Debra Stoe v. William Barr

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 2, 2020 Decided May 29, 2020

No. 18-5315

DEBRA STOE,

APPELLANT

v.

WILLIAM P. BARR, ATTORNEY GENERAL, U.S. DEPARTMENT

OF JUSTICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-01618)

Susan E. Huhta argued the cause for appellant. With her

on the briefs was Julia T. Quinn.

Daniel P. Schaefer, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Jessie K. Liu,

U.S. Attorney at the time the brief was filed, and R. Craig

Lawrence, Assistant U.S. Attorney.

Before: TATEL and PILLARD, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

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EDWARDS, Senior Circuit Judge: On August 10, 2016,

Debra Stoe, Appellant, filed suit in District Court against the

Attorney General of the United States in his official capacity as

head of the Department of Justice (“DOJ”). Stoe’s complaint

alleged that DOJ had denied her a promotion to a Division

Director position because of her gender, in violation of 42

U.S.C. § 2000e-16, and her age, in violation of 29 U.S.C.

§ 633a. On August 28, 2018, the District Court issued an order

and memorandum opinion granting summary judgment in

favor of DOJ. Stoe v. Sessions, 324 F. Supp. 3d 176 (D.D.C.

2018). Stoe filed a timely notice of appeal on October 24, 2018.

Summary judgment is appropriate only if “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).

We review the District Court’s grant of summary judgment de

novo, considering the record taken as a whole, Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000),

viewing the evidence in the light most favorable to Stoe, and

drawing all reasonable inferences in her favor, Iyoha v.

Architect of the Capitol, 927 F.3d 561, 565 (D.C. Cir. 2019).

We may not make credibility determinations or weigh the

evidence. Id.

After reviewing the record in this case pursuant to these

standards, we conclude that a reasonable jury could find that

DOJ’s proffered nondiscriminatory reason for denying Stoe the

promotion that she sought “was pretextual and that

discrimination was the real reason.” Hamilton v. Geithner, 666

F.3d 1344, 1347 (D.C. Cir. 2012). Accordingly, we reverse the

grant of summary judgment against Stoe and remand the case

so that it may proceed to trial.

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I. BACKGROUND

A. Factual Background

1. Stoe’s Background and Experience

In 1998, Debra Stoe began working for DOJ as a GS-11

Social Science Analyst in the Office of Research and

Evaluation at the National Institute of Justice (“NIJ”). Before

starting at DOJ, Stoe had earned a master’s degree and had

worked in the private sector for twelve years as an industrial

engineer. In 2004, Stoe began working as a GS-14 scientist in

the Policy and Standards Division (“Division”) of DOJ’s

Office of Science and Technology (“OST”). Her position was

reclassified as “Physical Scientist” in 2010, and she held that

position until 2018.

The Division is responsible for developing performance

standards for law enforcement equipment and technology (e.g.,

bulletproof body armor), overseeing conformity assessment

and compliance testing programs, and developing policy for

the adoption and use of law enforcement-related technology.

Stoe’s Work in the Policy and Standards Division. For

many years, Stoe was the only program manager in the

Division. She developed “new, non-traditional approaches . . .

needed for the NIJ Standards and Testing Program to reach its

full potential,” helping to update outmoded standards. Joint

Appendix (“JA”) 1184. Among her many accomplishments,

Stoe redesigned the system for NIJ standards development; she

also oversaw the training and work product of other program

managers in standards development protocols. One of the

program managers who worked under Stoe’s direction was

Mark Greene, who was later selected for the Division Director

position that Stoe was denied.

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Stoe “implemented a new method for developing

standards at NIJ called ‘The Special Technical Committee

(STC) Process.’” JA 1331. Her “outstanding leadership led to

the publication of the CBRN Certification Document,” which

was characterized as “the gold standard” in NIJ’s “new STC

process.” It was predicted to “impact the safety of public safety

in immeasurable ways.” JA 1409.

Between 2004 to 2014, Stoe’s work performance record

was indisputably exemplary. She published at least ten

performance standards, including the first standard for

chemical, biological, radiological, and nuclear protective

ensembles, and a unique ballistic body armor standard, which

became the most downloaded document on NIJ’s website. JA

1179 ¶ 10, 1235, 1409. She also oversaw the development of at

least 20 additional standards and test methods. JA 1179 ¶ 10.

According to her superiors, Stoe’s sterling efforts

“morphed a one[-]person standards program into a multi-

person standards program and in the process morphed her roles

and responsibilities from managing grants and interagency

agreements to managing a program and administering the

activities of others.” JA 1433. Stoe’s “leadership and

revolutionary transformation of a moribund program . . .

demonstrated capabilities that the agency never before

experienced and . . . obtained previously unattainable goals and

objectives.” JA 1188. And her “leadership and management of

NIJ’s standards and testing program . . . contributed

significantly to taxpayer value,” saving the government

“several millions [of] dollars.” JA 1254. Her “radical revision”

of interagency responsibilities eventually received approval

from the White House’s Office of Management and Budget.

JA 1185, 1335-36.

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Stoe also significantly revised the Division’s compliance

testing and conformity assessment programs to conform them

to international protocols. JA 1186, 1402. She brought

compliance testing in-house to DOJ, assumed responsibility for

working directly with manufacturers and law enforcement

stakeholders, and increased the “confidence in the

manufacturing quality control process and ultimately in the

safety and effectiveness of the equipment sold to [U.S.]

criminal justice agencies.” JA 1186. Stoe published the

Division’s first compliance testing administrative manual,

which was adopted by other federal agencies. JA 1409.

Stoe’s Work with the Interagency Committee. In 2011,

DOJ appointed Stoe to serve as its alternate representative on

the Interagency Committee on Standards Policy (“ICSP”). The

ICSP is a cabinet-level working group on standards, and it is

comprised of representatives from over thirty federal agencies.

Although Stoe was designated as DOJ’s “alternate” ICSP

representative, she was “doing the real work,” JA 1370,

because the primary DOJ representative did not attend

meetings, JA 1380.

Stoe’s Grants Management Responsibilities. In

connection with her standards and compliance testing

programs, Stoe also had substantial grants management

responsibilities. By 2014, she had distributed over $30 million

in federal funds to support government-funded third-party

research. JA 1180 ¶ 12. The record indicates that Stoe did “an

outstanding job managing grants and portfolios, consistently

tracking and following” grants with “no late grant closeouts . . .

or outstanding issues.” JA 1235.

Stoe’s Performance Evaluations from 2010 to 2014.

Between 2010 and 2014, Davis Hart was Stoe’s first-line

supervisor and George “Chris” Tillery was Stoe’s second-line

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supervisor. Both acknowledged that, although Stoe was in a

GS-14 position, she was working at a GS-15 level. See

JA 1191, 1179 ¶¶ 7-9, 1110. In 2010, Stoe spoke to Tillery

about the discrepancy between her classification and the actual

work she was doing, and he agreed that she was performing

GS-15 level work. However, Stoe had to raise the issue several

times with Tillery before he formally requested a desk audit

for her in May 2012. Some of the GS-15 level work performed

by Stoe included supervising and managing the standards

testing, conformity assessment, and compliance testing

programs, and representing DOJ on the ICSP.

