Salazar v. Washington Metropolitan Area Transit Authority

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2004 Decided March 22, 2005

No. 03-7174

LUIS SALAZAR,

APPELLANT

v.

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 99cv01631)

Gary T. Brown argued the cause and filed the briefs for

appellant.

Sara L. Bloom, Assistant General Counsel, Washington

Metropolitan Area Transit Authority, argued the cause for

appellee. With her on the brief were Carol B. O’Keeffe, Acting

General Counsel, Bruce P. Heppen, Associate General Counsel,

and Gerard J. Stief, Associate General Counsel.

Before: SENTELLE and TATEL , Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

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Dissenting opinion filed by Senior Circuit Judge WILLIAMS.

TATEL, Circuit Judge: Following several promotion

denials, appellant, a mechanic, sued the Washington

Metropolitan Area Transit Authority, alleging that it had

violated Title VII by discriminating against him on the basis of

national origin and by retaliating against him for engaging in

protected activities. The district court granted summary

judgment for WMATA. Because we believe that a reasonable

jury could find in appellant’s favor with regard to one of his

claims, we reverse the summary judgment ruling on that count

and remand that portion of the case for further proceedings.

I.

Appellant Luis Salazar, a Peruvian-born Latino, began

working for WMATA in 1982 as a bus cleaner. Over the next

six years, he worked his way up through several promotions to

“Mechanic AA” for Heating, Ventilation, and Air Conditioning.

During these and later years, Salazar took numerous night

classes in technical skill subjects and pursued a B.A. at the

University of the District of Columbia.

As a Mechanic AA, Salazar held the highest nonsupervisory

ranking available at WMATA and occasionally served as acting

supervisor at his post in Greenbelt, Maryland. Seeking to

advance further, he applied five times from 1992 to 1999 for

promotions to entry-level supervisory positions. The application

process for each position had the same general structure.

WMATA first screened out applicants who failed to meet

certain minimum requirements. It then selected a panel of

supervisors to interview the remaining candidates. The

chairperson developed a list of interview questions and assigned

each one a weight. At the interviews, some of which were

attended by an observer from WMATA’s Office of Civil Rights,

each panel member graded each candidate on his or her response

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to each question. After tallying the scores, the panel

recommended that the appointment go to the candidate with the

highest total points.

Salazar’s first four promotion applications met with failure.

The fifth time—the one chiefly at issue in this case—Salazar

applied for the position of Craft Supervisor in General

Equipment at Metro Center. That position required certain

mechanical knowledge, including skill at “trouble shooting the

electrical/mechanical systems located at bus and rail facilities,

and operating/repairing the smoke ventilation fans, drainage

pumping stations, sewage ejectors and pneumatic damper

sections.” When Salazar applied for this position, he contacted

Charles Thomas, the Deputy General Manager at Metro, and

asked him to ensure that Gary Lewis, the Superintendent for

Plant Equipment Maintenance, would not select the members of

the interview panel. According to Salazar, Lewis, who had

selected the panel members for at least some of Salazar’s prior

promotion denials, discriminated against Latinos. Indeed,

Salazar had filed at least one grievance accusing Lewis of

supporting a racially discriminatory supervisor. In his affidavit,

Salazar states that he “explained to Mr. Thomas how each time

Gary Lewis selected the panel I was . . . denied the promotion

because Mr. Lewis would ‘stack’ the panel with his friends.

These friends, like Mr. Lewis, were discriminatory against

Latino people, like myself.” Responding sympathetically,

Thomas, according to Salazar’s affidavit, “selected the panel,

which included only three persons,” all of whom Salazar

acknowledged were not Lewis’s friends and not likely to be

discriminatory.

Salazar and five other applicants met the minimum

qualifications and advanced to the interview round. Of these

applicants, Salazar had the most seniority by several years.

Expecting an interview with the three men selected by

Thomas, Salazar was surprised to find a fourth man, Buddy

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Jaggie, serving as chair. Salazar’s surprise stemmed not only

from Thomas’s promise of just three panelists, but also from the

fact that “all the panels I had interviewed with in the past years

had been made up of three members, not four.” More

significantly, Jaggie, who held the post of Assistant

Superintendent for Plant Maintenance, was Lewis’s assistant as

well as his close friend. Salazar distrusted Jaggie not just

because of Jaggie’s relationship with Lewis but also because,

while working towards the Mechanic AA position years ago,

Salazar had consistently failed a test administered by Jaggie,

passing only after filing a grievance to obtain outside review.

