*1 to modi approach argues its HIOS is “more reason formula Tarpon
fying the than the Com “straightforward”
able” and
mission’s, match[] “best and would to substi designed the fee is
return 31-32. Reply Br. Petitioners’ for.”
tute to choose required is not
But FERC solution, one. See only a reasonable
best Processors, Inc. County Grain Smith
Deaf (D.C.Cir. Glickman,
1998) arbitrary capri (explaining standard). own claims its HIOS
cious better, evidence provides but no is
method unreasonable. approach is FERC’s true, claims
Therefore, if even HIOS’s ac invalidate Commission’s
would not
tion. above, vacate and we reasons
For the groups, proxy on the issue
remand affirm.
and otherwise
So ordered. JACKSON, Appellant L.
Kevin Attorney GONZALES,
Alberto
General, Appellee.
No. 06-5053. Appeals, States Court
United Circuit.
District of Columbia 19, 2007.
Argued April Aug.
Decided
defense, Bureau said it selected Bat- more chelder because she was granted than The District Court Jackson. Bureau, summary judgment to the con- *3 cause argued the D’Agostino A. Debra jury a reasonable could not cluding that the briefs was Sandra appellant. On for a for explanation pretext find the Bureau’s Mazliah. agree racial We with the discrimination. Russell, At- Assistant U.S. Beverly M. and therefore affirm. District Court appellee. for argued the cause torney, A. Jeffrey her on the brief were
With I Craig R. Law- Attorney, and Taylor, U.S. Jackson, an African-American Kevin J. rence, Attorney. Michael Assistant U.S. Batchelder, man, a and Jennifer Caucasian an Attorney, entered Assistant U.S. Ryan, woman, in the employees as GS-13 worked appearance. applied Both for
Bureau of Prisons.
HENDERSON, ROGERS, and
Before:
Bureau,
analyst job at the
GS-14 research
KAVANAUGH,
Judges.
Circuit
two-per-
individuals. A
as did five other
ap-
all
initial evaluation board scored
son
by
filed Circuit
Opinion for the Court
qualifica-
general
on six
plicants based
KAVANAUGH, in which Circuit
Judge
“KSAs,”
called
short
tions—also
joins.
Judge HENDERSON
skills,
oth-
“knowledge,
and abilities”—and
in the
personal characteristics needed
er
filed
Circuit
Dissenting opinion
The board
job
filled.
J.A. 276.1
to be
Judge ROGERS.
who
sought
applicant
to hire an
members
KAVANAUGH,
Judge:
Circuit
main
with the Bureau’s
had
tool,
known as
management
em- data
worked as a GS-13
Kevin Jackson
although the
Strategic System,
of Prisons. Jackson
ployee
the Bureau
express-
documents did not
an
applied for
and six other individuals
as a
ly refer to
analyst position.
GS-14 research
open
(the
listed
Batchelder,
documents
specific qualification
The Bureau selected Jennifer
Key In-
Jackson,
qualifications). The
general
Afri- more
who is
woman.
Caucasian
system includes information about
can-American,
dicators
alleged
and
racial dis-
sued
such
operations,
the Bureau’s
aspects
all
of
of Title VII.
its
crimination in violation
methodologies for the
array
applicant’s:
of research
generic
1. The
KSAs included
resources; (2)
of behavior
and measurement
(1)
ability to
observation
ability manage
attitudes; knowledge
(3)
of univariate
ability
and
orally;
to communi-
communicate
theory
(4)
mathematical statistical
ability
apply
multivariate
writing;
social
cate in
methods;
appropriate
particular re-
(5) knowledge
techniques
of
and
science research
methods;
(6)
methodologies; knowl-
designs and
ability
assign
search
and
statistical
computer programs;
edge
delegate authority.
of
statistical
responsibility
J.A.
and
Timesharing System,
knowledge
CMS
posted
of IBM
a more detailed
276. The Bureau also
TSO,
knowledge
System;
of
following
OS Batch
and
job description, which listed the
software;
computer
and micro
knowledge
job requirements:
in-
mainframe
as
skills and
teaching
supervising research as-
programs
skill in
depth knowledge
correctional
knowledge and
in the
knowledge
technicians
operations
sistants and
Bureau
necessary
science re-
techniques
for social
knowledge
regulations;
policies and
Bureau
search;
reports
writing
and skill
sociology,
psychology,
theories in
social
corrections,
managers or for distribution
criminology;
for Bureau
justice, and
criminal
community.
J.A.
knowledge
social science
knowledge
designs;
of research
care,
issues,
clearly encompassed by
in-
sentencing
qual-
as health
ence was
In addition
description.
mate conduct and misconduct.
ifications listed
data,
(“[I]t
system
uses
aggregating
id. at *10
is clear that
Indicator
tools to show
graphical
System
component
statistical and
how
are a
skills
of the over-
opera-
aspects
necessary
the relevant
of the Bureau’s
posi-
all skills
for the GS-14
change
tion.”);
tions
over time.
