MONTGOMERY v. SOLIS et al

Filing 44

MEMORANDUM OPINION re: Defendant's 34 MOTION for Summary Judgment. Signed by Judge Robert L. Wilkins on 2/1/2013. (tcb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DELARSE MONTGOMERY,
Plaintiff,
v.

Civil Action No. 10-cv-1223 (RLW)

JOSHUA GOTBAUM, Director,
Pension Benefit Guaranty Corporation,
Defendant.

MEMORANDUM OPINION
Plaintiff DeLarse Montgomery (“Montgomery”) brings this lawsuit against his former
employer the Pension Benefit Guaranty Corporation (“PBGC”), proceeding against Joshua
Gotbaum, Director of the PBGC, in his official capacity. 1 Montgomery’s claims all stem from
his non-selection for a GS-510-12/13 Accountant position in the Collection and Compliance
Division of PBGC’s Financial Operations Department.

As set forth in his Complaint,

Montgomery asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e,
et seq., and the Age Discrimination of Employment Act (“ADEA”), 29 U.S.C. §§ 633a, et seq.,
arguing that PBGC’s failure to select him for the position was discriminatory on the basis of age
(58 at the time), gender (male), and race (African American). He also alleges that PBGC
unlawfully retaliated against him for engaging in protected activity—lodging prior complaints of
discrimination against PBGC with the Equal Employment Opportunity Commission (“EEOC”).
1

Montgomery initially named as defendants Hilda L. Solis, Secretary of Labor and Chair
of the PBGC, and Vincent K. Snowbarger, former Executive Director of the PBGC, in their
official capacities. Pursuant to Federal Rule of Civil Procedure 25(d), and with the parties’
consent, Joshua Gotbaum, the present Director of the PBGC, was subsequently substituted as the
defendant. (See Dkt. No. 18). As Director Gotbaum is named in his official capacity, the Court
will refer to the defendant throughout this opinion as “PBGC” for simplicity’s sake.
1

This matter is presently before the Court on PBGC’s Motion for Summary Judgment. (Dkt. No.
34). Having carefully considered the parties’ briefing and the entire record in this case, the Court
concludes that the PBGC’s Motion will be GRANTED for the reasons set forth herein.

BACKGROUND
The Pension Benefit Guaranty Corporation is a wholly-owned United States Government
corporation established by the Employee Retirement Income Security Act of 1975 (ERISA), 28
U.S.C. § 1302, to administer the pension plan termination insurance program under Title IV of
ERISA, 29 U.S.C. §§ 1301-1461.

PBGC is funded preliminary through the collection of

premiums paid by certain types of pension plans. Id. at §§ 1306-07. (Dkt. No. 43-1, Joint
Statement of Material Facts (“Joint Facts”) at ¶ 1). 2
On September 14, 2005, PBGC issued vacancy announcement “FODCCD-2005-006,” for
a GS-510-12/13 Accountant position within the Collections and Compliance Division of PBGC’s
Financial Operations Department. (Id. at ¶ 11). The vacancy announcement was posted on the
PBGC Online Automated Referral System (“POLARS”), as well as the Office of Personnel
Management’s USA JOBS website. (Id.). The announcement advised that “it [was] strongly
recommended that applicants submit a complete online application and electronic resume via
[POLARS].” (Id.).
Plaintiff DeLarse Montgomery began his employment with PBGC in 1986 as a GS-5
secretary in the Financial Operations Division. (Id. at ¶ 2). He subsequently progressed within
PBGC, ultimately becoming a GS-12 Financial Specialist in the Investment Accounting Branch.

2

The facts set forth herein are drawn largely from the parties’ “Joint Document of Material
Facts” at Docket Entry 43-1, although the Court sometimes cites directly to evidence in the
record, where appropriate.
2

(Id. at ¶ 3).