Jaggie acknowledged that he was “probably” appointed to

the panel by Lewis. He explained that before the interview, he

“made up [the] questions” and assigned a point value to each

question. He consulted with Lewis in determining these

weights. Ultimately, Jaggie developed 13 questions worth a

total of 190 points: 12 questions calling for a spoken answer (8

worth 10 points each and 4 worth 20 points each) and 1 question

(worth 30 points) requiring a written answer. Only 2

questions—each worth 10 points and thus amounting to less

than a ninth of the total—directly addressed the candidates’

experience and education. Other questions posed hypothetical

scenarios (3 questions worth 50 total points), inquired about

Metro policies and their implementation (3 questions worth 30

total points), called for technical responses (4 questions worth

80 total points), and probed the candidates’ motivation levels (1

question worth 10 points). Jaggie also drafted model answers

for the panelists to use during the interviews.

At the interviews, the four panelists asked Jaggie’s

questions and scored the six candidates. On the two experience-

related questions, Salazar scored above all other candidates, but

overall he came in fourth. Jaggie and two other panelists gave

Salazar mediocre scores, while the remaining panelist scored

Salazar better than all other candidates. Had Jaggie’s scores not

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counted, Salazar would still have finished fourth overall.

WMATA’s observer thought “[t]he interviews were conducted

in a fair and nondiscriminatory manner.”

According to Salazar—and WMATA offers no evidence to

the contrary—WMATA did not assign the successful candidate,

Timothy Tucker, to the Metro Center supervisory “position for

which he was selected.” Instead, Salazar states, “Gary Lewis

moved Mr. Tucker to Greenbelt to work as a support equipment

supervisor. . . . Working at Greenbelt required less responsibility

than in Metro Center.”

After exhausting the EEO process, Salazar sued WMATA,

alleging discrimination and retaliation in violation of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3,

with regard to all five promotion denials. The district court

found his claims related to the first three promotion denials to be

procedurally barred, and it granted WMATA’s motion for

summary judgment on the claims related to Salazar’s last two

promotion denials—the one described above for the position in

General Equipment at Metro Center and one earlier that spring

for a position in Metro’s shop in Alexandria. Specifically, the

court held that Salazar could not show that WMATA’s asserted

reason for refusing to promote him was pretextual. Salazar v.

Wash. Metro. Area Transit Auth., No. 99-1631, slip op. at 5

(D.D.C. Oct. 30, 2003). Salazar now appeals.

II.

We review the district court’s grant of summary judgment

de novo, viewing the evidence in the light most favorable to

Salazar and drawing all reasonable inferences accordingly. E.g.,

Dunaway v. Int’l Bhd. of Teamsters, 310 F.3d 758, 761 (D.C.

Cir. 2002). We will affirm only if no reasonable jury could find

in his favor. Id.

The district court granted summary judgment to WMATA

on four counts: Salazar’s discrimination claims related to the

6

Alexandria and Metro Center positions and his parallel

retaliation claims. As an initial matter, we find that Salazar has

preserved only his discrimination claim regarding the Metro

Center position. His briefs address none of the other three

claims, and while his retaliation claim as to the Metro Center

position undoubtedly has much in common with his

discrimination claim, he never refutes WMATA’s argument that

he has failed to prove a prima facie case for retaliation. Salazar

has thus waived these three claims. See, e.g., Ark Las Vegas

Rest. Corp. v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003)

(observing that an argument not raised in briefs is waived).

We view Salazar’s remaining claim through the framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). To survive summary judgment, Salazar must first show

that he satisfies the four elements of the prima facie case for a

discrimination claim. WMATA concedes that Salazar has made

this showing: as a foreign-born Latino, he is a member of a

protected class; he applied for the promotions; he had the

minimum qualifications needed; and he lost out to a non-Latino.