(“[Although
specifically
id.
not
vacancy
mentioned in the
announcement or
highest
far the
Batchelder received
general
description,
terms used
numerical score on the KSAs—52 out of 60
clearly
these documents
indicate a desire
contrast,
By
Kevin
possible points.
Jack-
part
on the
of the defendant to hire some-
22 points
son received
out of
which
*4
acquired
working
one with skills
from
with
placed
among
appli-
him third
the seven
System.”).
Indicator
significantly
cants. Batchelder also had
than
with the
more
Jackson
appeal,
argues
On
Jackson
that
system. Both employees
Indicators
genuine
there is
issue of material fact
performance
for
points
past
received 15
regarding whether the Bureau’s real rea
points
yielding
and six
for
total
awards —
selecting
son for not
him was racial dis
points
scores of 73
for Batchelder and 43
crimination. Our
review is de novo.
points
Because
for Jackson.
Batchelder’s
Williams,
478,
Haynes v.
392 F.3d
481
higher
score was much
than all the other
(D.C.Cir.2004).
candidates,
only
the board forwarded
her
decision-maker,
name to the final
Thomas
II
Kane. Kane in turn selected Batchelder
for the
Act,
Rights
Title VII of the Civil
sued, alleging
amended,
Jackson then
racial
provides
“personnel
dis-
as
that all
Rights
crimination in
of the
affecting employees
applicants
violation
Civil
actions
1964,
§
Act of
42
2000e-16. In
employment”
agencies
U.S.C.
in Executive
court,
explained
district
the Bureau
that it
any
“shall be made free from
discrimina
§
hired Batchelder because she was better
tion
on race.” 42
based
U.S.C.
2000e-
16(a). “Where,
here,
qualified, particularly
light
of her exten-
as
the record con
sive
with the
tains no direct evidence that the adverse
system.
granted
employment
The District Court
sum-
action
plaintiff
of which the
Bureau,
mary judgment to the
stating
complains
was caused
prohibited dis
crimination,
significantly
Jackson failed to show he was
we turn to
burden-shifting
qualified
more
and that it was “therefore
framework of McDonnell Douglas Corp. v.
Green,
proper
‘second-guess
792,
(1973),
not
employ-
[the]
411 U.S.
to ana
”
er’s personnel
Powell,
decision.’
Jackson v.
lyze
Gon-
the claim.” Holcomb v.
433
zales,
(D.C.Cir.2006)
03-1596,
(citation
889,
No. Civ.A.
2005 WL F.3d
895
omit
(D.D.C.
3371041,
*11,
2005)
12,
*13
Dec.
part). Although
ted in
“intermediate evi-
Corr.,
(quoting Fischbach v.
Dep’t
dentiary
D.C.
burdens shift back and forth un
(D.C.Cir.1996)) (altera-
framework,
86 F.3d
1183
der this
ultimate burden
‘[t]he
original).
tion in
persuading
District Court also of
the trier of fact that
concluded that the Bureau’s
intentionally
reliance on a defendant
discriminated
expressly
factor not
listed in the
against
plaintiff
de-
remains at all times
”
scription (Key
experience)
plaintiff.’
did with the
Reeves
Sanderson
Prods., Inc.,
133, 143,
not undermine the
explanation Plumbing
Bureau’s
530 U.S.
(2000)
hiring
for its
experi-
decision because such
120
147
S.Ct.
L.Ed.2d 105
on the rela-
v. made a
decision based
Cmty.
Dep’t
(quoting Tex.
Affairs
248, 253,
candidates,
Burdine,
qualifications
S.Ct.
tive
“we
450 U.S.
(1981)) (alteration
origi-
juror
67 L.Ed.2d
that a reasonable
who
must assume
nal).
employer’s
deci-
might disagree with
close,
sion,
but would find the
Douglas frame
The McDonnell
usually
not
infer discrimination on
would
to estab
requires
plaintiff
work first
comparison
qualifications
of a
the basis
by-
of discrimination
facie case
prima
lish
Ctr.,
Hosp.
alone.” Aka Wash.
“(1)
of a
he is a member
showing that:
banc).
(D.C.Cir.1998) (en
On
(2)
class;
applied
he
protected
hand, if a factfinder can conclude
the other
(3)
position;
de
for an available
qualified
employer would have
that a “reasonable
rejected;
he was
his
spite
plaintiff
significantly
found the
to be
better
(4)
posi
...
filled the
someone
either
job,
employer
for the
but this
did
vacant and
position
or the
remained
tion
not,
legitimately
can
infer
appli
to seek
the factfinder
continued
employer
Snow,
consciously
Lathram v.
selected
employer
cants.”
