# Allen v. Spencer

> District Court, W.D. Tennessee · July 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10439938

## Case

- **Court:** District Court, W.D. Tennessee
- **Decided:** July 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

DEXTER ALLEN, )
)
Plaintiff, )
)
v. ) No. 2:18-cv-02778
)
KENNETH J. BRAITHWAITE, )
Secretary of the United States )
Department of the Navy, )
)
Defendant. )

ORDER

This is a failure-to-hire employment discrimination case.
Plaintiff Dexter Allen brings this action against Defendant
Kenneth J. Braithwaite, Secretary of the United States Department
of the Navy, for race and color discrimination in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et
seq. (“Title VII”).1 (ECF No. 1.) Before the Court is
Braithwaite’s Motion to Dismiss, or in the alternative, Motion for
Summary Judgment, filed on December 30, 2019. (ECF No. 25.) Allen

1 Richard V. Spencer, former Secretary of the United States Department
of the Navy, was the previously named defendant to this action. On May
29, 2020, Braithwaite became the Secretary of the United States
Department of the Navy. Pursuant to Federal Rule of Civil Procedure
25(d), the Court “automatically substitute[s] [Braithwaite] as a party.”
Fed. R. Civ. P. 25(d).
responded on January 24, 2020. (ECF No. 27.) Braithwaite replied
on February 7, 2020. (ECF No. 31.)
For the following reasons, Braithwaite’s Motion to Dismiss,

or in the alternative, Motion for Summary Judgment, is DENIED.
I. Background
Dexter Allen is an African American male whose color is brown.
(ECF No. 31-1 ¶ 1.) Allen worked for the United States Navy (the
“Agency”) as a Director of Security/ATFP (Anti-Terrorism Force
Protection) Operations and Command Security Manager at Navy
Recruiting Command (“NRC”) in Millington, Tennessee, from 2012 to
2016. (ECF No. 27 ¶ 4; ECF No. 31-1 ¶¶ 21, 22.) Allen retired
from active military service with the Navy around October 2016.
(ECF No. 27 ¶ 3; No. 31-1 ¶ 21.)
On December 12, 2016, the Agency announced a job opening for
a civilian position, titled Supervisory Security Specialist (the

“Position”), located at the NRC in Millington, Tennessee. (ECF
No. 31-1 ¶ 19.) Allen applied for the Position by submitting an
application through USAJOBS.gov and was referred to the NRC hiring
manager for résumé review and assessment of whether he should be
interviewed. (ECF No. 27 ¶¶ 5, 7.)
Résumé review and interview processes for Agency positions
are conducted by a Selection Advisory Board (“SAB”), which consists
of three Agency employees. (ECF No. 31-1 ¶ 25.) The SAB panel
for the Position (the “Panel”) consisted of: (1) James Blum,
Director of Supply Department/Logistics Management Officer at NRC;
(2) Daniel Harris, Bureau of Naval Personnel Security Manager; and
(3) Captain Hallock Mohler, then Commanding Officer and Executive

Director of Navy Recruiting District. (ECF No. 27 ¶ 10; No. 31-1
¶¶ 26, 71.) Normally, the SAB is made up of racially diverse
members, but the Panel for the Position consisted of all Caucasian
males. (ECF No. 31-1 ¶ 77.)
Résumés are graded individually against a résumé matrix by
members of the SAB. (Id. ¶ 27.) Based on scores tallied from the
résumés, the SAB selects candidates to be interviewed. (Id. ¶ 28.)
According to the Bureau of Naval Personnel (BUPERS) Guide to
Civilian Hiring (“BUPERS Guide”), after the SAB members have scored
the résumés, “if there are significant differences in SAB members’
scores, the SAB should reconcile the differences (i.e. one member’s
top candidate is another member’s bottom candidate). Members

should discuss why they assigned the score and give examples of
what they saw or did not see in the candidate’s résumé.” (ECF No.
25-10 at 13.) The BUPERS Guide does not mandate this
reconciliation requirement for the interview process. (See id. at
14.)
On his résumé scoresheet, Allen tallied scores of 70, 90, and
80 (for an average of 80) and was selected to move to the interview
stage. (ECF No. 25-11; No. 31-1 ¶ 29.) Another candidate, Steven
Hickman (Caucasian, male) tallied scores of 85, 70, and 90 (for an
average of 82) and was also selected to move to the interview
stage. (ECF No. 25-11; No. 31-1 ¶ 29.)
During the interview stage, the Panel asks interviewees the

same eleven questions. (ECF No. 31-1 ¶ 30.) Each SAB member
receives a scoring sheet for each interviewee in which the member
scores each interviewee on each question. (Id. ¶ 31.) Each SAB
member adds that member’s scores for each question to get a total
interviewee score from each SAB member. (Id. ¶ 32.) Scores from
each member are averaged to get a final score for each interviewee.
(Id. ¶ 33.) The interviewee with the highest average interview
score is recommended by the SAB to the selecting official as the
selectee. (Id. ¶ 34.) The interviewee with the second highest
score is recommended by the SAB to the selecting official as the
first alternate. (Id. ¶ 35.)
On February 2, 2017, the Panel interviewed Allen for the

