Jackson v. Gonzales

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 19, 2007 Decided August 10, 2007

No. 06-5053

KEVIN L. JACKSON,

APPELLANT

v.

ALBERTO GONZALES, ATTORNEY GENERAL,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 03cv01596)

Debra A. D’Agostino argued the cause for appellant. On

the briefs was Sandra Mazliah.

Beverly M. Russell, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A. Taylor,

U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Michael J. Ryan, Assistant U.S. Attorney, entered an

appearance.

Before: HENDERSON, ROGERS, and KAVANAUGH, Circuit

Judges.

2

Opinion for the Court filed by Circuit Judge KAVANAUGH,

in which Circuit Judge HENDERSON joins.

Dissenting opinion filed by Circuit Judge ROGERS.

KAVANAUGH, Circuit Judge: Kevin Jackson worked as a

GS-13 employee in the Bureau of Prisons. Jackson and six other

individuals applied for an open GS-14 research analyst position.

The Bureau selected Jennifer Batchelder, a Caucasian woman.

Jackson, who is African-American, sued and alleged racial

discrimination in violation of Title VII. In its defense, the

Bureau said it selected Batchelder because she was more

qualified than Jackson. The District Court granted summary

judgment to the Bureau, concluding that a reasonable jury could

not find the Bureau’s explanation a pretext for racial

discrimination. We agree with the District Court and therefore

affirm.

I

Kevin Jackson, an African-American man, and Jennifer

Batchelder, a Caucasian woman, worked as GS-13 employees in

the Bureau of Prisons. Both applied for a GS-14 research

analyst job at the Bureau, as did five other individuals. A two-

person initial evaluation board scored all applicants based on six

general qualifications – also called “KSAs,” short for

“knowledge, skills, and abilities” – and other personal

characteristics needed in the job to be filled. J.A. 276.1 The

1

The generic KSAs included the applicant’s: (1) ability to

manage resources; (2) ability to communicate orally; (3) ability to

communicate in writing; (4) ability to apply social science research

methods; (5) knowledge of statistical methods; and (6) ability to

assign responsibility and delegate authority. J.A. 276. The Bureau

also posted a more detailed job description, which listed the

3

board members sought to hire an applicant who had experience

with the Bureau’s main data management tool, known as the

Key Indicators Strategic System, although the job description

documents did not expressly refer to Key Indicators experience

as a specific qualification (the documents listed more general

qualifications). The Key Indicators system includes information

about all aspects of the Bureau’s operations, such as health care,

sentencing issues, and inmate conduct and misconduct. In

addition to aggregating the data, the system uses statistical and

graphical tools to show how the relevant aspects of the Bureau’s

operations change over time.

Batchelder received by far the highest numerical score on

the KSAs – 52 out of 60 possible points. By contrast, Kevin

Jackson received 22 points out of 60, which placed him third

among the seven applicants. Batchelder also had significantly

more experience than Jackson with the Key Indicators system.

Both employees received 15 points for past performance and six

points for awards – yielding total scores of 73 points for

following skills and knowledge as job requirements: in-depth

knowledge of correctional programs and Bureau operations and a

knowledge of Bureau policies and regulations; knowledge of theories

in sociology, social psychology, corrections, criminal justice, and

criminology; knowledge of research designs; knowledge of an array

of research methodologies for the observation and measurement of

behavior and attitudes; knowledge of univariate or multivariate

mathematical statistical theory and techniques appropriate for

particular research designs and methodologies; knowledge of

statistical computer programs; knowledge of IBM CMS Timesharing

System, TSO, and OS Batch System; knowledge of mainframe and

micro computer software; skill in teaching and supervising research

assistants and technicians in the knowledge and techniques necessary

for social science research; and skill in writing research reports for

Bureau managers or for distribution in the social science community.

J.A. 280.

4

Batchelder and 43 points for Jackson. Because Batchelder’s

score was much higher than all the other candidates, the board

forwarded only her name to the final decision-maker, Thomas

Kane. Kane in turn selected Batchelder for the position.

Jackson then sued, alleging racial discrimination in

violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16.

In the district court, the Bureau explained that it hired

Batchelder because she was better qualified, particularly in light

of her extensive experience with the Key Indicators system. The

District Court granted summary judgment to the Bureau, stating

that Jackson failed to show he was significantly more qualified

and that it was “therefore not proper to ‘second-guess [the]

employer’s personnel decision.’” Jackson v. Gonzales, No.

Civ.A. 03-1596, 2005 WL 3371041, at *11, *13 (D.D.C. Dec.

12, 2005) (quoting Fischbach v. D.C. Dep’t of Corr., 86 F.3d

1180, 1183 (D.C. Cir. 1996)) (alteration in original). The

District Court also concluded that the Bureau’s reliance on a

factor not expressly listed in the job description (Key Indicators

experience) did not undermine the Bureau’s explanation for its

hiring decision because such experience was clearly

encompassed by the qualifications listed in the job description.