(D.C.Cir.2003) (quotation marks omit
something
less-qualified
candidate —
If the
original).
do,
and alteration
ted
employers
usually
do not
unless some
*5
prima
facie case
plaintiff establishes
consideration,
strong
such as dis-
other
discrimination,
the
the burden shifts to
Id.;
crimination,
picture.”
enters into the
“
employer
produce
‘evidence
defendant
Holcomb,
897;
at
Stew-
see also
433 F.3d
rejected, or someone
plaintiff
that the
was
Ashcroft,
art v.
352 F.3d
legitimate,
for a
non
preferred,
else was
(D.C.Cir.2003).
Aka, we have
Applying
” Reeves, 530 U.S.
discriminatory reason.’
justify
order to
an
explained that “[i]n
Burdine,
(quoting
at
120 S.Ct.
discrimination,
qualifica-
inference of
1089).
“If the
at
101 S.Ct.
450 U.S.
great enough
be
to be
gap
tions
must
burden,
that
satisfies
defendant
of discrimination.”
inherently indicative
its
Douglas framework —with
McDonnell
Holcomb,
To conclude
433 F.3d
897.
disappears,
presumptions
and burdens —
judiciary
would be to render
otherwise
is discrimina
remaining
and the sole
issue
that reex-
department
“super-personnel
v. District
tion vel non.” Waterhouse
entity’s
decisions”—a
amines an
business
(D.C.Cir.
Columbia,
989, 992
298 F.3d
disclaimed. See
repeatedly
role we have
2002)
marks and alterations
(quotation
omitted).
marks
(quotation
id.
omitted).
point,
plaintiff
At that
can
indicate,
Here,
summary judgment only
show
survive
as the KSA scores
jury
ing “that a reasonable
could conclude
does
presented by Jackson
the evidence
for a discrimina
that
was terminated
[he]
“significantly bet
suggest that he was
not
Id. To make such a show
tory reason.”
Batchelder.
than Jennifer
qualified”
ter
that a reason
prove
must
ing,
plaintiff
it
Aka,
contrary,
with the
with,
begin
To
as the District Court
Jackson’s;
stantially superior to
that the
correctly recognized, Key
expe-
Indicators
system
important
was
Indicators
clearly encompassed by
rience was
operations;
the Bureau’s
Batchel-
qualifications
description.
listed
highest
far the
KSA scores
der received
Jackson,
2005 WL
at *10
any
applied
job.
for the
candidate who
(noting
sought applicants
Bureau
with
ability to use statistics to describe and
at most shows
Jackson’s evidence
data).
Indeed,
predict
in Bureau
trends
given
that the
could have
him
evaluators
directly
rel-
higher scores and Batchelder
somewhat
evant to at least two of the KSAs set forth
they
somewhat
lower scores than
did.
generic
vacancy
announcement:
however,
enough,
That is not
to demon
resources,
ability manage
ability
reliance on
strate
the Bureau’s
com
assign responsibility
delegate
authori-
parative qualifications
pretext
was a
addition,
ty.
the more detailed list of
discrimination: “This Court will not reex
position
set out
de-
governmental promotion
amine
decisions
scription
“[kjnowledge
included
of statisti-
appears
where it
the Government was
computer programs”
cal
and “computer
with a difficult
between two
faced
decision
software,”
plainly encompassed
and thus
candidates,
particularly when
experience.
J.A. 280.
played
there is no other evidence that race
Stewart,
part
in the decision.”
*6
before, moreover,
explained
As we have
Stewart,
at 430. Like the
in
plaintiff
Jack
job descriptions
phrased
gen-
are often
in
discernibly
simply
son “was
not
better”
terms,
eral
employers
and
then make the
than
promoted.
the candidate
Id. at 429. ultimate
hiring
light
decision
of more
specific
Jackson also contends that
reasonable
strategic
factors —such as their
jury
priorities
time,
could disbelieve the Bureau’s reliance
goals
and
superior
strengths
on Batchelder’s
and
applicant
weaknesses of the
overriding factor
pool,
gaps
as the
be-
and the overall skills of and
job description
workforce,
cause the
documents did their existing
among many oth-
expressly
not
refer
er factors. We have said that courts must
knowledge
Although
experience.
second-guess
employer’s
this
not
an
initial
argument may present
a closer
choice of appropriate qualifications; rather
given the somewhat unusual facts of this
the courts
[employer’s]
“defer to the
deci-
case,
agree
we
with the District Court that
sion of what nondiscriminatory qualities it
presented by
Stewart,
the evidence
in filling
Jackson does will seek”
dissenting opinion appears
suggest
2. The
employees’ respective per-
rooted in the two
summary judg-
that Jackson's case survives
qualifications.”
formance histories and
Pl.'s
part
high-
ment in
because the Bureau lacked
Opp'n to Def.’s Mot. for Summ. J. at 14
employees.
level
African-American
Dis-
Aka,
added).