Position. (ECF No. 27 ¶¶ 8, 9.) At the conclusion of his
interview, the SAB members gave him the following scores: Captain
Mohler, 85; Harris, 87; Blum, 69, for an average total score of
80. (ECF No. 31-1 ¶¶ 41, 42.)
The Panel also interviewed Hickman. At the conclusion of his
interview, the SAB members gave him the following scores: Captain
Mohler, 81; Harris, 76; Blum, 85. (Id. ¶ 39.) Those numbers were
averaged to give Hickman a total score of 81. (Id. ¶ 40.)
On February 3, 2017, based on their respective total scores,
the Panel recommended to Captain Eric Cheney, Chief of Staff, NRC,
that Hickman be selected for the Position and that Allen be the

first alternate. (ECF No. 31-2 at 28 ¶ 30; id. at 108.) Captain
Cheney forwarded the Panel’s recommendation to Gary Peterson,
Deputy Commander and Executive Director NRC, who was a selecting
official for the Position. (ECF No. 31-1 ¶¶ 7, 72; No. 31-2 at 28
¶ 30.) On June 14, 2017, the Agency notified Hickman that he had
been selected for the Position. (ECF No. 27 ¶ 14.)
Braithwaite alleges that, on May 19, 2017, Yen Nguyen, a Human
Resources Specialist at the Office of Civilian and Human Resources
(“OCHR”) Operations Center, notified Allen through USAJOBS.gov
that he had not been selected for the Position. (ECF No. 25-3 ¶¶
1, 7; id. at 3-4.) Allen says he never received that notification
and that he first learned that he had not been selected when Timika

Figgs, a colleague, told him so around September 13, 2017. (ECF
No. 27-2 at 42:5-9.)
On October 4, 2017, Allen contacted an Equal Employment
Opportunity (“EEO”) Investigator and stated a claim of race and
color discrimination. (ECF No. 31-1 ¶¶ 61, 62, 63.) On November
29, 2017, Allen filed a formal complaint with the Department of
the Navy. (ECF No. 1 ¶¶ 16, 17.) On August 11, 2018, the
Department of the Navy issued its Final Agency Decision. (Id. ¶
16.) On November 11, 2018, Allen filed this action alleging
violations of Title VII for race and color discrimination. (Id.)
During depositions in this case, it was discovered that Harris

gave Allen the following scores for his answers to the eleven
interview questions: 8, 8, 9, 9, 10, 9, 10, 10, 7, 8, and 9. (ECF
No. 31-1 ¶ 43; No. 31-2 at 90, 91.) On the interview spreadsheet,
those numbers were mistakenly added for a total of 87. (ECF No.
31-1 ¶ 43; No. 31-2 at 90, 91.) Adding those scores properly,
Allen’s total score from Harris should have been 97. (ECF No. 31-
1 ¶ 44.) Harris has admitted his scoring total of 87 for Allen
was incorrect and the correct score was 97. (Id. ¶ 45.) Had the
correct score been used, Allen’s average score would have been 83,
making him the highest scoring candidate for the Position. (Id.
¶ 46.)
On December 30, 2019, Braithwaite filed the Motion to Dismiss,

or in the alternative, Motion for Summary Judgment. (ECF No. 25.)
Allen responded on January 24, 2020. (ECF No. 27.) Braithwaite
replied on February 7, 2020. (ECF No. 31.)
II. Jurisdiction
The Court has federal question jurisdiction. Under 28 U.S.C.
§ 1331, district courts have original jurisdiction “of all civil
actions arising under the Constitution, laws, or treaties of the
United States.” Allen asserts a right to relief against
Braithwaite for employment discrimination in violation of Title
VII. (ECF No. 1 ¶¶ 60-83.) That claim arises under the laws of
the United States.
III. Standard of Review

Braithwaite moves to dismiss under Federal Rule of Civil
Procedure 12(b)(6), arguing that Allen has failed to state a claim
upon which relief may be granted because he failed to timely
exhaust his administrative remedies. (ECF No. 25-1 at 6-8.)
Alternatively, Braithwaite moves for summary judgment under Rule
56, arguing that, although Allen has established a prima facie
case of race discrimination under Title VII, Allen cannot raise a
genuine issue of material fact that Braithwaite’s legitimate, non-
discriminatory reason for failing to hire Allen was a pretext for
discrimination based on color or race. (Id. at 8-17.)
Braithwaite attaches an affidavit to support the
administrative exhaustion argument raised by his Rule 12(b)(6)

Motion. (ECF No. 25-3.) Because Braithwaite relies on matters
outside the pleadings, and because both parties have had a
reasonable opportunity to present materials pertinent to the
administrative exhaustion argument and neither party will be
surprised by the Court’s conversion, the Court treats
Braithwaite’s administrative exhaustion argument, raised under
Rule 12(b)(6), as one for summary judgment under Rule 56.2 See