Stoe’s performance reviews, co-authored by Tillery and

Hart, consistently rated her at “exceeds expectations.” See,

e.g., JA 1191, 1382, 1392, 1401, 1408. Her personnel file is

replete with glowing comments on the quality of her work and

the significant impact of her efforts on public safety. See, e.g.,

JA 1409. In 2010, Stoe received the Assistant Attorney

General Employee of the Year Award, and in 2012 and 2013,

she was nominated for the Samuel Heyman Service to

America for Justice and Law Enforcement Award. And she

was a coveted speaker at national and international

conferences on standards and testing. JA 1185, 1383, 1402.

In 2013, Stoe’s review stated that her “performance

exceeded expectations to an exceptional degree in all

elements. She consistently demonstrated unusually high

initiative in performing job responsibilities and consistently

performed in a manner, which is significantly beyond what is

expected.” JA 1383. It also noted that her performance was

“made particularly exceptional by the fact that her immediate

supervisor’s position was vacant during much of the reporting

period.” JA 1383. And her superiors acknowledged that they

could not “do full credit to the span of [her] work in the space

available.” JA 1383. At her 2014 mid-year evaluation, Stoe

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asked Tillery if there was anything she could improve on, and

he responded, “[N]o, you cannot improve . . . on excellence.

You can’t improve on somebody that exceeds at everything.”

JA 106.

2. Alleged Gender Bias Issues with Tillery

Stoe was one of two women in OST, which had

approximately fourteen employees. Tillery ran OST and was

Stoe’s second-level supervisor beginning in 2010. Christine

Crossland, who was in the Office of Research and Evaluation,

a parallel division within NIJ which works closely with OST,

shared office space with Stoe and routinely interacted with her.

JA 1173 ¶¶ 2, 4. In her Declaration offered in the proceedings

before the District Court, Crossland stated that Tillery “created

and promote[d] a male-dominated workplace culture that [was]

hostile to women.” JA 1174 ¶ 6; see also JA 1181 ¶ 15.

According to Crossland, Tillery treated Stoe in a “markedly

worse” way than he treated male subordinates, and “this biased

treatment ha[d] existed for many years.” JA 1174 ¶ 7.

In her own Declaration regarding her relationship with

Tillery, Stoe stated:

Over the years, especially at meetings and

presentations, Mr. Tillery has interrupted me while

speaking, refused to let me finish speaking,

challenged my authority and belittled me in front of

male colleagues, become angry when I have corrected

a mistake or incorrect statement that he made, or

sometimes rephrase what I had said a moment prior,

as a way of taking credit for my ideas, or suggesting

that I had been inarticulate and that he needed to

translate. Very often, I was and still am the only

woman in the room. Furthermore, Mr. Tillery does not

8

treat my male colleagues in this manner. With them

he is respectful, deferential, and complimentary.

JA 1181 ¶ 16. Both Stoe and Crossland declared that Tillery’s

treatment of them and other women at DOJ convinced them of

Tillery’s “bias against women.” JA 1181 ¶ 15, 1174 ¶ 6.

Crossland left no doubt that, based on what she had seen,

Tillery treated Stoe differently than he treated her male

colleagues:

Frequently, I have observed Chris talk to Debra in

a way that I would describe as patronizing,

condescending, belittling and sexist. Even though she

is one of the most outstanding performers at NIJ,

Chris frequently speaks to Debra as if he thinks she

does not know what she is talking about—even

though she clearly does. On multiple occasions, I have

heard Chris interrupt, undermine, and insult Debra in

meetings in a way that I cannot imagine he would ever

speak to one of her male peers. In fact, I have never

observed Chris speak to a male colleague in the

dismissive way he frequently speaks to Debra.

JA 1174 ¶ 8.

Although Tillery denied any gender bias, he did admit in

his deposition that he had never helped promote a woman to a

position above the GS-13 level. JA 1162. He claimed that there

were not “a lot of women applying for positions in our office”

and that “we have been under a hiring freeze anyway; so, we

have had very little opportunity to hire anyone.” JA 1161-62.

However, the record indicates that, between 2010 and 2014,

Tillery made at least six promotion decisions elevating men to

GS-14 or GS-15 level positions. JA 1178 ¶ 5.

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In 2010, Stoe applied to fill the vacancy in the Division

Director position. She was one of two finalists. The other

finalist was Hart, a male employee who was working in a GS-

14 position. Tillery recommended Hart to the Acting Director

of NIJ, and Hart was chosen. In his 2010 Hiring Memorandum,

Tillery acknowledged that “Ms. Stoe [had] an advantage over

Mr. Hart in regard to having a more detailed and in-depth

understanding of a significant component of OTD’s mission;

specifically, with regard to managing NIJ’s standards

development and compliance-testing programs.” JA 1422. He

also acknowledged that Hart “[did] not have Ms. Stoe’s depth

of experience in compliance-testing and standards

development,” but pointed out that “Mr. Hart’s experience in

those areas [was] not negligible.” JA 1422. Tillery gave Hart

the edge because he had more supervisory and operational

experience in compliance testing and standards than Stoe.

When Stoe was informed of this hiring decision, Tillery

told her that the reason she was not selected was because of her

lack of formal supervisory experience. JA 1178-79 ¶ 6. Tillery

suggested to Stoe that it would be a good idea for her to get

formal supervisory training, which she did. JA 1179 ¶ 6. By

2014, Stoe had completed 80 hours of supervisory management

training.

3. The Events Surrounding Stoe’s Non-Selection for

the Division Director Position

It was well understood that, for a number of years, Stoe

was successfully performing GS-15 level work even though

she was employed in a GS-14 position. Between 2012 and

2014, Hart and Tillery requested “desk audits” to reclassify

Stoe’s position. They made these requests because they

recognized that Stoe was routinely working above her grade

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and performing GS-15 level work. When these requests were

denied, Tillery then opted to remove GS-15 level work from

Stoe’s position and reassign this work to the Division Director

position.

In March 2014, Hart announced his retirement. This

resulted in a vacancy in the Division Director position, which

was a GS-15 Supervisory Program Manager position. Tillery

posted the position vacancy in April 2014.

Tillery effectively controlled the process for the selection

of a new Division Director. Tillery selected two other panelists

to help him review applications and interview candidates:

Gordon Gillerman, an expert in conformity assessment from

the National Institute of Science and Technology, and Maria

Swineford, a grants management specialist who did not have a

science background. There were serious discussions about

removing grants management from the Division Director

position, but Tillery still chose Swineford to serve on the panel.

In her deposition testimony, Swineford conceded that she was

“in no position to really make any sort of assessment about [the

candidates’] true backgrounds” in standards and testing and

conformity assessment. JA 1012-13.

In May 2014, Tillery communicated with officials in

Human Resources regarding the candidates on the first

certificate list that they had sent him. Tillery objected to the list

because, in his view,

[t]he applicants in the active certifications [were] a

mixed bag. Many [had] no experience in conformity

assessment (standards and testing). Those that [did]

tend[ed] to have it in only in the area of IT. That

bode[d] ill for their ability to replace [Stoe] as the

Department’s alternate Standard[s] Executive . . . .

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JA 1458.

In June 2014, in response to Tillery, Human Resources

sent another certificate list with 77 names. Stoe was ranked in

21st place on this list and Greene was ranked in 72nd place.