(emphasis
709 administrative/managerial experi- 429; Browning weigh also 352 F.3d (6th heavily 698 more than the Army, 436 F.3d ence Dep’t of Cir.2006) employer’s] (“Questioning simply not sufficient to suggested [the [was] province falsity qualifi- criteria is not within hiring employer’s demonstrate” court_”). Particularly given the this explanation); Lee v. GTE eations-based hiring process, (11th dynamic Fla., Inc., nature 2 F.3d 1255 n. moreover, stated that we will Cir.2000) we have also (evidence employer that weighs employer how an second-guess not of the criteria he “changed importance hiring decision. factors particular not process” in the selection did tend used F.3d Chertoff, See Barnette employer’s asserted nondis- to show (“[C]our.ts (D.C.Cir.2006) to the must defer false); criminatory Nich- explanation was qualities to which decision as employer’s (5th Grocer, ols v. Lewis weighs ... it more required Cir.1998) “dynamic,” (hiring decisions are Indeed, we have even said heavily.”). importance placed on various and “relative may “a candidate employer an select who expected criteria cannot be selection reasons, is less other paper on unyielding” throughout remain fixed emerge subjective reactions such as the process). course although we are of the interview”— subjec purely such accepting cautious All formulations of these various plaintiff other explanations when tive precedents principle establish clear “significantly qualified.” better wise is an purposes of this case: The fact that Aka, & n. 10. its ultimate decision employer based Aka, that courts must explained we encom specific one or more factors on necessary appropri- to the be sensitive general within a broader and more passed hiring processes. Reason- ate realities does not itself raise description said, ordinarily “do not employers, we able sufficient inference of discrimination applicants to a limit their evaluation Indeed, we summary judgment. overcome re- checkoff of mechanistic case from this or previous are aware of no job descriptions. quired by the written suggesting that an em any other circuit take additional creden- Obviously, they will judgment sim ployee gets past summary *7 account, if those credentials tials into hiring in showing that a factor ply by job.” prove performing would useful expressly was not listed decision appeals n. 15. Other courts of Id. at 1297 encom description when the factor was same conclusion. See have reached the Therefore, job description. passed Co., 175, Boeing Fed.Appx. Lamb v. 213 summary judg cannot overcome Jackson (4th Cir.2007) (“Title not VII does 180 on this ment basis. an- obligation' of impose impracticable agree not with Jackson Finally, we do recording the fact a ticipating and before explanation the Bureau’s timing that the of every credential company’s valuation casts doubt hiring of its decision somehow might presented, which it be we with explanation credibility on the that the cre- cannot sanction the inference Before pretext. therefore is evidence of hiring managers upon dentials which dis- employment this Jackson commenced merely they pretexts were be- said relied suit, simply had no the Bureau advance.”); crimination they cause were not listed to hire Bat- explain to its decision occasion (“employers at 696-97 Browning, 436 F.3d rather, chelder; time the Bureau the first language in a rigidly are not bound was in defend- explain had to that decision employer’s “decision to job description”; 710 Prods., Landgraf v. USI Film 511 U.S. explanation The Bureau’s
ing this case.
244, 254,
1483,
229
“post-hoc”
114 S.Ct.
128 L.Ed.2d
therefore cannot be considered
(1994)
Dissenting Op.
Paper Co. v.
“tardily”
(quoting Albemarle
or
asserted. Cf.
712-13,
405, 418-422,
suggest
716-17. To
otherwise
422
95
Moody,
U.S.
S.Ct.
(1975)).
essentially
employers
pub-
2362,
to direct
is
The federal
So ordered.
Serv.,
525,
529
v. U.S. Customs
ROGERS,
Judge, dissenting:
(D.C.Cir.1986).
Circuit
1833,
Enacted in
the Pen-
Act,
403,
22
“replace[d]
dleton
Stat.
Contrary
suggestion,
to the court’s
Kev-
‘spoils system,’ under which the President
in L.
not
appeal
Jackson’s
does
ask
jobs
dispense
could
federal
as rewards for
personnel
court
decision.
micromanage
political patronage,
system’
with a ‘merit
707,
Op.
708-09. Instead Jackson
See
promotion
that would base selection and
presents
goes
to the heart
competence.”
most civil servants on
Fra
civil
of Title VII and the federal
service
Bd.,
Sys.
zier v. Merit
Protection
system.
ignore
this
The court chooses
150,
(D.C.Cir.1982);
Sampson
153
by casting
fact
the case in terms of who
Murray, 415
U.S.
