                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
ANITA BOONE,                  )
                              )
          Plaintiff,          )
                              )
          v.                  )     Civil Action No. 05-346 (RWR)
                              )
HILLARY CLINTON,              )
                              )
          Defendant.          )
______________________________)

                  MEMORANDUM OPINION AND ORDER

     The plaintiff, Anita Boone, has sued the Secretary of State1

under Title VII of the Civil Rights Act of 1964 and the Age

Discrimination in Employment Act (“ADEA”) alleging that the State

Department discriminated against her because of her age, race,

and sex by refusing to promote her on two occasions.   The

Department moves for summary judgment, contending that Boone

failed to exhaust her administrative remedies and that she has

not rebutted the legitimate, nondiscriminatory reasons offered by

the Department for its actions.   Because Boone successfully

exhausted her administrative remedies and has sufficiently

rebutted the Department’s legitimate, nondiscriminatory reasons

for her race discrimination claim with respect to the first




     1
      Hillary Clinton is substituted for Condoleeza Rice under
Fed. R. Civ. P. 25(d).
                                 - 2 -

promotion opportunity only, the Department’s motion for summary

judgment will be granted in part and denied in part.2

                            BACKGROUND

     Boone, a black female over age forty, is employed as an

Information Analyst at the State Department’s Office of

Information Resources Programs and Services (“IPS”).    (Def.’s

Stmt. of Material Facts (“Def.’s Stmt.”) ¶ 1; Compl. ¶ 6.)    Her

position involves working with other offices in response to

Freedom of Information Act (“FOI” or “FOIA”) and Privacy Act

requests; performing classification review and records

management, including using the Freedom of Information Document

Management System (“FREEDOMS”); conducting briefings for officers

traveling overseas; and occasionally serving for short periods as

acting branch chief.   (Def.’s Stmt. ¶ 3; Pl.’s Stmt. of Material

Facts (“Pl.’s Stmt.”) ¶ 63; Pl.’s Mem. of P. & A. in Opp’n to

Def.’s Mot. (“Pl.’s Mem.”), Ex. 5 at 0330.)    She has held this

position since 1997 and has been promoted from GS-11 to GS-12.

(Compl. ¶ 6; Pl.’s Mem. ¶ 63.)    At the relevant times, Boone’s

supervisor was John Cruce, a Branch Chief (Def.’s Stmt. ¶ 2), and

she received positive work reviews from 1997 through 2002.

(Pl.’s Stmt. ¶ 64.)




     2
       Boone does not defend her hostile work environment claim,
Count 3. (Pl.’s Mem. of P. & A. in Opp’n to Def.’s Mot. (“Pl.’s
Mem.”) at 43 n.6.) It will be dismissed.
                                  - 3 -

     In response to Vacancy Announcement A/EX-02-060 (“Vacancy

02-060”) for multiple Program Analyst positions, Boone applied

for a grade level 13 position.      (Def.’s Stmt. ¶¶ 4, 12.)    The

announcement stated that applicants should have the following

knowledge, skills, and abilities (“KSAs”):

         (1) ability to communicate orally in performing
         program analysis work; (2) knowledge of regulations
         and policies governing FOIA, Privacy Act, and
         Executive Order 12958; (3) ability to communicate in
         writing in program analysis work; (4) knowledge of
         principles and practices of program evaluation and
         oversight; and (5) ability to perform in-depth legal
         research.

(Id. ¶ 5.)     A selection panel was formed to make hiring

recommendations and included the following eight Branch Chiefs:

Marria Braden, John Cruce, Frank Foldvary, Audree Holton,

Patricia Magin, Alice Ritchie, Patrick Scholl, and Tasha Thian.

