Velez v. McCarthy

Filing 58

ORDER granting 46 Motion for Summary Judgment. Signed by District Judge James C. Dever III on 7/29/2022. (Sellers, N.)

IN TIIB UNITED STATES DISTRICT COURT
FOR TIIB EASTERN DISTRICT OF NORTII CAROLINA
SOUTIIERN DMSION
No. 7:20-CV-20-D

MARIANELA VELEZ,
Plaintiff,

ORDER

v.
CHRISTINE E. WORMUTH,
Secretary of the Army,
Defendant

On June 4, 2020, Marianela Velez ("Velez" or ''plaintiff'') filed a pro se amended complaint
against the Secretary of the .Army ("defendant'' or "Army'') alleging race, age, and sex
discrimination, a hostile work environment based on race, age, and sex, and retaliation in violation
of Title VII ofthe Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967
arising from her civilian employment for the United States Army [D.E. 13]. On February 16, 2021,
the court adopted Magistrate Judge Numbers's report and recommendation concerning defendant's
motion to dismiss and dismissed all of Velez's claims except her Title VII failure-to-promote sex
discrimination claim [D.E. 30]. On January 18, 2022, defendant moved for summary judgment [D.E.
46] and filed a memorandum, a statement of material facts, and exhibits in support [D.E. 47-51].
OnFebruary8,2022, Velez,nowproceedingthroughcounsel,respondedinoppositi~n[D.E. 52-55].
On March 8, 2022, defendant replied [D.E. 57]. As explained below, the Army did not discriminate
against Velez because of her sex when it did not promote her. Thus, the court grants defendant's
motion for summary judgment

I. ,
Velez is a security assistant in the emergency services division of the 596th Transportation
Brigade at the Military Ocean Terminal Sunny Point e'Sunny Point''). See Stmt. Mat. Facts ("SMF")
[D.E. 48] ,r 1; Resp. Stmt. Mat. Facts ("Resp. SMF") [D.E. 54] ,r 1. In May 2016, Velez applied for
a secretary position, which would have been a promotion for her. See SMF ,r,r 6-7; Resp. SMF ,r,r
6-7; Velez Dep. [D.E. 55-4] 4. The person vacating the role was a woman who retired or took
another job. See [D.E. 51-6] 2; Velez Dep. at 4; Pekatos Dep. [D.E. 55-7] 7.
The secretary position to w~ch Velez applied is a Grade 6 position: See SMF ,r 6; Resp.
SMF ,r 6. Under the relevant hiring policies for Grade 6, a selecting official develops a merit-based
.,

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ranking system to determine the best-qualified candidates and determines whether interviews are
necessary to fill the position. See SMF ,r 4; R~sp. SMF ,r 4. According to the job announcement
the role consists of five primary responsibilities. They are: (1) "[r]eceive calls and visitors and
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determine□

the nature of the inquiry to refer to appropriate staff member," (2) "[c]oordinate

arrangements for confe1:ences, meetings and travel plans," (3) "[s]erve as the Government
International Merchant Purchase Authorization Card ~AC) credit card holder," (4) "[p]rovide
guidance and assistance to office personnel on applicable procedures, directives, etc., related to
administrative functions," and (5) "[m]aintain time and attendance reporting systems." [D.E. 49-5]
, 2. The job announcem~t stated that a competitive candidate would have at least one year of
, relevant work exp~ence for tasks such as providing clerical support for a Directorate ofOperations'
office, receiving calls and visitors, providing routine information, answering status requests, and
maintaining a supervisor's calendar and suspense records on all correspondence and action
documents. See id. The announcement also stated the position requires a secret security clearance.
See id. at 3.
2

Spero Pekatos ("Pekatos"), then director of cargo operatiqns at Sunny Point, was the direct
supervisor over the vacant secretary position to which Velez applied and was the selecting official
in charge of filling the vacancy. See SMF W8-9; Resp. SMF W8-9; Pekatos Dep. at 4, 7. On June
· 8, 2016, the Civilian. Personnel Advisory Center sent Pekatos a list often candidates who were "best
qualified" to fill the vacant position. See SMF 19; Resp. SMF 19; [D.E. 50-2]. Of the ten
candidates, four (including Velez) were already employees at Sunny Point. Pursuant to a union
contract, those four employees received priority consideration., See SMF W5, 10; Resp. SMF W5,
1