S.Ct.
promotion.
was more
for a
(1974). Subsequent
legisla
L.Ed.2d
However,
appeal
id.
Jackson’s
is
Congress’s objective
tion furthered
of es
suggesting
based on evidence
that the em-
tablishing
competent
an efficient and
civil
ployer’s
nondiscriminatory
asserted
reason
providing greater
statutory
service and
selecting another candidate was fabri-
protections
employees.
for federal
cated to mask unlawful discrimination.
(“CSRA”),
“Credibility determinations
the Civil Service Reform Act
enact
[and]
weighing of the evidence” are functions of
ed
restructured the federal civil
Liberty
the trier of fact.
“promote
Anderson
service in order to
effi
more
Inc.,
242, 255,
Lobby,
U.S.
S.Ct.
cient civil
preserving
service while
(1986);
I. implemented with” be consistent several system principles,” provide, Title VII is “merit which protecting aimed victims See, others, among of unlawful e.g., discrimination. “advancement should months later positions. rela GS-15 Six ORE solely on the basis of be determined skills, and after ability, knowledge, tive announced another GS-14 social science assures competition which open and fair analyst position. This an- research equal opportunity.” that all receive applicant nouncement asked each to ad- Horner, 2301(b); § see U.S.C. application catego- in her six dress his or Serv., 492; F.2d at 529. U.S. Customs Skills, Knowledge, ries of and Abilities by the Of regulations promulgated Under (“KSAs”)1 “in a ... manner which will su Management, which fice of Personnel enable to make reasonable [the BOP] of the civil ser the administration pervises qualifications.” about Job determination Frazier, 154; system, vice Announcement at 1-2. The announcement agencies, in § all federal 5 U.S.C. to with the made no reference (“BOP”) in of Prisons cluding the Bureau (“Key In- Strategic System Justice, required to are Department dicators”) job de- requirement. as a The job announcement for a notice of provide descrip- included a more detailed scription the po that includes competitive positions tion of the “KNOWLEDGE AND SKILLS in “[qualification requirements, sition’s POSITION,”3 REQUIRED BY THE but [sic], skills, and abili cluding knowledges to Indica- it also made no reference 330.707(b)(5). § ties.” 5 C.F.R. experience. applied tors Jackson for the evidence proffered Jackson individuals, in- position, as did six other for a applied when he GS-14 March Batchelder, Cauca- cluding Jennifer who is analyst position, the science research social Bat- application, At the time of her sian. him a score of 98 gave board evaluation chelder, Jackson, social like was GS-13 of Research out of but the BOP Office analyst, had received science research who (“ORE”) never filled that and Evaluation from outstanding performance evaluations time, the had no At the ORE his, GS-13, GS-14, supervisor, as Jackson had from or her African-Americans sociology, —Knowledge social generic an- of theories The KSAs listed in 1. “[ajbili- corrections, (1) justice, applicant's: psychology, criminal were the nouncement resources”; (2) "[ajbility ty manage criminology. and (3) orally”; "[a]bility to com- designs.... [ ] communicate —Knowledge of research (4) “[a]bili1y apply writing”; municate in —Knowledge array research meth- of an methods”; (5) research social science odologies the observation and measure- methods”; (6) "knowledge and of statistical and attitudes.... ment of behavior delegate "[a]bility assign responsibility and —Knowledge of univariate or multivariate authority.” Announcement at 2. Job theory and tech- mathematical statistical particular niques research appropriate evaluators, According of Jackson's 2. to one methodologies.... designs and “elaborate, comprehen- Key Indicators is an computer pro- —Knowledge of statistical sive, technically detailed” data warehous- and grams .... about all ing system. It includes information Timesharing —Knowledge CMS of IBM operations provides and aspects BOP's TSO, System. System, Batch OS managers aggregate form as well as data to and micro —Knowledge of mainframe com- graphic analyses. See Gerald statistical puter software.... (June 2004). Dep. at Gaes teaching supervising —Skill in knowledge technicians in the page on assistants and posted listed necessary techniques for social science following "KNOWLEDGE AND SKILLS”: *9 research. knowledge pro- depth of correctional —In writing reports for BOP —Skill grams operations and a knowl- and BOP the social managers for distribution in policies edge Department and Bureau of community. regulations. science and legitimate, evaluators had nondiscriminato- program- work involved principal but her collecting processing ry and data “concerns about ming [Jackson’s] and abilities” carry properly weighed exper- to out research. “Batchelder’s by for use others Kane, Key awarding As- with her According to Thomas the BOP tise Indicators” Director, higher appeal, Batchelder’s work “fo- Id. at the sistant scores. 18. On analysis that Department more on statistical reasserts the time “[a]t cus[ed] consideration, Jackson the the computer programming [while] selection over- of program management objective on the to hire riding [ORE] more [focused] Dep. Thomas Kane at 47 someone who could maintain [ORE’s] and facilitation.” es- (June 2004). i.e., The evaluation board important sential and most function — Key System.” of 43 out of gave Strategic Jackson score the Indicators added). Kane, upon Appellee’s (emphasis a score of 73. Br. at 21 In Batchelder only with the recommen- being presented support, Department points to the de- Batchelder, her promote position Saylor, dation to selected who was one of William evaluators, stating for the GS-14 that his “concern was to make certain” to hire “someone response In Title law- Jackson’s VII who had the skill set that would be needed suit, persons in the BOP who had two keep key application indicators th[e] applications evaluated the claimed in Saylor Dep. functional.” William at 147 they sworn statements had relied on (June 2004). Key work on Batchelder’s Indicators awarding significantly higher her KSA II. applicants.
