Timothy Jeffries v. William Barr

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2019 Decided July 14, 2020

No. 17-5008

TIMOTHY JEFFRIES,

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. 1:15-cv-01007)

Jerry R. Goldstein argued the cause and filed the briefs for

appellant.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Jessie K. Liu, U.S.

Attorney, and R. Craig Lawrence and Marsha W. Yee,

Assistant U.S. Attorneys.

Before: PILLARD, WILKINS and RAO, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

2

Opinion concurring in part and dissenting in part filed by

Circuit Judge PILLARD.

WILKINS, Circuit Judge: Timothy Jeffries brought suit

against the Department of Justice (“DOJ”) under Title VII of

the Civil Rights Act of 1964, alleging discrimination on the

basis of his race and his sex, as well as retaliation for protected

activity. Specifically, he cites seven instances of being passed

over for positions for which he believes he was qualified. DOJ

moved for summary judgment before any formal discovery had

taken place, and the District Court granted that motion. At the

same time, the District Court denied Jeffries’s motion, brought

under Federal Rule of Civil Procedure (“Rule”) 56(d),

requesting to be allowed to take discovery.

In one sense, the posture of this case seems out of order,

as a motion for summary judgment typically follows the

conduct of at least some formal discovery rather than preceding

it entirely. But Rule 56(b) provides that, with certain

exceptions inapplicable here, “a party may file a motion for

summary judgment at any time until 30 days after the close of

all discovery.” FED. R. CIV. P. 56(b) (emphasis added). A

nonmovant may well be surprised by an early-filed summary-

judgment motion, but the timing of such a motion need not be

a death knell: The Rules also iterate that relief – including

discovery – may be obtained by a nonmovant who makes the

required showing. See id. 56(d).

In the case at bar, the District Court determined that

Jeffries failed to make that showing as to each one of the

disputed nonselections. For the most part, we find that the

District Court acted within its discretion in so finding – with

the notable exception of the handling of Jeffries’s quest for

discovery on his first nonselection. In that respect, the District

Court’s denial of Jeffries’s Rule 56(d) motion was premised on

3

error and was thus an abuse of discretion. We therefore vacate

the District Court’s entry of judgment as to that nonselection

and reverse its denial of the relevant portion of Jeffries’s Rule

56(d) motion. But perceiving neither genuine issues of

material fact nor any abuse of discretion in the District Court’s

treatment, respectively, of DOJ’s motion for summary

judgment or Jeffries’s Rule 56(d) motion with regard to the

second through seventh nonselections, we affirm on those

claims the District Court’s entry of judgment in DOJ’s favor

and its denial of Jeffries’s Rule 56(d) motion.

I.

We recite the facts based upon the parties’ summary-

judgment filings below, considering those facts in the light

most favorable to Jeffries. See Wilson v. Cox, 753 F.3d 244,

245 (D.C. Cir. 2014).

The Office of Justice Programs (“OJP”) is a component of

DOJ, and the Bureau of Justice Assistance (“BJA”) is a bureau

of OJP. Timothy Jeffries is an African-American male who

has been employed with OJP since 2000 and with BJA since

2002. Sometime between his hire and 2008, Jeffries filed three

complaints against DOJ with the Equal Employment

Opportunity Commission (“EEOC”). These complaints were

consolidated and were the subject of a March 2008 settlement

agreement, which resulted in Jeffries’s reassignment to a GS-

13 Policy Advisor position in the Substance and Mental Health

Division (“SAMH”) of BJA, the position he held while this

case was pending below.

Priority Consideration and First Nonselection (Supervisory

Grants Program Manager)

In 2006, Jeffries was not interviewed for a GS-14 Program

Analyst position in SAMH due to an error with the processing

4

of his application. On July 30, 2007, as a result of this lack of

consideration, OJP issued Jeffries a “priority consideration”

letter, which provided that Jeffries would “receive priority

consideration for the next open position similar and in the same

geographical area to the one [for] which proper consideration

was missed,” and that such consideration would “be granted to

[Jeffries] prior [to DOJ] issuing public notice of the vacancy.”

J.A. 546. The letter also said that Jeffries would be notified in

writing when priority consideration had taken place.

Regarding priority consideration, OJP’s Merit Promotion Plan

provides that candidates afforded priority consideration

are considered by the selecting official, ahead of

other candidates for a particular job vacancy.

Priority consideration does not place conditions

on the selecting official’s right to select or not

to select from any appropriate source at any

point in the recruitment and staffing process. A

candidate who receives priority consideration is

entitled to such consideration until referred for

the next open similar position in the same

geographical areas to one for which

consideration was missed.

Id. 94-95. At oral argument, DOJ conceded that, when priority

consideration is normally being applied, the candidate gets the

first interview and a decision “up or down” on her candidacy

before other candidates are considered. Oral Arg. Recording

13:48-13:59.

On March 29, 2011, Jeffries notified the human resources

department at OJP of his desire to use the letter for a GS-14

Supervisory Grants Program Manager position, for which two

vacancies had already been publicly announced. Jeffries does

not contend that the Supervisory Grants Program Manager

5

position was similar to the Program Analyst position (as would

have triggered the automatic use of his priority consideration

letter). After Jeffries invoked his priority consideration letter,

but prior to his interview, OJP personnel compiled a list of

“best qualified” applicants for the Supervisory Grants Program

Manager position. J.A. 566-71.

Jeffries was interviewed on May 11, 2011. The interview

panel consisted of Edmund Aponte (Hispanic male), Tammy

Reid (African-American female), and Jonathan Faley

(Caucasian male). All of the panelists were aware of Jeffries’s

having engaged in previous equal employment opportunity

(“EEO”) activity, and indeed Faley and Aponte had been

named as responsible management officials in Jeffries’s prior

EEO complaints.

Aponte and Reid later indicated that they had compared

Jeffries’s qualifications to those of other applicants. DOJ

conceded at oral argument that such comparisons are generally

“not kosher” in the context of priority consideration and that

they occurred in this instance. Oral Arg. Recording 15:47-

16:04. There is a factual dispute as to whether the panelists

told Jeffries at the conclusion of his interview that they had to

interview other applicants before making a decision.

On July 29, 2011, OJP’s human resources department

informed Jeffries via letter that he had not been selected for the

Supervisory Grants Program Manager position, and included

four critiques of his interview performance, explaining that he

had not demonstrated his fitness for the position. Tracey

Trautman, the selecting official,1 noted in a later affidavit that

1

Jeffries attempts to create a dispute of fact as to the identity of the selecting

official, but cites only his own declaration that he “was told via email by

HR that the selecting official was James Burch[.]” J.A. 466; see Appellant’s

6

Jeffries had provided the panel with a writing sample

containing spelling and grammatical errors, and that the

panelists’ notes indicated that Jeffries had failed to give

complete answers to several interview questions. The

panelists’ notes corroborate the incompleteness of some of

Jeffries’s answers. The panel interviewed other applicants in

September 2011. The ultimate selectees were Naydine Fulton-

Jones (African-American female) and Esmerelda Womack

(Caucasian female). Neither selectee had previously filed a

formal EEO complaint against DOJ.

Second Nonselection (Special Assistant)

In September 2011, DOJ advertised a vacancy for a

Special Assistant, a GS-13/14 position. The interview panel

consisted of Patrick McCreary (Caucasian male), Ruby

Qazilbash (Caucasian and Asian female), and Ellen Williams

(African-American female). The panel interviewed eight

applicants in total, scoring each of them on their interview

(representing 35% of the total score), work history (20%),

experience (35%), and “[r]esume – [e]ducation” (10%). J.A.

159. The Interview Guide for the Special Assistant position

contained a five-point proficiency scale and allowed panel

members to assign applicants a score for each of the fourteen

interview questions. The interview panel discussed the

applicants and “had the opportunity to reconcile the scores they

attributed to candidates based upon this discussion and the

opportunity for clarification.” Id. 154. Williams’s interview

Br. 30. The best evidence rule, together with this Circuit’s precedent,

preclude consideration of Jeffries’s statement. See FED. R. EVID. 1002;

Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369

(D.C. Cir. 2000) (“While a nonmovant is not required to produce evidence

in a form that would be admissible at trial, the evidence still must be capable

of being converted into admissible evidence.” (emphasis in original)).