Tillery forwarded this certificate list to Gillerman and

Swineford, along with a note stating that “the individual that is

selected will replace the member of our staff currently serving

as one of the two alternate Standards Executives for DOJ” on

the ICSP, which was Stoe. JA 1416. The panelists then divided

up the 77 applications for review to determine whom they

would interview.

Stoe’s application was assigned to and reviewed by

Swineford. After her initial review, Swineford did not

recommend Stoe for an interview because she thought that Stoe

lacked the requisite supervisory experience. However, Tillery

“made the argument to Ms. Swineford that . . . the work that

Ms. Stoe had done with coordinating the standards activities,

with leading the standards activities within NIJ, and with

representation on other standards bodies, in fact, justified or

supported her leadership skills.” JA 264. Swineford then

changed her initial score for Stoe, and this resulted in Stoe

being added to the interview list.

Greene was not initially selected for an interview because

Gillerman concluded that Greene was unqualified “based on

the assumption that the alternate standards exec role and

conformity assessment . . . are critical to the job.” JA 1203.

Gillerman never changed his view that Greene’s application

did not justify an interview. JA 830. And Tillery apparently

agreed with Gillerman’s assessment that Greene did not meet

the criteria to be interviewed. JA 1084. As it turned out, the

only reason Greene was interviewed was because of “a policy

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that if one Office of Justice Programs employee on a certificate

was interviewed (in this case, Stoe), then all employees on that

certificate who work in the same component must also be

interviewed.” Br. for Appellee at 10.

“In 2014, Greene had worked for the Division for only four

years, less than two of them as a GS-14. Greene’s first exposure

to standards and conformity assessment at DOJ came from

assignments Stoe was ‘managing.’ His relatively limited

portfolio of standards and grants management work was on

projects that had been shifted to him from Stoe. By 2014,

Greene had not published a single standard, had never

performed GS-15 level work, and he lacked supervisory

experience and supervisory training.” Br. for Appellant at 16-

17 (footnote and citations omitted). Greene had a Ph.D. in

Materials Science and Engineering, completed a postdoctoral

fellowship at the National Institute of Science and Technology,

and had worked in the private sector. However, Greene had

never performed GS-15 level work as Stoe had done. Greene

was 38 years old and Stoe was 60 years old at the time of the

2014 selection.

On or about June 20, 2014, the panelists deliberated and

Tillery then decided whom to interview. Seven candidates were

interviewed. In preparation for the interviews, Tillery wrote

five questions that the panelists should raise with each

candidate.

As Appellant explains, “[t]he first question related to the

‘ability to analyze organizational and operational problems and

develop solutions’ and specifically referenced service on the

ICSP and asked the candidates to ‘describe a situation in which

you identified a problem related to conformity assessment

activities. . . .’ The second question related to ‘knowledge of

program management principles,’ referenced technology

13

policy, and asked for a situation in which the candidate

‘provided program management advice or assistance. . . .’ The

third related to the ‘ability to provide advice and guidance on

business and program management issues’ and asked the

candidates to ‘describe a situation in which you provided

advice or guidance’ related to ‘grants and/or contract

management.’ The last two questions related to supervisory/

leadership abilities and asked the candidates to ‘describe

situation[s]’ in which they ‘performed a leadership role’ and

‘dealt with a variety of stakeholders.’” Br. for Appellant at 17

n.13; see also JA 1445-52. (The interview questions appear in

the APPENDIX.)

Tillery determined that each question was to be weighted

equally: each panelist was to grade each interviewee on each

question, using a scale of 1 to 5, with 5 being the highest score

possible. Only the first question focused on conformity

assessment and the ability to serve as DOJ’s representative on

the ICSP. None of the questions asked about standards

development or about overall experience.

The interviews took place on July 11 to 16, 2014, with

thirty minutes allotted for each interview. Gillerman and

Swineford followed a pattern of taking notes on each of the

candidates’ responses to each question. Tillery, however, did

not take notes on Greene’s answers to four of the five

questions. For each candidate, Tillery wrote initial scoring

ranges for each question and then picked one score at some

point after the interviews. For example, Tillery gave Greene an

initial score of “3-5” on every question. After the interviews

were over, however, he changed Greene’s scores to either “4”

or “5” for each question (even though he had no notes for

Greene on four of the five questions). Tillery’s initial scoring

ranges for Stoe were “2-3” and “4-5”; however, in his final

assessments, he changed Stoe’s scores to the low end of the

14

range for three of her five responses. Tillery had notes for all

Stoe’s answers.

A graphic example of Tillery’s scoring is seen in

connection with his assessments of the answers given by Stoe

and Greene to the third question on grants management. Tillery

initially gave Stoe a score of “2-3” on the grants management

question, while giving Greene a score of “3-5” for the same

question. JA 550, 559. Although Tillery did not have any notes

on Greene’s answer, he later went back and assigned Greene a

5, while dropping Stoe’s score to 2.

Stoe’s Interview. Stoe’s interview lasted less than thirty

minutes, apparently because Swineford showed up late. And

Stoe was not asked any follow-up questions. On Stoe’s

response to her first question, Gillerman and Swineford both

graded Stoe a 5. In his initial scores, Tillery gave Stoe a “4-5”

on this question, but then downgraded it to a 4 in his final

scoring. When asked at his deposition about Stoe’s score,

Tillery could not recall why it had been lowered and his notes

do not reveal anything negative. JA 1127-28, 548.

Tillery was critical of Stoe’s response to the second

question because it was focused on her area of expertise.

Although he testified that there had been “[a]bsolutely nothing

wrong with [her response],” he gave her a score of 3. JA 1130.

Swineford and Gillerman each graded Stoe a 4. At one point

during Stoe’s interview, Tillery shook his head to express a

negative reaction to one of her responses. Stoe felt that Tillery

was “attempt[ing] to influence the other two panelists to maybe

grade [her] down or downgrade [her] a little bit on that

particular question.” JA 966.

Swineford felt that, in her response to the third question,

Stoe showed that she had “good experience” in grants

15

management. Swineford was “impressed” with Stoe’s answer

and gave her a score of 4. JA 1000, 1597. Gillerman gave Stoe

a 3, while Tillery gave her a final score of 2. For the final two

questions, Stoe received scores of 4, 3, and 3 on one, and 5, 5,

and 4 on the other. See JA 634.

Greene’s Interview. Greene’s interview lasted

approximately 45 minutes, with follow-up questions. With

respect to the first question, Gillerman believed Greene’s

“discussion was not focused on the issues of standards

executives or the policy associated with standards executive

work.” JA 849. Tillery also found that Greene “did not have a

specific understanding of the role of the standards executive

within the federal government” and wrote in his notes that

Greene did a “little tap dance around [the] standards

executive’s role.” JA 1123-24. Gillerman and Tillery still gave

Greene a 4 on this answer, and Swineford gave him a 5.

Greene’s answer to the second question focused on his

experience moderating a talk on smart gun technology, during

which he walked “around the room with a microphone like Phil

Donahue” and made sure to keep them from having a

discussion on gun control policy. JA 910-11. Tillery testified

that Greene’s response “involved a more complex issue or set

of issues than Ms. Stoe’s response.” JA 276. Yet, Tillery had

found Stoe’s response to be too focused on her area of expertise

when she discussed her standards program during this question.