(Id. ¶ 7.)     The panel received a certificate from a human

resources officer with thirty-two unranked candidates, including

Boone.     (Id. ¶ 11.)   The panel created a process to rank the

applicants based on the KSAs.3     Following the panel’s evaluation,

Boone had an aggregate score of 157, which tied for the second

highest score.     (Id. ¶ 20; Def.’s Mem. of P. & A. in Supp. of

Def.’s Mot. for Summ. J. (“Def.’s Mem.”), Ex. 2 at 0238.)        When


     3
      The Department asserts that there were five KSAs, which
the hiring announcement reflects. (Def.’s Stmt. ¶ 5.) However,
the evaluation sheet, as the plaintiff contends, appears to
reflect that “performance” was also considered in addition to the
five KSA categories. (See Def.’s Mem. of P. & A. in Supp. of
Def.’s Mot. for Summ. J., Ex. 2 at 0237; Pl.’s Mem., Ex. 9.)
                                - 4 -

assigning scores, the panel assumed that the applications were

accurate and scored the candidates based solely on the

information stated in their applications.     (Def.’s Stmt. ¶ 18.)

Although the panel did not interview the candidates, it did meet

to discuss them.   The panel looked for candidates who would be

capable of becoming future Branch Chiefs (id. ¶ 26), and it

considered management potential, expertise in the field,

communication skills, and leadership skills as well.     (Def.’s

Mem., Ex. 2 at 0235.)   Panel members Scholl, Ritchie, and Braden

expressed concerns with Boone’s FOI, FREEDOMS, geography,

communication and leadership skills based on their experiences

with and observations of her.   (Def.’s Stmt. ¶¶ 33-38.)    Cruce,

on the other hand, highly recommended Boone for the promotion.

(Id. ¶ 39.)   The panel recommended for promotion any candidate

who received a majority vote of the panel members.     (Id. ¶ 42.)

The panel recommended seven candidates (id. ¶ 43), including

Margaret Scholl, the wife of panel member Patrick Scholl.     (Id.

¶ 30.)   Six were actually promoted,4 as Margaret Scholl was later

deemed ineligible for a promotion.      (Id. ¶ 46; Pl.’s Stmt ¶ 43.)

The panel did not recommend Boone, who received four votes, and

she did not receive a promotion.   (Def.’s Stmt. ¶¶ 47, 52.)

Boone received official notice that she was not selected on



     4
      Candidates Hartman, Pace, Dubose, Chichester, Glenn, and
Sawka were promoted. (Def.’s Mem. at 10 n.8.)
                                    - 5 -

August 2, 2002.       (Id. ¶ 52.)   On July 25, 2002, before receiving

official notice, Boone sent an email to Arlene Brandon, an

“EEO/ADR Specialist” in the Office of Civil Rights, stating her

wish to file an equal employment opportunity (“EEO”) complaint

because her non-selection was discriminatory.        (Pl.’s Mem., Ex.

12 at 0157.)       Brandon initially assigned Gwen Strogen-Boozer as

Boone’s EEO counselor on August 1, 2002.        (Id. at 0160.)   After

an initial meeting, Boone requested a different counselor on

August 2, 2002.       (Id. at 0161.5)   Boone had contact with Leroy

Potts, another EEO counselor to whom she was not assigned, and

Boone’s attorney sent Potts a letter indicating her intent to

file a complaint and the nature of the complaint.        (Id. at 0163.)

Brandon ultimately assigned as Boone’s EEO counselor Diane

Ferguson, with whom Boone had her initial contact on October 9,

2002.       (Def.’s Mem., Ex. 4, Dep. of Anita Boone at 116.)

     Later, Boone applied again for a promotion under Vacancy

Announcement A/EX-02-085 (“Vacancy 02-085”).        The panel received

a certificate ranking twenty-one eligible applicants, including

Boone.       (Def.’s Stmt. ¶¶ 56-57.)   Boone ranked fifth on the list,

tied with two other applicants for the third highest score.

Human resources instructed the panel to follow the “Rule-of-

Three.”       (Id. ¶ 58.)   Under the rule, the selection officials are



        5
       This page number, missing from the document, is supplied
by the Court.
                                - 6 -

to “[c]onsider only the first three applicants on the

certificates.   If an applicant declines, then [the selection

officials] may consider the next candidate on the list.”    (Def.’s

Mem., Ex. 2 at 0514.)    The panel recommended the first two

candidates on the ranked list for promotion; it did not select

Boone.   (Def.’s Stmt. ¶ 61.)