7

scoresheet for Jeffries’s interview (which is the only scoresheet

from this selection in the record) shows that Williams changed

her scores in three instances, each time downgrading Jeffries

by one point on the scale.

Jeffries was interviewed on December 2, 2011. Neither

Williams nor McCreary was aware at the time of Jeffries’s

interview of any of his prior EEO complaints. Qazilbash

averred in May 2012 that she learned in 2008 that Jeffries was

being transferred onto her team as a result of some sort of

settlement, which she “assumed to be EEO-related,” and that

in March 2011 she was informed that Jeffries would be

afforded priority consideration “as a result of an EEO-related

settlement a few years earlier[.]” Id. 125-26. In August 2012,

Qazilbash averred that she had learned of EEO complaints or

pre-complaints filed by Jeffries on July 1, 2011, December 28,

2011, and April 17, 2012.

The selectee was Cornelia Sorensen Sigworth (Caucasian

female). Shortly before the vacancy announcement was

posted, Sigworth was given a special assignment to work with

grant-funded programming and technical assistance to Puerto

Rico. The interview panel scored her higher than Jeffries in

three of the four categories, and she tied with him in the

“[r]esume – [e]ducation” category. Id. 159. Overall, Jeffries

was ranked sixth of the eight applicants, with a combined score

of 76.09 out of 100, and Sigworth scored 95.7 and was ranked

first. Sigworth had made no prior formal EEO complaints

against DOJ.

Sigworth and Qazilbash were part of a self-described

“mommies group” at BJA whose members spent time together

outside of work. Id. 464. Another member of this group, Kim

Ball Norris, expressed to a supervisee her belief that Jeffries

held his then-current position only because of his race and EEO

8

activity, and professed an intention to get Jeffries and another

African-American employee fired.

Third Nonselection (Senior Policy Advisor for Evidence

Integration)

DOJ advertised an opening for a Senior Policy Advisor for

Evidence Integration in October 2012. Six candidates were

interviewed by a panel that consisted of Aponte, Elizabeth

Griffith (Caucasian female), and either Rebecca Rose

(Caucasian female) or Kristina Rose (Caucasian female).

Kristina Rose participated in Jeffries’s interview. It appears

that Jeffries’s interview took place in November or December

2012.

Aponte had learned of Jeffries’s EEO activity in 2007, and

evidently learned of it again in August 2012 when he

completed an EEO-related affidavit. Griffith became aware of

Jeffries’s EEO activity at some unspecified point in time,

having been deposed twice in connection with his prior EEO

cases. Kristina Rose was not aware of Jeffries’s prior EEO

activity.

The panel interviewed six candidates and reached a

“strong consensus” that Edward Banks (African-American

male) and Kristina Kracke (female of unknown race) “were

clearly the top candidates” and were recommended for a

second interview.2 Def.’s Statement of Material Facts (“SMF”)

Ex. 19, ECF No. 7-3 at 175, Jeffries v. Lynch, 217 F. Supp. 3d

214 (D.D.C. 2016), No. 15-cv-01007. Banks was ultimately

2

Jeffries asserts without citation to the record that neither Banks nor Kracke

had engaged in “prior EEO activity.” Appellant’s Br. 40. We take no view

on Jeffries’s unsupported contention that, when they interviewed for the

Senior Policy Advisor for Evidence Integration position, Banks and Kracke

had engaged in no “prior EEO activity.”

9

selected. According to Aponte, Banks had a Ph.D, had

published articles on evidence integration, and scored a 5 out

of 5 in the application process, whereas Jeffries scored a 1.6.

Kristina Rose stated that Banks “scored the highest on the

interview[]” and that Jeffries “scored the lowest of all the

candidates.” J.A. 121.

Fourth Nonselection (Administrative Services and Logistics

Director)

In October 2012, DOJ posted a vacancy for an

Administrative Services and Logistics Director. The interview

panel consisted of Shanetta Cutlar (African-American female),

Hope Janke (Caucasian female), and Kristen Mahoney

(Caucasian female). There were only two applicants: Michelle

Martin (Caucasian female) and Jeffries. Martin was

recommended for a second-round interview, while Jeffries was

not. The candidates were assessed on their resume, “[w]ork

[e]xperience (KSAs)”,3 interview performance, and work

history. See Lynch, Def’s SMF Ex. 25, ECF No. 7-3 at 221.

Mahoney gave Jeffries an overall score of 77 and Martin a 90;

Janke gave Jeffries a 71 and Martin an 84; and Cutlar gave

Jeffries a 63 and Martin a 73. Cutlar (the only panelist whose

affidavit is in the record) stated that Martin’s “experience

related more to the qualifications and the job advertisements,”

while Jeffries “readily identified that he did not have the

experience in the area.” J.A. 180.

3

KSAs stands for “[k]nowledge, [s]kills, and [a]bilities.” Appellant’s Br.

viii; Appellee’s Br. 37.

10

Fifth Nonselection (Supervisory Grants Management

Specialist)

In November 2012, DOJ posted a vacancy for a

Supervisory Grants Management Specialist. The

announcement stated that there was one vacancy, but in fact

two applicants were selected. Prior to the posting of the

vacancy, the position was downgraded from a GS-14 position

to a GS-13/14 position. Cory Randolph, a biracial African-

American and Caucasian male who was one of the selectees,

was at the time ineligible for a GS-14 position. Jonathan Faley,

an OJP supervisor, encouraged Randolph and a handful of

other people to apply.

The first-round interview panel was made up of Kellie

Dressler (Caucasian female), Aponte, and Faley. Four

candidates, including Jeffries, were interviewed in the first

round. The ultimate selectees – Randolph and Brenda

Worthington (Caucasian female) – received second-round

interviews, which were conducted by Trautman and Denise

O’Donnell (Caucasian females). Prior to his second-round

interview, Randolph received an email from the vice president

of his union congratulating him “on the [j]ob.” Id. 818, 820-

22.

The members of the first-round interview panel stated that

Jeffries failed to fully answer the interview questions and to

demonstrate that he had relevant experience or abilities, and

that the selectees performed better in both these regards. The

record does not reveal the date(s) of the first-round interviews,

but the second-round interviews took place on February 13,

2013. On March 1, 2013, Trautman and Faley had an email

exchange in which they discussed having jokingly told others

that Jeffries had been selected for this position.

11

Sixth Nonselection (Senior Policy Advisor for Byrne Criminal

Justice Innovation/Building Neighborhood Capacity

Programs)

In late 2012 and early 2013, thirteen applicants were

interviewed in the first round by one of two three-person

panels. The panel that interviewed Jeffries was made up of

Banks, David Adams (Caucasian male), and Rebecca Rose.

The parties agree that Jeffries’s first-round panel interviewed

the ultimate selectee as well. After the first round of

interviews, applicants were assigned scores based on their

interview, resume, experience, and work history; Jeffries was

ranked fourth with a total score of 62.80, and the ultimate

selectee, Alissa Huntoon (Caucasian female), was ranked first

with a score of 93.73. Although initially only Huntoon and the

second-highest-scoring candidate were recommended for

second-round interviews, six candidates, including Jeffries,

received second-round interviews with Griffith, Mahoney, and

O’Donnell. Huntoon was given the position. As the February

2013 memorandum recommending Huntoon stated, “[t]he

management team concluded that [Huntoon] stood out in

particular in two areas that are core to the skills needed . . . :

Subject matter expertise . . . [and] Strong Policy Orientation

and Project Leadership.” See Lynch, Def.’s SMF Ex. 40, ECF

No. 7-4 at 33 (discussing Huntoon’s qualifications at some

length).

In December 2012, prior to her selection, Huntoon was one

of a number of BJA employees invited to a meeting with

personnel from the National Institute of Justice (“NIJ”). The

stated purpose of the meeting was to share information and find

potential areas of collaboration. Huntoon and the other invitees

were asked to speak about their work.