On October 5, 2005, Montgomery applied for the GS-510-12/13 Accountant

position, submitting a paper copy of his application to PBGC’s Human Resources Division. (Id.
at ¶ 14). At the time the vacancy announcement was published, PBGC’s Human Resources
Department used a program called “QuickHire” to determine whether an applicant met the
minimum qualifications for the position. (Id. at ¶ 15). Based on applicants’ responses in the
POLARS electronic system, QuickHire automatically “screened out” applicants when the
software determined that the minimum qualifications for the position were not met, and it
generated a list of the remaining candidates that did meet the position’s qualifications. (Id.).
The lists were then reviewed by Human Resources Specialists, who generated a roster of
minimally-qualified applications for the Subject Matter Expert (“SME”) to review. (Id.).
In this case, after QuickHire conducted an initial screening of the candidates, the list of
eligible applicants was forwarded to Kenneth Kofsky, the SME for the vacancy, in early
November 2005. (Id. at ¶ 16). Mr. Kofsky rated the applicants and they were then placed on
“Certificates of Eligibles,” which were forwarded to the sole decisionmaker for the position,
Robert Callahan, the Financial Program Manager for the Collections and Compliance Division.
(Id. at ¶¶ 16, 18). Because Montgomery did not submit his application electronically, it appears
that the QuickHire system failed to include his application on the original list of eligible
applicants, which meant that his application was not initially provided to Mr. Kofsky for rating,
or to Mr. Callahan for consideration. (Id. at ¶¶ 16-17). Based on the listing he did receive, Mr.
Callahan proceeded to interview the candidates and initially selected Kathryn Gillis for the
position, but Ms. Gillis declined the offer. 3 (Id. at ¶ 18).

3

Ms. Gillis had a Bachelor of Science degree in Accounting, was in the process of
completing a Master of Science in Accounting, and held a Certified Public Accountant
designation. (Joint Facts at ¶ 18).
3

After Ms. Gillis turned down the position, PBGC proceeded to compile a second round of
candidates to be considered for the vacancy. During that timeframe, on December 13, 2005,
Montgomery contacted Human Resources to inquire about the status of his application. (Id. at ¶
17). Montgomery was initially informed that his application was not considered because he did
not apply electronically via POLARS. (Id.). Nevertheless, Rick Lattimer, a Human Resources
Manager, directed Jacqueline Isaac, a Human Resources Specialist, to place Montgomery’s name
on the second round of certificates to be sent to Mr. Callahan. (Id. at ¶ 19; Dkt. No. 34-3 at ECF
pp. 107-113; Dkt. No. 34-10 at 33).
Thereafter, Mr. Callahan contacted Montgomery to schedule an interview, and because
Montgomery was on a scheduled leave of absence at the time, Mr. Callahan offered Montgomery
the option of interviewing in person or by telephone. (Joint Facts at ¶ 21.). Montgomery chose
to interview by telephone; he was the only candidate who did not interview in person. (Id.).
During the interview, Mr. Callahan recognized that Montgomery met the “minimum”
educational requirements for the position, but asked if Montgomery had any intention of
pursuing further education that could be beneficial to the position. (Id.). According to Mr.
Callahan, Montgomery replied that he had no interest in pursuing additional education because
he “was tired.”

(Id.; Dkt. No. 34-13 at ¶ 3). 4

In addition, although Mr. Callahan had

administered an electronic writing and a Microsoft Excel exercise to the other applicants for the
position, he did not ask Montgomery to complete the exercise due to his poor performance

4

Montgomery argues that this fact is “flatly contradicted” by his deposition testimony,
wherein he supposedly stated that he told Mr. Callahan that the reason he could not go back to
school was because the cost of his blood pressure medication was prohibitive, not because he
“was tired.” (See Dkt. No. 37 (“Pl.’s Opp’n”) at 9). But regardless of the reason, Montgomery
does not dispute that he told Mr. Callahan he was not in a position to pursue any further
education.
4

during the initial portions of the interview. (Joint Facts at ¶ 21.). According to Mr. Callahan’s
affidavit:
[He] formulated the opinion, based on [Montgomery’s] overall performance in the
interview, the qualifications listed on his applications, and his specific posture in
exhibiting no interest in professional growth or improvement, that Mr.
Montgomery was not the best candidate for the position and in fact, made the
least favorable impression among all the candidates.
(Dkt. No. 34-13 at ¶ 4).
Mr. Callahan also interviewed Rhonda Dickerson-Mack for the vacancy. (Joint Facts at ¶
22). Ms. Mack submitted her application electronically via POLARS, but she initially received a
notification that she did not qualify for the position. (Id.). After she contacted the Human
Resources Department, PBGC determined that the QuickHire software erroneously “screened
out” Ms. Mack, such that her name was also not included on the initial candidate listings
forwarded to Mr. Callahan for consideration.