     Counts 1, 2, and 4 of Boone’s complaint allege,

respectively, race discrimination, gender discrimination, and

disparate treatment race and gender discrimination, all in

violation of Title VII.    Count 5 alleges age discrimination in

violation of the ADEA.    The Department moves for summary judgment

on Boone’s race, gender, and age discrimination claims in Counts

1, 2, 4, and 5, contending that Boone failed to exhaust her

administrative remedies with regard to Vacancy 02-060 and that

she has not rebutted the Department’s legitimate,

nondiscriminatory reasons offered for its actions.    The

Department also seeks dismissal of Counts 1, 2, and 5, each of

which alleges “a policy and practice of discrimination,” by

arguing that pattern and practice claims cannot be brought by an

individual plaintiff.    Boone opposes summary judgment on those

counts, arguing that there are disputed material facts bearing on

whether the Department discriminated against her by refusing to

promote her on two occasions.    Boone also argues that she has not

asserted any pattern or practice claim.
                                - 7 -

                             DISCUSSION

     On a motion for summary judgment, “[t]he inquiry performed

is the threshold inquiry of determining whether there is a need

for a trial –– whether, in other words, there are any genuine

factual issues that properly can be resolved only by a finder of

fact because they may reasonably be resolved in favor of either

party.”   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986).   Summary judgment may be granted only where “the

pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.”   Fed. R. Civ. P. 56(c)(2); see also Moore v.

Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009).     A material fact is

one that is capable of affecting the outcome of the litigation.

Liberty Lobby, Inc., 477 U.S. at 248.     A genuine issue is one

where the “evidence is such that a reasonable jury could return a

verdict for the nonmoving party,” id., as opposed to evidence

that “is so one-sided that one party must prevail as a matter of

law.”   Id. at 252.   A court considering a motion for summary

judgment must draw all “justifiable inferences” from the evidence

in favor of the nonmovant.    Id. at 255.   The nonmoving party,

however, must do more than simply “show that there is some

metaphysical doubt as to the material facts.”     Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
                               - 8 -

Rather, the nonmovant must “come forward with ‘specific facts

showing that there is a genuine issue for trial.’”    Id. at 587

(emphasis omitted) (citing Fed. R. Civ. P. 56(e)).    In the end,

“the plain language of Rule 56(c) mandates the entry of summary

judgment . . . against a party who fails to make a showing

sufficient to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden

of proof at trial.”   Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).

I.   EXHAUSTION OF ADMINISTRATIVE REMEDIES

     Before filing a lawsuit, “[a]n aggrieved person must

initiate contact with a Counselor within 45 days of the date of

the matter alleged to be discriminatory or, in the case of

personnel action, within 45 days of the effective date of the

action.”   29 C.F.R. § 1614.105(a)(1).   The Department asserts

that Boone did not contact an EEO counselor within forty-five

days following her non-selection for Vacancy 02-060.    (Def.’s

Mem. at 14-15.)   Boone officially learned of her nonselection for

Vacancy 02-060 on or about August 2, 2002, but did not officially

begin to receive counseling until October 9, 2002.    Boone asserts

that the EEO process began when she contacted the Office of Civil

Rights on July 25, 2002, noted her intent to file an EEO

complaint, and requested an appointment with a counselor.    (Pl.’s

Mem. at 28.)
                               - 9 -

     The regulation does not facially require that a plaintiff

meet with a counselor within forty-five days, but instead states

that a complainant must initiate contact within that time.      The

EEOC has interpreted “initiate contact” to require that “an

employee who believes that she has been the subject of

discrimination must timely (1) contact an agency official

‘logically connected’ with the EEO process (not necessarily a

Counselor) and (2) demonstrate an intent to begin the EEO

process.”   Klugel v. Small, 519 F. Supp. 2d 66, 71 (D.D.C. 2007)

(noting that the D.C. Circuit has not yet addressed the meaning

of the phrase “initiate contact”).     See also Lane v. Tschetter,

Civil Action No. 05-1414 (EGS), 2007 WL 2007493, at *3 (D.D.C.

