serving

food on a train.” Pl.’s Mot. for Partial Summ. J. [Dkt. #30] (“Pl.’s Mot.”) at 3. In relevant part,

the LSA position description reads:

               The Lead Service Attendant . . . is primarily responsible for
               creating a welcome atmosphere of hospitality for Amtrak
               passengers that result[s] in exceeding customer expectations.
               Works in a fast-paced environment on board trains. Coordinates
               work and supervise[s] a team of food and wait staff responsible for
               the provision of food and beverage service to Amtrak passengers
               . . . . May also work independently in certain services with no
               supporting staff . . . . Maintains cleanliness of rail car interior
               . . . . Functions independently while simultaneously supporting the
               service staff. Utilizes superior interpersonal skills to communicate
               clearly and effectively with passengers and crew to insure
               employee and customer satisfaction in both ideal and off schedule
               conditions . . . . Responsible for the security, sale, safe handling
               and accounting of food and beverage products. Strictly complies
               with cash and credit transaction handling procedures and protects
               Amtrak funds . . . . Adheres to uniform and grooming
               requirements[.]
Id., Ex. D (excerpt from Job Posting, AMT-VAUGHAN 000211). The position required a high

school diploma or equivalent; some college or vocational training was preferred. Id. With

respect to work experience, the posting read:

               Some experience in a customer service or similar public contact
               role exhibiting responsibility, initiative, physical coordination,
               problem solving, creativity, and leadership characteristics. Work
               experience must demonstrate strong, clear and effective verbal
               communication and interpersonal skills, professionalism, and a
               customer-friendly demeanor . . . . Prior experience working in a
               team service environment preferred. Some experience in a
               food/beverage environment, cash handling, and retail inventory


leave.” Fed. R. Civ. P. 15(a)(2). Had he sought the Court’s leave to amend the complaint, he
would have been required to file “[a] motion for leave to file an amended complaint . . .
accompanied by an original of the proposed pleading as amended.” LCvR 15.1. Amendment of
the complaint would have been futile, however, because there is no private right of action under
the VEVRAA. See, e.g., Wilson v. Amtrak Nat’l R.R. Corp., 824 F. Supp. 55, 58 (D. Md. 1992).
                                                2
                experience preferred. Supervisory experience in the Hotel,
                Restaurant and/or Travel, Hospitality industries preferred.

Id., Ex. D.

        Plaintiff understood the “job description to include over 80% . . . food handling [and]

customer service,” and emphasized its preference for “[s]upervisory experience in the Hotel,

Restaurant and/or Travel, Hospitality Industries.” Pl.’s Mot. at 3. As indicated on his resume,

plaintiff has managed restaurants, served as the food and beverage director for a hotel, and

managed the daily operations at a banquet venue.            Id., Ex. E (plaintiff’s resume, AMT-

VAUGHAN 000214-215). Plaintiff not only considered himself qualified for the position, but

also believed that “his experience ‘outshone’ all other candidates.” Pl.’s Mot. at 4. “[B]ased off

the job duties and educational requirements and [plaintiff’s] experience, [he] could not

comprehend that there possibly could be 15 people that had more experience of doing this job

than [him] at that time.” Mem. of Law in Supp. of Def.’s Opp. to Pl.’s Mot. for Partial Summ. J.

& Def.’s Cross-Mot. for Summ. J. [Dkt. ## 34–35] (“Def.’s Cross-Mot.”), Ex. 3 (“Pl.’s Dep.”) at

84:14–18. His “experience as related to the job posting exceed[ed] the supervisory & food and

beverage experience of all 10 alleged applicants hired combined,” Pl.’s Mot. for Partial Summ. J.

for Violation of Title VII Rights (“Pl.’s 2d Mot.”) at 4; see Pl.’s Mot. at 3, yet Amtrak “hired

younger, lesser qualified individuals that were mostly African Americans after rejecting the

Plaintiff.” Pl.’s 2d Mot. at 2; see Pl.’s Mot. at 2.