2 The decision to convert Braithwaite’s motion to dismiss to one for
summary judgment is supported by the fact that Braithwaite’s Motion was
Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1105 (6th Cir.
2010) (citations omitted); Fed. R. Civ. P. 12(d).
Under Federal Rule of Civil Procedure 56(a), a court must

grant a party’s motion for summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The moving party must show that the nonmoving party,
having had sufficient opportunity for discovery, lacks evidence to
support an essential element of its case. See Fed. R. Civ. P.
56(c)(1); Peeples v. City of Detroit, 891 F.3d 622, 630 (6th Cir.
2018).
When confronted with a properly supported motion for summary
judgment, the nonmoving party must set forth specific facts showing
that there is a genuine dispute for trial. See Fed. R. Civ. P.
56(c). “A ‘genuine’ dispute exists when the plaintiff presents

‘significant probative evidence’ ‘on which a reasonable jury could
return a verdict for her.’” EEOC v. Ford Motor Co., 782 F.3d 753,
760 (6th Cir. 2015) (en banc) (quoting Chappell v. City of

filed after the scheduling order deadline to file motions to dismiss had
passed. On March 12, 2019, the Court entered a Scheduling Order setting
June 10, 2019 as the deadline for the defendant to file motions to
dismiss. (ECF No. 17 at 1.) Braithwaite’s current Motion was not filed
until December 30, 2019 -- 203 days after the Scheduling Order’s motion
to dismiss deadline had passed. (ECF No. 25.) Braithwaite did not move
to extend or show good cause why the Court should excuse his late filing.
See Century Indem. Co. v. Begley Co., 323 F.R.D. 237, 240-42 (E.D. Ky.
2018).
Cleveland, 585 F.3d 901, 913 (6th Cir. 2009)). The nonmoving party
must do more than simply “show that there is some metaphysical
doubt as to the material facts.” Lossia v. Flagstar Bancorp, Inc.,

895 F.3d 423, 428 (6th Cir. 2018) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
Although summary judgment must be used carefully, it “is an
integral part of the Federal Rules as a whole, which are designed
to secure the just, speedy, and inexpensive determination of every
action[,] rather than a disfavored procedural shortcut.” FDIC v.
Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 2009) (quotation
marks and citations omitted).
IV. Analysis
A. Administrative Exhaustion
“In permitting federal employees to sue under Title VII,
Congress conditioned the government’s waiver of sovereign immunity

upon a plaintiff’s satisfaction of ‘rigorous administrative
exhaustion requirements and time limitations.’” McFarland v.
Henderson, 307 F.3d 402, 406 (6th Cir. 2002) (quoting Brown v.
Gen. Servs. Admin., 425 U.S. 820, 833 (1976)). “A plaintiff who
alleges that a federal agency has engaged in race discrimination
must initiate contact with an EEO counselor within forty-five days
of the date of the alleged discriminatory act.” Dixon v. Gonzales,
481 F.3d 324, 330 (6th Cir. 2007) (citing 29 C.F.R.
§ 1614.105(a)(1), and Steiner v. Henderson, 354 F.3d 432, 435 (6th
Cir. 2003)); see also Green v. Brennan, 136 S. Ct. 1769, 1774-76
(2016). “Failure to comply with this requirement is grounds for
dismissal.” Hurst v. Dep’t of Veterans Affairs, 2018 WL 4178851,

at *1 (6th Cir. July 19, 2018) (citing Steiner, 354 F.3d at 435).
Because the forty-five-day requirement is a prerequisite to filing
suit and not a jurisdictional requirement, the requirement is
subject to equitable tolling, waiver, and estoppel. See Hykes v.
Lew, 2017 WL 4863108, at *2 (6th Cir. Mar. 1, 2017) (citations
omitted); 29 C.F.R. § 1614.604(c).
In a Title VII failure-to-hire case, the forty-five-day
limitations period starts to run from the date the prospective
employer communicated to the plaintiff its decision not to hire
him, not from the date on which the plaintiff discovers that the
decision not to hire him constituted discrimination. See Amini v.
Oberlin Coll., 259 F.3d 493, 498-501 (6th Cir. 2001) (holding that

the EEOC’s 300-day limitations period ran from the date on which
the plaintiff received a letter from the prospective employer
informing him that he had not received the position, not from the
date when he discovered that the person who was hired had less
experience and was younger); see also EEOC v. United Parcel Serv.,
Inc., 249 F.3d 557, 562 (6th Cir. 2001) (“[T]he limitations period
does not begin to run on a claim for employment discrimination
until an employer makes and communicates a final decision to the
employee. Once the employee is aware or reasonably should be aware
of the employer’s decision, the limitations period commences.”)
(citations omitted); cf. Green, 136 S. Ct. at 1782 (Alito, J.,
concurring) (collecting cases holding that “the time to pursue an

employment discrimination claim starts running when a
discriminatory act occurs”).
It is undisputed that Allen first contacted an EEO counselor
on October 4, 2017. (ECF No. 31-1 ¶ 61.) The parties dispute the
date the Agency communicated its decision to Allen and when Allen
was “aware or reasonably should [have been] aware” he had not been
selected for the position. United Parcel Serv., 249 F.3d at 562;
(see ECF No. 31-1 ¶ 59.) Braithwaite submits an affidavit from
Nguyen, who says that, on May 19, 2017, she notified Allen through
USAJOBS.gov that he had not been selected for the Position. (ECF
No. 25-3 ¶¶ 1, 7.) (“That on May 19th [handwritten], 2017, Mr.
Dexter Allen was notified by the attached email, 00054-00055,