Jan. 15, 2007) (applying the EEOC’s definition of “initiate

contact” to find that plaintiff’s letter to the official

responsible for EEO functions had not begun the EEO process

because it did not express an intent to begin the EEO process or

include sufficient facts of alleged discrimination).     Within the

forty-five day window, Boone contacted Brandon, the EEO/ADR

Specialist, had an initial conversation with EEO counselor

Strogen-Boozer, and sent through her attorney a letter to EEO

counselor Potts discussing her intent to file a complaint and the

nature of her complaint.   (See Pl.’s Mem. at 28-29; Ex. 12 at

0157-0158, 0160, 0161, 0170-0171.)     The Department did not

contest Boone’s assertions that she contacted Brandon, Strogen-
                               - 10 -

Boozer, or Potts, nor did it argue that these contacts were

unconnected with the EEO process.    (See Def.’s Mem. at 14-15.)

Under the EEOC’s interpretation, Boone initiated contact with a

counselor within the forty-five day period required by

§ 1614.105(a)(1).

II.    DISCRIMINATION CLAIMS

       A plaintiff bringing discrimination claims under Title VII

or the ADEA without direct evidence may employ the

burden-shifting framework approved in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-03 (1973), when the defendant denies

that its actions were motivated by the plaintiff’s race, sex, or

age.    Carmona v. Snow, Civil Action No. 05-1194 (JGP), 2007 WL

915220, at *5 (D.D.C. Mar. 26, 2007) (noting that ADEA claims are

analyzed under the McDonnell Douglas framework as Title VII

claims are).    Under McDonnell Douglas, Boone would be required to

show that: 1) she is a member of a protected class; 2) she

applied for and was qualified for the available position; 3)

despite her qualifications, she was rejected; and 4) either

someone filled the position or it remained vacant and the

employer continued to seek applicants.    Peterson v. Hantman,

Civil Action No. 02-2552 (RWR), 2006 WL 1442662, at *3 (D.D.C.

May 25, 2006).    However, the D.C. Circuit has clarified that the

prima facie factors are “largely [an] unnecessary sideshow” and

concluded that
                             - 11 -

     [i]n a Title VII disparate-treatment suit where an
     employee has suffered an adverse employment action and
     an employer has asserted a legitimate,
     non-discriminatory reason for the decision, the
     district court need not - and should not - decide
     whether the plaintiff actually made out a prima facie
     case under McDonnell Douglas. Rather, in considering
     an employer’s motion for summary judgment or judgment
     as a matter of law in those circumstances, the district
     court must resolve one central question: Has the
     employee produced sufficient evidence for a reasonable
     jury to find that the employer’s asserted
     non-discriminatory reason was not the actual reason and
     that the employer intentionally discriminated against
     the employee on the basis of race, color, religion,
     sex, or national origin?

Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.

2008).    The condensed inquiry does not alter the plaintiff’s

burden.    “The ultimate burden of persuading the trier of fact

that the defendant intentionally discriminated against the

plaintiff remains at all times with the plaintiff.”    Texas Dept.

Of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).    A court

looks to whether a reasonable jury could infer intentional

discrimination from all of the evidence including: 1) the

plaintiff’s prima facie case, 2) evidence presented to attack the

employer’s proffered explanation for its actions, and 3) further

evidence of discrimination such as evidence of discriminatory

statements or attitudes by the employer.    Carter v. George

Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004).

     “Pretext may be established ‘directly by persuading the

court that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer’s proffered
                               - 12 -

explanation is unworthy of credence.’”    Sewell v. Chao, 532 F.

Supp. 2d 126, 138 (D.D.C. 2008) (citing Burdine, 450 U.S. at

256).    However, it is insufficient to simply show “that a reason

given for a job action is not just, or fair, or sensible”;

instead the plaintiff must establish “that the explanation given

is a phony reason.”    Id. at 138 (stating that once a legitimate

reason has been given, “the issue is not the correctness or

desirability of [the] reasons offered . . . [but] whether the

employer honestly believes in the reasons it offers” (alterations

in original) (quoting Fischbach v. D.C. Dep’t of Corr., 86 F.3d

1180, 1183 (D.C. Cir. 1996))); see also St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 511 (1993) (reasoning that a “rejection of

the defendant’s proffered reasons” would not, by itself, compel

judgment for the plaintiff because “the Title VII plaintiff at

all times bears the ‘ultimate burden of persuasion’” (citations

omitted)).    A plaintiff can attack an employer’s qualification-

based explanation by comparing her qualifications to those of

successful applicants or by exposing flaws in the employer’s

explanation.    Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir.