        Plaintiff posits that Amtrak “hire[d] other applicants based on job criteria that is [sic] not

listed in the job posting,” and deems this “evidence of willful and wanton behavior . . . with a

wrongful motive and reckless indifference to plaintiffs’ [sic] rights.” Pl.’s Mot. at 4. He claims

to have “established a prima facie case of discrimination” based on his age and race, and that




                                                   3
Amtrak “failed to articulate a legitimate non-discriminatory reason for its actions.” Pl.’s 2d Mot.

at 12.

            B. Amtrak’s Representations

                1. Hiring Procedure for the LSA Position

         “Amtrak was created by Congress in 1970 to take over the passenger rail services

previously . . . operated by private freight railroad companies in the United States.” Def.’s

Cross-Mot., Ex. 4 (“Ray Aff.”) ¶ 3. Its Human Resources (“HR”) department “handles the

recruiting for any vacancies . . . for all departments including, but not limited to, mechanical,

marketing, and transportation.” Ray Aff. ¶ 4. “Recruitment processes vary by position,” and

“[i]n 2008, the recruiting process for the [LSA] position followed a Transportation Hiring Plan

that provided the number of vacancies for which [Amtrak was] to recruit over the fiscal year.”

Id., Ray Aff. ¶ 5. HR posted the LSA position on Amtrak’s Career Rewards website; its staff

attended job fairs, accepted referrals from local representatives and current employees, and

accepted resumes by mail and other means. Ray Aff. ¶ 6. Amtrak received more than 800

applications for the LSA position for which plaintiff applied.         Ray Aff. ¶ 8.      In such

circumstances with so many applicants, “it [was] unlikely that all applications would be

reviewed” because HR “simply [did] not have the resources to review all 800 applications.”

Ray Aff. ¶ 8.

         After receiving resumes, “[a] recruiter would review [them] to determine whether the

candidates met the position’s minimum qualifications, and if there were any ‘red flags’ (i.e.

unexplained gaps in employment).”        Ray Aff. ¶ 9.      Candidates who met the minimum

qualifications and for whom no “red flags” were identified were “invited to test for the position.”

Id., Ray Aff. ¶ 9. Each candidate was “given an orientation [during which HR] describe[d] in



                                                4
detail the position for which [he] applied.” Ray Aff. ¶ 10. If the candidate chose to proceed with

the application process, he took “a math test, a vocabulary test, and an Applicant Potential

Inventory test.” Ray Aff. ¶ 10. The applicant had to pass all tests to be eligible for an interview.

Ray Aff. ¶ 10. Plaintiff was one of ten applicants who both met the minimum qualifications for

the LSA position and passed the required tests. Ray Aff. ¶ 14.

       Generally, two managers conducted each interview. Ray Aff. ¶ 12. “The managers [did]

not choose whom to interview; they interview[ed] those candidates selected by [HR] who [were

deemed] minimally qualified for the position and who [had] passed the required tests.” Ray

Aff. ¶ 11. Interviewers did not know the candidates’ test scores. Def.’s Cross-Mot., Ex. 1

(“Baylor Aff.”) ¶ 5. HR provided the managers with written interview questions so that each

candidate was asked the same questions, Ray Aff. ¶ 11, and the managers were allowed to take

notes, Baylor Aff. ¶ 6.     After an interview, “the managers return the applicant materials,

interview questions, and any notes they took during the interview[] to [HR],” and at that time

they “inform HR of who they selected for the position.” Id., Ray Aff. ¶ 13.

       The LSA “position is primarily a customer service job.” Def.’s Cross-Mot., Ex. 2

(“Brewer Aff.”) ¶ 4; Baylor Aff. ¶ 4. Interviewers are particularly interested in a candidate “who

wants to and is capable of providing the high-quality customer service that Amtrak customers

expect.” Baylor Aff. ¶ 8; Brewer Aff. ¶ 4. LSAs “are not simply responsible for serving food

and beverages on a train;” shifts can last as long as “18 hours in a fast-paced environment,” and

LSAs can spend as many as six days per week away from the home base. Brewer Aff. ¶ 4.