12

Seventh Nonselection (Senior Policy Advisor for Health and

Criminal Justice)

In April 2014, DOJ posted a vacancy for a Senior Policy

Advisor for Health and Criminal Justice. According to his

resume, Jeffries had served in this position in an acting capacity

from June to August 2010. The first-round interview panel for

the 2014 selection was made up of Sigworth, Anna Johnson

(female of unknown race), and Michael Dever (Caucasian

male). Based on numerical scores given for resume,

experience, interview, and work history, Jeffries was ranked

fifth of eight interviewees after the first round with a 4.5.

Danica Binkley (Caucasian female), the ultimate selectee, was

ranked third with a 4.7. The five top candidates received a

second interview. The second-round interviews were

conducted by a panel consisting of O’Donnell, Mahoney, and

Qazilbash. In a June 30, 2014, memorandum recommending

Binkley’s hire, Qazilbash stated that Binkley “became the top

candidate” during the second round of interviews. J.A. 229.

Qazilbash further stated that Binkley

demonstrated strong communication skills,

provided complete responses to all questions,

was motivated and detail oriented, and had an

advanced understanding of the technical

qualifications of the position. . . . Ms. Binkley

has experience with each major aspect of the

portfolio . . . . She has performed to a very high

level in her work as a policy advisor within the

Substance Abuse and Mental Health portfolio

including meeting significant challenges in

managing difficult projects [and] developing

communication materials at an advanced policy

level[,] and has proven her skills to develop new

ideas and programming.

13

Id. 229-30; see also id. 210 (affidavit of O’Donnell discussing

Binkley’s qualifications), 219 (affidavit of Mahoney

discussing the same), 226 (affidavit of Qazilbash stating that

Binkley’s qualifications “were demonstrated through her

resume and interview responses”). The panelists cited

Jeffries’s difficulty “articulating a vision,” id. 210; accord id.

219, 226, and noted that his responses to questions lacked

depth, see id. 210 (“His responses during the interview process

focused more on process than substance.”), 219 (“He left the

impression during the interview that this focus or policy

perspective is one dimensional[.]”), 227 (“[Jeffries] indicated

that he does not have an understanding of priority work in the

mental health side of the portfolio, and has limited

understanding of the healthcare coverage priority area.”).

II.

Jeffries timely filed EEOC complaints regarding each of

the seven nonselections.4 Written discovery was undertaken

only with regard to Jeffries’s complaint over the second

nonselection, but some documents related to the other

nonselections were produced in said discovery. Jeffries then

filed the instant action against the then-Attorney General.5

Prior to the conduct of any formal discovery in this case,

DOJ moved for judgment on the pleadings, or for summary

4

Jeffries also made complaints to EEOC regarding “several instances where

he did not receive cash and time-off awards like his coworkers.” J.A. 900.

These issues were included in his complaint to the District Court and were

also encompassed within the District Court’s grant of summary judgment

to DOJ. Jeffries does not, however, raise those claims before this Court.

5

DOJ concedes in its brief to this Court that Jeffries filed suit “[a]fter

enough time had passed without resolution by the Commission[.]”

Appellee’s Br. 7.

14

judgment in the alternative, relying on extensive

documentation apparently produced in the course of EEOC

proceedings. Along with his opposition to DOJ’s motion,

Jeffries filed a motion for relief under Rule 56(d) and an

accompanying declaration of counsel, requesting an order

allowing Jeffries to take discovery. Jeffries sought broad

discovery on each nonselection, asserting that “the facts

developed” thereby would “demonstrate that [DOJ’s]

rationales for not selecting Jeffries for any of the positions in

issue . . . are pretext and that the true reasons are discrimination

and/or retaliation.” J.A. 898.

Having before it DOJ’s sixty-two exhibits and Jeffries’s

sixty-six, and finding no genuine dispute of material fact, the

District Court granted DOJ’s motion for summary judgment.

Lynch, 217 F. Supp. 3d 214. The District Court also denied

Jeffries’s Rule 56(d) motion in a series of footnotes to its

Memorandum Opinion, holding that Jeffries’s filings did not

meet the first requirement set forth in Convertino v. U.S.

Department of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012): that

is, they did not “outline the particular facts [Jeffries] intend[ed]

to discover and describe why those facts are necessary to the

litigation,” Lynch, 217 F. Supp. 3d at 227; see id. 232 n.13, 235

n.16, 236 n.17, 238 n.19, 241 n.21, 243 n.23, 246 n.24.6

6

After filing a notice of appeal of the District Court’s order, Jeffries moved

this Court to remand the case, citing the need to explore allegations

contained in a May 2017 email from Jeffries’s union president that one of

the interview panelists for several of the nonselections at issue had

committed various acts of sexual impropriety with women in BJA. Jeffries

also filed in the District Court a motion for relief from judgment, pursuant

to Federal Rule of Civil Procedure 60(b)(2), on the same basis. The District

Court denied the motion without prejudice via a minute order, citing

Jeffries’s motion to remand. This Court then held the parties’ motions for

summary affirmance and summary reversal in abeyance and directed the

15

III.

We consider first the District Court’s denial of Jeffries’s

Rule 56(d) motion.

Rule 56(d) provides an avenue for relief for nonmovants

who can show, by affidavit or declaration, that “for specified

reasons” they “cannot present facts essential to justify” their

opposition to summary judgment. FED. R. CIV. P. 56(d). A

successful Rule 56(d) motion can result in a district court’s

deferring consideration of a pending summary judgment

motion, denying the motion, allowing time to take discovery,

or issuing “any other appropriate order.” Id. To obtain relief,

a Rule 56(d) movant must: (1) “outline the particular facts [the

party defending against summary judgment] intends to

discover and describe why those facts are necessary to the

litigation”; (2) explain why the party could not produce those

facts in opposition to the pending summary-judgment motion;

District Court to address the merits of Jeffries’s 60(b) motion. Following

the District Court’s denial of Jeffries’s motion for relief from judgment, this

Court denied the motions for summary reversal, summary affirmance, and

remand, noting that Jeffries had not filed an amended notice of appeal to

include the District Court’s denial of his Rule 60(b) motion, meaning that

denial “is not properly before this [C]ourt.” No. 17-5008, May 9, 2018

Order, at 1. The Court further noted that Jeffries had not shown “why this

[C]ourt should depart from its ordinary practice and consider his new

evidence on appeal.” Id.

Jeffries cites repeatedly to the May 2017 email in his briefing, arguing that

it creates a factual dispute as to whether the panelist in question favored

female applicants for several of the at-issue positions in an attempt to curry

favor with them to nefarious ends. In light of the Court’s earlier ruling on

this issue, we do not consider those of Jeffries’s arguments that are premised

on the May 2017 email.

16

and (3) “show [that] the information is in fact discoverable.”

Convertino, 684 F.3d at 99-100.

We review the denial of a Rule 56(d) motion for abuse of

discretion. Cruz v. McAleenan, 931 F.3d 1186, 1191 (D.C. Cir.

2019). A district court’s error of law is “by definition” an abuse

of discretion, so our review comprehends ensuring “that the

discretion was not guided by erroneous legal conclusions.”

Koch v. Cox, 489 F.3d 384, 388 (D.C. Cir. 2007) (citation

omitted). But “[o]ur review for abuse of discretion does not

permit us to substitute our judgment for that of the trial court.”

United States v. Mathis-Gardner, 783 F.3d 1286, 1288 (D.C.

Cir. 2015) (citation and internal quotation marks omitted).

“Trial courts have a broad discretion in discovery matters and

appellate courts will reverse only for abuse for action which is

arbitrary, fanciful, or clearly unreasonable.” In re Multi-Piece

Rim Prods. Liab. Litig., 653 F.2d 671, 679 (D.C. Cir. 1981)

(internal quotation marks omitted).

Though “[s]ummary judgment usually ‘is premature unless

all parties have had a full opportunity to conduct discovery,’”

Haynes v. D.C. Water & Sewer Auth., 924 F.3d 519, 530 (D.C.

Cir. 2019) (quoting Convertino, 684 F.3d at 99), a Rule 56(d)

motion “must be resolved through ‘application of the

Convertino criteria to the specific facts and circumstances

presented in the request,’ rather than on the basis of

presumptions about a given stage of litigation,” id. (quoting

U.S. ex rel. Folliard v. Gov’t Acquisitions, Inc., 764 F.3d 19,

27 (D.C. Cir. 2014)). This Court has regularly looked beyond

a litigant’s declaration to his briefing in analyzing whether the

Convertino elements have been satisfied. See, e.g., Haynes,

924 F.3d at 531; Smith v. United States, 843 F.3d 509, 513

(D.C. Cir. 2016); Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1045-

46 (D.C. Cir. 2008).