See id. at *10 (“[I]t is clear that Key Indicator System skills are

a component of the overall skills necessary for the GS-14

position.”); id. (“[A]lthough not specifically mentioned in the

vacancy announcement or job description, the general terms

used in these documents clearly indicate a desire on the part of

the defendant to hire someone with skills acquired from working

with the Key Indicator System.”).

On appeal, Jackson argues that there is a genuine issue of

material fact regarding whether the Bureau’s real reason for not

selecting him was racial discrimination. Our review is de novo.

Haynes v. Williams, 392 F.3d 478, 481 (D.C. Cir. 2004).

5

II

Title VII of the Civil Rights Act, as amended, provides that

all “personnel actions affecting employees or applicants for

employment” in Executive agencies “shall be made free from

any discrimination based on race.” 42 U.S.C. § 2000e-16(a).

“Where, as here, the record contains no direct evidence that the

adverse employment action of which the plaintiff complains was

caused by prohibited discrimination, we turn to the burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802–05 (1973), to analyze the claim.” Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citation omitted in

part). Although “intermediate evidentiary burdens shift back

and forth under this framework, ‘[t]he ultimate burden of

persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the

plaintiff.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 143 (2000) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248, 253 (1981)) (alteration in original).

The McDonnell Douglas framework first requires the

plaintiff to establish a prima facie case of discrimination by

showing that: “(1) he is a member of a protected class; (2) he

applied for and was qualified for an available position;

(3) despite his qualifications he was rejected; and (4) either

someone . . . filled the position or the position remained vacant

and the employer continued to seek applicants.” Lathram v.

Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (quotation marks

omitted and alteration in original). If the plaintiff establishes a

prima facie case of discrimination, the burden shifts to the

defendant employer to produce “‘evidence that the plaintiff was

rejected, or someone else was preferred, for a legitimate,

nondiscriminatory reason.’” Reeves, 530 U.S. at 142 (quoting

Burdine, 450 U.S. at 254). “If the defendant satisfies that

burden, the McDonnell Douglas framework – with its

6

presumptions and burdens – disappears, and the sole remaining

issue is discrimination vel non.” Waterhouse v. District of

Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002) (quotation marks

and alterations omitted). At that point, the plaintiff can survive

summary judgment only by showing “that a reasonable jury

could conclude that [he] was terminated for a discriminatory

reason.” Id. To make such a showing, the plaintiff must prove

that a reasonable jury could infer that the employer’s given

explanation was pretextual and that this pretext shielded

discriminatory motives. See Murray v. Gilmore, 406 F.3d 708,

713 (D.C. Cir. 2005).

The Bureau here said it selected Jennifer Batchelder

because she was more qualified and had superior Key Indicators

experience. When an employer says it made a hiring decision

based on the relative qualifications of the candidates, “we must

assume that a reasonable juror who might disagree with the

employer’s decision, but would find the question close, would

not usually infer discrimination on the basis of a comparison of

qualifications alone.” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,

1294 (D.C. Cir. 1998) (en banc). On the other hand, 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 that employers do not usually do, unless some other

strong consideration, such as discrimination, enters into the

picture.” Id.; see also Holcomb, 433 F.3d at 897; Stewart v.

Ashcroft, 352 F.3d 422, 429-30 (D.C. Cir. 2003). Applying Aka,

we have explained that “[i]n order to justify an inference of

discrimination, the qualifications gap must be great enough to be

inherently indicative of discrimination.” Holcomb, 433 F.3d at

897. To conclude otherwise would be to render the judiciary a

“super-personnel department that reexamines an entity’s

business decisions” – a role we have repeatedly disclaimed. See

7

id. (quotation marks omitted).

Here, as the KSA scores indicate, the evidence presented by

Jackson does not suggest that he was “significantly better

qualified” than Jennifer Batchelder. Aka, 156 F.3d at 1294. On

the contrary, it plainly suggests that Batchelder was better

qualified. To be sure, we have also stated that a plaintiff may

present evidence to show that the employer’s

qualifications-based explanation “is incorrect or fabricated.” Id.

at 1295; see also Holcomb, 433 F.3d at 898. Jackson thus

alleges certain discrepancies between the candidates’

qualifications and the evaluation board’s ratings. But it is

undisputed that Batchelder had been an outstanding employee

at the Bureau; that her experience with the Key Indicators

system was substantially superior to Jackson’s; that the Key

Indicators system was important to the Bureau’s operations; and

that Batchelder received by far the highest KSA scores of any

candidate who applied for the job.