Although LSAs “are responsible for coordinating and supervising the work of a team of food and

wait staff who provide food and beverage service to Amtrak’s passengers,” Baylor Aff. ¶ 4, food

service or management experience is therefore preferred, but it is not required for the LSA



                                                 5
position. Baylor Aff. ¶ 8; Brewer Aff. ¶ 4. “More important are the intangible qualities like

personal presentation, verbal communication skills, approachability, flexibility, and a willingness

and desire to perform the job.” Baylor Aff. ¶ 8. LSAs “must be approachable and welcoming,

even in difficult situations.” Brewer Aff. ¶ 9.

       Two Amtrak managers, Patricia Baylor and Kathy Brewer, interviewed plaintiff on

September 10, 2008. Baylor Aff. ¶ 9; Brewer Aff. ¶ 10. For Ms. Baylor, the interview was an

opportunity “to assess . . . an LSA candidate by observing how the candidate presents himself[],

how he[] responds to the interview questions, demeanor, eye contact, facial expressions, posture,

preparedness and dress,” and to “differentiat[e] between those candidates who just look good on

paper and those who have the customer service skills to succeed as an LSA.” Baylor Aff. ¶ 8.

Because “Amtrak thoroughly trains employees in all job functions, . . . intangible qualities like

personal presentation, verbal communication skills, approachability, flexibility, and willingness

and desire to perform the job” are more important than food service, catering, or restaurant

experience. Baylor Aff. ¶ 8. Similarly, Ms. Brewer “look[s] for candidates who appeared

interested and comfortable in the interview, maintained eye contact and smiled during the

interview, and demonstrated a customer service focus.” Brewer Aff. ¶ 9. By “focusing on

attitude and personality,” she could “separate those candidates who appeared great on paper from

those who could perform great on the trains.” Id., Brewer Aff. ¶ 9.

       Hiring decisions were made on a rolling basis; the interviewers did “not wait . . . until all

of the candidates [were] interviewed.” Baylor Aff. ¶ 7. The interviewers “did not revisit those

candidates who [were] determined . . . not a good fit after their interview[s].” Brewer Aff. ¶ 8;

Baylor Aff. ¶ 7.




                                                  6
              2. Plaintiff’s Interview


       Ms. Baylor described the interview as follows:


              When [plaintiff] arrived for the interview on September 10, 2008,
              he was not “polished,” meaning, he did not look professional. As
              an interviewer, I generally expect candidates to come dressed
              appropriately for an interview (and for the job). I do not recall that
              [plaintiff] was wearing a tie, and his overall presentation was not
              business-like.
              During the interview, [plaintiff] made it clear that he was more
              interested in a position with the Food and Beverage department
              than the LSA position for which he was interviewing. The Food
              and Beverage department serves as a liaison between Amtrak and
              its vendor, ARAMARK, to ensure the quality of food Amtrak
              offers. Food and Beverage positions are management positions in
              another department; they are not onboard service[] positions and
              do not involve the level of customer service required of an LSA.
              Specifically, I remember [plaintiff] commented that he wanted a
              Food and Beverage position, but none were available at that time.
              [Plaintiff’s] behavior during the interview also indicated to me that
              he would not be a successful LSA. Rather than listen to and
              answer the questions that were asked in the interview, [plaintiff]
              just provided the information he wanted to provide. In so doing,
              [he] acted like he wanted to take charge of the interview – to be the
              manager/interviewer—which I found to be arrogant. In addition,
              his eye contact was poor, he did not seem approachable, and his
              manner was condescending.

Baylor Aff. ¶¶ 10–12. Ms. Brewer’s observations were similar:

              Although he applied for a position with significant customer
              contact, [plaintiff’s] appearance at the interview was not
              professional or polished. I recall that his fingernails were dirty and
              his shoes were not polished, and I do not recall that he wore a
              jacket or tie. In interviewing candidates for LSA positions, I
              expected that they would attend their interviews dressed
              appropriately and present in a business-like manner – others did,
              [plaintiff] did not.