17

The District Court’s reasoning in denying Jeffries’s Rule

56(d) motion was based on the first Convertino element. The

District Court explained that Jeffries had failed to outline what

facts he hoped to discover and why those facts were necessary

to support his claims. See Lynch, 217 F. Supp. 3d at 232 n.13,

235 n.16, 236 n.17, 238 n.19, 241 n.21, 243 n.23, 246 n.24.

Jeffries makes a general statement that the District Court

abused its discretion by ruling that his discovery requests were

either irrelevant or vague, but he never develops the argument.

Instead, he lists in general terms the discovery he seeks and

essentially reargues his Rule 56(d) motion. But we do not find

an abuse of discretion based on whether we, if standing in the

District Court’s shoes, would have granted the motion. See

Mathis-Gardner, 783 F.3d at 1288. Rather, Jeffries must

contend with the applicable standard of review, which here

means showing either a legal error in the District Court’s

reasoning or a basis for this Court to conclude that the District

Court’s action was “arbitrary, fanciful, or clearly

unreasonable.” In re Multi-Piece Rim Prods. Liab. Litig., 653

F.2d at 679.

With respect to the second through seventh nonselections,

the District Court acted within its discretion in ruling as it did.

It is true that this Court has displayed a willingness to apply the

criteria iterated in Convertino less than stringently; in Ikossi,

for example, we excused the relative “lack of precision” of an

affidavit that sought the depositions of a Title VII plaintiff’s

supervisors, finding that the stated desire to discover “their

motivations in taking disciplinary action against” the plaintiff

made “the nature of the evidence [sought]” “self-evident.” 516

F.3d at 1045. Here, though, Jeffries’s brief and his counsel’s

declaration are quite far removed from Jeffries’s claims.

Rather than being directed at “particular facts,” Jeffries’s

filings in the District Court express a desire to discover general

18

facts about what happened. See, e.g., J.A. 902 (“[T]here are

many ambiguous and unknown facts with respect to each of the

non-selections . . . in issue which are essential to Jeffries’[s]

opposition to the Defendant’s Motion, as well as to proving his

case at trial.”), 890 (“[T]he panelists for this position need to

be deposed to explain their notes and scoring and exactly what

occurred during the interview process.”).

And even were we to construe the broad categories of

information sought as constituting “particular facts” under

Convertino, Jeffries simply does not “describe why those facts

are necessary to the litigation.” Convertino, 684 F.3d at 99.

Said differently, Jeffries does not state in his Rule 56(d) filings

how the information he seeks would assist him in creating a

genuine issue of material fact. Indeed, far from connecting the

requested discovery to the substance of his claims, Jeffries

barely even mentions his claims in his Rule 56(d) filings, and

those few included references are in very broad terms. See,

e.g., J.A. 898 (“It is anticipated that the facts developed through

the depositions and other discovery sought . . . will demonstrate

that the Defendant’s rationales for not selecting Jeffries for any

of the positions in issue . . . are pretext and that the true reasons

are discrimination and/or retaliation.”), 902 (“[F]urther

discovery is needed as to all of the selections . . . in issue to

demonstrate that the rationales asserted by the Defendant for

not selecting Jeffries are pretext and the true reasons are

discrimination and/or retaliation.”). We cannot say the District

Court abused its discretion in concluding, as to the second

through seventh nonselections, that Convertino requires more.7

7

Our dissenting colleague, analogizing Jeffries’s Rule 56(d) filings to

commensurate filings in Chappell-Johnson v. Powell, 440 F.3d 484 (D.C.

Cir. 2006), and Ikossi, 516 F.3d 1037, asserts that we should find the District

Court to have abused its discretion in denying Jeffries’s Rule 56(d) motion,

19

see Dissenting Op. at 7-8. But in Chappell-Johnson, we had no occasion to

address whether the plaintiff’s filings were sufficiently detailed, because the

issue there presented was the district court’s error in confining the plaintiff

to a particular legal theory. 440 F.3d at 487 (noting that the district court

had denied plaintiff’s motion for discovery on finding that, as pled, the

plaintiff’s claim “necessarily failed”); id. at 488-89 (explaining the legal

error and reversing the district court’s denial of the motion for discovery on

that basis).

And while in Ikossi we did engage in a relevant discussion of the sufficiency

of the plaintiff’s filings, 516 F.3d at 1045-46, those filings, as already noted,

stand in contrast to Jeffries’s. The affidavit submitted in support of Ikossi’s

request for discovery set forth in some detail both the information sought in

the requested discovery and how that information was pertinent to Ikossi’s

prosecution of her case. See, e.g., Aff. of Michael D. Kohn Submitted

Pursuant to Rule 56[(d)] Fed R. Civ. P., ECF

No. 10-2 at ¶ 3, Ikossi v. England, 406 F. Supp. 2d 23 (D.D.C. 2005), No.

04-cv-1392 (“Each of the [prospective deponents] possesses substantial

relevant information pertaining to Defendants’ motives for taking the

challenged disciplinary actions against Plaintiff.”); id. at ¶ 4 (“Plaintiff’s

first-level supervisor . . . is in possession of information regarding

Plaintiff’s claims that her work performance was acceptable.”); id. at ¶ 5

(prospective-deponent supervisor “initiated Defendants’ official personnel

actions against Plaintiff” and “therefore has direct knowledge of

Defendants’ motives for terminating Plaintiff”); id. at ¶ 7 (“Plaintiff should

be afforded the opportunity to depose [her supervisor] to determine whether

he was motivated to take action against Plaintiff for discriminatory or

retaliatory reasons.”). While noting that the affidavit “d[id] not identify

precisely what evidence it is hoped will be discovered,” we observed that

“[t]his lack of precision does not make any less self-evident . . . the nature

of the evidence Dr. Ikossi seeks[.]” 513 F.3d at 1045.

The circumstances in Ikossi are to be contrasted with those here present.

Jeffries’s Rule 56(d) filings lack even the precision of those in Ikossi, and

instead are cast in very general terms. See, e.g., J.A. 891-93 (listing

purported irregularities with a nonselection and simply concluding that,

“[b]ased on these irregularities, [several named people] need to be

deposed”); id. 902 (“[T]here are many ambiguous and unknown facts with

respect to each of the non-selections . . . in issue which are essential to

Jeffries’ opposition to the Defendant’s Motion[.]”). The infirmities of

20

The District Court’s ruling on that portion of Jeffries’s Rule

56(d) motion that addressed his first nonselection, however, is

a different story. Here we find that the District Court abused

its discretion in denying the motion, as the denial was premised

in part on an erroneous view that the discovery sought about

the priority consideration was “irrelevant.” Lynch, 217 F.

Supp. 3d at 232 n.13; see id. at 230 n.10 (holding that any claim

premised on the priority consideration itself “fails at the

threshold”).8 In so holding, the District Court failed to

appreciate the relevance of the priority consideration to

Jeffries’s claim over the first nonselection.

DOJ conceded at oral argument that (1) when a candidate

gets priority consideration under normal circumstances, it is

improper for the interview panelists to compare that

candidate’s qualifications with others’, Oral Arg. Recording

Jeffries’s motion and affidavit take his filings outside the ambit of Ikossi,

such that we cannot say that the District Court abused its discretion in

finding that Jeffries failed to “outline the particular facts he intends to

discover and describe why those facts are necessary to the litigation.”

Convertino, 684 F.3d at 99.

Convertino is the law of the Circuit. Were we to conclude that the District

Court abused its discretion in not finding Jeffries’s Rule 56(d) filings to

have satisfied Convertino’s first prong, we would be diluting the dictates of

Convertino to such a degree as to functionally overrule them. This is

something that we, sitting as a three-judge panel, cannot do. See LaShawn

A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc) (“One three-

judge panel . . . does not have the authority to overrule another three-judge

panel of the court.”).