Tillery and Gillerman gave Greene’s response a score of 4, and

Swineford gave him a 5 on this question.

Regarding Greene’s response to the third question, dealing

with grants, Swineford noted that Greene “described extensive

experience with not only grants but with interagency

agreements,” but she could not remember during her deposition

whether Greene had discussed all aspects of the grants process.

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JA 1031-33. Swineford gave Greene’s response a 4, and Tillery

and Gillerman both gave Greene a 5.

Gillerman’s notes appear to question Greene’s response to

the fourth question: “What was accomplished[?] What did he

do? Leadership?” JA 587. Gillerman gave Greene’s answer a

3, while the other panelists graded it a 4. For the fifth question,

Greene again relied on his moderator example, and was given

a 4 by Tillery and Gillerman and a 5 by Swineford.

Higgins’ Interview. Gillerman and Swineford both

thought Kathleen Higgins, the third finalist, was unprepared

and ranked her the lowest on their combined scores. Tillery was

“very disappointed” with Higgins’ interview, saying that “she

struggled most with the two leadership questions” and that “she

could have done much, much better.” JA 1093-94. According

to Tillery, Higgins “had a wealth of experience, and . . . it did

not come across as well as it should.” JA 1093. Nevertheless,

Tillery gave Higgins a 5 on the first question and a 5 on both

questions dealing with supervisory responsibility. When asked

who Tillery believed did better between Stoe and Higgins

during the interview, Tillery answered that Stoe did, but later

tried to qualify his answer. JA 1105-06.

On the final day of interviews, even though he had not

discussed the deliberation process with the other two panelists

or seen their actual scores, Tillery contacted his supervisor to

tell him that the panel was choosing between Greene and

Higgins. Then on July 18, Tillery sent an email to Gillerman

and Swineford giving them his preliminary scores. No

discussion between the panelists preceded Tillery’s email.

Gillerman and Swineford did not share their preliminary scores

until July 21. In his email to Gillerman and Swineford, Tillery

proposed that the panel “sum [their] final totals for each

candidate and divide by 3 to come to a final score.” JA 626.

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Tillery’s final scores had Greene and Higgins tied for first

place with 21 points, and Stoe in third place with 18 points.

Gillerman had Greene and Stoe tied for first place with 20

points, and Higgins in third place with 17 points. Swineford

had Greene in first place with 23 points, Stoe in second place

with 19 points, and Higgins in third place with 18 points.

Swineford scored Greene higher than Stoe on all questions

except for the question on grants, on which she gave them both

a 4. However, at her deposition, Swineford mentioned grants

management as the only area in which Greene was the stronger

candidate. JA 1046-47.

On July 21, the panelists deliberated by telephone.

Swineford did not remember anyone advocating for or even

mentioning Higgins in deliberations. JA 1018-19. Rather, she

stated that “it was primarily a conversation between

recommending Debra or Mark.” JA 993.

In his 2014 Hiring Memorandum, Tillery wrote that “it

was the consensus of the panel that Dr. Greene was best

qualified to fill this position.” JA 387. However, in his

deposition, Gillerman said that he did not recall any such

deliberations, and he said he could not recall coming to a

consensus on the final selection. JA 868-70, 873-74. Gillerman

made it clear that he “was not the selecting official,” which he

clarified to mean that he “was not the final decision maker” in

selecting Greene. JA 873. Tillery assumed that role.

On July 21, 2014, after the panel had conferred by

telephone, Tillery emailed his supervisor to inform him of

Greene’s selection. He said that: “The major differentiators in

Mark’s favor were his detailed understanding of the . . . grants

processes and their issues and his ability to provide guidance

on technology policy.” JA 1436. Yet, Tillery had praised Stoe

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for doing “an outstanding job managing grants,” testified that

Stoe had more experience in grants management and business

processes than Greene, and never indicated in Stoe’s

performance reviews that her grants management work was

substandard in any way. JA 1235, 1140.

At one point in his deposition, Tillery stated that he scored

the candidates based solely on how they responded to the

interview questions. JA 1120-21. This is perplexing because

Tillery used a range of scores (“3-5”) in his initial assessments

of Greene on every question; he had no notes on Greene for

four of the five questions; and then, after the interviews, he

gave Greene final scores of 4 or 5 on every question. After

selecting Greene for the position, Tillery wrote to an official in

Human Resources to say that: “I am well aware of [Greene’s]

skills and capabilities having worked closely with him on

numerous projects over the years. Contacting references is not

necessary in this case.” JA 1435.

Tillery later informed Stoe that, although she had not been

selected for the position, she had “scored better than the other

candidates on four out of five interview questions, and second

highest on the question dealing with grants management.”

JA 1180 ¶ 13. This was not true. See JA 634. When Stoe asked

him to clarify why she had not received the position, Tillery

explained that “a candidate would not be selected if they had

scored lower than a ‘3’ on any of the interview questions,

implying that this would be justification for denying a

candidate the position.” JA 1180 ¶ 13. However, there is

nothing in the record to confirm this. And there is nothing to

indicate that Gillerman or Swineford operated on this

assumption.

Tillery testified that he ultimately selected Greene due to

“Dr. Greene having a greater appreciation for the issues of

19

technology policy and [his] understanding that Dr. Greene had

a more nuanced application of conformity assessment than Ms.

Stoe.” JA 1101. “This was the only time conformity assessment

was cited as a reason for Greene’s selection. It squarely

conflicts with the panelists’ scoring, as no one scored Stoe

lower than Greene on the first question about conformity

assessment.” Br. for Appellant at 25. And Tillery could not

recall any specifics regarding Greene’s discussion of

conformity assessment. Yet, Tillery explained that while Stoe

had more experience with conformity assessment and

understood the process better, Greene had a better

“understanding of potential.” JA 1102-03.

Following her non-selection, most of the work that Stoe

had been doing was reassigned to Greene. As the Division

Director, Greene was assigned to run the standards program,

serve on the ICSP, work on body armor projects, and oversee

conformity assessment duties. All of these duties were

formerly performed by Stoe, who consistently received high

praise for her work in the Division. In addition, Greene’s new

position was stripped of all grants management

responsibilities, just as had been suggested at the start of the

process to fill the vacancy in the Division Director position.

B. Procedural History

On August 10, 2016, Stoe filed a complaint in District

Court, alleging that DOJ denied her a promotion because of her

gender, in violation of 42 U.S.C. § 2000e-16, and her age, in

violation of 29 U.S.C. § 633a. On August 28, 2018, the District

Court entered a final order granting DOJ’s motion for summary

judgment. On October 24, 2018, Stoe filed a timely notice of

appeal.

20

II. ANALYSIS

A. Standard of Review

“This court reviews the District Court’s ruling on

summary judgment de novo.” Feld v. Fireman’s Fund Ins. Co.,

909 F.3d 1186, 1193 (D.C. Cir. 2018). This means that we must

review the record “taken as a whole.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). And in

conducting this review, we are required to “examine the facts

in the record and all reasonable inferences derived therefrom in

a light most favorable to the nonmoving party.” Robinson v.

Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016) (internal quotation marks

and citation omitted). We must then determine whether “there

are any genuine factual issues that properly can be resolved

only by a finder of fact because they may reasonably be

resolved in favor of either party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986). Under this standard, “[t]he

evidence of the non-movant is to be believed.” Id. at 255.