              In addition, based on his behavior during the interview, I did not
              believe that [plaintiff] would be able to perform successfully as an
              LSA. Throughout the interview, [he] seemed much more
              interested in telling his own story and relaying the information that
                                                7
               he wanted to relay, rather than in answering the questions. He did
               not seem to listen to the questions asked and did not maintain eye
               contact. In my opinion, [plaintiff] acted like he was in charge of
               the interview, which gave me the impression that he was full of
               himself.

Brewer Aff. ¶¶ 11, 13.

       Ms. Baylor recalled a “strange and very inappropriate” comment plaintiff made during

the interview, which she described as follows:

               [Plaintiff] described a situation when he was managing a restaurant
               and Jewish customers told him that they did not want Black people
               serving them, and in response, he threw the Jewish customers out.
               In describing this situation, [plaintiff] repeatedly used the terms
               “the Blacks” and “the Jews.” It was unclear . . . why [plaintiff]
               related this experience, as it was not particularly responsive to any
               of the questions asked[.] [M]y impression was that because Ms.
               Brewer and I are both African-American, [plaintiff] felt it
               necessary to try to indirectly convey that he was okay working
               with African-Americans or that he was sensitive to racial issues
               involving African-Americans. What the comment conveyed to me,
               however, was that [plaintiff’s] judgment was poor and that he did
               not have the kind of customer service skills we were looking for.
Baylor Aff. ¶ 13. Ms. Brewer had a similar reaction to plaintiff’s comments. During plaintiff’s

description of the incident, using “the terms ‘the Blacks’ and ‘the Jews,’” she interrupted

plaintiff “and told him something to the effect of, ‘we don’t speak like that at Amtrak.’” Brewer

Aff. ¶ 14. She “got the impression that because both [interviewers] are African-American, he

was trying to show some form of camaraderie – that he was comfortable working with African-

Americans.” Brewer Aff. ¶ 14. She not only found “the comments to be inappropriate, [but]

also thought the sentiment . . . was insincere.” Brewer Aff. ¶ 14. Aside from this incident, there

was no “discuss[ion of plaintiff’s] or anyone else’s race or age.” Brewer Aff. ¶ 15; Baylor

Aff. ¶ 14.   Neither interviewer knew plaintiff’s age at the time of the interview, and both

believed plaintiff to be Caucasian. Brewer Aff. ¶ 15; Baylor Aff. ¶ 14.

               3. Amtrak’s Hiring Decision

                                                 8
       A hiring decision was based on the candidate’s “total package,” that is, the candidate’s

resume and interview. Brewer Aff. ¶ 8; Baylor Aff. ¶ 7. The interviewers jointly decided

“whether . . . the candidate is a good fit for the LSA position,” Brewer Aff. 8; Baylor Aff. ¶ 7.

       Based on plaintiff’s “extremely poor performance during the interview, including his

unpolished appearance, arrogant demeanor, failure to answer interview questions, inappropriate

comment, poor communication skills, and lack of interest in the LSA position,” Ms. Baylor

concluded that he would not “provide the customer service approach required of an LSA.”

Baylor Aff. ¶ 15.     For these same reasons, based on plaintiff’s “overall poor interview

performance,” Ms. Brewer concluded that plaintiff “lacked the customer service personality

required for an LSA. Brewer Aff. ¶ 16. She, too, noted plaintiff’s “failure to answer the

interview questions, poor judgment, poor communication skills, inappropriate comments,

unprofessional appearance, self-important attitude, and his apparent lack of interest in the LSA

position.” Brewer Aff. ¶ 16. Neither interviewer considered plaintiff’s race or age in reaching

her decision. Brewer Aff. ¶ 16; Baylor Aff. ¶ 15.

       Ms. Brewer acknowledged that plaintiff “had more work experience in the

restaurant/food service industry than each of the ten successful candidates.” Brewer Aff. ¶ 19.

She explained her selection of other candidates as follows:

               [T]he ten (10) successful candidates all out-performed [plaintiff] in
               the interviews. The individuals selected for the LSA position all
               demonstrated . . . that they had the appropriate approach to
               customer service and would be a good fit for the position. . . .
               [W]hile prior experience in restaurants and food/beverage is
               helpful, the most important factors in selecting a candidate for an
               LSA position are approach to customer service, attitude and
               personality – everything else can be taught. All ten (10) of the
               candidates selected over [plaintiff] demonstrated that they were
               more qualified for the LSA position because they were a better fit
               in these areas.