through USA Jobs that he was not selected for the GS-0080013,
Supervisory Security Specialist position at NRC.”) The email to
which Nguyen refers is not dated. (See id. at 3-4.) Allen says
he never received this email notification and testified that he
first learned that he had not been selected for the Position when
Figgs told him in September 2017. (ECF No. 27-2 at 42:5-9.) This
dispute is material. It determines whether Allen contacted an EEO
counselor within forty-five days, i.e., whether Allen timely
exhausted his administrative remedies. See 29 C.F.R.
§ 1614.105(a)(1). The dispute precludes summary judgment.
The relevant regulations mandate that the Agency extend the

forty-five-day time limit in specific situations. See 29 C.F.R.
§ 1614.105(a)(2). One of those is when the plaintiff “shows that
he . . . did not know and reasonably should not have been known
[sic] that the discriminatory matter or personnel action
occurred . . . .” Id. Allen testified that he did not know that
he had not been selected until September 2017. (ECF No. 27-2 at
42:5-9.) Whether he reasonably should have known he was not
selected for the Position before then is a question for the jury.
See Yung v. Raymark Indus., Inc., 789 F.2d 397, 398 (6th Cir.
1986).3 Braithwaite’s Motion for Summary Judgment on the issue of
untimely exhaustion of administrative remedies is DENIED.

3 Braithwaite has potentially waived his untimeliness argument because
the Agency may have addressed Allen’s complaint on the merits at the
administrative level without addressing the untimeliness defense. See
Momah v. Dominguez, 239 F. App’x 114, 121 (6th Cir. 2007) (“[W]aiver []
occur[s] ‘when the agency decides the complaint on the merits without
addressing the untimeliness defense.’”) (quoting Horton v. Potter, 369
F.3d 906, 911 (6th Cir. 2004)). In his Complaint, Allen pleads that the
Navy issued a Final Agency Decision on his administrative complaint.
(ECF No. 1 ¶¶ 16, 17.) Throughout their briefing, both parties refer
to a “Report of Investigation.” The parties include only parts of the
Report in the record. (See ECF No. 27-3 at 27-30; No. 31-2 at 1-2.) It
does not show whether the Agency “decided [Allen’s] complaint on the
merits” or addressed any untimeliness arguments. Momah, 239 F. App’x
at 121. It does appear that the EEO counselor made an initial timeliness
determination -- running the limitations period from the date Allen
“[g]ained [k]nowledge of [the] [a]ction,” and concluded that Allen’s EEO
complaint was timely. (See ECF No. 27-3 at 10.) On this record, the
Court cannot determine whether Braithwaite has waived his timeliness
defense.
B. Failure-to-Hire Claim
Title VII makes it unlawful for an employer “to fail or refuse
to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin[.]” 42 U.S.C. § 2000e-2(a)(1). To survive summary
judgment, a plaintiff must first provide direct evidence of
discrimination or establish a prima facie case, which creates an
inference of discrimination based on circumstantial evidence.
Seay v. Tenn. Valley Auth., 339 F.3d 454, 463 (6th Cir. 2003)
(citing Talley v. Bravo Pitino Rest., Ltd., 61 F.3d 1241, 1248
(6th Cir. 1995)). To establish a prima facie case under Title VII
for a failure-to-hire claim, a plaintiff must show that: (1) he is
a member of a protected class; (2) he applied for, and did not
receive, a job; (3) he was qualified for the job; and (4) a

similarly situated person who was not in the plaintiff’s protected
class received the job. Overall v. RadioShack Corp., 202 F. App’x
865, 868 (6th Cir. 2006); Sheppard v. Univ. of Akron, 2019 WL
2437005, at *6 (N.D. Ohio June 11, 2019).
Once a plaintiff establishes a prima facie case, the burden
shifts to the defendant to offer a legitimate, nondiscriminatory
reason for its decision not to hire the plaintiff. Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
If the defendant satisfies that burden, the burden shifts

back to the plaintiff to show that the defendant’s proffered reason
is a pretext for discrimination. Craig v. Tenn. Dep’t of
Children’s Servs., 2019 WL 4093773, at *4 (W.D. Tenn. Aug. 29,
2019) (citing Burdine, 450 U.S. at 253). “A plaintiff can
demonstrate pretext by showing that the proffered reason (1) has
no basis in fact, (2) did not actually motivate the defendant’s
challenged conduct, or (3) was insufficient to warrant the
challenged conduct.” Brewer v. Cedar Lake Lodge, Inc., 243 F.
App’x 980, 989 (6th Cir. 2007) (citing Seay, 339 F.3d at 463).
1. Prima Facie Case and Legitimate, Non-Discriminatory Reason