10. The four internal can.didates were Damon Barr ("Barr''), Azurminique Dethrow ("Dethrow"),
TJ Messier ("Messier"), and Velez. See SMF 1 10; Resp. SMF 1 10. Pekatos reviewed all the
internal candidates' resumes. See SMF 1 11; Resp. SMF 1 11. Pekatos also obtained references for
Barr and Dethrow and spoke with their supervisors; however, he did not do the same for Velez and
Messier because Pekatos had heard positive feedback about them in conversations with Velez's and
Me!!isier's supervisors. See SMF W12-13; Resp. SMF W12-13.
Pekatos determined that all four candidates were well qualified, and he decided to interview
all of them. See SMF 114; Resp. SMF ,r 14; Pekatos Deel. [D.E. 55-5] ,r 17. In preparation for the
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interviews, Pekatos formulated'three questions to ask the candidates. S~ SMF 1 15; Resp. SMF 1
15. The questions were: (1) "[t]ell me about your work experience," (2) "[t]ell me why you should

be selected for this position," and (3) "[w]hat shifl do you currently work and can you work five days
a week." [D.E. 51-5]. Pekatos sought a candidate with strong communications skills, and he was
assessing candidates for their ability to speak well in a formal setting, given that the secretary
position is often a person's first point of cont.act with the office. See SMF 1 16; Resp. SMF 1 16.
(

Pekatos testified that he ''was looking for someone who would portray a very strong and confident
display in their mannerism, someone who could talk clearly and talk well." Pekatos Dep. at 12.

3

On June 8, 2016, Pekatos went to Velez's desk and asked herif she was availlilble for an
interview. See SMF 118; Resp. SMF 118. Velez agreed to an interview. See SMF 119; Resp.
SMF 119; Velez Dep. at 5-6. Velez did not say she was unavailable, and she did not ask for more
time to prepare. See SMF 1 19; Resp. SMF 1 19; Velez Dep. at 5-6. In her EEOC complaint, Velez
stated that during tlie interview, Pekatos "asked [Velez] about [her] education, if [she] knew DTS,
if [she] had a government purchase credit card and time cards," and if she spoke Spanish. [D.E. 50-

4] 1. Velez stated ~he responded in the affirmative to these questions. See id. In her deposition,
Velez testified that Pekatos rushed through the interview, did not take notes during the interview,
. did not ask Velez about her work experience or why he should select her for the position, and
seemed like he already had someone else in mind for the job. See Resp. SMF 1 40; Velez Dep. at
7. However, a document listing Pekatos' s three questions for Velez's interview has notes under each
question. As for~ work experience question, Pekatos wrote "see resume." [D.E. 51-5] 1. As for
the question concerning why Pekatos should select Velez, Pekatos wrote ''moderate responsive" and
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"informal." Id.; see Pekatos Deel. 133 ("For example, [Velez was] informal in how she presented -,
the information from her resume. It was like speaking to a friend rather than a formal interview
setting."). As for working hours, Pekatos wrote that Velez responded that she currently worked four
'

days per week but could work five days per week. See [D.E. 51-5] 1.
In her EEOC complaint, Velez alleged that Pekatos told her during the interview that she

"would be commwµcating or working with other male members ofthe directorate" and asked Velez
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whether she would cry if one of them spoke rudely to her. [D.E. 50-4] 1. In her interrogatory
"}

responses, Velez restated what Pekatos allegedly asked her, saying he asked whether she ''would cry
if any of the workers were to upset me," without specifying whether the workers were male or

female. [D.E. 51-6] 2. In her declaration, Velez states Pekatos asked her if she ''would cry if the
4

men [she] would be working with upset [her]." Velez Deel. [D.E. 55-1] ,r 13. In her deposition,
Velez testified that Pekatos asked the question both ways, once referring to male coworkers
specifically and once generically. See Velez Dep. at 6-7. Pekatos denies he asked Velez a question
like this and instead. states that he told Velez and Barr during their interviews that ''we have a lot of
~

senior civilians that cry and whine a lot." Pekatos Deel. ,r,r 25, 28; see SMF ,r,r 24-25; Resp. SMF

,r,r 24-25.