(Id.).

Upon discovering the issue, PBGC

forwarded Ms. Mack’s application to Mr. Callahan for review and consideration. (Id.). Thus,
like Montgomery, Ms. Mack’s application was also submitted to Mr. Callahan for review much
later in the process than some of the other candidates. Ms. Mack possessed an Associate’s
Degree in Accounting, was employed by PBGC as an Accountant at the time of her application,
and had prior work experience as an Operating Accounting at the GS-510-13 level with the
Federal Aviation Administration from 1997 to 2005. (Id.; Dkt. No. 37-24 at 8-11). During his
interview of Ms. Mack, Mr. Callahan administered the writing and Microsoft Excel exercise.
(Id. at ¶ 23). Mr. Callahan ultimately selected Ms. Mack for the position. (Id.). Ms. Mack, like
Montgomery, is African American. (Dkt. No. 37-3 at 11-12).
On January 23, 2006, Montgomery was notified that he was not chosen for the
Accountant vacancy because “[a]nother candidate was selected.” (Dkt. No. 37-15). On March
7, 2006, Montgomery filed a formal complaint of discrimination with the EEOC, and he
5

subsequently filed the instant lawsuit on July 20, 2010. (Joint Facts at ¶¶ 25-26). Overall,
Montgomery has filed a total of four complaints with the EEOC, including the complaint that
preceded the instant lawsuit. 5 (Id. at ¶ 7). Montgomery has since retired from PBGC, electing to
participate in a voluntary early retirement program effective September 30, 2006. (Id. at ¶ 3).

ANALYSIS
A. Standard of Review
Summary judgment is appropriate when the moving party demonstrates 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(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Moore
v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). To establish a genuine issue of material fact, the
nonmoving party must demonstrate—through affidavits or other competent evidence, FED. R.
CIV. P. 56(c)(1)—that the quantum of evidence “is such that a reasonable jury could return a
verdict for the nonmoving party.” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
Anderson, 477 U.S. at 248). While the Court views all facts in the light most favorable to the
nonmoving party in reaching that determination, Keyes v. District of Columbia, 372 F.3d 434,
436 (D.C. Cir. 2004), the nonmoving party must nevertheless provide more than “a scintilla of
evidence” in support of its position, Anderson, 477 U.S. at 252.

5

At least one of those prior complaints was ultimately litigated in the U.S. District Court
for the District of Columbia. Judge Ricardo Urbina dismissed Montgomery’s claims in that
case—which asserted allegations of gender, race, and age discrimination and of retaliation based
on his non-selection for an Accountant vacancy at PBGC—on summary judgment. See
Montgomery v. Chao, 495 F. Supp. 2d 2 (D.D.C. 2007). That decision was subsequently
affirmed by the Court of Appeals in a published opinion. Montgomery v. Chao, 546 F.3d 703,
705 (D.C. Cir. 2008).
6