scores than the other Batchel- application der’s referred to articles that suggest Common sense would if Key had for staff and she written users Indicators was the “over- but, Jackson, Indicators unlike Batchelder riding objective” underlying the selection identify any papers did not that she had analyst position, GS-14 research published, although she had written the then the BOP would have mentioned that publication. By introduction for a con- qualification in announcing describing trast, justified the evaluators Jackson’s job to ensure that it would receive lower scores nar- emphasizing KSA applications from candidates with the de- projects row nature of his work and tech- sired in position and thus be nical problems with his statistical research to select the candidate most authored, in the papers including he his Jackson, maintain Key Indicators. howev- thesis, masters which had been published. er, does general not contend na- No mention was made of Jackson’s experi- ture of the description alone creates an ence with Indicators: inference of discrimination sufficient moving summary judgment, Rather, overcome summary judgment. Department claimed that Indicators Jackson inconsistency contends that experience was the critical descriptions consideration between the an- the BOP’s selection of Batchelder: description, “At the nouncement and on the one consideration, hand, time the selection post-hoe and the evaluators’ reasons overriding objective selection, other, for the was to for the on the [ORE] raises hire someone who could maintain ... preclude summary inference sufficient to Strategic System.” judgment. Defs It specific centrality is the Supp. Mem. (emphasis Key experience tardily Summ. J. so — added). Department argued Department that the claimed contra- —that
713 presented contention is that he and the Jackson’s job description general the diets evidence, Afri- including the absence of low of Jackson’s explanations evaluators’ high-level positions In can-Americans from scores, neither of which mentions the failure several at the BOP and BOP’s emphasis Given the experience. dicators fill re- earlier to another GS-14 on Indicators months Department placed fact, according analyst position for which he had and search after the 100, a score of 98 out of from nonmoving all rea received party as the Jackson inference of unlawful inferences, required court which reasonable as the is sonable Anderson, 255, may De- do, 106 discrimination be drawn. The 477 U.S. at see Int’l, district 2505; partment challenge does not Sibley Shekoyan S.Ct. (D.C.Cir.2005) finding court’s that Jackson had estab- 414, (citing F.3d Prods., prima facie case of discrimination. Plumbing 530 lished Reeves Sanderson contending that he also has shown that 133, 150, 147 L.Ed.2d 120 S.Ct. U.S. explanation pretex- (2000)), juror Department’s con “a reasonable could tual, merely on the relying included Jackson is not would have BOP] clude that [the ultimate hir- it that the its job listing in the had fact BOP based qualification this fac- specific on one or more primary ing it decision honestly that was of believed a broader and encompassed Court tors within position.” for the new importance Inc., Op. at Biosound, general job description, 421 more ney v. Cir.1994) added) (7th undisputed rather on the evi- (citing but (emphasis Servs., is dence v. Prudential Residential Gallo announcement, (2d Cir.1994)). job in the 1219, 1225 not mentioned F.3d or the evaluators’ ex- description, like a promote, a decision to Although scores, low KSA planations of Jackson’s decision, “dynamic” may involve a conversely primary reflect a all of which Grocer, v. Lewis process, Nichols focus on research.4 (5th Cir.1998), dynamism F.3d involving treats this case as failing to The court cannot serve as an excuse for question of who as between Jackson underlying purposes of the adhere to the quali- was more and Batchelder system ensure Jennifer federal civil service —to See id. at com fied for the GS-14 open and fair and equal opportunity light It states the evidence process to 707-08. allowing petition by — Department, accept- favorable to the objective without most employment “drift” in its inference, tardy explanation ing Department’s evi raising given an Jackson’s experience was dence, inconsistency could mask such established, otherwise, “overriding objective” as Put unlawful discrimination. primary responsi- search: The incumbent’s stated that the re- 4. The announcement research supervising are Ph.D. level position super- bilities sponsibilities of the include conducting designing re- “conducting analysts and and analysts vising and research improving that assists the BOP in Job search on and corrections.’’ crime Further, programs developing policies and and "the research Announcement at 1. knowledge. fields of to” sev- contributes several employee conducts contributes “corrections, "MAJOR job description states that the including, criminal The eral fields in- AND RESPONSIBILITIES” criminology, sociology” and the DUTIES justice, “formulating] directing] re- “[rjesearch volve utilized the Executive will be questions of study that answers interest the effectiveness search Staff of the [BOP] describes pre- administration” polices [BOP] and to programs and [BOP] in the research tasks. activities involved prescriptions improvement.” Id. scribe Description at similarly re- Job on focuses *11 Second, Upon “job fact. id. at 705- 06. the court observes that de- undisputed in scriptions phrased general are often acknowledging plaintiff that a Title VII terms, employers then make the ulti- by that an may prevail showing employer’s light mate decision in of more spe- qualification-based explanation “is incor- Op. cific factors.” at 708. True but irrel- fabricated,” (quoting id. at 707 Aka rect or ignores court undisputed evant. The two Ctr., Hosp. Wash. One, job facts. the BOP’s announcement (D.C.Cir.1998) (en banc)), the court dis- description set forth the showing only misses Jackson’s evidence as position. job and nature of the The an- him given that the evaluators could have nouncement outlines the “DUTIES” of higher By treating KSA scores. See id. position, categories lists three of re- simply a matter of the this case as BOP quired “SPECIALIZED EXPERI- choosing qualified applicant, the more see ENCE,” and lists six “KSAs.” Job An- 707-08, however, ignores id. at the court job at description nouncement 2. The disputed the material issue of fact raised major sets forth the incumbent’s three re- goes directly Jackson’s evidence that sponsibilities, particular emphasis of type applicant of what BOP the studies that the GS-14 researcher will actually sought announcing the GS-14 conduct, manner which the re- analyst position research research ana- —a search will be used BOP’s Executive lyst experi- with the announced skills and by top management Staff and in the Fed- computer programmer Key ence or a with eral Sentencing Commission and other experience? Indicators agencies, objectives and other in- of the cumbent’s research. The The court’s efforts to bolster holding its also paragraphs explaining includes two First, do not withstand examination. the “MAJOR DUTIES AND RESPONSI- court relies on the district court’s conclu- BILITIES” and a page-long includes list- Key sion that Indicators skills are a com- ing of “KNOWLEDGE AND SKILLS ponent of the skills listed for the GS-14 POSITION,” REQUIRED BY THE position. However, See id. this is supra note and two-and-a-half addition- not the Department’s prof- same as the al pages description aspects various nondiscriminatory fered explanation that position’s of the responsibilities, including “overriding” Indicators skill was the guidelines, research complexity requirement analyst posi- for the research projects, and the “SCOPE AND categories tion. Some of the of “KNOWL- EFFECT THE Descrip- OF WORK.” Job job EDGE AND SKILLS” listed in the 1, 2, tion 4. Nowhere in the an- description comput- refer to statistical and nouncement or description Key is In- skills, ing familiarity including with “main- Two, experience dicators mentioned. software,” frame and computer micro Posi- explanations evaluators’ for giving Jack- Description tion but none mentions son low scores make no mention of his Instead, experience. Indicators the Key Indicators or lack thereof job description focuses on research skills tardily and thus undercut the pri- claimed Thus, responsibilities. de- macy Key experience. Indicators scription does not support Depart- preoccupation evaluators’ with Jackson’s specific expertise ment’s contention that in research abilities—with inconsistent reli- Key Indicators require- was the decisive ance on filling analyst ment for the GS-14 research grading Jackson’s and appli- Batchelder’s the Department’s cations—undermines scores, low a reasonable tions of Jackson’s expertise claim *12 the se- for “overriding juror Saylor’s consideration” could conclude that asser- the lection. Key tion that Indicators underlying the ORE’s the central criterion may not “ordi- employers
Reasonable
analyst
to fill the GS-14 research
desire
applicants to
their evaluation of
narily limit
re-
qualifications
position
checkoff of
was fabricated.
a mechanistic
],”
deseription[
job
written
quired by [a]
conclusion that Jackson has raised a
Aka,
at 1297
(quoting
Op. at 709
way
in no
genuine issue of material fact
15),
jury
con-
a reasonable
could
n.
but
“second-guess
an em
requires the court
em-
would a reasonable
clude that neither
quali
ployer’s
appropriate
initial choice of
most
single
to mention the
ployer neglect
the
principle
fications” or contravene
job an-
requirement
important
[employer’s]
‘defer to the
decision
“courts
nouncement, job
explana-
description,
Key
it
nondiscriminatory qualities
scores.
If
will
applicant’s
of an
low
of what
tion
crucial to the
experience was as
Op.