Next, if the employer “produce[s] admissible evidence that, if

believed, would establish that [its] action was motivated by a

legitimate, nondiscriminatory reason,” the plaintiff must show

that a reasonable jury could nonetheless infer discrimination.

Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151 (D.C.

Cir. 2004). In this case, WMATA claims that it did not promote

Salazar because “[m]ore qualified candidates were selected for

the position through a fairly administered selection process.”

Appellee’s Br. at 13. For purposes of this appeal, the question

then becomes whether a reasonable jury could find in Salazar’s

favor based on all the evidence, including “(1) the plaintiff’s

prima facie case; (2) any evidence the plaintiff presents to attack

the employer’s proffered explanation for its actions; and (3) any

further evidence of discrimination that may be available to the

plaintiff (such as independent evidence of discriminatory

statements or attitudes on the part of the employer).”

7

Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (D.C.

Cir. 2002) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,

1289 (D.C. Cir. 1998) (en banc)) (internal quotation marks

omitted).

In claiming that it rejected Salazar through a fair process,

WMATA relies on our decision in Fischbach v. District of

Columbia Department of Corrections, 86 F.3d 1180 (D.C. Cir.

1996), which found no inherent discrimination in a job

application process structured similarly to WMATA’s. We held

that where the employer had followed its usual procedure, there

was “nothing the least bit fishy about the interviewers’ giving

slightly less emphasis to the applicants’ credentials than to the

manner in which each candidate proposed to do the

job—especially when one considers that they had the benefit of

a prior determination that all of the interviewees were qualified.”

Id. at 1184. We reversed the district court’s ruling in favor of

the plaintiff, since that court had based its conclusion on “its

own opinion that [the plaintiff] was more qualified than the

[successful candidate].” Id.

Unlike the plaintiff in Fischbach, Salazar does not allege

that WMATA’s selection process is discriminatory simply

because it may not always end up with the best-qualified

candidate. Indeed, Salazar never claims that WMATA’s general

process is discriminatory. His challenge turns instead on the

specific process used by WMATA in selecting a candidate for

the Metro Center position. Although we find the fact that

Salazar had a four- rather than three-member panel not all that

probative—particularly since WMATA had deviated from its

normal appointment process in response to Salazar’s

concerns—we are more troubled by Jaggie’s role as chair.

Salazar alleges that after he told Thomas that Lewis and his

panel appointees discriminated against Latinos, Thomas

promised Salazar a panel that Lewis would have no hand in

selecting. Yet Lewis ended up appointing Jaggie as the panel’s

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chair and even helped determine the weights of the questions.

We agree with Salazar that a jury could infer something “fishy”

from the fact that Lewis placed himself squarely at the center of

a process designed to exclude him. Specifically, a jury could

conclude that WMATA failed to provide a “fairly administered

selection process” and that its claim to the contrary is pretextual.

Cf. Lathram v. Snow, 336 F.3d 1085, 1093-94 (D.C. Cir. 2003)

(holding that a jury could draw an inference of discrimination

where an agency departed from its normal process without

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

1982) (noting that although “a finding of a failure on the part of

the prospective employer to follow its own regulations and

procedures, alone, may not be sufficient to support a finding of

. . . discrimination,” such a failure “is a factor that the trier of

fact may deem probative . . . in determining the true motivation

behind the hiring decision of the prospective employer”).

To be sure, the scores Jaggie gave Salazar differed little

from those given by two other panelists whom Salazar himself

acknowledges would be unlikely to discriminate. It is also true

that Salazar would have finished fourth even had Jaggie’s scores

not counted, and no evidence suggests that Jaggie attempted to

influence the other panelists’ scores during the interview. As

Salazar points out, however, Jaggie’s role in the process went

beyond the specific scores he gave Salazar. Jaggie “not only

developed the questions but assigned the relative value for

each,” Appellant’s Br. at 20, and had apparently unfettered

discretion in doing so. Jaggie consulted with Lewis as to the

weights of the questions—thus extending Lewis’s influence

beyond Jaggie’s appointment—and they developed an interview

format that by design assigned only marginal value to

candidates’ experience and education, which were Salazar’s

particular strengths.