Pekatos ~ays he remembers saying this because Barr responded he was "used to persons

complaining about their packages being late because he worked in the mail room." Pekatos Deel.
,r28.
Immediately after the interview, Velez saw a coworker, Teresa Sams ("Sams"). See SMF
,r 27; Resp. SMF ,r 27. In her EEOC complaint, Velez states that she told Sams what happened to
her in the interview and listed Sams as a witness. See [D.E. 50-4] 1-2. But Sams states she does
not remember Velezte~g her anything specific about the interview and that she and Velez-had only
"a quick conversation in passing." [D.E. 50-5] ,r 11; see SMF ,r 28; Resp. SMF ,r 28. Sams does not
remember Velez saying that Pekatos asked Velez whether she would cry if male employees made
her upset. See [D.E. 50-5] ,r 12; SMF ,r 29; Resp. SMF ,r 29. Sams also does not remember Velez
being upset or crytiig after the interview but stated she ''would have noticed or remembered that."
~

[D.E. 50-5] ,r 13; see SMF ,r 29; Resp. SMF ,r 29. In her deposition, Velez testified she di~ not
remember Sam.s's name, she considered Sams a coworker and not a friend, she did not remember
she talked to Sams, and she did not remember what she told Sams about
when after the interview
.
.
her interview with Pekatos. See SMF ,r 30; Resp. SMF ,r 30; Velez Dep. at 8.
Pekatos chose Barr, aman, for the job. Herank:edDethrow (a woman) second, Velez third,
and Messier (a man) fourth. See Pekatos Deel. ,r 33; Pekatos Dep. at 10. Pekatos told the Civilian
Personnel Advisory Center in an email that he selected Barr because Barr "had a proven track record
5

in handling classified information and items," he "had the strongest recommendations," he
"displayed the highest level of professionalism during the interviews," and his "current position
displayed ah abilityto work independently when required." [D.E. 50-6] 1; see SlMF ,r 34; Resp. SlMF

,r 34.

Similar to the notes from Velez's interview, Pekatos made notes concerning Barr's interview.
'

Under the work experience question, Pekatos wrote "working on his own" and a somewhat
·,

indecipherable note about "classified data." [D.E. 51-4] 1. Under the question about why Pekatos
should select Barr, Pekatos wrote "professional" and "confident." Id.; see Pekatos Deel. ,r 33 (stating
Barr "came across as very confident, professional, and concise"). The notes also reflect that Barr
was already working five days per week See id.
II.

Summary judgment is appropriate when, after reviewing the record as a whole, the court
determines that no genuine issue ofmaterial fact exists and the moving party is entitled to judgment
j
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as a matter of law; See Fed. R. Civ. P. 56(a); Scott v. Harris, 550 U.S. 372, 378, 380 (2007);
,

Anderson v. Libeey Lobby, Inc., 477 U.S. 242, 247--48 (1986) .. The party seeking summary
judgment must initially demonstrate the absence of a genuine issue of material fact or the absence
of evidence to support the nonmoving party's case. See Celotex Con,. v. Catr~ 477 U.S. 317, 325
i

(1986). Once the,moving party has met its burden, the nonmoving party may not rest on the
allegations or denials in its pleading, see Anderson, 477 U.S. at 248-49, but ''must come forward
with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v.
'

Zenith Radio Con,., 475 U.S. 574, 587 (1986) (emphasis and quotation omitted). A trial court
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reviewing a motion/or summaryjudgment should ~ewhether a genuine issue ofmaterial fact
exists for trial. See Anderson, 477 U.S. at 249. In making this determination, the court must view
the evidence and 1h:e inferences drawn therefrom in the light most favorable to the nonmoving party.
6