8

Because we find that the District Court erred in denying Jeffries’s Rule

56(d) motion with regard to priority consideration due to its relevance to

Jeffries’s claims over the first nonselection, we need not and do not reach

the separate questions of whether a failure to afford priority consideration

constitutes an adverse employment action or whether Jeffries would be

entitled to discovery on the priority-consideration claim standing alone.

21

15:47-16:04, and (2) there is some indication that the panelists

who interviewed Jeffries for the Supervisory Grants Program

Manager position made comparisons between Jeffries and

other applicants, id. 16:40-17:12. (This latter point is

supported by the record. See J.A. 78, 637.) DOJ contends that

any deviations from its standard priority consideration

procedure were the result of Jeffries’s belated invocation of his

priority consideration letter. But nothing about the fact that

Jeffries did not request to use the letter until after the vacancies

had posted compelled the panelists to make comparisons

between Jeffries and the other candidates. In other words, there

was an unexplained deviation from DOJ’s standard practices –

and such a deviation “can justify an inference of discriminatory

motive.” Lathram v. Snow, 336 F.3d 1085, 1093 (D.C. Cir.

2003). Of course, “[a]n employer’s failure ‘to follow its own

regulations and procedures, alone, may not be sufficient to

support’ the conclusion that its explanation for the challenged

employment action is pretextual,” Fischbach v. D.C. Dep’t of

Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (quoting Johnson

v. Lehman, 679 F.2d 918, 922 (D.C. Cir. 1982)) – but such a

failure is certainly not irrelevant.

Moreover, some of the discovery Jeffries sought with

respect to the priority consideration has the potential to call into

question the credibility of the panelists and the selecting

official, on whose stated observations and judgments DOJ

relied for its legitimate, nondiscriminatory reason for Jeffries’s

nonselection. Jeffries proffered evidence indicating that

Naydine Fulton-Jones, one of the ultimate selectees, was

interviewed either before he was interviewed or before he

received notice that he was not selected – in any case, prior to

September 2011, which is when all three panelists and Tracey

Trautman averred that the competitive interviewing took place.

Although this evidence is inadmissible hearsay and cannot

itself create a genuine issue of fact, Jeffries sought in his Rule

56(d) motion to depose Fulton-Jones on this issue. Such

22

deposition testimony from Fulton-Jones, which likely would be

admissible, could call into question the veracity of DOJ’s

proffered reason for Jeffries’s nonselection for this position.

Such testimony could also clarify whether DOJ failed to follow

its standard priority consideration practices in this regard.

Again, discovery on this issue is not irrelevant.

And in light of other record evidence relating to this

nonselection, we do not believe the District Court’s error here

to have been harmless. See 28 U.S.C. § 2111. For instance,

the record reveals that DOJ generated a “best qualified” list of

applicants for this position after Jeffries’s invocation of the

priority consideration letter but prior to his interview and

rejection, J.A. 569, which appears to be an additional departure

from DOJ’s standard practices for priority consideration.

There is also a dispute of fact as to whether the panelists told

Jeffries at the conclusion of his interview that they had to

interview other candidates before making a decision. See id.

71 (Faley affidavit), 466 (Jeffries’s declaration), 640 (Reid

affidavit). And there is an unresolved question – not addressed

below – as to whether Jeffries may be entitled to an adverse

inference on the basis of DOJ’s apparent destruction of

documents pertaining to this nonselection.9 In view of the

existing record and DOJ’s concessions regarding the panelists’

comparisons between Jeffries and other applicants, the

9

In opposing DOJ’s summary-judgment motion, Jeffries pointed out that

DOJ claimed, in its answers to interrogatories proffered in EEOC

proceedings, to have destroyed some of the records with respect to the first

nonselection “‘on or about November 6, 2013’ pursuant to its policy of only

maintaining them for two years from the selection date.” Lynch, Pl.’s Opp.

to Summ. J., ECF No. 9 at 28; see J.A. 491. Jeffries argued for his

entitlement to an adverse inference as a result of the destruction of these

documents, id. at 29, but the District Court’s Memorandum Opinion

contains no mention of this argument in the context of the first nonselection,

see generally Lynch, 217 F. Supp. 3d at 229-32.

23

requested discovery into the priority consideration could raise

questions about DOJ’s proffered reason for Jeffries’s

nonselection.

For these reasons, we find it appropriate to reverse the

denial of Jeffries’s Rule 56(d) motion as to the first

nonselection and vacate the District Court’s entry of judgment

in DOJ’s favor on those of Jeffries’s claims arising out of that

nonselection.

IV.

The above represents the only respect in which we find the

District Court to have erred, as we cannot say that the fate

suffered by Jeffries’s claims over the second through seventh

nonselections was undeserved. In each instance, Jeffries failed

to create a genuine issue of fact as to whether DOJ’s

qualifications-based explanations were pretextual for

discrimination or retaliation, and the District Court’s grant of

summary judgment as to the claims over those nonselections

was in each instance proper. We address those nonselections

now, in turn.

A.

1.

This Court’s review of the District Court’s grant of

summary judgment is de novo. Aka v. Wash. Hosp. Ctr., 156

F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). Summary

judgment is appropriate where the movant can demonstrate

“that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a). A fact is material if it is one “that might affect

the outcome of the suit under the governing law[.]” Anderson

24

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute

about a material fact “is ‘genuine’ . . . if the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.” Id. A properly supported motion for summary

judgment may not be opposed by “mere allegation or denial[]”;

rather, the nonmovant must come forward with “specific facts

showing that there is a genuine issue for trial.” Id. at 256. The

nonmovant’s evidence “is to be believed, and all justifiable

inferences are to be drawn in his favor.” Id. at 255; see also

Aka, 156 F.3d at 1295 (noting that the Court must view the

evidence “as favorably to [the non-movant] as reason will

permit”).

2.

Title VII of the Civil Rights Act protects federal

employees against disparate treatment in “personnel actions

affecting employees” on the basis of, inter alia, race and sex.

42 U.S.C. § 2000e-16(a). The aim of disparate-treatment

claims is to ferret out and eliminate intentional discrimination.

Segar v. Smith, 738 F.2d 1249, 1267 (D.C. Cir. 1984). “‘Proof

of illicit motive is essential,’ and the employee ‘at all times’

has the burden of proving ‘that the defendant intentionally

discriminated against’ her.” Figueroa v. Pompeo, 923 F.3d

1078, 1086 (D.C. Cir. 2019) (quoting Segar, 738 F.2d at 1267).

Where (as here) there is no direct evidence of discrimination, a

plaintiff bringing a disparate-treatment claim may avail herself

of the three-step, burden-shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine, 450 U.S.

248 (1981). See Wheeler v. Georgetown Univ. Hosp., 812 F.3d

1109, 1113 (D.C. Cir. 2016). Under the McDonnell Douglas

framework, a plaintiff must make out a prima facie case of

discrimination; once she has done so, the defending employer

must “articulate some legitimate, nondiscriminatory reason”

25

for its action. Burdine, 450 U.S. at 252-53 (quoting McDonnell

Douglas, 411 U.S. at 802). Should the employer carry its

burden at the second step, the plaintiff must prove that the

employer’s asserted reasons “were not its true reasons, but

were a pretext for discrimination.” Id. at 253.

Federal agency employers are also prohibited by Title VII

from retaliating against employees for asserting their Title VII

rights. Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C. Cir.

2011). The McDonnell Douglas burden-shifting framework

may be applied to claims of retaliation. See McGrath v.

Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012).

Recognizing that courts frequently waste time on the early

stages of the McDonnell Douglas analysis, this Court held in

Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir.

2008), that, “[i]n a Title VII disparate-treatment suit where an

employee has suffered an adverse employment action and an

employer has asserted a legitimate, non-discriminatory reason

for the decision,” a district court faced with an employer’s

motion for summary judgment “must resolve one central

question: Has the employee produced sufficient evidence for a

reasonable jury to find that the employer’s asserted non-

discriminatory reason was not the actual reason and that the

employer intentionally discriminated against the employee on

the basis of race, color, religion, sex, or national origin?” Id. at

494; see also Cruz, 931 F.3d at 1194 (applying this analysis in

the context of Title VII retaliation). In other words, district

courts in this Circuit are directed, where appropriate, to avoid

the “unnecessary sideshow” of the first two prongs, Brady, 520

F.3d at 494, and proceed to consider the question of pretext.