The possibility that the interview process for the Metro

Center job may not have been fairly designed increases in light

9

of the fact that Tucker, the successful candidate, never held that

job. Instead, Lewis transferred Tucker to what Salazar

described as a less difficult job in Greenbelt—a characterization

not contested by WMATA. From this, we think a reasonable

jury could infer that Tucker was unsuited for the Metro Center

job and that the selection process was geared not to finding the

best person for the position, but rather to keeping Salazar from

advancing.

In sum, though it is a close call, when we view the evidence

in the light most favorable to Salazar and make all reasonable

inferences in his favor, as we must at this stage of the litigation,

see Dunaway, 310 F.3d at 761, we think a reasonable jury could

find pretextual WMATA’s assertion that it employed a fairly

administered selection process with regard to the Metro Center

job. The jury could base this determination on Lewis’s

unexplained participation—despite Thomas’s assurances—that

in turn led to the appointment of Jaggie and the development of

the interview agenda, including the weights of the questions,

along with Tucker’s subsequent move to Greenbelt.

The dissent disagrees with our conclusion that a reasonable

jury could infer that WMATA’s claim of a fairly administered

selection process was pretextual. In reaching its own conclusion

to the contrary, the dissent both ignores this court’s obligation

to draw reasonable inferences in Salazar’s favor and relies on

arguments never made by WMATA.

First, the dissent doubts that a reasonable jury could find

anything suspect about the fact that Tucker moved to a less

rigorous job rather than ending up in the Metro Center position,

speculating that “the innocent reasons why a winning competitor

might take another job are legion—personal convenience, a

better fit with his skills, a better match with fellow workers,

etc.” Dissenting op. at 2. Although we agree that a jury may

draw such inferences, nothing in the record suggests it must, and

at this stage in the process we are required to view the evidence

10

in Salazar’s favor, not WMATA’s, see Dunaway, 310 F.3d at

761. The dissent’s list of “innocent reasons” has another

problem: WMATA never offers any, much less the ones

suggested by the dissent. Indeed, WMATA’s brief never

mentions Tucker’s transfer at all. Attempting to neutralize the

implications of this transfer, the dissent abandons our general

rule of requiring parties to make their own arguments. See, e.g.,

Williams v. United States, 396 F.3d 412, 415 (D.C. Cir. 2005)

(noting that we find forfeited any arguments not raised in

briefs).

Second, the dissent points out that a “departure from [a]

departure” from existing practice could be unsuspicious. See

dissenting op. at 3. Once again, we see no reason to assume that

a reasonable jury must make that inference; a jury could instead

see this fact as undermining WMATA’s assertion that it

provided a fair and neutral selection process. This is particularly

true since WMATA neither disputes the substance of Thomas’s

promise to Salazar nor explains why, in light of that promise,

Lewis nonetheless ended up appointing the chairperson and

helping him determine weights.

Lastly, the dissent reasons that WMATA’s given

explanation—that it had a fairly administered selection

process—must be true because, as the dissent sees it, Salazar

would have lost under virtually any circumstances. See id. at 3-

6. We are not as certain. The parties’ arguments on this front

are piecemeal. Salazar claims that “because Mr. Jaggie assigned

the weights to the questions asked by the panel, he was able to

minimize Mr. Salazar’s strengths, which included his vastly

superior experience and training.” Appellant’s Br. at 20.

Attempting to neutralize Salazar’s claim that Jaggie tainted the

process, WMATA points out—correctly—that Salazar would

not have won even had Jaggie’s scores and the technical

questions been eliminated. Appellee’s Br. at 17. Salazar

responds less specifically, but also accurately, that by “weighing

less significant questions more and by minimizing the value of

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the important questions regarding experience, education and

training, the selectee came up with a higher score,” and he calls

into question “the validity of those values, how significant [sic]

items were weighted heavily and significant ones given less

weight and the reasonableness of the method of obtaining them.”

Reply Br. at 2. Although a reasonable jury could well embrace

WMATA’s position that Jaggie arranged a fair interview process

based on his conduct at the interview and the content of the

interview questions, we think it also possible that a jury could

infer, in line with Salazar’s arguments, that Jaggie and Lewis

selected an interview agenda which, though facially acceptable,

was designed to downplay Salazar’s strengths.