B. Montgomery’s Discrimination Claims Based On Race, Sex, and Age
Title VII forbids an employer from discriminating against any individual because of race
or sex. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting 42 U.S.C. § 2000e-2(a)(1)).
Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Title VII discrimination claims
are assessed under a familiar, three-step framework. First, to establish a prima facie case of
discrimination a plaintiff must demonstrate, by a preponderance of the evidence, that: “(1) [ ]he
is a member of a protected class; (2) [ ]he suffered an adverse employment action; and (3) the
unfavorable action gives rise to an inference of discrimination.” Wiley v. Glassman, 511 F.3d
151, 155 (D.C. Cir. 2007) (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)).
Second, once a plaintiff establishes a prima facie case, the burden shifts to the employer to
articulate a “legitimate, nondiscriminatory reason” for the challenged employment action.
McDonnell Douglas, 411 U.S. at 802-04; Wiley, 511 F.3d at 155. Finally, the plaintiff “must be
afforded the opportunity to prove” that the employer’s proffered motive “was not its true reason,
but was a pretext for discrimination.” Barnette v. Chertoff, 453 F.3d 513, 516 (D.C. Cir. 2006)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)).
The Age Discrimination in Employment Act (ADEA) makes it unlawful for an employer
to terminate or otherwise discriminate against an individual “because of such individual’s age.”
29 U.S.C. § 623(a)(1). Like claims under Title VII, ADEA claims are evaluated pursuant to the
same three-part, burden-shifting framework outlined above. Barnette, 453 F.3d at 515. As to
both categories of claims, however, the D.C. Circuit has instructed that, once an employer
provides a legitimate, non-discriminatory basis for its decision at the summary judgment stage,
“the district court need not—and should not—decide whether the plaintiff actually made out a
prima facie case.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)
(emphasis in original). Rather, the central question for the Court to resolve is whether “the
7

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, . . . sex, [and/or age].” Id.; see also
Hampton v. Vilsack, 685 F.3d 1096, 1100 (D.C. Cir. 2012). In so doing, the Court must
consider: “(1) the plaintiff’s prima facie case; (2) any evidence the plaintiff presents to attack the
employer’s proffered explanations for its actions; and (3) any further evidence of discrimination
that may be available to the plaintiff (such as independent evidence of discriminatory statements
or attitudes on the part of the employer) or any contrary evidence that may be available to the
employer (such as evidence of a strong track record in equal opportunity employment).”
Czekalski v. Peters, 475 F.3d 360, 363-64 (D.C. Cir. 2007) (quoting Aka v. Wash. Hosp. Ctr.,
156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc)). “This boils down to two inquiries: could a
reasonable jury infer that the employer’s given explanation was pretextual, and, if so, could the
jury infer that this pretext shielded discriminatory motives?” Murray v. Gilmore, 406 F.3d 709,
713 (D.C. Cir. 2005).
Here, since the PBGC has advanced a legitimate reason for its decision—that it simply
selected a better-qualified candidate for the Accountant position—the Court proceeds directly to
the ultimate question and asks whether Montgomery has adduced sufficient evidence for a
reasonable jury to conclude that the PGBC’s proffered reason for its decision is pretextual, and
that its real motivation was discrimination based on Montgomery’s race, sex, and/or age. The
Court concludes he has not.
To show pretext, a plaintiff may generally offer evidence that similarly-situated
employees outside the protected class were treated “more favorably in the same factual
circumstances,” or “[a]lternatively, the employee may attempt to demonstrate that the employer

8

is making up or lying about the underlying facts that formed the predicate for the employment
decision.” Brady, 520 F.3d at 495; see also Royall v. Nat’l Ass’n of Letter Carriers, AFL-CIO,
548 F.3d 137, 144 (D.C. Cir. 2008). Under the latter approach, which Montgomery pursues
here, “[i]f the employer’s stated belief about the underlying facts is reasonable in light of the
evidence, however, there ordinarily is no basis for permitting a jury to conclude that the
employer is lying about the underlying facts.” Brady, 520 F.3d at 495. Indeed, this Court does
not sit as a “super-personnel department” that reexamines an employer’s business decisions.
Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999); see also George v. Levitt, 407 F.3d
405, 415 (D.C. Cir. 2005) (“[A]n employer’s action may be justified by a reasonable belief in the
validity of the reason given even though that reason may turn out to be false.”); Fischbach v.
D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (explaining that a court “may not
second-guess an employer’s personnel decision absent demonstrably discriminatory motive”).
Montgomery attempts to establish pretext by attacking the legitimacy of PBGC’s
explanation for not selecting him for the Accountant position. He principally argues that Mr.
Callahan’s explanations for selecting Ms. Mack (and, in turn, for not selecting Montgomery) are
“inconsistent” and have “shifted” over time. (Pl.’s Opp’n at 12-16). In turn, he contends that a
jury could infer from this evidence that Mr. Callahan’s explanations are pretextual and that his
true motivation was discrimination—whether based on Montgomery’s age, gender, and/or race.
More specifically, Montgomery points out then when Mr. Callahan initially explained his
decision—in his statement to the EEOC in 2007—he first indicated that the main reason he
chose Ms. Mack over Montgomery was that she held a Bachelor’s Degree in Accounting, while
Montgomery did not. (Id. at 14). In reality, Ms. Mack has an Associate’s Degree in accounting,
not a Bachelor’s Degree. (Joint Facts at ¶ 22). Second, during his deposition in the EEOC