“Summary judgment is appropriate only if the pleadings,

depositions, answers to interrogatories, admissions, and

affidavits filed pursuant to discovery show that, first, ‘there is

no genuine issue as to any material fact’ and, second, ‘the

moving party is entitled to a judgment as a matter of law.’”

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)

(quoting FED. R. CIV. P. 56(c)). In other words, if there are no

genuine issues of material fact, the moving party is entitled to

judgment as a matter of law if the nonmoving party “fails to

make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party

will bear the burden of proof at trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986).

21

In considering a motion for summary judgment, judges

must ask themselves not whether they think “the evidence

unmistakably favors one side or the other but whether a fair-

minded jury could return a verdict for the plaintiff on the

evidence presented.” Anderson, 477 U.S. at 252. That is, “there

must be evidence on which the jury could reasonably find for

the plaintiff.” Id. And in viewing the evidence in the light most

favorable to the nonmoving party and drawing all reasonable

inferences in her favor, the court’s role is not “to weigh the

evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Id. at 249. In short,

“[c]redibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts” are not the

functions of the court. Id. at 255. These are matters for a jury if

the court determines that there is a genuine issue for trial.

B. The Applicable Legal Standards

Stoe’s causes of action in this case arise under 42 U.S.C

§ 2000e-16 and 29 U.S.C. § 633a. Both provisions cover

employment in the federal government. Section 2000e-16(a)

states that “[a]ll personnel actions affecting employees or

applicants for employment . . . in executive agencies . . . shall

be made free from any discrimination based on . . . sex.” 42

U.S.C. § 2000e-16(a). Section 633a(a) states that “[a]ll

personnel actions affecting employees or applicants for

employment who are at least 40 years of age . . . in executive

agencies . . . shall be made free from any discrimination based

on age.” 29 U.S.C. § 633a(a).

Regarding claims arising under § 2000e-16(a), we have

explained the burden-shifting requirements, as follows:

[When] the record contains no direct evidence that the

adverse employment action of which the plaintiff

22

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. Under this

framework, the plaintiff must first establish a prima

facie case of discrimination by showing that: (1) she

is a member of a protected class; (2) she applied for

and was qualified for an available position; (3) despite

her qualifications, she was rejected; and (4) either

someone filled the position or it remained vacant and

the employer continued to seek applicants.

....

Once the plaintiff has established a prima facie

case, the burden shifts to the defendant to produce

evidence that the plaintiff was rejected for a

legitimate, nondiscriminatory reason. . . .

....

. . . If the defendant produces such evidence [of a

nondiscriminatory reason], the McDonnell Douglas

framework—with its presumptions and burdens—

disappears, and the sole remaining issue is

discrimination vel non. At this point, to survive

summary judgment the plaintiff must show that a

reasonable jury could conclude from all of the

evidence that the adverse employment decision was

made for a discriminatory reason. By “all of the

evidence,” we mean any combination of (1) evidence

establishing the plaintiff’s prima facie case; (2)

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

23

the part of the employer. Aka v. Wash. Hosp. Ctr., 156

F.3d 1284, 1289 (D.C. Cir. 1998) (en banc).

Holcomb, 433 F.3d at 895-97 (internal quotation marks and

citations omitted).

With respect to claims of age discrimination arising under

§ 633a(a), we have explained that “plaintiffs can establish

liability . . . in one of two ways. First, they can make use of

the McDonnell Douglas evidentiary framework to establish

that age was the but-for cause of the challenged personnel

action. . . . Second, plaintiffs may establish liability by

showing that age was a factor in the challenged personnel

action.” Ford v. Mabus, 629 F.3d 198, 207 (D.C. Cir. 2010);

see also Reeves, 530 U.S. at 142 (applying the McDonnell

Douglas framework to a claim arising under the Age

Discrimination in Employment Act).

There is no dispute here that Stoe meets all of the criteria

necessary to establish a prima facie case under § 2000e-16(a)

and § 633a(a): (1) she is a woman over the age of forty; (2) she

was qualified and applied for the Division Director position;

(3) she was rejected; and (4) the position went to Greene. It is

also undisputed that DOJ produced evidence that Stoe was

denied promotion for a facially legitimate, nondiscriminatory

reason. See Reeves, 530 U.S. at 142. DOJ claims that the

selection decision was based on the candidates’ interview

performance, and Greene was selected because, according to

DOJ, his “answers better demonstrated his relevant experience

and narrowly superior qualifications across the board than did

Stoe’s.” Br. for Appellee at 21.

Thus, a “central inquiry” here is whether Stoe produced

sufficient evidence for a reasonable jury to find that DOJ’s

“asserted non-discriminatory reason was not the actual reason

24

and that the employer intentionally discriminated against [her]

on a prohibited basis.” Hamilton, 666 F.3d at 1351 (internal

quotation marks and citation omitted). “Because in appropriate

cases a ‘factfinder’s disbelief of the reasons put forward by the

defendant’ may support an inference of intentional

discrimination, St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

511 (1993), we do not routinely require plaintiffs ‘to submit

evidence over and above rebutting the employer’s stated

explanation in order to avoid summary judgment.’ Aka, 156

F.3d at 1290.” Id.

With these standards in mind, and viewing the evidence in

the light most favorable to Stoe and drawing all reasonable

inferences in her favor, “taking care neither to make credibility

determinations nor to weigh the evidence before us,” id., we

conclude that “a fair-minded jury could return a verdict for

[Stoe] on the evidence presented.” Anderson, 477 U.S. at 252.

The parties do not analyze the evidence separately in relation

to Stoe’s age and sex discrimination claims, instead treating the

claims as rising or falling together on the presence or not of

material factual disputes over whether the employer’s reasons

were pretextual. See Br. for Appellant at 1; Br. for Appellee at

2. We do the same.

C. The Candidates’ Relative Qualifications

Stoe points out that, “[t]ellingly, DOJ never contends that

Greene was the best qualified for the job, and all but concedes

that a jury could find Stoe better qualified than Greene. See

DOJ Br. at 3[5]-[38] (Stoe ‘had more experience in standards

and conformity assessment,’ ‘more relevant experience’ at

OST ‘developing and publishing standards,’ and ‘was in some

ways more qualified on paper than was Greene’).” Reply Br.

for Appellant at 8 n.4. Appellant’s Reply Brief amplifies these

points. We quote at length, both because the material is fully

25

supported by the record and the differences between Stoe’s and

Greene’s qualifications are aptly highlighted:

[Stoe] had been successfully performing a

majority of the Division Director responsibilities for

many years, while Greene had no comparable

background. This evidence alone would allow a

reasonable juror to conclude that Stoe was

substantially better qualified. DOJ’s brief completely

ignores this record evidence – a damning omission.

DOJ also ignores the uniquely relevant and

superlative quality of Stoe’s “revolutionary work,”

which allowed her to achieve “previously

unattainable goals and objectives.” Indeed, Stoe spent

ten years creating the Office of Science and

Technology’s (“OST”) standards development and

conformity assessment programs, whereas Greene

had only worked on “discrete parts” of the standards

development and conformity assessment programs,

for eighteen months under Stoe’s direction. Simply

put, Stoe was an undisputed expert in the core areas

of responsibility for the position, and Greene was not.