Braithwaite concedes that Allen can establish a prima facie
case of race and color discrimination. (See ECF No. 25-1 at 9.)
The burden shifts to Braithwaite to articulate a legitimate, non-
discriminatory reason for its failure to hire Allen. Burdine, 450
U.S. at 253. To satisfy its burden at this stage, an employer can
“simply ‘explain[] what [it] has done’ or ‘produce[] evidence of
legitimate nondiscriminatory reasons.’” Bd. of Trs. of Keene State
Coll. v. Sweeney, 439 U.S. 24, 25 n.2 (1978) (per curiam). That
burden is “slight” and “merely one of production, not persuasion;
it involves no credibility assessment.” Halfacre v. Home Depot,
U.S.A., Inc., 221 F. App’x 424, 429 (6th Cir. 2007) (citing Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)).
Braithwaite offers a non-discriminatory reason for hiring

Hickman instead of Allen: Hickman was the “best qualified
candidate.” (ECF No. 25-1 at 9-14.) Braithwaite argues that
Hickman was the “best qualified candidate” because the selection
process followed the Agency’s standard hiring procedure and
Hickman’s average interview score (81) was higher than Allen’s
(80). (Id.) Braithwaite details the Agency’s hiring process for
the Position and produces scoresheets and application materials
supporting its justification for hiring Hickman. (ECF Nos. 25-
11, 25-12.) That is sufficient. See McQueen v. Barr, 782 F. App’x
459, 462 (6th Cir. 2019) (employer met burden when it filed the
candidates’ applications, detailed its hiring decision, and
explained why it chose the successful applicant over the

plaintiff). Braithwaite has satisfied his burden because
“[s]electing a more qualified candidate constitutes a legitimate,
non-discriminatory reason[].” Hawkins v. Memphis Light Gas &
Water, 520 F. App’x 316, 319 (6th Cir. 2013); Sutherland v. Mich.
Dep’t of Treasury, 344 F.3d 603, 616 (6th Cir. 2003) (“Quite
simply, the non-discriminatory reason for the decision to offer
the [] position to [the successful candidate] was that he achieved
an overall higher score than [the plaintiff] on the
interviews . . . .”).
2. Pretext
In a Title VII failure-to-hire case, “[w]hen the non-
discriminatory reason for the hiring decision is based on the
relative qualifications of the hired applicant and the plaintiff,

relative qualifications will establish triable issues of fact as
to pretext only where the evidence shows: (1) the plaintiff was a
plainly superior candidate, such that no reasonable employer would
have chosen the latter applicant over the former, or (2) plaintiff
was as qualified as, if not better qualified than, the successful
applicant, and the record contains ‘other probative evidence of
discrimination.’” Harris v. City of Akron, 2019 WL 5086127, at *3
(N.D. Ohio Oct. 10, 2019) (quoting Bartlett v. Gates, 421 F. App’x
485, 491) (6th Cir. 2010); see also Bender v. Hecht’s Dep’t Stores,
455 F.3d 612, 625-28 (6th Cir. 2006). “If a factfinder can
conclude that a reasonable employer would have found the plaintiff
to be significantly better qualified for the job, but this employer

did not, the factfinder can legitimately infer that the employer
consciously selected a less-qualified candidate — something
employers do not usually do, unless some other strong
consideration, such as discrimination, enters into the picture.”
White v. Baxter Healthcare Corp., 533 F.3d 381, 393–94 (6th Cir.
2008) (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C.
Cir. 1998)).
The Agency’s hiring process and evaluation criteria show that
Allen was “as qualified as, if not better qualified than,” Hickman.
Harris, 2019 WL 5086127, at *3. Given the tabulation error, it is

undisputed that Allen scored higher than Hickman and should have
been recommended for the Position. (ECF No. 31-1 ¶ 47.) Allen
can establish pretext if he shows “other probative evidence of
discrimination.” Harris, 2019 WL 5086127, at *3; cf. Burdine, 450
U.S. at 259 (“The fact that a court may think that the employer
misjudged the qualifications of applicants does not in itself
expose him to Title VII liability, although this may be probative
of whether the employer’s reasons are pretexts for
discrimination.”).
Allen argues that discrimination was evident in his hiring
process for four different reasons: (1) the Panel for the Position
consisted of three Caucasian men, which is not normal procedure;

(2) Allen’s scores were never reconciled to address the disparity
between Harris and Mohler’s scores as compared to Blum’s; (3) when
Allen previously worked for the Agency, the team for the department
he created moved into new offices, and the only two African
Americans on the team were forced to stay in old accommodations;
and (4) Blum’s hiring history shows that he consistently refused
to hire African Americans for high-profile positions. (ECF No.
27-1 at 23-24.) There is sufficient probative evidence for Allen
to meet his burden at this stage.
Panel Composition. “[D]eviation from established policy or
practice may be evidence of pretext.” Hamilton v. McDonald, 247
F. Supp. 3d 812, 821 (E.D. Ky. 2017) (citing Dunn v. Trs. of Boston