                                                 9
Brewer Aff. ¶ 19. The races and ages of the successful candidates were:

                 Candidate 1 (Hispanic, 34); Candidate 2 (African-American, 32);
                 Candidate 3 (Asian, 28); Candidate 4 (African-American, 32);
                 Candidate 4 (African-American, 25); Candidate 6 (African-
                 American, 36); Candidate 7 (African-American, 51); Candidate 8
                 (African-American, 37); Candidate 9 (Caucasian, 28); Candidate
                 10 (African-American, 37).

Ray Aff. ¶ 15.

 II.   DISCUSSION

           A. Summary Judgment Standard

       Summary judgment is appropriate “if 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). The party seeking summary judgment bears the “initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if

any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat

summary judgment, the non-moving party must “designate specific facts showing there is a

genuine issue for trial.” Id. at 324 (internal quotation marks omitted). The mere existence of a

factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find

for the non-moving party; a fact is only “material” if it is capable of affecting the outcome of the

litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). To

determine which facts are material, a court must look to the substantive law on which each claim

rests. Anderson, 477 U.S. at 248.




                                                10
       “The rule governing cross-motions for summary judgment . . . is that neither party waives

the right to a full trial on the merits by filing its own motion; each side concedes that no material

facts are at issue only for the purposes of its own motion.” Sherwood v. Washington Post, 871

F.2d 1144, 1148 n.4 (D.C. Cir. 1989), quoting McKenzie v. Sawyer, 684 F.2d 62, 68 n.3 (D.C.

Cir. 1982). In assessing each party’s motion, “[a]ll underlying facts and inferences are analyzed

in the light most favorable to the non-moving party.” N.S. ex rel. Stein v. District of Columbia,

709 F. Supp. 2d 57, 65 (D.D.C. 2010), citing Anderson, 477 U.S. at 247.

       Where a plaintiff proceeds pro se, “the Court must take particular care to construe the

plaintiff's filings liberally, for such complaints are held ‘to less stringent standards than formal

pleadings drafted by lawyers.’” Cheeks v. Fort Myers Constr. Co., 722 F. Supp. 2d 93, 107

(D.D.C. 2010), quoting Haines v. Kerner, 404 U.S. 519, 520–21 (1972).

       In an employment discrimination case, on the parties’ cross-motions for summary

judgment, the Court must address one question:

               Has the [plaintiff] produced sufficient evidence for a reasonable
               jury to find that [Amtrak’s] asserted non-discriminatory reason was
               not the actual reason and that [Amtrak] intentionally discriminated
               against [him] . . . .

Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008), citing St. Mary’s Honor

Center v. Hicks, 509 U.S. 502, 507–08 (1993). For a Title VII claim, the focus is on two

elements for an employment discrimination case:            “(i) the plaintiff suffered an adverse

employment action (ii) because of [his] race.” Id. at 493. The same analysis applies to an

ADEA claim, see O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 310-11 (1996);

Pacquin v. Fed. Nat’l Mortgage Ass’n, 119 F.3d 23, 26 (D.C. Cir. 1997) (“In ADEA cases we

apply the familiar three-step burdenshifting framework announced in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), for Title VII cases.”), but a plaintiff must show that he suffered

                                                 11
an adverse employment action because of his age. Both elements are required to sustain a claim

of discrimination. Brady, 520 F.3d at 493; Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.

Cir. 2008) (applying Brady to ADEA claim).

           B. Plaintiff Fails to Rebut Amtrak’s Nondiscriminatory Explanation for its
              Hiring Decision 2

       There is no genuine issue in dispute as to five material facts: (1) plaintiff is a white male;

(2) for purposes of the ADEA he is a member of a protected class; 3 (3) plaintiff was qualified for

the LSA position; (4) plaintiff suffered an adverse employment action; and (5) individuals who

are neither white nor members of plaintiff’s protected class were selected for the LSA position

for which plaintiff applied.