Jackson’s evidence at most shows that the evaluators could

have given him somewhat higher scores and Batchelder

somewhat lower scores than they did. That is not enough,

however, to demonstrate that the Bureau’s reliance on

comparative qualifications was a pretext for discrimination:

“This Court will not reexamine governmental promotion

decisions where it appears the Government was faced with a

difficult decision between two qualified candidates, particularly

when there is no other evidence that race played a part in the

decision.” Stewart, 352 F.3d at 430. Like the plaintiff in

Stewart, Jackson “was simply not discernibly better” than the

candidate promoted. Id. at 429.

Jackson also contends that a reasonable jury could

disbelieve the Bureau’s reliance on Batchelder’s superior Key

Indicators experience as the overriding factor because the job

8

description documents did not expressly refer to Key Indicators

knowledge or experience. Although this argument may present

a closer question given the somewhat unusual facts of this case,

we agree with the District Court that the evidence presented by

Jackson does not create an inference of discrimination sufficient

to overcome summary judgment.2

To begin with, as the District Court correctly recognized,

Key Indicators experience was clearly encompassed by the

qualifications listed in the job description. See Jackson, 2005

WL 3371041, at *10 (noting that Bureau sought applicants with

ability to use statistics to describe and predict trends in Bureau

data). Indeed, Key Indicators experience was directly relevant

to at least two of the KSAs set forth in the generic vacancy

announcement: ability to manage resources, and ability to assign

responsibility and delegate authority. In addition, the more

detailed list of qualifications set out in the position description

included “[k]nowledge of statistical computer programs” and

“computer software,” and thus plainly encompassed Key

Indicators experience. J.A. 280.

As we have explained before, moreover, job descriptions are

2

The dissenting opinion appears to suggest that Jackson’s case

survives summary judgment in part because the Bureau lacked high-

level African-American employees. See Dissenting Op. at 2-3, 7.

But Jackson never made such an argument either before the District

Court in opposing summary judgment or before this Court on appeal.

On the contrary, Jackson has consistently maintained that “[t]he

material factual dispute here is rooted in the two employees’

respective performance histories and qualifications.” Pl.’s Opp’n to

Def.’s Mot. for Summ. J. at 14 (emphasis added). Cf. Aka, 156 F. 3d

at 1295 n.11 (“For instance, if a female plaintiff claims sex

discrimination, evidence that the defendant employs women at rates

far below their numbers in the applicant pool and the general

population may well help her case.”).

9

often phrased in general terms, and employers then make the

ultimate hiring decision in light of more specific factors – such

as their strategic priorities and goals at the time, the strengths

and weaknesses of the applicant pool, and the overall skills of

and gaps in their existing workforce, among many other factors.

We have said that courts must not second-guess an employer’s

initial choice of appropriate qualifications; rather the courts

“defer to the [employer’s] decision of what nondiscriminatory

qualities it will seek” in filling a position. Stewart, 352 F.3d at

429; see also Browning v. Dep’t of the Army, 436 F.3d 692, 698

(6th Cir. 2006) (“Questioning [the employer’s] hiring criteria is

not within the province of this court . . . .”). Particularly given

the dynamic nature of the hiring process, moreover, we have also

stated that we will not second-guess how an employer weighs

particular factors in the hiring decision. See Barnette v. Chertoff,

453 F.3d 513, 517 (D.C. Cir. 2006) (“[C]ourts must defer to the

employer’s decision as to which qualities required by the job . . .

it weighs more heavily.”). Indeed, we have even said that an

employer may select “a candidate who on paper is less qualified

for other reasons, such as subjective reactions that emerge in the

interview” – although we are of course cautious in accepting

such purely subjective explanations when the plaintiff otherwise

is “significantly better qualified.” Aka, 156 F.3d at 1294 & n.10.

In Aka, we explained that courts must be sensitive to the

necessary and appropriate realities of hiring processes.

Reasonable employers, we said, “do not ordinarily limit their

evaluation of applicants to a mechanistic checkoff of

qualifications required by the written job descriptions.

Obviously, they will take additional credentials into account, if

those credentials would prove useful in performing the job.” Id.

at 1297 n.15. Other courts of appeals have reached the same

conclusion. See Lamb v. Boeing Co., 213 F. App’x 175, 180 (4th

Cir. 2007) (“Title VII does not impose the impracticable

obligation of anticipating and recording before the fact a

10

company’s valuation of every credential with which it might be

presented, and we cannot sanction the inference that the

credentials upon which the hiring managers said they relied were

pretexts merely because they were not listed in advance.”);

Browning, 436 F.3d at 696-97 (“employers are not rigidly bound

by the language in a job description”; employer’s “decision to

weigh administrative/managerial experience more heavily than

the job description suggested [was] simply not sufficient to

demonstrate” falsity of employer’s qualifications-based

explanation); Lee v. GTE Fla., Inc., 226 F.3d 1249, 1255 n.2

(11th Cir. 2000) (evidence that employer “changed the

importance of the criteria he used in the selection process” did

not tend to show that employer’s asserted nondiscriminatory

explanation was false); Nichols v. Lewis Grocer, 138 F.3d 563,

568 (5th Cir. 1998) (hiring decisions are “dynamic,” and

“relative importance placed on various selection criteria cannot

be expected to remain fixed and unyielding” throughout the

process).