Univ., 761 F.3d 63, 73 (1st Cir. 2014)); Dobbs-Weinstein v.
Vanderbilt Univ., 1 F. Supp. 2d 783, 799 (M.D. Tenn. 1998)
(citations omitted), aff’d, 185 F.3d 542 (6th Cir. 1999). The
BUPERS Guide dictates that panel members who make hiring decisions
should be composed of members who are of mixed gender and are
racially diverse. (ECF No. 25-10 at 10, 26; see also No. 31-1
¶ 77.) The Panel for the Position consisted of three Caucasian
men. (ECF No. 31-1 ¶ 77.) That was not normal procedure. (Id.)
Blum testified that he “didn’t feel like [the Panel was] diverse
enough.” (ECF No. 25-8 at 25:19-26:5.) He testified that this
was the first panel on which he served where all three members
were the same race and gender. (Id. at 26:18-27:2.) Harris

testified that he was “concerned about the potential appearance of
the [Panel’s] membership because the board consisted of three White
males” and that there was no “minority or female representation on
the [Panel].” (ECF No. 27-3 at 58.) This deviation from
established Agency policy governing panel make-up is probative.4

4 Braithwaite relies on a statement in White v. Columbus Metropolitan
Housing Authority that “an employer’s failure to follow self-imposed
regulations or procedures is generally insufficient to support a finding
of pretext.” 429 F.3d 232, 246 (6th Cir. 2005). That statement, however,
was in the context of policy deviations that were “minor” or
“insufficiently established.” See id. The BUPERS Guide is not a minor
policy of the Agency or insufficiently established. Although White
Reconciliation. “The fact that the interview panel members
award[] different scores — even significantly different
scores . . . — does not undermine [a] conclusion that []

applicants were simply scored by the panel members as each saw
appropriate based on the pre-determined criteria.” Sutherland,
344 F.3d at 619. However, “deviation from established policy or
practice [in reviewing those scores] may be evidence of pretext.”
Hamilton, 247 F. Supp. 3d at 821.
If there are significant differences in candidates’ résumé
scores, the BUPERS Guide dictates that panel members attempt to
reconcile their scores. (ECF No. 25-10 at 13.) “Reconcile” means
to discuss how each panel member scored the interviewee and why he
was scored that way in order to reach a consensus. (ECF No. 31-1
¶ 51.) Although the BUPERS Guide does not mandate this
reconciliation requirement for the interview process, (see id. at

14), Harris said that in his experience, it was the Agency’s custom
to reconcile disparities between interviewee scores as well as
résumé scores. (ECF No. 27-3 at 62-63 ¶ 30.) Terry Person, a
Human Resources Management and Program Assistant who was present
during Allen’s interview, said that, “if one person scores
consistently lower than the other panelists the board should

opined that the failure to follow self-imposed regulations or procedures
is “generally” insufficient to establish pretext, that does not compel
the conclusion that the failure is not probative or not sufficient when
combined with other probative evidence of pretext, as here.
discuss it and take it to the next higher authority for resolution
if they have to.” (ECF No. 31-1 ¶ 56.) Allen had a similar
understanding. (See ECF No. 27-2 at 179:3-21.) Although the

BUPERS Guide does not expressly mandate reconciliation for the
interview process, there is a dispute about whether reconciliation
was the Agency’s practice or custom.
Here, Allen received interview scores of 87 (Harris), 85
(Mohler), and 69 (Blum). (ECF No. 31-1 ¶ 41.) Given the
disparities among those scores, Allen contends that the Panel
should have tried to reconcile them, and that reconciliation never
happened. (ECF No. 27-1 at 6-13.) Person said “Mohler showed
[him] the scores,” and Person thought Mohler did that because
“Blum’s scores for [Allen] were consistently lower than the other
panelists’ scores.” (ECF No. 31-2 at 98 ¶¶ 22, 24.) Person told
Mohler, “[i]f you think [Blum’s] scores are out of line you can

talk to my supervisor . . . about it.” (Id. at 98 ¶ 24.) Mohler
said that he did not show Person Blum’s scores because they were
substantially lower than Allen’s, but “to ensure [that Person]
knew [the Panel] w[as] following the rules.” (Id. at 30 ¶¶ 37,
38.) Roberto Chang, the Human Resources Director who was present
during Allen’s interview, said he communicated to Mohler that he
thought the scores were disparate and that the Panel “may want to
go back and discuss and reconcile the scoresheets.” (ECF No. 27-
3 at 76-77 ¶ 22.) Chang said Mohler responded that the Panel
“reconciled and they were good with their scores.” (Id.) Harris
contends that no reconciliation ever took place. (ECF No. 31-1
¶ 55.) Cheney contends that he “review[ed] the scoresheets and

found no significant anomalies that would make [him] question the
integrity of the board or the process.” (ECF No. 31-2 at 14 ¶
29.)
There is a dispute about whether reconciliation occurred. It
is not disputed that the final scores submitted for Allen were
disparate. The Agency’s practice and policy of reconciliation
(including the potential custom of reconciliation during the
interview process), and deviation from it, if any, is probative.
See Hamilton, 247 F. Supp. 3d at 821.
New Offices. Allen represents that, “when the team for the
department Mr. Allen created moved into new, modern offices, the
only two African Americans on the team were forced to stay in old,