Indicators
filling
position.”
seek’ in
a
the De-
analyst position as
GS-14 research
Ashcroft, 352 F.3d
(quoting Stewart v.
claims,
juror
then a
could
now
partment
(D.C.Cir.2003)). Neither does it mean
it
mentioned
reasonably expect
to be
employers
required
“pub
would be
description,
job announcement
the
contemporaneous statements]
lish []
explanations
much less in the evaluators’
every
they
time
make a
or
reasons
could
low scores. How else
of Jackson’s
only
at 710. It means
firing decision.” Id.
ensure,
pur-
consistent with the
the BOP
that,
requirements
in accordance with the
system,
civil
of the federal
service
poses
service,
employer
civil
of the federal
the
applications
it
receive
from
that would
job ap
provide
prospective
must
notice to
position
and be in a
qualified persons
most
require
skills and
plicants of the relevant
most
individual to
to select the
in makr
rely
which it intends to
ments on-
Here,
carry
Key
on the
Indicators work?
challenging
is not
ing a decision. Jackson
job
description
did
the
announcement
that the ORE found nec
qualifications
the
experience and
Key
not refer to
Indicators
analyst po
research
essary for the GS-14
Saylor’s
a
between
as-
there is
disconnect
sition,
challenging
he is
wheth
but instead
primacy
Indicators’
sertions of
the
now claimed to be
qualification
er the
of Jackson’s
explanations
the evaluators’
actually did
“overriding consideration”
the
scores. This evidence raises
role in the selection
play such a central
credibility
to whether
Saylor’s
as
BOP manufactured
process or whether
“overriding”
experience was the
Indicators
selecting
after
Batchelder.
justification
this
social science
requirement of
GS-14
accept
trier of fact could
That a reasonable
at the time of the
analyst position
crediting
explanation by
credibility
Department’s
A
determination is
selection.
fact,
not,
the trier of
see
appears
the domain of
the court
Saylor is
as
Anderson, 477
106 S.Ct.
709-10,
U.S.
assume,
id. at
the standard
of material fact
genuine
and raises a
issue
Anderson, 477
summary judgment. See
nondis-
Department’s
asserted
as to
252, 106
U.S. at
S.Ct.
criminatory
selecting
reason for
Batchel-
court,
cited
None of the cases
der,
summary judgment
inappro-
making
court,
contrary conclu-
the district
reach
words, from the absence
In other
priate.
factually distinguishable.
and all are
sion
experi-
any
mention of
Ashcroft,
example, in Davis
For
description
in the announcement and
ence
(D.D.C.2005),
job an-
explana- F.Supp.2d
position and
of the GS-14
requisite
“list
and the matrix”
description
nouncement did not
de-
position,”
id. at 340—
signed
applicants.
to evaluate
Browning,
unlike the BOP’s
announcement and
Jackson, however,
696-97.
description,
qualifi-
which listed
series of
proffered
has
evidence of a disconnect be-
required
cations and
skills but failed to
Department’s post-hoc justifica-
tween the
mention
—and
tion for the selection and “[w]hat
De-
[the
“the
plaintiff challenged
soundness” of partment] intended when it advertised this
qualification
using
disputed
factor as
*13
position,”
v.
Gallo
Prudential Residential
the factor
position,
for a
not whether
had Servs.,
(2d
Cir.1994),
22 F.3d
used,
in fact
id. at
Jack-
been
see
342-43.
thus, distinguishing this case from cases
disputing
utility
son is not
the
Powell,
such as Holcomb v.
433 F.3d
experience
qualification
as a
but
(D.C.Cir.2006),
897-99
in which the court
rather
claim that
Department’s
the
employer’s
deferred to the
weighing of the
Indicators skill was in fact
the critical
candidates’
and found inade-
qualification
analyst
posi-
quate evidence
support
plaintiffs
contesting
tion. Neither is Jackson
employer
contention that the
had misstat-
Department’s
specific
evaluation of
em-
qualifications,
ed her
and Stewart v. Ash-
criteria;
ployment
instead he relies on an
croft,
(D.C.Cir.2003),
inconsistency
description
between
in which the court deferred
the employ-
“overriding objective”
and the
that the De-
comparison
er’s
of the
qualifi-
candidates’
partment
litigation
claims in
was the deci-
cations
the employer’s
determination
process
sive factor in the
but
selection
was
of the
necessary
skills
for the
omitted from the
and his
evaluation.
As the court observed in
Lathram
Department’s
Because the
timing
Snow,
(D.C.Cir.2003),
ings. America, Appellee STATES of
UNITED BOOKER,
Frederick E. Charles a/k/a
Booker, Appellant.
No. 06-3030. of Appeals, States Court
United
District of Columbia Circuit. May 2007.
Argued Aug.
Decided