All of these various formulations and precedents establish

a clear principle for purposes of this case: The fact that an

employer based its ultimate hiring decision on one or more

specific factors encompassed within a broader and more general

job description does not itself raise an inference of

discrimination sufficient to overcome summary judgment.

Indeed, we are aware of no previous case from this or any other

circuit suggesting that an employee gets past summary judgment

simply by showing that a factor in the hiring decision was not

expressly listed in the job description when the factor was

encompassed by the job description. Therefore, Jackson cannot

overcome summary judgment on this basis.

Finally, we do not agree with Jackson that the timing of the

Bureau’s explanation of its hiring decision somehow casts doubt

on the credibility of that explanation and therefore is evidence of

11

pretext. Before Jackson commenced this employment

discrimination suit, the Bureau simply had no occasion to explain

its decision to hire Batchelder; rather, the first time the Bureau

had to explain that decision was in defending this case. The

Bureau’s explanation therefore cannot be considered “post-hoc”

or “tardily” asserted. Cf. Dissenting Op. at 6, 12-13. To suggest

otherwise is essentially to direct employers to publish a

contemporaneous statement of reasons every time they make a

hiring or firing decision – a requirement that Title VII has never

been understood to impose.

III

We affirm the District Court’s grant of summary judgment

to the Bureau of Prisons.

So ordered.

ROGERS, Circuit Judge, dissenting: Contrary to the court’s

suggestion, Kevin L. Jackson’s appeal does not ask the court to

micromanage a personnel decision. See Op. at 6, 9. Instead

Jackson presents a question that goes to the heart of Title VII

and the federal civil service system. The court chooses to ignore

this fact by casting the case in terms of who was more qualified

for a promotion. See id. at 2. However, Jackson’s appeal is

based on evidence suggesting that the employer’s asserted

nondiscriminatory reason for selecting another candidate was

fabricated to mask unlawful discrimination. “Credibility

determinations [and] the weighing of the evidence” are functions

of the trier of fact. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986); see Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986); FED. R. CIV. P. 56(c). Accordingly, because

summary judgment was inappropriate, I would remand the case

to the district court for further proceedings.

I.

Title VII is aimed at protecting victims of unlawful

discrimination. See, e.g., Landgraf v. Usi Film Prods., 511 U.S.

244, 254 (1994) (quoting Albemarle Paper Co. v. Moody, 422

U.S. 405, 418-422 (1975)). The federal civil service system

serves a complimentary purpose as it is designed to afford equal

opportunity by requiring job announcements and job

descriptions to set forth the job requirements and selection to be

based on the listed requirements, and not on an unmentioned

consideration. See 5 U.S.C. § 2301(b); Nat’l Treasury

Employees Union v. Horner, 854 F.2d 490, 492 (D.C. Cir.

1988); Nat’l Treasury Employees Union v. U.S. Customs Serv.,

802 F.2d 525, 529 (D.C. Cir. 1986). Enacted in 1833, the

Pendleton Act, 22 Stat. 403, “replace[d] the ‘spoils system,’

under which the President could dispense federal jobs as

rewards for political patronage, with a ‘merit system’ that would

base selection and promotion of most civil servants on

competence.” Frazier v. Merit Sys. Protection Bd., 672 F.2d

2

150, 153 (D.C. Cir. 1982); see Sampson v. Murray, 415 U.S. 61,

71 (1974). Subsequent legislation furthered Congress’s

objective of establishing an efficient and competent civil service

and providing greater statutory protections for federal

employees. The Civil Service Reform Act (“CSRA”), enacted

in 1978, restructured the federal civil service in order to

“promote a more efficient civil service while preserving the

merit principle in Federal employment.” Developments in the

Law — Public Employment, 97 HARV. L. REV. 1611, 1632 & n.3

(1984) (quoting S. REP. NO. 969, 95th Cong., 2d Sess. 1, at 2

(1978), reprinted in 1978 U.S. CODE CONG. & AD. NEWS 2723).

To this end, the CSRA provides that “[f]ederal personnel

management should be implemented consistent with” several

“merit system principles,” which provide, among others, that

“advancement should be determined solely on the basis of

relative ability, knowledge, and skills, after fair and open

competition which assures that all receive equal opportunity.”