While DOJ stresses that Greene worked on

“technology performance and equipment

performance standards,” it cannot dispute that he had

never published a single standard, whereas Stoe had

personally published ten standards and oversaw the

development of at least twenty more. Likewise, Stoe

was the only candidate with experience serving on the

Interagency Committee on Standards Policy

(“ICSP”), one of the key Division Director

responsibilities. Greene had no ICSP experience

(which led the panel to initially deem him

unqualified), and he was only granted an interview

26

due to a DOJ policy whereby Greene had to be

interviewed because Stoe received one.

As for government experience, Stoe had twelve

more years of experience working for DOJ than

Greene. She had eight more years of GS-14

experience than Greene and had worked at the GS-15

level for at least four years, whereas Greene had no

GS-15 experience. . . .

. . . DOJ suggests Greene’s experience in the

private sector, his fellowship experience at National

Institute of Science and Technology (“NIST”), and

his PhD, rendered the gap between his and Stoe’s

credentials insubstantial. But DOJ ignores evidence

that before joining DOJ, Stoe had twelve years of

relevant private sector experience, whereas Greene

had at most five. DOJ also fails to explain how

Greene’s NIST fellowship meaningfully enhanced his

qualification for a supervisory position in OST, and

overlooks Stoe’s experience working with NIST for

many years. DOJ’s suggestion that Stoe did not have

substantially better supervisory and leadership

qualifications [DOJ Br. at [37-38]] ignores the fact

that Stoe for years had (informally) supervised the

work of multiple GS-13 and GS-14 program

managers, including Greene himself. DOJ tries to

downplay Stoe’s 80 hours of supervisory training, but

that was 80 more hours than Greene had when he was

selected to lead the division. . . .

Next, DOJ claims Greene had a “good deal” of

experience with grants and other “business-related

aspects” of the position, but ignores evidence that

Stoe had done an “outstanding job” managing grants

27

for many years. Even Tillery admitted that Stoe had

greater experience managing grants than Greene.

Moreover, DOJ completely ignores evidence that

Tillery knew at the time of the selection decision that

the Division Director role was about to be divested of

grants management responsibilities and was, in fact,

divested of those responsibilities within a year of

Greene’s selection.

Reply Br. for Appellant at 2-5 (footnote and citations omitted).

Even the District Court recognized these marked differences

in the qualifications of Stoe and Greene. Stoe, 324 F. Supp. 3d

at 187-88.

Unsurprisingly, Stoe argues that she should prevail in this

matter because, based on the evidence in the record, a

reasonable jury could find that she was substantially better

qualified for the Division Director position than was Greene.

The Supreme Court has held that “qualifications evidence may

suffice, at least in some circumstances,” to demonstrate that an

employer’s proffered explanation is pretext for discrimination.

Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006). Following

Ash, this court developed a framework for evaluating claims

“involving a comparison of the plaintiff’s qualifications and

those of the successful candidate.” Hamilton, 666 F.3d at 1352

(internal quotation marks omitted) (quoting Aka v. Wash.

Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998) (en banc)).

In Aka, we noted that:

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

28

not usually do, unless some other strong

consideration, such as discrimination, enters into the

picture.

156 F.3d at 1294. However, we have been cautious in

explaining the inferences to be drawn from comparative

qualifications evidence:

“[W]e 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.” For this reason, a disparity in

qualifications, standing alone, can support an

inference of discrimination only when the

qualifications gap is “great enough to be inherently

indicative of discrimination”—that is, when the

plaintiff is “markedly more qualified,” “substantially

more qualified,” or “significantly better qualified”

than the successful candidate.

Hamilton, 666 F.3d at 1352 (citations omitted) (first quoting

Aka, 156 F.3d at 1294; then quoting Holcomb, 433 F.3d at

897).

Although the record in this case surely supports Stoe’s

claim that she was better qualified than Greene, we need not

decide whether a jury would find that she was ‘significantly’

or ‘markedly’ more qualified. Holcomb, 433 F.3d at 897; see

also Hamilton, 666 F.3d at 1352 (“Given the record in this

case . . . [this] is a question we need not conclusively

resolve.”). As we noted in Hamilton,

[P]laintiffs are “expressly not limited to comparing

[their] qualifications against those of the successful

29

applicant; [they] may seek to expose other flaws in the

employer’s explanation.” Holcomb, 433 F.3d at 897;

see also Ash, 546 U.S. at 458 (noting approvingly the

Eleventh Circuit’s suggestion that “superior

qualifications may be probative of pretext when

combined with other evidence”). Here, [Stoe] relies

not only on comparative qualifications evidence, but

also “seek[s] to expose,” Holcomb, 433 F.3d at 897,

procedural irregularities in a highly subjective

selection process. Reviewing the record as a whole,

we agree that the evidence of [Stoe’s] superior

qualifications taken together with “other flaws in the

employer’s explanation,” id., creates a genuine issue

of material fact that only a jury can resolve.

666 F.3d at 1352.

In an attempt to counter the foregoing case authorities,

DOJ relies heavily on Fischbach v. District of Columbia

Department of Corrections, 86 F.3d 1180 (D.C. Cir. 1996).

The court in that case held that “Title VII liability cannot rest

solely upon a judge’s determination that an employer

misjudged the relative qualifications of admittedly qualified

candidates.” Id. at 1183. Suffice it to say that this case involves

very different issues, regarding whether superior

qualifications may be probative of pretext, procedural

irregularities in the selection process, false testimony, and

accumulated evidence of gender bias against the claimant. As

we have explained, the decisions in Reeves, Iyoha, Hamilton,

Holcomb, Aka, and Ash, not Fischbach, control the disposition

of this case.

30

D. A Reasonable Jury Could Find in Stoe’s Favor Based

on Her Superior Qualifications, the Accumulated

Evidence of Gender Discrimination, and Pretext

As shown above, Stoe offered compelling evidence to

prove that Tillery had: (1) discriminated against Stoe on the

basis of her gender in the past; (2) ruled Stoe out of

consideration for the promotion even before she was

interviewed; (3) designed the interview questions and process

to mask Stoe’s superior qualifications; (4) allowed gender bias

to taint his scoring of the candidates in their interviews; (5)

influenced the other panelists’ scoring to the detriment of Stoe;

(6) infected the selection process with his bias by sending out

his votes to the panel in advance of their final deliberations; (7)

in effect reported to his superior that Greene had been selected

before deliberating with other members of the panel; and (8)

provided shifting and false rationales for his inconsistent

actions. According to Stoe, viewing this evidence in the light

most favorable to her, and drawing all reasonable inferences in

her favor, a reasonable jury could find that DOJ’s proffered

nondiscriminatory reason for denying her the promotion that

she sought was pretextual and that discrimination was the real

reason. We agree.