9

proceedings, Mr. Callahan testified that he found Ms. Mack to be a better candidate because of
her experience—she was an accountant and had previous accounting experience, while Mr.
Montgomery did not. (Pl.’s Opp’n at 14 (citing Dkt. No. 37-19 at 65)). Finally, Montgomery
points to the affidavit submitted by Mr. Callahan in connection with the instant motion, wherein
he attested that he did not select Montgomery due to “his overall performance in the interview . .
. and his specific posture in exhibiting no interest in professional growth or improvement.” (Id.
at 15 (citing Dkt. No. 34-13)). Pointing to these explanations, Montgomery argues that Mr.
Callahan’s “waffling” between reasons is sufficient evidence of pretext to withstand summary
judgment. The Court disagrees.
It is true that a decision-maker’s “shifting and inconsistent” explanations for an adverse
employment action can be probative of pretext. See Geleta v. Gray, 645 F.3d 408, 413 (D.C.
Cir. 2011) (collecting cases); Czekalski, 475 F.3d at 367. However, the Court does not find Mr.
Callahan’s explanations in this case to be “inconsistent.” While it is true that he did not always
articulate his decision in precisely the same manner or using precisely the same words, his
overarching rationale for choosing Ms. Mack over Montgomery has always remained the same—
he found Ms. Mack to be the better-qualified candidate for the position. Moreover, the key issue
is whether Mr. Callahan “honestly and reasonably believed” that Ms. Mack was more qualified
for the position, Brady, 520 F.3d at 496, and Montgomery offers no evidence to undermine the
legitimacy of Mr. Callahan’s belief in this regard.
The Court recognizes that Mr. Callahan may have misremembered the level of Ms.
Mack’s accounting degree during his first explanation—recounting that she had a Bachelor’s
Degree, rather than an Associate’s Degree—but the fact remains that Ms. Mack has a specialized
degree in accounting, while Montgomery does not. Montgomery does not dispute this fact.

10

(Joint Facts at ¶ 22). Additionally, it bears noting that, in his initial response to the EEOC, Mr.
Callahan only stated that the candidates’ educational comparison was “the biggest difference,”
not the only difference. (Dkt. No. 37-3 at 13). He never contradicted that justification, but he
later elaborated on his rationale during deposition proceedings, explaining that Ms. Mack’s prior
accounting experience—as compared to Montgomery’s lack of any accounting experience—
made her a better candidate for the position. 6

Finally, both of those explanations square

completely with Mr. Callahan’s most recent explanation, and in arguing otherwise, Montgomery
omits the critical portion of the complete statement in Mr. Callahan’s affidavit, wherein he stated
that he did not choose Montgomery based on “his overall performance in the interview, the
6

Montgomery goes so far as to argue that Mr. Callahan “disavowed” his earlier
explanation—that Ms. Mack’s education was superior to Montgomery’s—during his deposition.
(Pl.’s Opp’n at 14). The record does not support this assertion. Rather, the deposition passage
Montgomery cites in support of this contention reveals only that his counsel attempted to secure
this concession from Mr. Callahan, but Mr. Callahan did not agree with counsel’s representation
and never testified as much:
Q:
Are you able to tell me what it was about Ms. Mack that made you think that
she’s a better candidate than Mr. Montgomery? It wasn’t education. Right?
A:
She had better experience. She was - - she had worked at the GS-13 level for a
number of years. She was an accountant. Mr. Montgomery was - - had never been an
accountant.
Q:
But he was qualified to be an accountant, though, wasn’t he? Or he wouldn’t
have been on the list.
A:
True. But I had to choose the best candidate, and I chose the one that had
accounting experience over the one that didn’t, had a lot of accounting experience and at
a higher grade level.
(Dkt. No. 37-19 at 65). While Mr. Callahan focused his response on Ms. Mack’s experience,
rather than her education, he did not “disavow,” as Montgomery suggests, that her education
played no role in his decision.
Montgomery argues that Mr. Callahan also contradicted himself by testifying, at pages 61
and 63 of his deposition transcript, that he believed both Montgomery and Ms. Mack “met the
minimum [educational] qualification.” (Pl.’s Opp’n at 14-15). But the excerpts Montgomery
submitted from Mr. Callahan’s deposition at Docket No. 37-19 do not include pages 61 or 63.
(See Dkt. No. 37-19 (comprised of transcript pages 1, 65-66, 68, 80, 87)). Accordingly, no such
testimony or evidence is before the Court. But even if the Court were to take that supposed
testimony into account, the fact that Mr. Callahan testified that both candidates met the minimum
educational qualifications certainly does contradict the explanation that he found Montgomery’s
qualifications—though minimally sufficient—to be less impressive than Ms. Mack’s.
11