5 U.S.C. § 2301(b); see Horner, 854 F.2d at 492; U.S. Customs

Serv., 802 F.2d at 529. Under regulations promulgated by the

Office of Personnel Management, which supervises the

administration of the civil service system, Frazier, 672 F.2d at

154; see 5 U.S.C. § 1302, all federal agencies, including the

Bureau of Prisons (“BOP”) in the Department of Justice, are

required to provide a notice of job announcement for

competitive positions that includes the position’s

“[q]ualification requirements, including knowledges [sic], skills,

and abilities.” 5 C.F.R. § 330.707(b)(5).

Jackson proffered evidence that in March 2001, when he

applied for a GS-14 social science research analyst position, the

evaluation board gave him a score of 98 out of 100, but the BOP

Office of Research and Evaluation (“ORE”) never filled that

position. At the time, the ORE had no African-Americans in

GS-13, GS-14, or GS-15 positions. Six months later ORE

announced another GS-14 social science research analyst

3

position. This job announcement asked each applicant to

address in his or her application six categories of Knowledge,

Skills, and Abilities (“KSAs”)1 “in a . . . manner which will

enable [the BOP] to make a reasonable determination about

qualifications.” Job Announcement at 1-2. The announcement

made no reference to experience with the Key Indicators

Strategic System (“Key Indicators”)2 as a requirement. The job

description included a more detailed description of the

“KNOWLEDGE AND SKILLS REQUIRED BY THE

POSITION,”3 but it also made no reference to Key Indicators

1

The generic KSAs listed in the job announcement were the

applicant’s: (1) “[a]bility to manage resources”; (2) “[a]bility to

communicate [] orally”; (3) “[a]bility to communicate in writing”; (4)

“[a]bility to apply social science research methods”; (5) “[k]nowledge

of statistical methods”; and (6) “[a]bility to assign responsibility and

delegate authority.” Job Announcement at 2.

2

According to one of Jackson’s evaluators, Key Indicators is

an “elaborate, comprehensive, and technically detailed” data

warehousing system. It includes information about all aspects of

BOP’s operations and provides data to managers in aggregate form as

well as statistical and graphic analyses. See Gerald Gaes Dep. at 28-

29 (June 11, 2004).

3

The posted job description listed on page 2 the following

“KNOWLEDGE AND SKILLS”:

—In depth knowledge of correctional programs and

BOP operations and a knowledge of Department and

Bureau policies and regulations.

—Knowledge of theories in sociology, social

psychology, corrections, criminal justice, and

criminology.

—Knowledge of research designs . . . .

—Knowledge of an array of research methodologies

for the observation and measurement of behavior and

attitudes . . . .

4

experience. Jackson applied for the position, as did six other

individuals, including Jennifer Batchelder, who is caucasian. At

the time of her application, Batchelder, like Jackson, was a

GS-13 social science research analyst, who had received

outstanding performance evaluations from her supervisor, as

Jackson had from his, but her principal work involved

programming and collecting and processing data for use by

others to carry out research. According to Thomas Kane, the

BOP Assistant Director, Batchelder’s work “focus[ed] more on

statistical analysis and computer programming [while] Jackson

[focused] more on program management and facilitation.”

Thomas Kane Dep. at 47 (June 14, 2004). The evaluation board

gave Jackson a score of 43 out of 81, and Batchelder a score of

73. Kane, upon being presented only with the recommendation

to promote Batchelder, selected her for the GS-14 position.

In response to Jackson’s Title VII lawsuit, the two persons

in the BOP who had evaluated the applications claimed in sworn

statements that they had relied on Batchelder’s work on Key

Indicators in awarding her significantly higher KSA scores than

the other applicants. Batchelder’s application referred to articles

—Knowledge of univariate or multivariate

mathematical statistical theory and techniques

appropriate for particular research designs and

methodologies. . . .

—Knowledge of statistical computer programs . . . .

—Knowledge of IBM CMS Timesharing System,

TSO, and OS Batch System.

—Knowledge of mainframe and micro computer

software . . . .

—Skill in teaching and supervising research

assistants and technicians in the knowledge and

techniques necessary for social science research.

—Skill in writing research reports for BOP managers

or for distribution in the social science community.

5

that she had written for staff and users of Key Indicators but,

unlike Jackson, Batchelder did not identify any papers that she

had published, although she had written the introduction for a

publication. By contrast, the evaluators justified Jackson’s

lower KSA scores by emphasizing the narrow nature of his work

projects and technical problems with his statistical research in

the papers he authored, including his masters thesis, which had

been published. No mention was made of Jackson’s experience

with Key Indicators.