outdated and decrepit accommodations.” (ECF No. 27-1 at 23.) He
argues that, “[d]uring a conversation surrounding where certain
personnel should be placed when the new department was implemented,
[] Blum told Mr. Allen ‘you won’t always get what you want.’” (ECF
No. 31-1 ¶ 78.) Allen argues that Blum’s statement is probative
of Blum’s and the Agency’s “discriminatory animus against African
Americans.” (See ECF No. 27-1 at 23.) Braithwaite denies that
the justification for the personnel placement was due to racial
animus. (ECF No. 31-1 ¶ 76.) Braithwaite denies that Blum’s
statement is an accurate quotation. (Id. ¶ 78.)
It is undisputed that, while Allen worked for the Agency and

when some of the personnel moved into new offices, Allen and Figgs,
the only two who were African American, did not move into the new
space. (ECF No. 31-1 ¶¶ 74, 75.) Cheney, who was allegedly
responsible for that decision, says that he “directed [and] wanted
all of the team in the new office and [] Allen requested that
[Allen and Figgs] remain in the old office so they could conduct
interviews in private.” (ECF No. 31-2 at 15-16 ¶ 34.)
The reasoning behind the office space allocation and whether
Blum made the statement Allen alleges he did are disputed. That
dispute is not material because, generally, statements and facts
unrelated to a decisional process itself are not probative of
discrimination in the hiring process. See Geiger v. Tower Auto.,

579 F.3d 614, 621 (6th Cir. 2009) (“Statements by
nondecisionmakers, or statements by decisionmakers unrelated to
the decisional process itself [cannot] suffice to satisfy the
plaintiff’s burden . . . of demonstrating animus.”) (citing Bush
v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir. 1998)). Blum’s
statement, even if accurately quoted, is not probative.
Blum’s Hiring History. Allen argues that “Blum’s hiring
history shows that he consistently failed to select African
Americans for positions that would have exposure as the face of
the program.” (ECF No. 27-1 at 23-24.) Allen argues that, before
being placed on the Panel for the Position, Blum had been the
selection official for positions filled by three African American

applicants, but that those positions “were support positions, not
positions that would be outward-facing or that held any real
responsibility or authority.” (Id. at 24.) Allen does not provide
evidence of the relative qualifications of those applicants or
provide other evidence that Blum’s decisions in those cases were
influenced by racial animus. This fact is not probative.
Scoring. Allen refers to a fifth probative fact: that Person
believed Blum “intentionally scored [Allen] lower so he would not
be selected for the [P]osition.” (ECF No. 31-2 at 99 ¶ 26-27.)
Blum explained that his scores were awarded based on Allen’s
answers and Blum’s conclusion that, when compared to Allen, Hickman
“came across as very well-spoken,” “clear,” “answered more of the

questions completely,” and “did a better overall job of tying in
his experiences with what he was saying.” (ECF No. 25-8 at 69:9-
20.) Person believes that Blum’s justification is pretextual
because “[Allen] was the only candidate Mr. Blum scored
consistently lower.” (ECF No. 31-2 at 98 ¶ 22.) Person said it
was a “possibility” that Allen’s race and color were factors in
Blum’s scoring. (Id. at 101 ¶ 32.) That is probative.
There is evidence that Allen was as qualified as, or better
qualified than Hickman. Allen has provided probative evidence of
discrimination. That is normally enough for Allen to establish
pretext. See Harris, 2019 WL 5086127, at *3; see also Jenkins v.
Nashville Pub. Radio, 106 F. App’x 991, 995 (6th Cir. 2004)

(genuine dispute of material fact as to pretext when the plaintiff
provided evidence of irregularities in the hiring selection
process, inconsistencies in the reasons given by the defendant for
not hiring the plaintiff, and the lack of African American women
in supervisory positions at the defendant’s business, as well as
evidence of her allegedly superior qualifications). Braithwaite
argues, however, that Allen cannot establish pretext as a matter
of law because of the honest belief rule.
3. Honest Belief Rule
This Circuit has adopted an honest belief rule, which provides
that an employer may “‘avoid a finding that its claimed
nondiscriminatory reason was pretextual’ if it establishes that it
‘reasonabl[y] reli[ed] on the particularized facts that were

before it at the time the decision was made,’ even if evidence
later shows that the reason was baseless.” Yazdian v. ConMed
Endoscopic Techs., Inc., 793 F.3d 634, 653 (6th Cir. 2015) (quoting
Wright v. Murray Guard, Inc., 455 F.3d 702, 708 (6th Cir. 2006)).
“The rationale behind the rule is that the focus of a
discrimination suit is on the intent of the employer.” Smith v.
Chrysler Corp., 155 F.3d 799, 806 (6th Cir. 1998). “If the
employer honestly, albeit mistakenly, believes in the non-
discriminatory reason it relied upon in making its employment
decision, then the employer arguably lacks the necessary
discriminatory intent.” Id. That is true even if the employer’s