See Harris, 550 U.S. at 378.
A genuine i~sue of material fact exists ifthere is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party. See Anderson, 477 U.S. at 249. "The mere
1

existence of a scintilla of evidence in support of the [nonmoving party's] position [is] insufficient
...." Id. at 252; see Beale v. Hardy, 769 F.2d 213,214 (4th Cir. 1985) ("The nonmoving party,
however, cannot create a genuine issue of material fact through mere speculation or the building of
one inference upon another."). Only factual disputes that affect the outcome under substantive law
properly preclude summary
judgment. See Anderson, 477__ U.S. at 248.
.
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III.
Title VIl prohibits an employer from taking adverse employment action against an employee
because of that individual's sex. See 42 U.S.C. § 2000e-2(a)(l). A plaintiff may establish a Title
VIl violation through direct evidence of sex discrimination or by proceeding according to the
McDonnell Douglas framework. See, e.g.• Sempowich v. Tactile Sys. Tech., Inc., 19 F .4th 643, 649
(4th Cir. 2021); Henry v. Vaughn Indus., LLC, 450 F. Supp. 3d 671, 678 (E.D.N.C. 2020). Velez
attempts to take both routes.
A.
I

Velez claims she has direct evidence of sex discrimination. See [D.E. 53] 5. A plaintiff can
demonstrate a Title VIl violation by showing through direct evidence that sex discrimination
motivated an employer's
adverse employment action. See, e.g., Diamond v. Colonial Life
&
..
(
Accident Ins. Co., 416 F.3d 310,318 (4th Cir. 2005). "Direct evidence encompasses conduct or
statements that both (1) reflect directly the alleged discriminatory attitude, and (2) bear directly on
thecontestedemploymentdecision." Laingv.Fed.&pressCon,., 703F.3d713, 717(4thCir.2013)
j

(quotations omitted). "Direct evidence is evidence which, if believed, would prove the existence of
7

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a fact without any inference or presumptions."
Walton v. Harker, 33 F.4th 16S, 176-77 (4th Cir.
2022) (quotation omitted). Velez contends that Pekatos ~ g her whether she would cry if male ,
employees upset her is direct evidence of sex discrimination. See [D.E~ S3] S.
Velez has provided inconsistent statements about whether Pekatos referred specifically to
'

male employees, to employees generally, or both. Compare [D.E. S0-4] 1, with [D.E. S1-6] 2, with
Velez Deel. ,r 13, with Velez Dep. at 6-7. Velez acknowledges her inconsistent statements but
argues that the inconsistencies do not matter because Velez "has been clear that Pekatos asked her
if she would cry when she was upset." [D.E. S3] S n.2; Thus, according to Velez, Pekatos asking
I

her about her emotional response to other employees, regardless of whether the other employees
were male or female, is the relevant evidence. See id.
Viewing the record in the light most favorable to Velez and assuming that Pekatos asked
Velez whether she would cry ifupset, the evidence is n~t direct evidence of sex discrimination. See
Walton, 33 F.4th at 176-77; Laing. 703 F.3d at 717. Notably, there is no additional evidence that
Pekatos thought women cry more than men or. thought a woman who sometimes cries if upset is
c

incapable of displaying confidence or having strong communication skills. Cf. Lindsey v. Ricoh
USA, Inc., No. 2:lz-cv-464, 2018 WL 1937062, at *1-2 (E.D. .Va. Apr. 24, 2018) (unpublished);.
Ezekiel v. Tift Cnty. Sch. Dist., No. 7:08-CV-127 HL, 2010 WL 34S613S, at•~ (M.D. Ga. Aug.
27, 2010) (unpublished). Moreover, a woman held the secretary position before it became vacant,
and Dethrow, a woman, was Pekatos's second choice to fill the position. See [D.E. S1-6] 2; Pekatos
Deel. ,r 33; Pekatos Dep. at 7, 10; SMF ,r 32; Re~p. SMF ,r 32.1 And other than this single question,

1

Dethrow stated in an EEO declaration that Pekatos did not act inappropriately toward her
during the interview and that she has no reason to believe Pekatos chose Barr over her because of
her sex. See [D.E. S1-1] ,r,r 9--12.
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I

Velez cites no other statements or conduct by Pekatos indicating he did not hire her because of her
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sex. See Velez Dep. at 7, 9, 13; cf. Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 300
(4th Cir. io 10) ("It is the decision maker's intent that remains crucial, arid in the absence of a clear
\

nexus with the employment decision in question, the materiality of stray or isolated remarks is
substantially reduced."). Accordingly, even viewing the record in the light most favorable to Velez,
Velez lacks direct evidence of sex discrimination.