2006).    “Title VII liability cannot rest solely upon a judge’s

determination that an employer misjudged the relative

qualifications of admittedly qualified candidates[,]” however.

Id. (internal citation and quotation omitted).    To show pretext,

a plaintiff “must show ‘both that the reason was false, and that
                               - 13 -

discrimination . . . was the real reason.’”   Weber v. Battista,

494 F.3d 179, 186 (D.C. Cir. 2007) (quoting Hicks, 509 U.S. at

515).

     A.    Vacancy 02-060

           1.    Legitimate, nondiscriminatory reasons

     The Department contends that despite Boone’s high aggregate

score, she was not selected to fill Vacancy 02-060 because panel

members had concerns regarding her leadership and communication

skills.    In particular, Ritchie had worked with Boone on several

projects and found that Boone had “difficulty communicating and

conveying her thoughts into words,” had not shown solid geography

skills, and had not been thorough in documenting FREEDOMS

entries.   (Def.’s Mem., Ex. 1 at 0223-24; Ex. 2 at 0226.)    Other

panel members, such as Scholl and Braden, also noted a concern

with Boone’s communication and leadership skills and declined to

vote for her.   (See id., Ex. 2 at 0233 (contending that as

Boone’s former supervisor, Scholl believed that Boone could not

grasp the details of the job and did not stay on top of her

cases); id. at 0243 (stating Braden’s belief that Boone needed to

“enhance leadership and communication skills” and had not taken

recent training to enhance her skills).)

           2.    Pretext

     Boone presents statistical evidence to demonstrate that the

defendant’s stated reasons for her non-selection were pretext.
                              - 14 -

“[E]vidence of systemic disparate treatment is relevant to and

probative of the issue of pretext even when it is insufficient to

support a pattern and practice disparate treatment case.”      Bell

v. Envtl. Prot. Agency, 232 F.3d 546, 553 (7th Cir. 2000).      While

statistical evidence is “‘less significant’” in an individual

disparate treatment case where “‘the ultimate issue is whether

the particular plaintiff was the victim of an illegitimately

motivated employment decision,’” Horvath v. Thompson, 329 F.

Supp. 2d 1, 10 (D.D.C. 2004) (quoting Krodel v. Young, 748 F.2d

701, 710 (D.C. Cir. 1984)), such evidence may still be probative

of an employer’s motive in making selection decisions “and can

therefore create an inference of discriminatory intent with

respect to the individual employment decision at issue.”       Cooper

v. Southern Co., 260 F. Supp. 2d 1258, 1267 (N.D. Ga. 2003).

Thus, in an individual disparate treatment case, statistical

evidence is “admissible and may be helpful, though ordinarily not

dispositive.”   Krodel, 748 F.2d at 710.

     Boone alleges that despite the high percentage of people of

color in this workplace in 2002, the number of black versus white

employees in each of three pay grades in the Information Response

Branch was as follows:

                      GS-13            GS-14          GS-15
     Black               7                  4              0
     White               6                 177         38
                                   - 15 -

(Pl.’s Stmt. ¶ 84.)       While the low percentage of black GS-13s,

GS-14s, and GS-15s in the Information Response Branch may alone

be insufficient to raise an inference of discrimination, see

Whitener v. England, Civil Action No. 04-273 (LFO), 2006 WL

3755220, at *7 (D.D.C. Dec. 19, 2006) (finding that merely noting

the composition of a workforce, without more, did not sustain an

individual discrimination action), the unrebutted evidence6 of a

significant disparity between the racial composition of the pool

of qualified candidates for the vacancy and the racial

composition of the selectees can reasonably suggest pretext.