qualifications listed on his application, and his specific posture in exhibiting no interest in
professional growth or improvement.” (Dkt. No. 34-13 at ¶ 4) (emphasis added). Of course, the
“qualifications listed on [Montgomery’s] application”—an aspect of Mr. Callahan’s decision that
Montgomery conveniently omitted with opportunely-placed ellipses, (Pl.’s Opp’n at 15)—
undoubtedly encompassed Montgomery’s education and professional background, as compared
to Ms. Mack.

Therefore, the Court finds Montgomery’s argument that Mr. Callahan’s

explanations are “shifting” or “inconsistent” to be unpersuasive. In addition, to the extent that
Mr. Callahan’s explanations could arguably be characterized as “inconsistent,” the Court
believes that any such inconsistencies are “so minor that no reasonable jury could find that
[PBGC’s] proffered reasons are a pretext for discrimination.” Butler v. Sebelius, Case No. 125042, 2012 WL 2372867, 2012 U.S. App. LEXIS 12485 (D.C. Cir. June 19, 2012); DominguezCruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000) (“Substantial changes over time in
the employer’s proffered reason for its employment decision support a finding of pretext.”) (cited
with approval in Geleta, 645 F.3d at 413) (emphasis added); see also Kranz v. Gray, 842 F.
Supp. 2d 13, 24 (D.D.C. 2012) (observing that “[t]his logic applies when an employer’s reason
for allegedly discriminatory actions changes in a material way throughout the stages of
litigation”) (emphasis added).
Montgomery also argues that Mr. Callahan’s explanation is pretextual because he
conducted Montgomery’s interview differently from all of the other candidates—deciding not to
administer the writing and Microsoft Excel exercises during the interview. He argues that, based
on this distinction, a jury could infer that Mr. Callahan “had made up his mind not to select
[Montgomery] even before the interview.” (Pl.’s Opp’n at 16). But Mr. Callahan offered an
explanation for this discrepancy—he did not administer the exercises because Montgomery

12

“made the least favorable impression among all the candidates” during his interview. (Dkt. No.
34-13 at ¶ 4). Furthermore, although Mr. Callahan testified that he already had a “pretty good
idea who [he] wanted to select” by the time he interviewed Montgomery, “evidence of preselection is relevant only insofar as it logically supports an inference of discriminatory intent.”
Kolstad v. Am. Dental Ass’n, 139 F.3d 958, 969 (D.C. Cir. 1998), vacated on other grounds by
527 U.S. 526 (1999); Oliver-Simon v. Nicholson, 384 F. Supp. 2d 298, 310 (D.D.C. 2005)
(“[P]laintiff's pre-selection claim does not advance h[is] case for pretext unless [he] produces
some evidence that discrimination played a role in [the selectee’s] pre-selection and thus
plaintiff’s non-selection.”). Even if Mr. Callahan were already leaning toward selecting Ms.
Mack for the position at the time he interviewed Montgomery, Montgomery fails to point to any
evidence suggesting that any such pre-selection was motivated by a discriminatory animus
towards Montgomery, whether due to his age, his gender, or his race. If anything, the record
strongly suggests the opposite—that Mr. Callahan was leaning toward Ms. Mack because she
was a strongly-qualified candidate for the position.
Finally, the Court notes that Montgomery can also attempt to “avoid summary judgment
by presenting other evidence, direct or circumstantial, that permits an inference of
discrimination,” such as “discriminatory statements,” “other attitudes suggesting the decision
maker harbors discriminatory animus,” and/or other “data” concerning his protected class(es).
Holcomb v. Powell, 433 F.3d 889, 899 (D.C. Cir. 2006) (internal citations omitted).