To reach its conclusion that no reasonable jury could think

that Jaggie’s interview schema disadvantaged Salazar, the

dissent substitutes its own arguments for those made by

WMATA. The dissent relies on the fact that “[i]f all questions

had been weighted equally, Salazar would still have finished in

fourth place,” dissenting op. at 5—a point never made by

WMATA. Moreover, not only does WMATA never suggest

that equal weights are its norm, but the dissent gives no reason,

nor can we think of one, to assume that it should be. The dissent

further argues that we must discount the value of a “scoring

error” in Salazar’s favor, id., that WMATA itself neither

claimed was an error nor sought to change on the “Corrected

Scoring Matrix” it submitted to us. In relying on these points

the dissent must not only ignore our doctrine of waiver, see, e.g.,

Williams, 396 F.3d at 415, but also assume that a reasonable jury

must reach the same conclusions without WMATA even raising

the issues. Cf. Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.

1983) (noting that the “premise of our adversarial system is that

appellate courts do not sit as self-directed boards of legal inquiry

and research, but essentially as arbiters of legal questions

presented and argued by the parties before them”).

We further note that while the dissent is willing to make

unraised arguments favoring WMATA, it makes no similar

12

effort on Salazar’s behalf. The dissent never considers, for

example, whether Jaggie’s unexpected presence at the interview

may have caused Salazar to underperform, although the record

contains evidence that might support this. Nor does the dissent

point out that Salazar’s argument that Jaggie weighted the

questions to disadvantage him finds support even under the

dissent’s evenly weighted scheme. Excluding Jaggie’s scores

but using Jaggie’s and Lewis’s weights, Salazar’s average score

was 129, only 86.6% of Tucker’s 149, 87.8% of the second-best

candidate’s 147, and 91.1% of the third-best candidate’s 142.

With even weights, Salazar comes significantly closer: with an

average score of 94, he has 92.1% of Tucker’s 102, 96.6% of the

second-best candidate’s 98, and 99.1% of the third-best

candidate’s 95. And by tweaking the equal weights, there are

many possible scenarios under which Salazar can win. He

would win by tripling the two experience-and-education-related

questions, by doubling those scores and the scores of two other

questions, or by many other permutations. Even assuming, as

the dissent does—but not WMATA— that a jury must conclude

that one scorer overscored Salazar and that it must therefore

discount this score, Salazar can still win by less drastic methods

than the dissent implies, see dissenting op. at 5-6: he could win

by halving two questions and tripling two others, by tripling four

questions, by dropping three questions, or by various other

scenarios. We pose these possibilities only to illustrate the

problems implicit in abandoning our “salutary rule,” see id. at 6,

of sticking to the parties’ arguments rather than striking out on

our own.

Having failed—through unraised arguments and inferences

that favor WMATA—to find anything probative in any of

Salazar’s arguments, the dissent has no need to consider their

cumulative effect. But we do, and considering Salazar’s

evidence all together and giving him the benefit of every

reasonable inference, we think a reasonable jury could find

pretext.

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Finally, we must consider whether a jury which found that

WMATA rigged the process to keep Salazar from getting the job

could further conclude that WMATA did so because of

Salazar’s national origin. In Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133 (2000), the Supreme Court held

that “[i]n appropriate circumstances, the trier of fact can

reasonably infer from the falsity of the explanation that the

employer is dissembling to cover up a discriminatory purpose,”

particularly since “the employer is in the best position to put

forth the actual reason for its decision.” Id. at 147; see also Aka,

156 F.3d at 1293 (noting that “[t]he jury can conclude that an

employer who fabricates a false explanation has something to

hide; that ‘something’ may well be discriminatory intent”). A

reasonable jury may not infer discrimination, however, “if the

record conclusively revealed some other, nondiscriminatory

reason for the employer’s decision, or if the plaintiff created

only a weak issue of fact as to whether the employer’s reason

was untrue and there was abundant and uncontroverted

independent evidence that no discrimination had occurred.”

Reeves, 530 U.S. at 148.