In moving for summary judgment, the Department claimed

that Key Indicators experience was the critical consideration in

the BOP’s selection of Batchelder: “At the time of the selection

consideration, the overriding objective for the [ORE] was to hire

someone who could maintain . . . the Key Indicators Strategic

System.” Def’s Mem. Supp. Summ. J. at 17–18 (emphasis

added). The Department argued that the evaluators had

legitimate, nondiscriminatory “concerns about [Jackson’s]

abilities” and properly weighed “Batchelder’s expertise with

Key Indicators” in awarding her higher scores. Id. at 18. On

appeal, the Department reasserts that “[a]t the time of the

selection consideration, the overriding objective for the [ORE]

was to hire someone who could maintain [ORE’s] essential and

most important function — i.e., the Key Indicators Strategic

System.” Appellee’s Br. at 21 (emphasis added). In support,

the Department points to the deposition of William Saylor, who

was one of the evaluators, stating that his “concern was to make

certain” to hire “someone who had the skill set that would be

needed to keep th[e] key indicators application functional.”

William Saylor Dep. at 147 (June 23, 2004).

II.

Common sense would suggest that if Key Indicators

experience was the “overriding objective” underlying the

6

selection of the GS-14 research analyst position, then the BOP

would have mentioned that qualification in announcing and

describing the job to ensure that it would receive applications

from candidates with the desired experience and thus be in a

position to select the candidate most qualified to maintain Key

Indicators. Jackson, however, does not contend that the general

nature of the job description alone creates an inference of

discrimination sufficient to overcome summary judgment.

Rather, Jackson contends that the inconsistency between the

descriptions in the job announcement and description, on the one

hand, and the evaluators’ post-hoc reasons for the selection, on

the other, raises an inference sufficient to preclude summary

judgment. It is the specific centrality of Key Indicators

experience — tardily so claimed by the Department — that

contradicts the general job description and the evaluators’

explanations of Jackson’s low scores, neither of which mentions

Key Indicators experience. Given the emphasis the Department

placed on Key Indicators experience after the fact, and

according Jackson as the nonmoving party all reasonable

inferences, as the court is required to do, see Anderson, 477 U.S.

at 255; Shekoyan v. Sibley Int’l, 409 F.3d 414, 422-23 (D.C. Cir.

2005) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S.

133, 150 (2000), “a reasonable juror could conclude that [the

BOP] would have included this qualification in the job listing

had it honestly believed that it was of primary importance for

the new position.” Courtney v. Biosound, Inc., 42 F.3d 414, 421

(7th Cir. 1994) (emphasis added) (citing Gallo v. Prudential

Residential Servs., 22 F.3d 1219, 1225 (2d Cir. 1994)).

Although a decision to promote, like a hiring decision, may

involve a “dynamic” process, Nichols v. Lewis Grocer, 138 F.3d

563, 568 (5th Cir. 1998), dynamism cannot serve as an excuse

for failing to adhere to the underlying purposes of the federal

civil service system — to ensure equal opportunity and fair and

open competition — by allowing the process to “drift” in its

7

employment objective without raising an inference, given

Jackson’s evidence, that such inconsistency could mask

unlawful discrimination. Put otherwise, Jackson’s contention is

that he presented evidence, including the absence of African-

Americans from high-level positions at the BOP and the BOP’s

failure several months earlier to fill another GS-14 research

analyst position for which he had received a score of 98 out of

100, from which a reasonable inference of unlawful

discrimination may be drawn. The Department does not

challenge the district court’s finding that Jackson had

established a prima facie case of discrimination. In contending

that he also has shown that the Department’s explanation was

pretextual, Jackson is not relying merely on the fact that the

BOP based its ultimate hiring decision on one or more specific

factors encompassed within a broader and more general job

description, see Op. at 10, but rather on the undisputed evidence

that Key Indicators experience is not mentioned in the job

announcement, the job description, or the evaluators’

explanations of Jackson’s low KSA scores, all of which

conversely reflect a primary focus on research.4

4

The job announcement stated that the responsibilities of the

position include supervising research analysts and “conducting

research on crime and corrections.” Job Announcement at 1. Further,

“the research the employee conducts contributes to” several fields

including, “corrections, criminal justice, criminology, and sociology”

and the “[r]esearch will be utilized by the Executive Staff of the

[BOP] to study the effectiveness of [BOP] programs and polices and

to prescribe prescriptions for improvement.” Id. The job description

similarly focuses on research: The incumbent’s primary

responsibilities are supervising Ph.D. level research analysts and

designing and conducting research that assists the BOP in improving

and developing policies and programs and contributes to several fields

of knowledge. The job description states that the “MAJOR DUTIES

AND RESPONSIBILITIES” involve “formulat[ing] and direct[ing]

research that answers questions of interest to the [BOP]

8

The court treats this case as involving the question of who

as between Jackson and Jennifer Batchelder was more qualified

for the GS-14 position. See id. at 2, 6-7. It states the evidence

in the light most favorable to the Department, accepting the

Department’s tardy explanation that Key Indicators experience

was the “overriding objective” as an established, undisputed

fact. See id. at 2-3. Upon acknowledging that a Title VII

plaintiff may prevail by showing that an employer’s

qualification-based explanation “is incorrect or fabricated,” id.

at 7 (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1295

(D.C. Cir. 1998) (en banc)), the court dismisses Jackson’s

evidence as showing only that the evaluators could have given

him higher KSA scores. See id. By treating this case as simply

a matter of the BOP choosing the more qualified applicant, see

id. at 6-7, however, the court ignores the material issue of

disputed fact raised by Jackson’s evidence that goes directly to

the question of what type of applicant BOP actually sought in

announcing the GS-14 research analyst position — a research

analyst with the announced skills and experience or a computer

programmer with Key Indicators experience?