But

Montgomery presents no such evidence. Most notably, the Court observes that Montgomery
expressly does not argue that he actually was more qualified for the Accountant position than
Ms. Mack. (See Pl.’s Opp’n at 15-16) (“[W]hether Ms. Mack was more qualified . . . is not the
critical issue in this case.”).

Instead, he has sought to establish pretext by “expos[ing] other

13

flaws in the employer’s explanation,” Aka, 156 F.3d at 1295—namely, that the reasoning
underlying Mr. Callahan’s decision has changed over time and that the veracity of that reasoning
should not be credited as a result. The Court rejects that argument for the reasons stated. And
the fact that Montgomery does not even attempt to argue that he was better qualified—let alone
“significantly better qualified,” id. at 1294—simply adds to the void of evidence suggesting that
PBGC’s decision was discriminatory. Indeed, the undisputed record before the Court amply
supports the opposite conclusion—that Ms. Mack was demonstrably and objectively more
qualified for the position than Montgomery.

Ms. Mack holds an Associate’s Degree in

accounting, while Montgomery does not have any accounting degree. (Joint Facts at ¶¶ 4, 22).
In addition, Ms. Mack had nearly a decade of accounting experience working for the federal
government, whereas Montgomery had never been employed as an accountant and had no
accounting experience.

(Id.).

These facts further undermine Montgomery’s assertion that

PBGC’s motive was discriminatory. Hamilton v. Geithner, 666 F.3d 1344, 1352 (D.C. Cir.
2012) (“[A] disparity in qualifications, standing alone, can support an inference of discrimination
only when the qualifications gap is ‘great enough to be inherently indicative of discrimination’—
that is, when the plaintiff is ‘markedly more qualified,’ ‘substantially more qualified,’ or
‘significantly better qualified’ than the successful candidate.”) (internal citations omitted). 7
Therefore, the Court concludes that Montgomery fails to raise a genuine issue of material
fact with respect to his age, gender, or race discrimination claims. No reasonable jury could find
discrimination under these circumstances, even when viewing the evidence in the light most
favorable to Montgomery. Even if the Court were to find that Montgomery created a “weak

7

As our Circuit has explained, this principle is grounded in the idea that a reasonable
employer would usually not select a less-qualified candidate “unless some other strong
consideration, such as discrimination, enters into the picture.” Aka, 156 F.3d at 1294.
14

issue of fact” as to pretext, the uncontroverted evidence of Ms. Mack’s superior qualifications
and experience constitutes “independent evidence that no discrimination . . . occurred.” Reeves,
530 U.S. at 148 (citing Aka, 156 F.3d at 1291-92). 8 The Court grants summary judgment on
these claims in favor of PBGC.

C. Montgomery’s Retaliation Claim
Title VII also prohibits an employer from retaliating against an employee “‘because he
has opposed any practice’ made unlawful by Title VII or ‘has made a charge, testified, assisted,
or participated’ in a Title VII investigation or proceeding.” Steele, 535 F.3d at 695 (quoting 42
U.S.C. § 2000e-3(a)). Retaliation claims under Title VII are also subject to the three-part
burden-shifting framework of McDonnell Douglas. Thus, a plaintiff must first establish a prima
facie case of retaliation by showing: “(1) that he engaged in statutorily protected activity; (2) that
he suffered a materially adverse action by his employer; and (3) that a causal link connects the
two.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (citing Wiley, 511 F.3d at 155).
Thereafter, if the plaintiff is able to satisfy the requirements of a prima facie case, the burden
shifts back to the employer to articulate a legitimate, non-retaliatory reason for its actions. Id.
Once the employer does so, the burden-shifting framework disappears, and “a court reviewing
summary judgment looks to whether a reasonable jury could infer retaliation from all the
evidence, which includes not only the prima facie case, but also the evidence the plaintiff offers
to attack the employer’s proffered explanation for its action and other evidence of retaliation.”
8