Here, WMATA offers no explanation for its hiring decision

other than its “fair process” argument; indeed, WMATA gives

no explanation for how, given Thomas’s promise to Salazar,

Lewis came to appoint the panel chair. And while the presence

of the other panelists and the near parity between their scoring

and Jaggie’s scoring, see supra at 8, weakens the likelihood that

a jury could find pretext, it does not amount to “abundant and

uncontroverted independent evidence” that Lewis and Jaggie did

not discriminate. Under Reeves, then, we believe a jury might

infer discrimination if it concluded that WMATA’s proffered

reason was pretextual. See 530 U.S. at 147-49; Aka, 156 F.3d at

1290-92; cf. Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100

(2003).

Because given this evidence we would not disturb a jury

verdict in Salazar’s favor, we cannot uphold a summary

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judgment order concluding otherwise. Reeves, 530 U.S. at 150

(noting that “the standard for granting summary judgment

mirrors the standard for judgment as a matter of law, such that

the inquiry under each is the same”) (internal quotation marks

omitted). We reverse and remand with regard to Salazar’s

discrimination claim relating to the Metro Center job. In all

other respects, we affirm.

So ordered.

WILLIAMS, Senior Circuit Judge, dissenting: The

majority concludes that a reasonable jury could find in

appellant’s favor with regard to one of his claims. Maj. Op. at

2. Like the majority, I view the evidence as a “close call,”

Maj. Op. at 9, but I believe no reasonable jury could make the

required finding.

In Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133 (2000), the Supreme Court stated that

an employer would be entitled to judgment as a matter of

law if the record conclusively revealed some other,

nondiscriminatory reason for the employer’s decision, or

if the plaintiff created only a weak issue of fact as to

whether the employer’s reason was untrue and there was

abundant and uncontroverted independent evidence that

no discrimination had occurred.

Id. at 148; see also Aka v. Washington Hospital Center, 156

F.3d 1284, 1291-92 (D.C. Cir. 1998) (en banc). This is just a

linguistic variant of the standard rule that the party with the

burden of persuasion cannot defeat summary judgment by

offering only a “scintilla” of proof. See, e.g., Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Taylor v.

Small, 350 F.3d 1286, 1295 (D.C. Cir. 2003). In my view,

Salazar’s evidence, viewed in the light most favorable to him,

yields just such a “weak issue of fact,” no more than a

scintilla.

Salazar came in fourth in a six-person competition for

promotion to the position of Craft Supervisor in General

Equipment at WMATA’s Metro Center station. If I

understand the majority, it believes that three features of the

selection process could in the aggregate enable a reasonable

jury to find that WMATA had discriminated: first, the fact

that Timothy Tucker, number one in the competition, ended

2

up not taking the Metro Center position, but instead took what

Salazar said was a “less difficult” one in Greenbelt; second,

the role of two WMATA higher-ups, Gary Lewis and Buddy

Jaggie, in the competitive process; third, and related to the

second, the nature of the questions posed in the competition

and the weighting of questions.

The majority regards the fact that the selected applicant

(Tucker) apparently never held the Metro Center job as

increasing “the possibility that the interview process . . . may

not have been fairly designed.” Maj. Op. at 8. There is in fact

an evidentiary vacuum as to what happened after the

competition (other than Tucker’s going to Greenbelt).

Technically, this is a gap in the plaintiff’s prima facie case, in

which the fourth element is evidence that “the position

remained open [after the plaintiff lost out] and the employer

continued to seek applicants from persons of [the plaintiff’s]

qualifications.” McDonnell Douglas Corporation v. Green,

411 U.S. 792, 802 (1973). In Teneyck v. Omni Shoreham

Hotel, 365 F.3d 1139 (D.C. Cir. 2004), we held that plaintiff’s

failure to show the sequel to her rejection was fatal to her

prima facie case. Id. at 1151-53. WMATA here waived any

argument as to inadequacies in the prima facie case, but it is

still ironic that Salazar has managed to transform a similar gap

into a special point in his favor. The transformation is

especially odd because the innocent reasons why a winning

competitor might take another job are legion—personal

convenience, a better fit with his skills, a better match with

fellow workers, etc. Even winners change their minds.