Thirty-two individuals applied for the vacancy, and, in an

initial evaluation, Cruce and another GS-13 Program Analyst

certified every one of the applicants as meeting the minimum

qualifications for the announcement.        (Pl.’s Mem. at 18.)   Eight

of these candidates were white, two were Hispanic, and twenty-two

were black.       (Id.)   However, of the seven candidates selected by

the panel, five were white and only two were black.        (Id. at 39-

40.)       That the selecting officials promoted more than seventy

percent of the white applicants deemed minimally qualified but

fewer than ten percent of black applicants deemed minimally

qualified can support Boone’s allegation that her non-selection




       6
           The defendant did not file a reply.
                              - 16 -

was motivated by her race.7   While the analysis here might be

different if this statistical evidence were all that Boone

presented to survive the Department’s motion for summary

judgment, see Krodel, 748 F.2d at 710, Boone presents additional

evidence from which a trier of fact could reasonably conclude

that race motivated her non-selection.

     Boone argues that she was more qualified than some of the

white applicants who were promoted.    According to Boone, Glenn

lacked FOIA, Privacy Act, and litigation experience, had been at

the Department for only two months, and scored lower than Boone

in the panel’s ranking.   (Pl.’s Mem. at 39.)   In comparison to

her bachelor’s degree and five years of FOI experience, Boone

contends that Sawka’s two years of FOI experience and an

associate’s degree do not measure up.

     Ordinarily, to allow a jury to infer discrimination, “the

qualifications gap [between the plaintiff and the selectee] must

be great enough to be inherently indicative of discrimination”

because in a close case, a reasonable juror might usually assume

that the employer is better able to make an assessment or make a



     7
      Because Boone does not argue that the promotions were
statistically skewed based on age or gender, the statistics do
not create a genuine issue of material fact for trial on her
gender discrimination and ADEA claims. Unbuttressed by
statistical support reflecting gender or age discrimination, the
additional evidence discussed below does not alone suffice to
fill the gap. Thus, the Department’s motion for summary judgment
will be granted with respect to those claims.
                               - 17 -

judgment call.    Holcomb, 433 F.3d at 897.   The panel permissibly

considered what it believed to be relevant factors when

evaluating candidates in addition to the candidates’ scores,

including expertise, management skills, and leadership skills.8

(See Def.’s Mem., Ex. 2 at 0235.)    Absent any other evidence, the

differences in education scores and FOI experience to which Boone

points might not reflect the wide gulf in qualifications

typically necessary to support an inference of unlawful

discrimination.    See, e.g., Aka v. Washington Hosp. Ctr., 156

F.3d 1284, 1295, 1299 (D.C. Cir. 1998) (comparing nineteen years

of relevant experience and a master’s degree with two months of

relevant experience and no college degree); Lathram v. Snow, 336

F.3d 1085, 1092 (D.C. Cir. 2003) (comparing three years of


     8
      Glenn’s application reflects that he had worked previously
with the Presidential Recordings and Materials Preservation Act
and its “restriction categories . . . closely mirror those of
FOIA and the Privacy Act.” (Pl.’s Mem., Ex. 6 at 0448.)
Additionally, Glenn had attended several FOI and Privacy Act
training sessions and had experience with Executive Order 12958,
which was a skill relevant to the program analyst position.
(Id.) In considering Glenn’s candidacy, panel members expressed
belief that his prior experiences at the National Archives and
Records Administration and the Office of the Historian would be
beneficial to the Department and reflected strong expertise in
records and information management. (Def.’s Mem., Ex. 2 at 0226,
0244.)