B.
Ifa plaintif(lacks direct evidence of illegal discrimination, a plaintiff can proceed under the
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burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802--04 (1973).
,-

See Sempowich, 19 F.4th at 649--50; Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277,
285 (4th Cir. 2004)(en bane), abrogated in part on other grounds by Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009). "The McDonnell Douglas framework is comprised of three steps: (1) the
plaintiff must first establish a prima facie case of employment discrimination or retaliation; (2) the
burden ofproduction then shifts to the employer to articulate a non-discriminatory or non-retaliatory
(

reason for the adverse action; (3) the burden then shifts back to the plaintiff to prove by a
preponderance of the evidence that the stated reason for the adverse employment action is a pretext
I

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and that the true reason is discriminatory orretaliatory." Guessous v. Fairview Prop. Invs., LLC, 828
F.3d 208,216 (4th, Cir. 2016). The McDonnell Douglas framework applies to hiring, promotion,
\

termination, and retaliation claims under Title VII. See, ~, Williams v. Giant Food Inc., 370 F.3d
423,428,430 & n,5 (4th Cir. 2004); Beall v. Abbott Laby's, 130 F.3d 614, 619 (4th Cir. 1997),
abrogated in pm on other grounds by Nat'l R.R. Passenger Corp. v. Morgm 536 U.S. 101 (2002).
If the plaintiff establishes a prima facie case, the burden shifts to the defendant to produce
,

;

-evidence that the adverse employment action was "for a legitimate, nondiscriminatory reason." Tex.
9

De.p'tofCmty. Affairs v. Burdine, 4S0 U.S. 248, 2S4 (1981). This burden is one ofproduction, not
persuasio11:, See St. Mary's Honor Ctr. v. Hicks, S09 U.S. S02, S09--11 (1993). If the defendant
offers admissible evidence sufficient to meet its burden ofproduction, "the burden shifts back to the
plaintiffto prove by a preponderance of the evidence that the employer's stated reasons were not its
true reasons, but were a pretext for discrimination." Hill, 3S4 F.3d at 28S (quotation omitted); see,
e.g.• Reeves v. Sanderson Plumbing Prods., Inc., 'S30 U.S. 133, 143 (2000); Sempowicb, 19 F.4th
at6S0; Kingv. Rumsfelg, 328 F.3d 14S, 1S0-S4 (4th Cir. 2003). A plaintiff can do so by showing
that the employer's "explanation is unworthy ofcredence or by offering other forms ofcircumstantial

evidence sufficiently probative of [sex] discrimination." Mereish v. Walker, 3S9 F .3d 330, 336 (4th
Cir. 2004) (quotation omitted), abrogated in part on other grounds by Gross v. FBL Fin. Servs., Inc.,
S57 U.S. 167 (2009); see Reeves, S30 U.S. at 147.
In analyzing the record concerning pretext, "it is not [the court's] province to decide whether
the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the
[adverse action]." Hawkins v. Pe.psiCo, Inc., 203 F.3d274, 279 (4th Cir. 2000) (quotation omitted).
Moreover, a plaintiff cannot show a genuine issue of material fac~ concerning pretext "by focusing
on minor discrepancies that do not cast doubt on the explanation's validity, or by raising points that
are wholly irrelevant to it. The form.er would not create a 'genuine' dispute, the latter would fail to
be 'material."' Holland v. Wasbingt.on Homes, Inc., 487 F.3d 208,216 (4th Cir. 2007).
Ultimately, the court focuses on whether the plaintiffhas raised a genuine issue of material
fact concerning pretext under Reeves and its Fourth Circuit progeny. Under Reeves and its Fourth
,

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Circuit progeny, a plaintiff may not "simply show the articulated reason is false"; rather, a plaintiff
''must also show that the employer discriminated against [her] on the basis of [sex]." Laber v.