The court’s efforts to bolster its holding do not withstand

examination. First, the court relies on the district court’s

conclusion that Key Indicators skills are a component of the

skills listed for the GS-14 position. See id. at 8. However, this

is not the same as the Department’s proffered nondiscriminatory

explanation that Key Indicators skill was the “overriding”

requirement for the research analyst position. Some of the

categories of “KNOWLEDGE AND SKILLS” listed in the job

description refer to statistical and computing skills, including

familiarity with “mainframe and micro computer software,”

Position Description at 2, but none mentions Key Indicators

administration” and describes the activities involved in the research

tasks. Job Description at 1.

9

experience. Instead, the job description focuses on research

skills and responsibilities. Thus, the job description does not

support the Department’s contention that specific expertise in

Key Indicators was the decisive requirement for filling the GS-

14 research analyst position.

Second, the court observes that “job descriptions are often

phrased in general terms, and employers then make the ultimate

hiring decision in light of more specific factors.” Op. at 8-9.

True but irrelevant. The court ignores two undisputed facts.

One, the BOP’s job announcement and description set forth the

qualifications and nature of the position. The job announcement

outlines the “DUTIES” of the position, lists three categories of

required “SPECIALIZED EXPERIENCE,” and lists six

“KSAs.” Job Announcement at 1, 2. The job description sets

forth the incumbent’s three major responsibilities, the particular

emphasis of the studies that the GS-14 researcher will conduct,

the manner in which the research will be used by BOP’s

Executive Staff and by top management in the Federal

Sentencing Commission and other agencies, and other objectives

of the incumbent’s research. The job description also includes

two paragraphs explaining the “MAJOR DUTIES AND

RESPONSIBILITIES” and includes a page-long listing of

“KNOWLEDGE AND SKILLS REQUIRED BY THE

POSITION,” see supra note 3, and two-and-a-half additional

pages of description of various aspects of the position’s

responsibilities, including research guidelines, the complexity of

the research projects, and the “SCOPE AND EFFECT OF THE

WORK.” Job Description at 1, 2, 4. Nowhere in the job

announcement or the description is Key Indicators experience

mentioned. Two, the evaluators’ explanations for giving

Jackson low scores make no mention of his Key Indicators

experience or lack thereof and thus undercut the tardily claimed

primacy of Key Indicators experience. The evaluators’

preoccupation with Jackson’s research abilities — with

10

inconsistent reliance on Key Indicators experience in grading

Jackson’s and Batchelder’s applications — undermines the

Department’s claim that expertise in Key Indicators was the

“overriding consideration” for the selection.

Reasonable employers may not “ordinarily limit their

evaluation of applicants to a mechanistic checkoff of

qualifications required by [a] written job description[],” Op. at

9 (quoting Aka, 156 F.3d at 1297 n.15), but a reasonable jury

could conclude that neither would a reasonable employer neglect

to mention the single most important requirement in the job

announcement, job description, and explanation of an

applicant’s low scores. If Key Indicators experience was as

crucial to the GS-14 research analyst position as the Department

now claims, then a juror could reasonably expect it to be

mentioned by the job announcement and description, much less

in the evaluators’ explanations of Jackson’s low scores. How

else could the BOP ensure, consistent with the purposes of the

federal civil service system, that it would receive applications

from the most qualified persons and be in a position to select the

most qualified individual to carry on the Key Indicators work?

Here, the job announcement and description did not refer to Key

Indicators experience and there is a disconnect between Saylor’s

assertions of Key Indicators’ primacy and the evaluators’

explanations of Jackson’s scores. This evidence raises the

question of Saylor’s credibility as to whether Key Indicators

experience was the “overriding” requirement of the GS-14 social

science research analyst position at the time of the selection. A

credibility determination is the domain of the trier of fact, see

Anderson, 477 U.S. at 255, and raises a genuine issue of

material fact as to the Department’s asserted nondiscriminatory

reason for selecting Batchelder, making summary judgment

inappropriate. In other words, from the absence of any mention

of Key Indicators experience in the announcement and

description of the GS-14 position and in the explanations of

11

Jackson’s low scores, a reasonable juror could conclude that

Saylor’s assertion that Key Indicators experience was the central

criterion underlying the ORE’s desire to fill the GS-14 research

analyst position was fabricated.