     Regarding Sawka, Ritchie believed that Sawka was a “good
risk” who was knowledgeable on all aspects of IPS and thorough in
her FREEDOMS entries. (Def.’s Mem., Ex. 2 at 0226.) Magin
believed that Sawka had been involved in complex cases, had good
research skills, demonstrated leadership skills through her
participation in working groups, and had desirable experiences
from a prior job. (Id. at 0232.)
                              - 18 -

experience in public affairs, strong evaluations from former

supervisors, and expertise in drug interdiction issues with no

experience in public affairs and relevant experience limited to

editing a small drug enforcement newsletter).     However, neither

Aka nor Lathram involved statistical evidence as additional proof

of pretext.   Here, in the context of the wide statistical

discrepancy between the number of qualified black applicants and

the number of black selectees, even the less stark differences in

qualifications Boone presents could lend support to a reasonable

inference of a discriminatory motive.     See Liberty Lobby, Inc.,

477 U.S. at 248.

     In attempting to show animus, Boone also argues that Ritchie

unfairly based her opinion of Boone’s FOI skills on a brief

interaction they had fifteen years earlier in 1987.     Evidence

that “an employer misjudged an employee’s performance or

qualifications is, of course, relevant to the question whether

its stated reason is a pretext masking prohibited

discrimination.”   Fischbach, 86 F.3d at 1183.    Ritchie based her

opinion largely on her claim that Boone said in 1987 that she

“didn’t feel [that] she could do the [FOI] work.”     (Pl.’s Mem. at

36; Ex. 8 (“Ritchie Dep.”) at 93.)     A defendant’s failure to

consider a plaintiff’s more recent, improved performance might

not indicate “an illegal discriminatory intent . . . as [s]he

could have relied solely on the plaintiff’s uncontested past
                                  - 19 -

performance problems.”       Vasilevsky v. Reno, 31 F. Supp. 2d 143,

151 (D.D.C. 1998) (involving problems four and five years prior).

However, Boone has not left Ritchie’s opinion uncontested (Pl.’s

Mem. at 35-36), and a reasonable inference of bias could easily

be drawn from Ritchie’s refusal to leaven her opinion about

Boone’s FOI skills given that Cruce, the person who was most

familiar with Boone’s recent work, aggressively supported her

promotion in discussions with the other selecting officials.

(Pl.’s Mem., Ex. 4 at 0254-0255.)      Moreover, a reasonable jury

could find that the Department’s use of Ritchie’s explanation is

pretextual since the Department assigned Boone soon after the

promotions were announced to train Glenn in FOI and the Privacy

Act.       (See id. at 0003.)

       Additionally, Magin asserted that Patrick Scholl was Boone’s

former supervisor and he criticized Boone’s performance during

selection panel discussions.      (Def.’s Mem., Ex. 2 at 0232-0233.)

However, Boone insists, without challenge, that she never worked

with Patrick Scholl.9      (See Pl.’s Stmt. ¶ 37.)   This raises a

factual issue about whether the selecting officials, who relied

on Boone’s lack of qualifications to justify their decision not

to promote her, did not accurately characterize Boone’s past work


       9
       Boone also contests that she previously worked with
Braden. (Pl.’s Stmt. ¶ 38.) However, Braden did not state that
they had worked together. Braden based her assessment in part on
her “experiences with [Boone]” (Def.’s Mem., Ex. 2 at 0243),
which could reflect interactions other than those as co-workers.
                               - 20 -

experience.    It also could undermine the credibility of their

neutral justification for not promoting Boone and could help

raise the specter that it was pretextual.    Reasonable inferences

could easily be drawn that the justification partly masked, at

best, a bias favoring the candidate married to a panel member

whose criticisms were aimed at weakening his wife’s competitor’s

chances, or, at worst, racial animus.    A reasonable jury could

conclude, from all of the statistical and other evidence Boone

offers, that the Department’s explanation for her non-selection

was a mere pretext for race discrimination.

     B.   Vacancy 02-085

          1.     Legitimate, nondiscriminatory reasons

     For Vacancy 02-085, the Department states that the panel did

not select Boone because it followed OPM’s rule of three.

According to OPM’s hiring instructions, the rule of three

requires consideration of the first three applicants on the

certificate, and then if one of the candidates declines, the next

candidate can be considered.    (Def.’s Mem., Ex. 2 at 0514.)

Unlike with Vacancy 02-060, OPM provided to the selection panel a

ranked list of eligible candidates for Vacancy 02-085.    Boone was

listed fifth on the ranked list tied with two other people for

the third highest score.    The Department selected the first two

candidates for promotion.
                              - 21 -

          2.     Pretext

     Boone argues that “there exists an issue [of] whether the

panel followed, or understood, the Rule of Three or declined to

discuss the merits of the candidates below the first two[.]”