In order for a Title VII plaintiff to “survive summary

judgment based solely on evidence of pretext,” – i.e., in the

absence of direct evidence – “the evidence must be ‘such that

26

a reasonable jury not only could disbelieve the employer’s

reasons, but also could conclude that the employer acted, at

least in part, for a prohibited reason.’” Mayorga v. Merdon,

928 F.3d 84, 90 (D.C. Cir. 2019) (quoting Walker v. Johnson,

798 F.3d 1085, 1096 (D.C. Cir. 2015)). “In an appropriate

case, the factfinder’s disbelief of the reasons put forward by the

defendant will allow it to infer discrimination.” Aka, 156 F.3d

at 1294 (citation, internal quotation marks, and alteration

omitted).

“A plaintiff may support an inference that her employer’s

stated reasons for undertaking the adverse employment action

in question were pretextual by citing a number of possible

sources of evidence, including ‘the employer’s better treatment

of similarly situated employees outside the plaintiff’s protected

group, its inconsistent or dishonest explanations, its deviation

from established procedures or criteria, [ ] the employer’s

pattern of poor treatment of other employees in the same

protected group as the plaintiff, or other relevant evidence that

a jury could reasonably conclude evinces an illicit motive.’”

Wheeler, 812 F.3d at 1115 (quoting Walker, 798 F.3d at 1092)

(alteration in original).

B.

Before proceeding to our review of the summary-judgment

motion, we must pause and observe that this case’s (minor)

curiosity flows not only from its procedural posture, but also

from the plaintiff’s untraditional style of briefing. Jeffries

frequently fails to develop arguments for his claims, often

choosing instead to simply state facts (inviting the Court,

perhaps, to make of them what it will) and to point without

elaboration to errors the District Court allegedly made on

summary judgment (a peculiar approach, given our de novo

review). This Court is not in the habit of doing parties’

27

lawyering for them, and we decline to take up that task now.

See Jones v. Kirchner, 835 F.3d 74, 83 (D.C. Cir. 2016)

(“[J]udges are not like pigs, hunting for truffles buried in briefs

or in the record[.]”); Consol. Edison Co. of N.Y., Inc. v. FERC,

510 F.3d 333, 340 (D.C. Cir. 2007) (“It is not enough merely

to mention a possible argument in the most skeletal way,

leaving the court to do counsel’s work, create the ossature for

the argument, and put flesh on its bones.”). Our discussion of

Jeffries’s claims, therefore, is the result of the separation of the

wheat of arguments made from the chaff of those potential

arguments that might have been constructed from the raw

materials Jeffries includes or alludes to in his briefing. We

address only the former.

Second Nonselection (Special Assistant)

Jeffries’s iterated qualms with his nonselection for Special

Assistant are twofold: the potential that Qazilbash (the only one

of the three panelists who knew of Jeffries’s prior EEO

activity) influenced the others during score reconciliation, and

the possibility that Sigworth was preselected for the position.

But Jeffries puts forth no evidence of the alleged influence or

of how Sigworth’s “special assignment shortly before the

selection . . . enabled her to enhance her qualifications.”

Appellant’s Br. 39. “[S]peculations and allegations” are no

substitute for record evidence and cannot by themselves “create

a genuine issue of fact” as to pretext. Porter v. Shah, 606 F.3d

809, 816 (D.C. Cir. 2010)).

Moreover, as to the score reconciliation (which we

consider only in the context of retaliation, as Jeffries does not

argue it was discriminatory), Jeffries fails to point to any

positive evidence connecting it with his protected activity.

Qazilbash acquired knowledge of Jeffries’s EEO activity three

years before the interview, then again nine months prior, and

28

possibly again five months prior. This temporal proximity is

the only causation evidence to which Jeffries points, and it is,

“at best, weak.” See Iyoha v. Architect of the Capitol, 927 F.3d

561, 574 (D.C. Cir. 2019). And even assuming that Jeffries’s

evidence of temporal proximity is sufficient to make out a

prima facie case of retaliation, he has failed to come forward

with “positive evidence beyond mere proximity,” which “is

required to defeat the presumption” that DOJ’s proffered

explanation for his nonselection is genuine. Woodruff v.

Peters, 482 F.3d 521, 530 (D.C. Cir. 2007).

Third Nonselection (Senior Policy Advisor)

Jeffries contends that he was more qualified for the Senior

Policy Advisor position than was the ultimate selectee, that

Jeffries had experience that “should have been highly relevant

to the duties of the position,” and that Aponte retaliated against

him by giving him low scores on the interview questions.

Appellant’s Br. 40-42.

A plaintiff attacking a qualifications-based explanation

may establish pretext by either (1) presenting evidence

showing “a reasonable employer would have found the plaintiff

significantly better qualified for the job but nevertheless failed

to offer the position to her,” Holcomb v. Powell, 433 F.3d 889,

897 (D.C. Cir. 2006) (emphasis in original), or (2) “expos[ing]

other flaws in the employer’s explanation,” Aka, 156 F.3d at

1295; see also id. (“For example, the plaintiff can attempt to

show that the employer’s explanation was fabricated after the

fact by showing that it contradicts other contemporaneous

accounts of the employer’s decision. Or a plaintiff can attempt

to show that the employer’s explanation misstates the

candidate[’s] qualifications.”). But a Title VII plaintiff “is not

limited to challenging the employer’s explanation; she can also

avoid summary judgment by presenting other evidence . . . that

29

permits an inference of discrimination.” Holcomb, 433 F.3d at

899 (citing Aka, 156 F.3d at 1295 n.11).

Jeffries’s arguments on this score simply never get off the

ground. He states that he was the “only applicant to collaborate

with the [NIJ] on a joint solicitation to package evidence into

useful tools,” Appellant’s Br. 42, and cites to his affidavit

further fleshing out his qualifications – but he fails to establish

or even argue for the “significant[]” superiority of his own

qualifications to the selectee’s, see Holcomb, 433 F.3d at 899,

as by discussing the selectee’s qualifications at all. And

although Jeffries baldly states that he had relevant experience,

he fails to establish that DOJ misstated his qualifications. See

Aka, 156 F.3d at 1295. To the extent Jeffries is arguing that

DOJ misjudged his qualifications – that it “should have”

considered him to be more qualified than it did – “[w]e have

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

choice of appropriate qualifications,” Jackson v. Gonzales, 496

F.3d 703, 708 (D.C. Cir. 2007), but “rather . . . [should] ‘defer

to the [employer’s] decision of what nondiscriminatory

qualities it will seek’ in filling a position,” id. at 708-09

(quoting Stewart v. Ashcroft, 352 F.3d 422, 429 (D.C. Cir.

2003)) (last alteration in original).

Jeffries’s attempt to present other evidence that permits an

inference of unlawful motive also fails. Jeffries’s contention

that this nonselection was due to Aponte’s retaliatory animus

is unsupported by any record evidence other than the weak

temporal relationship between Aponte’s knowledge of

Jeffries’s protected activity, acquired in August 2012, and

Jeffries’s November or December 2012 interview. Again,

temporal proximity alone is insufficient to establish pretext.

See Woodruff, 482 F.3d at 530.

30

Fourth Nonselection (Administrative Services and Logistics

Director)

With regard to his fourth nonselection, Jeffries argues that

the panelists’ scoring of the applicants was subjective because

the interview notes do not indicate how “scoring for the

resumes, work experience, and work history was actually

determined.” Appellant’s Br. 43. Jeffries also contends that

Martin, the selectee, may have been preselected.

While recognizing that “employers may of course take

subjective considerations into account in their employment

decisions,” this Court has repeatedly expressed concern over

employers’ heavy reliance on such factors, “[p]articularly in

cases where a jury could reasonably find that the plaintiff was

otherwise significantly better qualified than the successful

applicant[.]” Aka, 156 F.3d at 1298; see also Hamilton v.