First, Stoe provided testimony that Tillery discriminated

against her on the basis of gender prior to the contested

promotion action at issue in this case. It is undisputed that

evidence of discriminatory statements or attitudes by a

decision-maker may support a finding of discrimination, even

if the disparaging comments were not made in the context of

the contested employment action. See, e.g., Reeves, 530 U.S. at

152. A reasonable jury could conclude that Stoe’s evidence of

Tillery’s treatment of her and other female colleagues revealed

his “bias against women.” See JA 1181 ¶ 15. For example,

Tillery took credit for Stoe’s ideas, challenged her authority,

31

belittled her in front of male colleagues, interrupted her while

she was speaking, and became angry if she corrected him. JA

1181 ¶ 16. Further, in her Declaration, Stoe’s colleague,

Crossland corroborated this view of Tillery’s sexist treatment

against women. JA 1173-76. Crossland described Tillery’s

treatment of Stoe as “patronizing, condescending, belittling

and sexist.” JA 1174 ¶ 8. As even the District Court

acknowledged, Stoe’s evidence of Tillery’s treatment of her

and other female colleagues revealed a “pernicious” form of

“sexism.” Stoe, 324 F. Supp. 3d at 197. A jury might find this

to be compelling evidence of discriminatory motive, which

caused Tillery to act against Stoe because of her gender.

Second, Stoe provided testimony that Tillery ruled her out

of consideration even before she was interviewed. For

example, Tillery expressed a desire to replace Stoe on the

ICSP, even though serving on the ICSP would be one the main

responsibilities of the Division Director position. In an email

to Human Resources, Tillery communicated that he was not

satisfied with the list of candidates “to replace Debra.”

JA 1458-59. And later when he forwarded a revised list of

candidates to his fellow panel members, he stated that the

selectee would “replace” Stoe on the ICSP. JA 1416. He knew

at the time that Stoe was applying for the Division Director

position. A reasonable jury certainly might view Tillery’s

emails as further evidence of discriminatory motive showing

that Tillery meant to prevent Stoe from being promoted

because of her gender.

Third, Stoe provided evidence that Tillery designed the

interview process to mask her superior qualifications and to

manipulate the scoring of candidates. A reasonable jury could

easily see this as evidence of pretext. Tillery made the decision

to base the selection entirely on the interviews. Tillery also

wrote and weighted the questions himself. And Tillery adopted

32

a scoring system that was easily manipulated. The measure of

interview performance is hardly an exact science. Different

interviewers may hear the same thing from the same candidate

and grade it very differently. The evidence in this case proves

the point. This is why, “although employers may of course take

subjective considerations into account in their employment

decisions, courts traditionally treat explanations that rely

heavily on subjective considerations with caution.” Aka, 156

F.3d at 1298. It is well understood that assessments of

interview performances and dubious scoring systems can be

used to cover up discriminatory hiring practices. See, e.g.,

Hamilton, 666 F.3d at 1355-56.

In Hamilton, the interview panelists did not create a

written record of their deliberations or reasons for choosing the

final selectee, leaving the court with no evidence of the

decision-making process. Id. The situation in this case is worse

because of “[t]he irregularities of Tillery’s scoring

methodology, including initially assigning a score range

during the interviews (thereby reserving his ability to settle on

final scores to fit his desired outcome), and then later assigning

Greene scores at the high end of the range and Stoe the low

end, then further lowering one of Stoe’s scores again without

explanation.” Reply Br. for Appellant at 17-18. For example,

Tillery lowered his scoring of Stoe’s response to the first

question but could not recall why during his deposition, nor

did his notes reveal anything negative. JA 1127-28, 548.

Another example is Stoe’s response to the second question:

Tillery had given Stoe a 3 for her response (not a very strong

score), but during his deposition he said that there was nothing

wrong in the way she had responded. JA 1128-30. The record

reveals that during the interviews Tillery assigned Stoe and

Greene a range of scores for each question; he then

subsequently went back and assigned concrete scores at some

point after the interviews. JA 545-53, 555-62. A reasonable

33

jury could infer that Tillery delayed assigning concrete scores

to Stoe’s and Greene’s interview answers so that he could

manipulate the scores. And a reasonable jury could conclude

that the resulting scores were merely pretextual and gender

bias was the real reason behind Tillery’s scores.

A most telling example is seen in Tillery’s initially giving

Stoe a raw score of “2-3” on the grants management question,

while giving Greene a raw score of “3-5” for the same

question. JA 550, 559. Although Tillery had no notes on

Greene’s answer, he later went back and assigned Greene a 5,

while assigning Stoe a score of 2. In the scoring format

adopted by Tillery, this three-point differential between Stoe’s

and Greene’s scores had a huge impact on the final result.

It is also noteworthy that, on July 16, 2019, immediately

after the interviews concluded and before the panelists’ scores

had been tabulated, Tillery sent a message to his superior

proclaiming that “[i]ts between Mark Greene and Kathy

Higgins.” JA 1442. A reasonable jury might conclude that

Tillery meant to lock in a result favoring Greene before the

panel had deliberated and reached consensus.

Tillery’s interview questions also suggest an attempt to

distract from Stoe’s superior qualifications. Only one of the

five interview questions Tillery wrote focused on a major

responsibility of the Division Director position – the standards

and conformity assessment programs and ICSP representation

– which Stoe had already been performing for years. Although

this was the most relevant question for the position (Stoe was

ranked the highest on this question), Tillery weighed it equally

to the other four questions. Moreover, Tillery did not ask any

questions regarding experience relevant to the position. This is

critical, because Stoe had been performing many of the

responsibilities of the Division Director position already. In

34

Salazar v. Washington Metropolitan Area Transit Authority,

401 F.3d 504 (D.C. Cir. 2005), the court found that a

reasonable jury could infer that the interview panelists

“selected an interview agenda which, though facially

acceptable, was designed to downplay [the plaintiff’s]

strengths.” Id. at 510. Use of the interview process to minimize

a candidate’s strengths, as a reasonable jury might conclude

occurred in this case, can be taken as pretextual to cover

proscribed discrimination against the candidate. See id. at 509-

10.

Fourth, Stoe provided further evidence that the selection

process created and run by Tillery was anything but fair and,

in fact, likely a pretext to cover his gender bias. For example,

Tillery sent his votes to the panel in advance of their

deliberations. A reasonable jury might view this as an attempt

to influence the panel. Tillery was the lead official throughout

the selection process, which obviously carried significant

weight. He wrote the questions, determined how the

candidates would be scored, sent his scores to the other

panelists before their deliberations, and notified his superior of

a decision that had yet to be reached. Tillery claimed that the

panel reached “consensus” on the selection of Greene.

However, Gillerman said he recalled no consensus ever being

reached. Tillery was also the only person on the panel who

knew the three finalists, and he had a history of gender bias

against Stoe (which the other panelists may not have known

about). Tillery was the only one on the panel who could claim

close familiarity with the Division Director position, which of

course would carry weight in panel interactions. Indeed,

Swineford candidly acknowledged that she had doubts about

her ability to judge the candidates fairly. In this context, a

reasonable jury could find Tillery was in a good position to

influence the scoring of the other two panelists and that he did,

in fact, employ the process that he had created as pretext for

35

unlawful discrimination. The law is clear that an unfair

selection process is no defense to a claim of discrimination.