(Pl.’s Mem. at 42.)   There is some uncertainty as to whether the

panel adhered strictly to the rule of three.   Ritchie described

the rule of three as requiring the selecting officials to “look

at the top three people to consider your selection.   If you

decide that you want to hire one of those three, you may hire one

of those three and then you can look at the next three

people . . . [meaning] look at the two you didn’t hire and then

the next one on the list.”   (Ritchie Dep. at 112-13.)    Ritchie’s

description differs from the rule of three as described by the

vacancy’s selection instructions.   The instructions note that the

next candidate can be considered when someone declines, but do

not indicate how to proceed when a candidate accepts a position.

Furthermore, it is unclear how the panel was to proceed when more

than one person is tied for the same score on the certificate.

     The defendant asserts that the panel selected the two

highest-ranked applicants, but the defendant does not

affirmatively state whether the panel considered Boone.    The

record does support Boone’s contention that she was considered.

(Pl.’s Mem., Ex. 4 at 0202 (“We did work our way down the list to

Ms. Boone.”).)   But, she does not show how the panel’s
                              - 22 -

consideration of her candidacy or the use of Ritchie’s

interpretation of the rule reflect a discriminatory motive.    See

Fischbach, 86 F.3d at 1183 (stating that “[a]n employer’s failure

‘to follow its own regulations and procedures, alone, may not be

sufficient to support’ the conclusion that its explanation for

the challenged employment action is pretextual” (quoting Johnson

v. Lehman, 679 F.2d 918, 922 (D.C. Cir. 1982))); Kennedy v. D.C.

Gov’t, 519 F. Supp. 2d 50, 63 (D.D.C. 2007) (noting that a poor

selection process is insufficient evidence absent “demonstrably

discriminatory motive” and a court evaluating an employment

decision in hindsight “must respect the employer’s unfettered

discretion to choose among qualified candidates” (quoting

Fischback, 86 F.3d at 1183) (internal quotation marks omitted)).

The irregularities in the process even if proven must indicate a

discriminatory motive.   See Hamilton v. Paulson, 542 F. Supp. 2d

37, 48 (D.D.C. 2008) (stating that a panel member’s

misunderstanding of the nature of the position or lack of

expertise failed to raise an inference of bias because the

irregularities may have indicated error or incompetence, but not

discrimination); Butler v. Ashcroft, 293 F. Supp. 2d 74, 79-80

(D.D.C. 2003).   Furthermore, Boone does not argue that she was

substantially more qualified than either of the two promoted

candidates.   Absent additional stronger evidence, the fact that

the panel may not have followed the Department’s policy precisely
                               - 23 -

is insufficient here to support an inference of discriminatory

motive.

                             CONCLUSION

     Because Boone has presented evidence reflecting that she

contacted the Department’s EEO counselor within forty-five days,

Boone has shown that she initiated contact as was required.    She

has also presented evidence from which a reasonable jury could

conclude that the Department’s proffered legitimate non-

discriminatory reasons for not promoting her for Vacancy 02-060

were a pretext for race discrimination, but she has not presented

evidence from which a reasonable jury could infer gender or age

discrimination.   Additionally, she has not shown that the

Department’s legitimate non-discriminatory reasons proffered for

not promoting her for Vacancy 02-085 were a pretext for race,

age, or gender discrimination.    Accordingly, it is hereby

     ORDERED that the Department’s motion [19] for summary

judgment be, and hereby is, DENIED with respect to Boone’s claim

of race discrimination for Vacancy 02-060 and GRANTED in all

other respects.   It is further

     ORDERED that Count 3 of the complaint be, and hereby is,

DISMISSED.   It is further

     ORDERED that the parties confer and file by February 12,

2010 a joint status report and proposed order reflecting three
                              - 24 -

mutually agreeable dates on which to hold a scheduling

conference.

     SIGNED this 29th day of December, 2009.


                                              /s/
                                   RICHARD W. ROBERTS
                                   United States District Judge