“conclusion is later shown to be ‘mistaken, foolish, trivial, or
baseless.’” Tingle v. Arbors at Hilliard, 692 F.3d 523, 531 (6th
Cir. 2012) (quoting Chen v. Dow Chem. Co., 580 F.3d 394, 401 (6th
Cir. 2009)). “The key inquiry . . . is whether the employer made
a reasonably informed and considered decision before taking the
complained-of action.” Id. (quotation marks and citations
omitted).
If the employer establishes its honest belief, “[t]he
employee, in turn, ‘must be afforded the opportunity to produce
evidence to the contrary, such as an error on the part of the
employer that is too obvious to be unintentional.’” Blizzard v.
Marion Tech. Coll., 698 F.3d 275, 286 (6th Cir. 2012) (quoting

Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 286 (6th Cir.
2012)). “[T]he employee must allege more than a dispute over the
facts upon which the discharge was based. He must put forth
evidence which demonstrates that the employer did not ‘honestly
believe’ in the proffered non-discriminatory reason for its
adverse employment action.” Id. (citing Braithwaite v. Timken
Co., 258 F.3d 488, 494 (6th Cir. 2001)).
Here, Braithwaite argues that there is no evidence that race
was a factor in the hiring process and that, although the correct
tabulation shows Allen should have scored higher than Hickman,
there is no evidence that the incorrect tabulation was on purpose
or ignored as a pretext for discrimination. Braithwaite argues

that it was the Agency’s honest belief that Hickman was the best
qualified candidate due to his higher score. (ECF No. 31 at 3-
10.) Braithwaite argues that, although “the [hiring] process was
not perfect, the decision was a reasonably informed and considered
one” because the Agency went through an extensive interview process
with multiple steps. (See id. at 3-4.)
Allen argues that there were a “number of failings at various
stages of the selection process, including failure to verify resume
information, failure of basic math, and a failure to abide by
standard operating procedures regarding reconciliation[,] . . .
[and that] [t]hese failures demonstrate . . . that the selection
procedure [was] not a reasonably informed process.” (ECF No. 27-

1 at 25.)
The record can support a finding that the Agency honestly
believed that Hickman was the best qualified candidate. It is
true that the Agency’s ultimate hiring decision was later shown to
be mistaken and that some of the failures Allen mentions led to
that mistake. Those “mistake[s],” alone, however, would be
insufficient to show that the Agency’s process was not reasonably
informed and that it did not honestly believe in its decision.
See Tingle, 692 F.3d at 531. The Agency has shown that it made a
“reasonably informed and considered decision” before selecting
Hickman. Id. The burden shifts to Allen to “produce sufficient
evidence from which the jury could reasonably reject [the Agency’s]

explanation and infer that the [Agency] . . . did not honestly
believe in” the alleged nondiscriminatory reasons for its
decision. Id. (quotation marks omitted) (citing Braithwaite, 258
F.3d at 493–94).
There is evidence in the record on which a jury could rely to
reasonably reject the Agency’s asserted belief that Hickman was
the best qualified candidate. First, a jury could conclude that
Blum did not honestly believe that Hickman was more qualified than
Allen in his scoring of the interviewees’ answers. As discussed
supra, Person, who was in the room when Allen and Hickman were
interviewed and listened to all of the interview answers, believed
that Blum intentionally scored Allen lower so he would not be

selected for the Position. (ECF No. 31-2 at 99 ¶¶ 26-27.) If
Person, who had first-hand exposure to the interviews, believed
that Blum intentionally scored Allen lower, it is reasonable that
a jury could believe so.
Second, there is evidence in the record that the Agency did
not adhere to its custom of reconciling disparate interview scores.
If the Agency had a custom of reconciling disparate interview
scores, and did not do so here, a jury could find that the Agency
did not honestly believe that it was making a “reasonably informed
and considered decision.” See Tingle, 692 F.3d at 531.
Third, there is evidence that Cheney, who was one of the

ultimate decisionmakers for the Position, might not have believed
that Hickman was the best qualified candidate. Cheney said he
expected Allen to “come out at number one in the resume and
interview process” and that he “was actually hoping [Allen] would
be selected for the job.” (ECF No. 25-13 at 8 ¶ 22; id. at 15
¶ 40.) Cheney said that, “because [Allen] did not score the
highest [he] had to pick someone else” because “[t]o select [Allen]
over the highest scoring candidate would have been unethical and
in [his] opinion would have resulted in a legitimate EEO complaint
or grievance from the other person.” (Id. at 8 ¶ 22.) A jury
could reasonably conclude that Cheney did not honestly believe
that Hickman was the best qualified candidate for the Position.

Although the Agency has asserted an honest belief that Hickman
was the best qualified candidate, Allen has put forth evidence on
which a reasonable jury could “reject [the Agency’s] explanation
and infer that the [Agency] . . . did not honestly believe in” the
alleged nondiscriminatory reasons for its decision. Tingle, 692
F.3d at 531. Braithwaite’s Motion for Summary Judgment on the
merits is DENIED.
V. Conclusion
For the foregoing reasons, Braithwaite’s Motion to Dismiss,
or in the alternative, Motion for Summary Judgment, is DENIED.

So ordered this 14th day of July, 2020.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10439938. Public record. Not legal advice.