Geithner, 666 F.3d 1344, 1356 (D.C. Cir. 2012) (warning of

“the ease with which heavy reliance on subjective criteria may

be used to mask or camouflage discrimination” (citation and

internal quotation marks omitted)). Some of the “subjective”

assessments we have historically treated with caution are

criteria like “interpersonal skills,” Fischbach, 86 F.3d at 1184,

“enthusiasm,” Aka, 156 F.3d at 1298, and “presentation of

self,” Hamilton, 666 F.3d at 1356-57. Even where an employer

does rely on “disputed subjective assessments,” that reliance

“will not create a jury issue in every employment

discrimination case,” as where it “is modest[] and the employer

has other, well-founded reasons for the employment

decision[.]” Aka, 156 F.3d at 1298.

The circumstances surrounding Jeffries’s fourth

complained-of nonselection are a far cry from those that have

in the past raised the Court’s hackles; in fact, Jeffries has failed

to point to any troubling subjectivity at all. The panelists’

31

interview sheets indicate that applicants’ resumes were

assessed for “written presentation, relevant experience

highlighted, etc.,” and that their work history was assessed for

“stability, leadership, etc.” Lynch, Def’s MSJ Ex. 25, ECF No.

7-3 at 221. And although the sheets contain no explicit detail

as to the scoring for “[w]ork [e]xperience (KSAs),” all three

panelists assigned each applicant the same score for work

experience (24 for Jeffries, and 27 for Martin), and each

corrected her scoresheet to reflect that there were only 32

points available for work experience rather than 35 – both of

which indicate that the scores for work experience/KSAs were

grounded in objective considerations. An employer cannot be

held liable for “simply ma[king] a judgment call” on

permissible grounds. See Holcomb, 433 F.3d at 897.

Jeffries’s preselection argument also fails. In support of

his assertion that there is a “possibility that [the position] was

tailored for Martin,” Jeffries points to “substantial changes

[made] to the KSAs for the position before the vacancy

announcement,” Appellant’s Br. 43 – but he fails to explain

how those changes advantaged Martin and thus amounted to

preselection. Again, we decline to join Jeffries in

unsubstantiated speculation, and he cannot create a triable issue

of fact on conjecture alone.

Fifth Nonselection (Supervisory Grants Management

Specialist)

Jeffries’s contentions with regard to the fifth nonselection

are threefold. Jeffries gestures at arguments that Randolph

(biracial male who was one of the ultimate selectees) was

preselected for the position, and that the email correspondence

between Trautman and Faley revealed discriminatory attitudes.

He also asserts an entitlement to an adverse inference on the

basis of spoliation of evidence.

32

Jeffries does point to evidence that, viewed in the light

most favorable to him, could indicate that DOJ preselected

Randolph: Faley’s having encouraged Randolph to apply; the

position’s downgrade to a GS-13/14, which meant Randolph

was eligible for it; the email to Randolph from the vice

president of his union congratulating him on the promotion,

sent before the second interview; and the fact that two

applicants were selected rather than the one the vacancy

announcement called for. But Jeffries fails to produce any

evidence from which a reasonable jury could conclude that the

purported preselection was animated by discrimination or

retaliation. See Mayorga, 928 F.3d at 90; see also Anderson v.

Westinghouse Savannah River Co., 406 F.3d 248, 271 (4th Cir.

2005) (“[W]hile preselection may establish that an employee

was unfairly treated, it does not by itself prove racial

discrimination.” (citation and internal quotation marks

omitted)); Blue v. Widnall, 162 F.3d 541, 547 (9th Cir. 1998)

(“[O]nly preselection based on discriminatory motives violates

Title VII.” (citing Goostree v. Tennessee, 796 F.2d 854, 861-

62 (6th Cir. 1986)). Moreover, DOJ’s selection of Randolph –

a biracial African-American/Caucasian male, arguably in the

“same protected class” as Jeffries – “cuts strongly against any

inference of discrimination” on the basis of Jeffries’s race or

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

As to the email correspondence between Faley and

Trautman in which they joked about having told others that

Jeffries had been selected, while it was perhaps inappropriate,

no reasonable jury could, on the basis of the email exchange,

disbelieve DOJ’s proffered qualifications-based explanation or

conclude that explanation was pretextual.

Finally, Jeffries asserts – with no support from the record

– that some interview notes related to this nonselection “are

missing from the ROI,” Appellant’s Br. 46, which the Court

33

presumes to be reference to a report of investigation completed

in connection with one of his EEO complaints. Citing Gerlich

v. U.S. Department of Justice, 711 F.3d 161 (D.C. Cir. 2013),

Jeffries asserts that “[t]he missing interview notes to support

the ratings can lead to an adverse inference, or at least preclude

summary judgment.” Appellant’s Br. 46. But we have no basis

to consider this argument absent any citation to the record to

support it. Anderson, 477 U.S. at 256; see Jones, 835 F.3d at

83.

Because Jeffries failed to create a triable issue of fact as to

whether DOJ’s explanation for the fifth nonselection was

pretextual, the District Court’s entry of judgment in DOJ’s

favor was proper.

Sixth Nonselection (Senior Policy Advisor for Byrne Criminal

Justice Innovation/Building Neighborhood Capacity

Programs)

With regard to the sixth nonselection, Jeffries argues that

there are “questions about possible discriminatory/retaliatory

pre-selection,” and that one of the panelists arrived late to his

interview “and rushed through it, cutting off his answers . . . as

if she had already determined who she was going to select, or

did not want to select him.” Appellant’s Br. 50-51. Neither of

these arguments assists Jeffries in establishing that DOJ’s

proffered reasons for this nonselection were pretextual for

discrimination or retaliation.

Given the weakness of the evidence on which he relies,

Jeffries’s cautious framing of the preselection issue – as a

question about a possibility – is apt. Jeffries points to the fact

that changes were made to the position’s KSAs prior to its

posting, to evidence that “persons outside of BJA with whom

the selectee for the position would interact may have”

participated in the selectee’s interview, and to the selectee’s

34

having been invited to participate in meetings prior to her

interview. Id. 50-51. But the pre-posting changes made to the

position do not evince preselection, as Jeffries again fails to

connect those changes to the selectee’s qualifications. And the

only record evidence to which Jeffries points for his contention

that outside personnel may have attended Huntoon’s interview

is an email exchange between O’Donnell and Griffith, in which

O’Donnell stated a desire not to include outside personnel in

the interviews and Griffith proposed meeting with those

personnel instead. This indicates that it is unlikely that non-

BJA personnel participated in any of the interviews. While this

Court is bound to view the facts in the light most favorable to

Jeffries and to draw all legitimate inferences therefrom in his

favor, see Anderson, 477 U.S. at 248, we will not step past

inference into imagination. To be fair, Jeffries did not overplay

his hand here, framing this allegation as something that “may

have” happened – but again, the creation of a genuine issue of

fact requires more than “speculations and allegations.” Porter,

606 F.3d at 816.

As to the selectee’s participation in meetings, Jeffries does

overplay his hand, stating that Huntoon “was invited to attend

meetings about the anticipated work of the position,”

Appellant’s Br. 51, when in fact the record reveals that

Huntoon was invited to a single meeting to discuss work she

had already done. Jeffries also states in his declaration that

“such meetings . . . are normally attended only by persons at

the GS-14 level and higher,” J.A. 468, but as Jeffries has failed

to draw any connection between the meeting and the at-issue

position, any deviation from DOJ’s standard practices that

occurred via Huntoon’s invitation to the meeting is of no

moment to Jeffries’s claim over this nonselection.

Jeffries’s assertion that O’Donnell, one of the panelists,

arrived late to the interview and cut off his answers fares no

35

better. No reasonable factfinder could conclude, on the basis

of O’Donnell’s conduct, that DOJ’s proffered reason for this

nonselection was incredible or pretexual.10 “Even if a plaintiff

‘was victimized by poor selection procedures,’ we may not

‘second-guess an employer’s personnel decision absent

demonstrably discriminatory motive.’” Hairston v. Vance-

Cooks, 773 F.3d 266, 272 (D.C. Cir. 2014) (quoting Fischbach,

86 F.3d at 1183).

Seventh Nonselection (Senior Policy Advisor for Health and

Criminal Justice)

Attempting to demonstrate that DOJ’s qualifications-

based explanation for Binkley’s selection was pretextual,

Jeffries seems to argue that, in explaining its decision to select

Binkley, DOJ misstated both her qualifications and Jeffries’s.