       Amtrak did not select plaintiff for the LSA position based on his performance during the

interview. Both interviewers remarked on plaintiff’s unprofessional and unpolished appearance,

his demeanor, and other intangible qualities deemed unsuitable for the intense customer service



2       Plaintiff inexplicably relies on statements and events by Amtrak employees who played
no role in the decision not to hire him and which occurred after Amtrak made its hiring decision.
For example, plaintiff submitted a complaint to Amtrak’s Dispute Resolution Office, which
investigated the matter and found no evidence, and plaintiff provided none, suggesting that race
or age was a factor in the hiring decision. See Pl.’s Mot., Ex. B (Letter to plaintiff from Lisa
Alvarado Coleman, Senior Dispute Resolution Officer, DRO, Amtrak, dated January 26, 2009,
AMT-VAUGHAN 000441-443). He also finds fault with Amtrak’s response to his complaint to
the Equal Employment Opportunity Commission denying the claim of discrimination. See id.,
Ex. C (Letter to Mindy E. Weinstein, Acting Director Washington Field Office, EEOC, from
Theodore M. Campbell, Sr. EEO Compliance, Labor and Employment, Amtrak, dated June 10,
2009, AMT-VAUGHAN 00584-586). The relevance of these submissions in unclear.

3       As a white male, plaintiff is not considered a member of a protected class for purposes of
his Title VII claim. See Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993). Instead, he is
expected “to show additional ‘background circumstances [that] support the suspicion that the
defendant is that unusual employer who discriminates against the majority.’” Id., quoting Parker
v. Baltimore & Ohio R.R., 652 F.2d 1012, 1017 (D.C. Cir. 1981) (alteration in original). For
example, a plaintiff may introduce “evidence that the particular employer . . . has some reason or
inclination to discriminate invidiously against whites, . . . [or] there is something ‘fishy’ about
the facts of the case at hand that raises an inference of discrimination.” Id. (citations omitted).
                                                12
role an LSA plays on board Amtrak’s passenger trains. Neither interviewer found plaintiff to

have the verbal communication skills, good judgment, or particular willingness to perform the

LSA job.

       Plaintiff maintains that he was qualified for the LSA position, that he was 57 years old at

the time he applied for the position, and that younger, less qualified applicants were selected

instead. Pl.’s Mot. at 7. These facts are not disputed. He further asserts that his “experience as

compared to the requirements on the job posting not only exceeded individual applicants but his

food and beverage customer services exceeded all 10 alleged hired applicants[’] combined

experience.”    Pl.’s 2d Mot. at 7.      Plaintiff argues that Amtrak’s reliance on subjective

assessments of personality and a determination by the interviewers that a candidate is a “good

fit” for the LSA position are pretextual. See id. at 15. He opines that neither interviewer

“considered the value of someone trained in food handling and food storage procedures . . . [and]

sanitation procedures,” id., for example, while “not car[ing] what skills to assess in order to fill

the position with the most qualified candidate,” id. at 16. Fundamentally, plaintiff asserts, Ms.

Brewer “did not like” him, id. at 16, and that she and Ms. Baylor “devalued organizational values

and . . . experience,” id. at 17. Plaintiff dismisses as “absurd” any company hiring plan to recruit

the most qualified candidates for a position which “ignor[es] the experience and educational

requirements or . . . laws by not identifying members of a protected class and replace those

requirements with a congenitally contest.” 4 Id. at 28.

       In support of his motion for summary judgment on his ADEA claim, plaintiff relies on

the job posting, his resume, and a document listing the ten successful applicants’ names, ages,

races, supervisory and food and beverage experience (if any), and education. See Pl.’s Mot. at 4;


4     The Court presumes that plaintiff intends to use the term “congeniality contest,” not
“congenitally contest.”
                                                13
see id., Ex. D-G. With respect to his Title VII claim, plaintiff relies on the “EEOC Compliance

manual Section 15.” Pl.’s Mem. of Law in Opp. to Def.’s Cross-Mot. for Summ. J. & in Supp.

of Pl.’s Partial Summ. J. at 3; see id., Ex. A (EEOC Directives Transmittal No. 915.003 dated

April 19, 2006). This document appears to be a revision to the EEOC’s Compliance Manual

concerning employer credibility. According to this document, “[i]f an employer’s explanation

for the employee’s treatment ultimately is not credible, that is powerful evidence that

discrimination is the most likely explanation.” Id., Ex. A at 1. Plaintiff appears to argue that, if

Amtrak purports to hire the most qualified candidates, and if his experience far exceeded that of

the successful candidates, Amtrak’s explanation for its decision not to hire him is not credible –

meaning that discrimination is the most likely explanation for its action.