Furthermore, Montgomery’s race discrimination claim is particularly undercut by the fact
that Ms. Mack is also African American. See, e.g., Murray v. Gilmore, 406 F.3d 708, 715 (D.C.
Cir. 2005) (“[A] replacement within the same protected class cuts strongly against any inference
of discrimination.”). And while Ms. Mack, as a younger, female employee, falls outside
Montgomery’s protected class with respect to his age and gender discrimination claims, this fact,
without more, is woefully insufficient to raise an inference of discrimination, particularly given
the Court’s earlier analysis herein.
15

Geleta, 645 F.3d at 411; see also Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C.
Cir. 2004).
Here, even assuming that Montgomery can establish a prima facie case, he fails to adduce
sufficient evidence to suggest that PBGC’s legitimate justification for his non-selection—i.e.,
that Ms. Mack was simply more qualified—is pretextual. 9 First, to the extent that he attacks Mr.
Callahan’s explanation as “false” or “shifting,” the Court rejects that argument for the reasons
already stated. Alternatively, Montgomery argues that the PBGC’s delay in submitting his
application to Mr. Callahan amounts to evidence of pretext and a retaliatory motive. (Pl.’s
Opp’n at 17-18). Specifically, he argues that Ms. Isaac’s involvement with his application
imbued the process with retaliatory animus, given her knowledge of Montgomery’s prior EEO
case and her stated belief that promotions should be based on experience, not settlement
agreements. (Id.). He also argues that Ms. Isaac was substantially involved in determining
candidates’ minimum qualifications for the position and purposefully delayed his inclusion on
the list of candidates submitted to the selecting official. (Joint Facts at ¶ 20). PBGC disputes
this proposition and maintains that Ms. Isaac’s only involvement with Montgomery’s application
was to affirmatively place him on the candidate listing that was submitted to Mr. Callahan for
review. (Id. at ¶¶ 19-20). This dispute is immaterial, however, because even assuming Ms. Isaac
were more substantively involved in the process, the Court finds Montgomery’s argument
unpersuasive for several reasons. First, while Montgomery’s application was delayed somewhat,
so too was Ms. Mack’s, and she was ultimately selected for the position nevertheless. (Joint
Facts at ¶¶ 22-23). Insofar as the selectee encountered similar procedural setbacks and delay,

9

In view of this conclusion, the Court need not reach PBGC’s argument that Montgomery
is unable establish a prima facie case of retaliation because Mr. Callahan was arguably unaware
of any of Montgomery’s prior EEO activity.
16

this fact strongly cuts against Montgomery’s pretext argument.

Second, Montgomery’s

argument is refuted by his own testimony, wherein he confirmed that he does not believe the
delay in his application process was discriminatory or retaliatory:
Q: So do you contend that the delay in sending your application up
discriminated against you based on your race, color, sex, age or for reprisal?
A: I did not make that allegation.
Q: And the selectee was selected from applications that came up late; is that
correct?
A: That’s correct.
(Dkt. No. 42-1 at ECF p. 2). The Court thus finds that Montgomery failed to raise a genuine
issue of material fact to suggest that PBGC’s proffered explanation for its decision is pretextual,
nor does he otherwise present evidence sufficient to raise an inference of retaliation. In turn, the
Court grants summary judgment in favor of PBGC on Montgomery’s retaliation claim.

CONCLUSION
For the foregoing reasons, the Court concludes that PBGC’s Motion for Summary
Judgment must be GRANTED. An appropriate Order accompanies this Memorandum Opinion.
Digitally signed by Judge Robert L. Wilkins
DN: cn=Judge Robert L. Wilkins, o=U.S. District
Court, ou=Chambers of Honorable Robert L.
Wilkins, email=[e-mail], c=US
Date: 2013.02.01 11:03:19 -05'00'

Date: February 1, 2013

ROBERT L. WILKINS
United States District Judge

17