The majority thinks that a reasonable jury “could infer

something ‘fishy’” from Lewis’s appointment of Jaggie, his

assistant, as panel chair. See Maj. Op. at 8. The majority sees

this as problematic first as a breach of Thomas’s promise that

3

the search process would be Lewis-free, and second as leading

to interview characteristics that the majority believes might

reasonably be thought discriminatory. I am unable to identify

a scintilla of evidence that Jaggie’s participation

disadvantaged Salazar.

To give weight to the broken promise, the majority cites a

line of cases holding that departures from normal hiring

processes may justify inferences of discrimination. See Maj.

Op. at 8 (citing Lathram v. Snow, 336 F.3d 1085, 1093-94

(D.C. Cir. 2003); Johnson v. Lehman, 679 F.2d 918, 922

(D.C. Cir. 1982)). But an employer’s departure from standard

procedures does not automatically support such an inference;

the plaintiff must still establish discriminatory motive.

Johnson, 679 F.2d at 922. Here, in fact, WMATA’s effort to

devise a Lewis-free hiring process was itself a departure from

existing practice; a departure from the departure merely

returned things to the status quo. See Maj. Op. at 8. So it is

far from obvious that the cases involving departure from

existing practice apply. Even assuming they do, such cases

always challenge a departure that actually disadvantaged the

applicant in some way. See, e.g., Lathram, 336 F.3d at 1093

(decision to expand search outside agency thereby allowing

second candidate to receive a veteran’s preference and thus to

outscore internal candidate); Pratt v. City of Houston, 247

F.3d 601, 605 (5th Cir. 2001) (allegation that interviewer

sprung a computer skills test on applicant, having given no

notice that such a test would be part of the process). Here

there is simply no evidence that the alleged departure from

practice hurt Salazar’s chances, much less an affirmative

showing that the “departure” was discriminatory. See Risher

v. Aldridge, 889 F.2d 592, 597 (5th Cir. 1989).

4

As the majority points out, the record evidence clearly

shows that “the scores Jaggie gave Salazar differed little from

those given by two other panelists whom Salazar himself

acknowledges would be unlikely to discriminate,” Maj. Op. at

8, that “Salazar would have finished fourth even had Jaggie’s

scores not counted,” id., and that “no evidence suggests that

Jaggie attempted to influence the other panelists’ scores

during the interview,” id. Because Jaggie’s involvement had

no measurable impact on the hiring outcome, the majority

seeks to shore up the case for a plausible inference by

emphasizing that Jaggie developed the interview questions

and assigned the relative value for each, giving “only

marginal value to candidates’ experience and education,

which were Salazar’s particular strengths.” Maj. Op. at 8.

But Salazar nowhere asserts that any of the questions

themselves was unfair or inappropriate, or that the distribution

was in any way unusual. Indeed, they would seem to cover

precisely the range of scenarios relevant to the selection of a

qualified supervisor. Compare Maj. Op. at 8 (“Jaggie not only

developed the questions but assigned the relative value for

each, and had apparently unfettered discretion in doing so.”)

(emphasis added) (internal quotation marks and citations

omitted). And lest there be any confusion about the matter, it

was not an odd or idiosyncratic weighting scheme that cost

Salazar the post. The majority notes that out of 13 questions,

11 (with a weight of nearly 90%) related to hypothetical

scenarios, Metro policies, technical responses, and candidate

motivation, and two (with a weight of slightly over 10%) to

the candidate’s experience and education. Maj. Op. at 4, 8.

The majority disparages the former by characterizing the latter

two questions as the “only” ones that “directly addressed the

candidates’ experience and education.” Id. at 4. But

interview procedures that give more weight to direct evidence

5

of a candidate’s ability to handle problems than to the length

of his resume are hardly evidence of discrimination—at least

in the absence of evidence that the weighting was unusual.

Moreover, Jaggie’s weighting decisions had no impact on

Salazar. If all questions had been weighted equally, Salazar

would still have finished in fourth place. More striking, in

light of Salazar’s and the court’s focus on “experience,”

Salazar still would not have been selected even if the scorers

had counted only the two resume questions—unless a scoring

error that awarded Salazar 20 points for a question with a

maximum allowable score of 10 points went uncorrected

(itself, one hopes, a deviation from standard practice). See

J.A. 111. Thus, in a contest focused exclusively on Salazar’s

“particular strengths,” he could still have won only by means

of an scoring error.