The conclusion that Jackson has raised a genuine issue of

material fact in no way requires the court to “second-guess an

employer’s initial choice of appropriate qualifications” or

contravene the principle that “courts ‘defer to the [employer’s]

decision of what nondiscriminatory qualities it will seek’ in

filling a position.” Op. at 9 (quoting Stewart v. Ashcroft, 352

F.3d 422, 429 (D.C. Cir. 2003)). Neither does it mean that

employers would be required to “publish [] contemporaneous

statement[s] of reasons every time they make a hiring or firing

decision.” Id. at 11. It means only that, in accordance with the

requirements of the federal civil service, an employer must

provide notice to prospective job applicants of the relevant skills

and requirements on which it intends to rely in making a

decision. Jackson is not challenging the qualifications that the

ORE found necessary for the GS-14 research analyst position,

but instead he is challenging whether the qualification now

claimed to be the “overriding consideration” actually did play

such a central role in the selection process or whether BOP

manufactured this justification after selecting Batchelder. That

a reasonable trier of fact could accept the Department’s

explanation by crediting Saylor is not, as the court appears to

assume, see id. at 9-10, the standard for summary judgment. See

Anderson, 477 U.S. at 252.

None of the cases cited by the court, or the district court,

reach a contrary conclusion and all are factually distinguishable.

For example, in Davis v. Ashcroft, 355 F. Supp. 2d 330 (D.D.C.

2005), the job announcement did not “list the requisite

qualifications for the position,” id. at 340 — unlike the BOP’s

job announcement and description, which listed a series of

12

qualifications and required skills but failed to mention Key

Indicators experience — and the plaintiff challenged “the

soundness” of using the disputed factor as a qualification for a

position, not whether the factor had in fact been used, see id. at

342-43. Jackson is not disputing the utility of Key Indicators

experience as a qualification but rather the Department’s claim

that Key Indicators skill was in fact the critical qualification for

the research analyst position. Neither is Jackson contesting the

Department’s evaluation of specific employment criteria;

instead he relies on an inconsistency between the job description

and the “overriding objective” that the Department claims in

litigation was the decisive factor in the selection process but was

omitted from the job description and his evaluation.

Because the timing of the Department’s emphasis on the

centrality of Key Indicators experience for the GS-14 research

analyst position defines this case, and not whether the

Department “changed the importance of the criteria [it] used in

the selection process,” Lee v. GTE Fla., Inc., 226 F.3d 1249,

1255 n.2 (11th Cir. 2000), this case also differs from Lamb v.

Boeing Co., 213 Fed. App’x 175 (4th Cir. 2007) (unpublished

opinion), and Browning v. Department of the Army, 436 F.3d

692 (6th Cir. 2006). See Op. at 9-10. In Lamb, the plaintiff

offered “no evidence” of pretext aside from the absence of the

disputed criteria from the job description, Lamb, 213 Fed. App’x

at 179-80, while Jackson points to more, see supra p. 6. In

Browning, the plaintiff was on notice that the employer

considered the disputed factor to be an important qualification

and instead challenged the weight given to an employment

criterion identified in “both the job description and the matrix”

designed to evaluate applicants. Browning, 436 F.3d at 696-97.

Jackson, however, has proffered evidence of a disconnect

between the Department’s post-hoc justification for the selection

and “[w]hat [the Department] intended when it advertised this

position,” Gallo v. Prudential Residential Servs., 22 F.3d 1219,

13

1227 (2d Cir. 1994), thus, distinguishing this case from cases

such as Holcomb v. Powell, 433 F.3d 889, 897-99 (D.C. Cir.

2006), in which the court deferred to the employer’s weighing

of the candidates’ qualifications and found inadequate evidence

to support the plaintiff’s contention that the employer had

misstated her qualifications, and Stewart v. Ashcroft, 352 F.3d

422, 429-30 (D.C. Cir. 2003), in which the court deferred to the

employer’s comparison of the candidates’ qualifications and the

employer’s determination of the skills necessary for the position.

As the court observed in Lathram v. Snow, 336 F.3d 1085

(D.C. Cir. 2003), a “plaintiff’s discrediting of an employer’s

stated reason for its employment decision is entitled to

considerable weight” in establishing a material factual dispute

regarding unlawful discrimination. Id. at 1089 (quoting Aka,

156 F.3d at 1290). While courts must “be sensitive to the

necessary and appropriate realities of hiring processes,” Op. at

9, courts cannot ignore, in determining whether summary

judgment is appropriate, evidence that raises a material question

of fact and be so deferential as to allow employers to mask

unlawful discrimination with post-hoc justifications for

employment decisions. Because Jackson has raised a genuine

issue of material disputed fact as to the centrality of Key

Indicators experience in filling the GS-14 research analyst

position, summary judgment for the Department was

inappropriate and I would remand the case to the district court

for further proceedings. Accordingly, I respectfully dissent.