The decision in Iyoha, citing Salazar, 401 F.3d at 509,

pointedly states that “when an employer seeks to rely on a

‘fairly administered’ process to justify an employment action,

the process must in fact be fair.” 927 F.3d at 570. The court in

Iyoha further explains that “[a] selection process that relies on

numerical scores given by a panel of interviewers is only as

fair as the panelists who give the scores.” Id. In Iyoha, the court

found that a reasonable jury could find that because the senior

member of the panel had past acts of discrimination toward the

plaintiff and was in a position to potentially influence the

scores given by the other panelists, the plaintiff was not

provided “a fairly administered selection process, and that [the

defendant’s] claim to the contrary is pretextual.” Id. (internal

quotation marks and citation omitted). We understand that, in

this case, the District Court did not have the benefit of the

Iyoha decision, issued in 2019, when it decided the Attorney

General’s summary judgment motion in August 2018.

Fifth, Stoe presented evidence that Tillery provided

shifting and false rationales for the selection of Greene. For

example, Tillery told Stoe that she was not selected because

candidates had to score at least a 3 on every question to be the

final selectee. However, nothing in the record supports this,

and there is nothing to indicate that the other two panelists

operated on this assumption. Furthermore, the record indicates

that Tillery told his supervisor that Greene was selected

because he performed better than Stoe on grants management

and technology policy. JA 1436. And the record additionally

indicates that Tillery testified that Greene was selected due, in

part, to his more “nuanced” appreciation of conformity

assessment. JA 1101. This last claim not only differs from the

prior two explanations, but it cannot be squared with the

36

panelists’ scoring of the candidates on the conformity

assessment question. No panelist scored Greene higher than

Stoe on Question 1.

A factfinder “can reasonably infer from the falsity of the

explanation that the employer is dissembling to cover up a

discriminatory purpose. Such an inference is consistent with

the general principle of evidence law that the factfinder is

entitled to consider a party’s dishonesty about a material fact

as ‘affirmative evidence of guilt.’” Reeves, 530 U.S. at 147

(quoting Wright v. West, 505 U.S. 277, 296 (1992)). A

reasonable jury could view Tillery’s shifting explanations of

the selection decision as evidence of pretext to cover up his

gender bias.

One final point regarding Tillery’s alleged manipulation of

the selection process is worth mentioning. It concerns Tillery’s

assessments of Higgins during the interview process. Appellant

convincingly explains why Higgins’ inclusion as a finalist in

the selection process neither negates the other inferences of

discrimination that are apparent in this case, nor diminishes the

evidence suggesting that Tillery manipulated the selection

process and used it as a pretext to discriminate against Stoe.

Here is what Appellant says:

Tillery’s top-place scoring of Higgins was

suspicious given his subsequent testimony that he

found that her interview performance was “very

disappoint[ing],” her relevant experience “did not

come across as well as it could,” and she “struggled

with the leadership questions.” [JA 1093-94]. This

testimony is almost impossible to square with

Tillery’s perfect scores for Higgins on the conformity

assessment/ICSP-related question and both questions

on supervisory abilities. [JA 634]. When asked to

37

explain the apparent inconsistency, Tillery

inexplicably responded that Higgins provided “better

examples” with better “substance” than Stoe, but Stoe

“did a better presentation job than Ms. Higgins.” [JA

1106-07]. Cf. Figueroa [v. Pompeo], 923 F.3d [1078,

1094 (D.C. Cir. 2019)] (“evaluators essentially are

grading candidates on absolute terms and against one

another along a curve, and they therefore should be

able to explain why one candidate’s grade is lower

than others.”). Tillery’s testimony, combined with

Swineford’s recollection that he never even

mentioned Higgins in post-interview deliberations,

[see JA 1018-19], suggests Tillery’s first-place

scoring of Higgins was intended to mask his gender

bias against Stoe. Were that his plan, it was successful

vis-à-vis the District Court, which found Tillery’s

“high score for Higgins [tended] to negate Stoe’s

assertion that Tillery discriminated against her.”

[Stoe, 324 F. Supp. 3d at 199]. But a reasonable juror

could infer that Tillery’s scoring was a sham, and Stoe

outperformed both Higgins and Greene.

Br. for Appellant at 42 n.22. We agree with Appellant that

“[s]ubstantial evidence exists for a reasonable juror to find

Tillery did not score the candidates based on an honest

assessment of their interview performance, and his scoring

was biased against Stoe.” Id. at 42.

DOJ contends that Tillery’s support for Higgins,

including his equal scoring of Higgins and Greene, “negates

any weak inference that Tillery discriminated against Stoe.”

Br. for Appellee at 18. We strongly disagree. It is true that

when a plaintiff claims discrimination after being denied a

position, if the position was filled by another person who is

within the same protected class as the plaintiff, this normally

38

“cuts strongly against any inference of discrimination.”

Murray v. Gilmore, 406 F.3d 708, 715 (D.C. Cir. 2005). But

see Stella v. Mineta, 284 F.3d 135, 146 (D.C. Cir. 2002)

(holding that “a plaintiff in a discrimination case need not

demonstrate that she [lost out on a promotion to] a person

outside her protected class in order to carry her burden of

establishing a prima facie case”). However, the “same

protected class” caveat cited in Murray has no application in

this case because neither Stoe nor Higgins was hired to fill the

Division Director position.

****

Given the caliber and quantity of the evidence offered by

Stoe in opposition to the motion for summary judgment, we

have no doubt that a reasonable jury could find that DOJ’s

proffered nondiscriminatory reason for denying Stoe the

promotion that she sought was pretextual and that

discrimination was the real reason. The matters at issue in this

case must be decided by a jury.

III. CONCLUSION

We reverse the grant of summary judgment in favor of

DOJ and remand the case to the District Court so that it may

proceed to trial on Stoe’s claims of gender and age

discrimination.

39

APPENDIX

Interview Questions

(1) One of the major duty assignments associated with

this position is to provide program advice and guidance. As

noted in the vacancy announcement, if you are selected you

will serve as one of the two alternate standards executives for

the Department of Justice. In that regard, describe a situation

in which you identified a problem related to conformity

assessment activities, and evaluated the alternatives to make a

recommendation or decision. What was the problem and who

was affected? How did you generate and evaluate your

alternatives? What was the outcome?

(2) Another of the major duty assignments associated

with this position is program planning and management. As

noted in the vacancy announcement, if you are selected for this

position you will be expected to oversee NIJ’s efforts to

coordinate federal policy as it relates to technology applied to

criminal justice purposes. Please describe situations in which

you provided program management advice and assistance

related to technology policy. As it relates to the above,

describe a situation in which you applied analytical and

evaluative methods and techniques related to program policies

and activities as they relate to major agency programs. What

were the methods and/or techniques you used? Who was

affected by your decision? What was the outcome of your

decision?

(3) Another of the major duty assignments associated

with this position is program planning and management. As

noted in the vacancy announcement, if you are selected for this

position you will be expected to oversee OST’s business

processes as they relate to NIJ’s science and technology

40

programs. Describe a situation in which you advised or

consulted on program management matters, finance issues, or

data, as they related to grants and/or contract management,

and/or management of agreements; particularly wih [sic] for-

profit entities. What was the problem and who was affected?

How did you generate and evaluate the alternatives to make a

recommendation? What was the outcome?

(4) The fourth major duty assignment associated with this

position is supervisory and/or management responsibilities.

Please describe a situation in which you performed a

leadership role and/or motivated others toward the

accomplishment of a goal. What was involved, what did you

do, and what was the outcome?

(5) Describe a situation in which you dealt with a variety

of stakeholders. Who was involved, what was the issue or

objective, and what was the outcome[?] How did you interact

with the group[?]