Lastly, the majority is “not as certain” as I that Salazar

would have lost under virtually any plausible circumstances,

because Salazar argues that “by weighing less significant

questions more and by minimizing the value of the important

questions regarding experience, education and training, the

selectee came up with a higher score.” Maj. Op. at 10-11

(internal quotation marks omitted). Salazar did not explain

how, but it is possible (as the majority indicates) to reverse-

engineer weighting schemes that allow Salazar to emerge the

winner (correcting errors and excluding Jaggie’s scores). One

obvious scheme would simply ignore all questions except

three—the two resume questions noted above, and a third

question on WMATA’s Five-Point Pledge. (The pledge

reads: “(a) Maintain safe, clean, and attractive facilities and

services, (b) Always be courteous, helpful and informative, (c)

Strive to provide on time service, (d) Listen and respond to

our customers, (e) Be innovative, resourceful, market driven,

6

and entrepreneurial.”) Candidates were asked to state the

pledge and explain their role in its implementation. Inclusion

of this question (and exclusion of all others) would put

Salazar over the top because of the surprising coincidence that

the candidate who did better than he on the experience and

education questions managed to do worse on the pledge. The

majority suggests other schemes in which Salazar could have

won, for example, by “halving two questions and tripling two

others, by tripling four questions,” or “by dropping three

questions.” Maj. Op. at 12. Indeed because question weights

are continuous variables, it is theoretically possible to identify

an infinite number of weighting schemes from which Salazar

would have emerged victorious, and from that trivial

epiphenomenon the majority believes the jury could infer

discrimination. Thus, it argues, a jury could infer that

WMATA’s purpose in giving material weight to questions

about technical proficiency, safety, or management of other

employees was to “get” Salazar. If such an inference is

“reasonable,” judges really are potted plants.

The court correctly points out our salutary rule against

considering arguments not raised in the parties’ briefs. Maj.

Op. at 10. But WMATA did argue that if Jaggie’s scores and

the technical questions were eliminated Salazar would still

lose. Appellee’s Br. at 17. That argument is in fact correct

(though narrower than the one I’ve made), and Salazar never

responded to it except with vague generalities. See

Appellant’s Reply Br. at 2-4. The court instead takes up the

Reply Brief’s assertion that “significant [sic] [meaning,

evidently, insignificant] items were weighted heavily.” Id. at

2; see Maj. Op. at 11. Thus the court implicitly endorses

Salazar’s characterization of virtually all the questions relating

to technical proficiency, safety and employee management as

“[in]significant.” Why? In any event, as Salazar presented

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the argument only in his Reply Brief, I’m unsure why

WMATA should be faulted for not responding to it. More

generally, when appellate judges confront conflicting claims

about the meaning of the record, I had thought it kosher for

them—actually, their duty—to look at the record.

Because no single factor cited by Salazar could justify a

finding of discrimination, the majority turns to its own

somewhat “distorted” weighting scheme—emphasizing the

“cumulative effect” of Salazar’s arguments. Maj. Op. at 12.

Yet whether considered alone or in sum, the evidence

presented is simply not sufficient for a reasonable jury to infer

discrimination. The question is “not whether there is literally

no evidence, but whether there is any upon which a jury could

properly proceed to find a verdict for the party producing it,

upon whom the onus of proof is imposed.” Anderson, 477

U.S. at 251 (quoting Pennsylvania R. Co. v. Chamberlain, 288

U.S. 333, 343 (1933) (emphasis in original)). The evidence

must be such that a jury could find not merely that the point in

question (here, discrimination) is conceivable; the proof must

be such that the jury could—reasonably—find it more

probable than not. The majority’s method, effectively

requiring WMATA to offer proof absolutely excluding any

possibility of discrimination, however remote, is simply not

the standard for summary judgment.

In the end, the case boils down to the presence in the

hiring process of Jaggie, and thus by extension Lewis.

Believing this is too slender a reed to support a jury verdict in

Salazar’s favor, I would affirm the decision of the district

court.