Harvey. 438 F.3d 404, 4~0-31 (4th Cir. 2006) (en bane). In certain cases, however, the factfinder
10

may infer illegal di~crimination from the articulated reason's falsity. See id. at 431; Rowe v. Marley
Co., 233 F.3d 825, :830 (4th Cir. 2000).
Initially, Velez must establish a prim.a facie case of sex discrimination. To establish a prima
facie case of sex di~crimination for failure to promote or to hire, Velez must show that: "(1) she is
a member of a protected group, (2) there was a specific position for which sh~ applied, (3) she was
~

qualified for _that position, ~d (4) [the defendant] rejected her application under circumstances that
give rise to an inference ofdiscrimination." Williams, 370 F.3d at 430; see McDonnell Douglas, 411
U.S. at 802; Anderson v. Westinghouse Savannah River Co., 406 F.3d248, 268 (4th Cir. 2005). The
parties agree that Velez is a member of a protected group, that she applied for an open secretary
position, and that she was qualified for that position.
The parties dispute whether Velez has established that Pekatos rejected her application under
circumstances giving rise to an inference of sex discrimination. Velez argues that because Pekatos
picked Barr, a man, over Velez, she has created an inference of sex discrimination.
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The Fourth Circuit has stated that a plaintiff can satisfy the fourth prong of the McDonnell
Douglas framework by merely "show[ing] that the position was filled by" someone outside the
plaintiff's protectec;l group. Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994); see Burdine, 450 U.S.
I

at 253 n.6; cf. George v. Ynung~wn State Univ., 966 F.3d 446,470 (6th Cir. 2020). More recently,
the Fourth Circuit~ cast doubt on that principle, stating that such a rule would mean "any qualified
member of a pro~d class who alleges nothing more than that she was denied a position or
promotion in favor:of someone outside her protected class would be able to survive a Rule l2(b)(6)
motion." McCleaci-Evansv.Md.De,p'tofTransp., 780F.3d582,588(4thCir.2015). Jnanyevent,
viewing the record_ and Pekatos' s decision to hire Barr over Velez in the light most favorable to
Velez, the court assumes without deciding that Velez has established a prim.a facie case of sex
11

discrimination. See Gary v. Facebook. Inc., 822 F. App'x 175, 180 (4th Cir. 2020) (unpublished)
(''Under McDonnell Douglas, an inference of discrimination arises from evidence that the employer
favored a [male] comparator over the plaintiff.").
The burden shifts to defendant to produce evid~ce showing Pekatos chose not to hire Velez
for a legitimate, nondiscriminatory reason. According to defendant, Pekatos chose Barr because he
"had a proven track record in handling classified information and items," he ''had the strongest
recommendations,·~ he "displayed the highest level of professionalism during the interviews," and
his "current position displayed an ability to work independently when required." [D.E. 50-6] 1; see
SMF ,r 34; Resp. SMF ,r 34. According to Pekatos, the decisive factor was that Barr had the best
interview ofthe fotir internal candidates. See Pekatos Deel. ,r,r 32-33. Pekatos's notes from Barr's
interview comport with the reasons Pekatos gave to the Civilian Personnel Advisory Center for
choosing Barr. See [D.E. 514] 1. Velez does not contest that defendant has met its burden of
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production to show a legitimate, nondiscriminatory reason for not hiring Velez. See [D.E. 53] 7.
Instead, VeJez argues that Pekatos's stated reaso~ for hiring Barr over her are pretextual.
In support, Velez contends that Pekatos asked her derogatory questions and displayed a derogatory
I

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demeanor toward her du.rbig the interview, that Velez was more qualified than Barr, and that Pekatos
"had a personal desire to hire a man'' to fill the position. [D.E. 53] 8.
j

As for Vel,ez's argument that Pekatos asked her derogatory questions and displayed a

derogatory demeanor toward her during the interview, Velez's evidence "create[s] only a weak issue
of fact as to whether the employer's reason was untrue." Reeves, 530 U.S~ at 148. As discussed,
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Velez has been inct>nsistent about what Pekatos asked her during the interview, and Sams does not
remember Velez appearing upset after the interview or telling Sams that Pekatos acted in a
.,

derogatory way toward her during the interview. In contrast, there is "abundant and uncontroverted
12

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independent evidet:1ce" that Pekatos chose Barr for legitimate, nondiscriminatory reasons, and
Pekatos has been consistent about the reasons that animated his hiring decision. Id.
As for Vele~' s argument that she was more qualified than Barr, Velez's qualifications for the

job do not suggest qiat Pekatos' s_stated reasons for hiring Barr are unworthy of credence. Velez can
establish pretext -by showing her qualifications were "demonstrably superior'' to Barr's
qualifications. Heiko v. Colombo Savings Rank F.S.B., 434 F.3d 249, 261-62 (4th Cir. 2006); see