        There is no dispute that plaintiff was qualified for the LSA position. He proceeds,

however, as if rigid adherence to the criteria set forth in the job posting is the only acceptable

basis for hiring a particular candidate. See Kranz v. Gray, 842 F. Supp. 2d 13, 22 (D.D.C. 2012)

(noting that “plaintiff’s focus on his ‘outstanding’ qualifications misses the mark because

defendant’s reason is not that [plaintiff] lacked credentials, but rather, he provided inadequate

essay responses”). Without question work experience is a factor to consider, but nothing in the

ADEA and Title VII prevents an employer from considering intangible qualities in making an

employment decision. See Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183–84 (D.C. Cir.

1996) (“[S]electing a pool of qualified candidates based upon their written credentials and then

making a final selection based upon personal interviews is an obviously reasonable method of

hiring a professional employee.”); Bailey v. Washington Metro. Area Transit Auth., 810 F. Supp.

2d 295, 303 (D.D.C. 2011) (selecting an applicant who “conducted herself more impressively

during the interview” than the plaintiff); Onyewuchi v. Mayorkas, 766 F. Supp. 2d 115, 121



                                                14
(D.D.C. 2011) (finding that defendant presented legitimate, non-discriminatory justification for

plaintiff’s non-selection: that plaintiff was less qualified and did not interview as well as the

selectee); Oliver v. Napolitano, 729 F. Supp. 2d 291, 201 (D.D.C. 2010) (explaining that selectee

was “more qualified” for the position “based on her interview” and that she “seemed ‘more

aware of what [the Department was] looking for and how her skills would add to the office’”)

(alteration in original).

        Plaintiff misunderstands his obligation here. His success on summary judgment depends

on his ability to point to evidence in the record to show that Amtrak’s stated reason for not

selecting him for the LSA position – poor interview performance – is pretextual. See Brady, 520

F.3d at 494. Amtrak’s burden is “one of production, not persuasion.” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 142 (2000).           It need only articulate a legitimate

nondiscriminatory reason for its hiring decision and offer admissible evidence in support of that

reason. See id. Amtrak has done so in this case. Plaintiff fails to point to evidence in the record

to rebut Amtrak’s explanation by showing that race and age discrimination were the actual

reasons for the hiring decision. Instead, plaintiff relies on his own statements, opinions, and

assessment of his interview performance and the competence of the interviewers. In light of

plaintiff’s failure, defendant’s cross-motion for summary judgment will be granted. See Andrum

v. Washington Metro. Area Transit Auth., 710 F. Supp. 2d 112, 119-20 (D.D.C. 2010) (granting

summary judgment for employer where plaintiff “ha[d] not presented a single argument or piece

of evidence” that the employer enforced a policy based on plaintiff’s race).     “Short of finding

that the employer’s stated reason was indeed a pretext, however–- and here one must beware of

using 20/20 hindsight – the court must respect the employer’s unfettered discretion to choose

among qualified candidates.” Fischbach, 86 F.3d at 1183.



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III.   CONCLUSION

       Amtrak has demonstrated a legitimate nondiscriminatory reason for its decision not to

hire plaintiff for the LSA position, and plaintiff has not rebutted Amtrak’s showing.

Accordingly, the Court will deny plaintiff’s motions for summary judgment [Dkt. # 30 and # 42]

and grant defendant’s cross-motion [Dkt. # 35]. A separate order will issue.




                                                    AMY BERMAN JACKSON
                                                    United States District Judge

DATE: September 21, 2012




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