Qm, 822 F. App'x at 181-83. Velez's job ~experience overlaps significantly with the job
requirements forthe secretary position to which she applied. Compare [D.E. 55-2], with [D.E. 49-5].
But the same is true for Barr. Although Barr had less formal education than Velez, his experience
included "ensur[ing] clerical and administrative portions of the mail room are accomplished
effectively," "coordinat[ing] the distribution ofhigh-value items to vendors and customers as a result
!

ofreceived calls an~ inquiries," uti]izinga government credit card, creating and submitting purchase
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requests, handling callers, preparing i:.:ummaries, briefing supervisors on meetings, "[p]rocess[ing]
leave requests and daily status reports for the_ time and attendance report," "[c]omposing routine
correspondence," "[d]eal[ing] with a wide variety of personnel with different backgrounds in a
courteous manner on a daily basis," "creating TDY travel orders and vouchers through the online
defense management travel system," and other administrative functions. See [D.E. 55-6] 1-3. Barr
also had a secret s~curity clearance, which Velez did not have. See id. at 6; [D.E. 49-2].
Both Barr Epld Velez had experience from which Pekatos could conclude that both were
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similarly qualified to fill the vacant secretary position. And Pekatos did, in fact, reach that
conclusion. See Pekatos peel. ,r 17 ("Ofthe ten candidates, the four I indicated earlier were internal
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so I reviewed their resumes. They all looked good and had similar qualifications so I elected to
interview all four."). After reaching that conclusion, Pekatos made his final hiring decision based
13

on the interviews. See id. ,r,r 17, 33 (stating ''the deciding factor was the interview''). Interview
performance is a legitimate basis for a hiring decision, and Velez has not cited evidence creating a
genuine issue of material fact concerning whether her interview was stronger than Barr's interview
or whether Pekatos' s reliance on the candidates' interview performance to make his hiring decision
was pretextual. See Byrd-Hedge,peth v. Cap. One Servs., LLC, No. 3:19cv05, 2020 WL 5831822,
at *16-17 (E.D. Va. Sept. 30, 2020) (unpublished); Harris v. Rumsfeld, 428 F. Supp. 2d 460,
467-68, 467 n.S (E.D. Va. 2006).
As for her argument that Pekatos wanted to hire a man, Velez cites Pekatos's testimony that

he wanted someone ''very strong and confident" and that Barr was the "strongest'' interviewee. See
[D.E. 53] 11-12; Pekatos Dep. at 12. Velez argues that because Pekatos wanted to hire someone
"strong and confident'' and he chose a man, Pekatos must think ''that Velez, a woman, was weak."
[D.E. 53] 11-12. Velez's argument rests on the false assumption that Pekatos believed that men are
stronger or more confident than women or that women are incapable of being strong and confident.
Velez cites no evidence to support her false assumption that Pekatos held those beliefs. See [D.E.
53] 11-12. Moreover, other evidence undermines Velez's argument. After all, Pekatos thought
Messier, a man, had a worse interview than Dethrow and Velez, both women, because Messier was
''not strong" and displayed ''minimal confidence." Pekatos Deel. ,r 33.
Even viewing the record in the light most favorable to Velez, no rational jury could find that
Pekatos' s reasons were pretextual or that Pekatos did not hire Velez because of her sex. Although
the court must "examine employment decisions for unlawful discrimination," the court is not
"cloaked with authority to strip employers of their basic business responsibilities." Hux v. City of
Newort News, 451 F.3d 311, 315 (4th Cir. 2006). Without such authority, the court does not sit
to judge the ''wisdom or folly'' of Pekatos's hiring decisions: Jiminez v. Mary Washington Coll.,
14

57 F.3d 369, 383 (4th Cir. 1995). Even viewing the evidence in the light most favorable to Velez,
no rational jury could find that the Army did not promote her because of her sex. Thus, the court
I

grants defendant's motion for summary judgment.

m.
In sum, the court GRANTS defendant's motion for summary judgment [D.E. 46]. Defendant
(

may file a motion for costs in accordance with the Federal Rules of Civil Procedure and this court's
local rules. The clerk shall close the case.
SO ORDERED. ~s _M. day of July, 2022.

J£lrns go~VER m

United States District Judge

\

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