He also contends that he was more qualified for the position

than was Binkley.11

Jeffries’s first argument relies entirely on statements in his

own unsworn declaration. Jeffries asserts in his declaration

10

Jeffries’s statement in his opening brief (made without comment or

citation) that at the time of the interview he “had two pending EEO

cases . . . naming O’Donnell as a responsible management official,”

Appellant’s Br. 49, lends no support to his argument, as the statement is

both “mention[ed] . . . in the most skeletal way,” see Consol. Edison Co. of

N.Y., Inc., 510 F.3d at 340, and unsupported by the record.

11

Relying entirely on assertions in his own unsworn declaration as to what

Binkley told him, Jeffries also asserts that DOJ departed from its normal

procedures or practices by “secretly reassign[ing]” Binkley to the SAMH

division at some unspecified point in the past. Appellant’s Br. 55, 56 (citing

J.A. 879). But Jeffries cannot rely on this inadmissible hearsay to create a

genuine issue of fact, as it would not be converted into admissible evidence

even were Jeffries to testify to the conversation. See Gleklen, 199 F.3d at

1369.

36

that, while Qazilbash stated in her memorandum

recommending Binkley for the position that Binkley “ha[d]

performed to a very high level in her work as a policy advisor

within the [SAMH] portfolio,” J.A. 214, Qazilbash had told

Jeffries at some unspecified point in time that she had spent

more one-on-one time with Binkley than with Jeffries due to

Binkley’s “inexperience with the [SAMH] subject matter,” id.

880. Jeffries also himself critiques Binkley’s performance in

her then-current role, stating that: Qazilbash had once replaced

one of Binkley’s assignments with another because Binkley

struggled with the first; Binkley had “cried at work repeatedly”

and had said, two years prior to her interview and selection,

that the Senior Policy Advisor position was “too demanding”

and “outside of her Adjudications experience”; and Binkley

had funded some grants in a way that was “contrary to a major

audit recommendation.” Id.

But even assuming arguendo the admissibility of the

declaration and all the statements contained therein, we fail to

perceive how these incidents, if true, belie Qazilbash’s 2014

assessment of Binkley’s overall performance. Qazilbash’s

assessment was holistic, praising Binkley for “meeting

significant challenges in managing difficult projects,

developing communication materials at an advanced policy

level[,] and . . . prov[ing] her skills to develop new ideas and

programming.” Id. 214. This evaluation is not felled by

Jeffries’s recitation of particular incidents that, in his mind,

should have led Qazilbash to a different conclusion. We have

repeatedly declined “to serve as a ‘super-personnel department

that reexamines an entity’s business decisions,’” Holcomb, 433

F.3d at 897 (quoting Barbour v. Browner, 181 F.3d 1342, 1346

(D.C. Cir. 1999)), and we do so again here.

Citing his three-month service as Acting Senior Policy

Advisor four years prior to his nonselection, Jeffries also

37

appears to contend that O’Donnell misstated his qualifications.

In support, he points to her statement that the major difference

between Jeffries and Binkley “is that while [Jeffries]

demonstrated good qualifications for his current position[,] . . .

he did not demonstrate the more advanced qualifications

needed for a GS-14 Senior Policy Advisor.” Appellant’s Br.

54 (quoting J.A. 874). However, Jeffries takes this statement,

which was a critique of his failure in the interview to

“demonstrate” his fitness for the Senior Policy Advisor

position, out of its original context. Immediately following the

sentence Jeffries quotes, O’Donnell went on to say:

[Jeffries’s] responses during the interview

process focused more on process than

substance. [He] had trouble articulating a

vision and discussing specifics about new and

innovative approaches. . . . In terms of

qualifications, [Jeffries] focused on interaction

with other BJA staff, his experience as a mentor

for state policy advisors and BJA and his

willingness to participate in a number of BJA

projects and initiatives. . . . [T]hose

behaviors . . . did not speak to his vision or

skills as a Senior Policy Advisor.

J.A. 874. This evaluation of Jeffries’s interview performance

is not rendered a misstatement by Jeffries’s post hoc assertion

to this Court that he did in fact have the needed qualifications.

Notably, Jeffries does not offer to the Court an alternative

version of his interview – one in which he contemporaneously

made his fitness for the position clear – and it is not our role to

serve as Monday-morning quarterbacks rehashing DOJ’s

employment decisions. See Holcomb, 433 F.3d at 897.

38

Finally, Jeffries points to his service as Acting Senior

Policy Advisor as evidence of his superior qualifications,

stating that it “demonstrat[ed] that he could perform in the

position, while Binkley had not” served in such a capacity.

Appellant’s Br. 54; see J.A. 439. But Jeffries does not discuss

his own qualifications any further, and this alone is not

evidence by which “a reasonable employer would have found

[Jeffries] significantly better qualified for the job.” Holcomb,

433 F.3d at 897.

V.

Finding the District Court to have abused its discretion in

denying Jeffries’s Rule 56(d) motion with respect to the first

nonselection, we reverse that denial, vacate the District Court’s

entry of judgment for DOJ on Jeffries’s claims over the first

nonselection, and remand the matter to the District Court for

further proceedings consistent with this opinion. In all other

respects, the judgment of the District Court is affirmed.

So ordered.

PILLARD, J., concurring in part and dissenting in part: I

concur in the decision to reverse the judgment against Jeffries

on his claim of discriminatory and retaliatory denial of the first

of the series of seven promotions he sought. We are unanimous

in concluding that Jeffries was entitled to discovery before the

district court could determine that neither race nor retaliation

infected that promotion denial. My colleagues nonetheless

hold that no such motive can have tainted the ensuing non-

promotions, so Jeffries has no right to discovery to test his

employer’s proffered nondiscriminatory reasons. I disagree.

Consistent with our conclusion that the district court abused its

discretion in dismissing Jeffries’s first claim, we should have

sent the entire case back to the district court for appropriate

discovery before any decision on summary judgment.

Jeffries is an African American man with a master’s

degree in social work and prior experience as a Special

Assistant at the White House Office of National Drug Control

Policy. He had been employed by the United States

Department of Justice’s Office of Justice Programs (OJP) for

more than a decade, including a stint as an Acting Branch

Chief, when he sought to advance from his position as a Policy

Analyst at the GS-13 level in OJP’s Bureau of Justice

Assistance (BJA) by seeking the various promotions at issue

here. The federal Bureau of Justice Assistance works with

local police departments and court systems across the United

States to improve how they operate in the prevention of crime,

violence, and drug abuse. Jeffries was responsible for

supervising a range of substance abuse programs, including

2,500 of the country’s drug treatment courts—and his receipt

of positive performance appraisals and awards suggests he

excelled at that work. Jeffries alleges that, when he sought the

promotions at issue here, “the leadership of BJA and the Policy

Office consisted almost entirely of Caucasians. In the Policy

Office, all but one of the GS-14 positions were occupied by

Caucasians, and all 12 GS-15 and [Senior Executive Service]

positions were occupied by Caucasians.” Compl. ¶ 9. “Prior

2

to Jeffries’ original EEO complaint there had been no African-

American males promoted or hired into management positions

at BJA for more than eight years, and no African-American

male supervisors hired in BJA in about 17 years.” Id. ¶ 10.

As we unanimously hold, Jeffries is plainly entitled to

discovery to probe whether illicit motive figured into the first

disputed promotion denial. My colleagues so conclude

because Jeffries identified a procedural irregularity in the

application of his priority-consideration right that raises a

specific red flag. Maj. Op. at 20-23. Details about an

employer’s violation of its own internal process are helpful to

explain the need for discovery, but not required—and for good

reason. It was mere happenstance that the successful selectee

for the first promotion confided to Jeffries the irregular timing

of her interview. See Compl. ¶ 16. Rule 56(d) does not

presume such leaks. All it requires is an explanation why the

nonmovant needs discovery to respond to summary judgment:

“If a nonmovant shows by affidavit or declaration that, for

specified reasons, it cannot present facts essential to justify its

opposition,” the district court should allow discovery before

ruling on summary judgment. Fed. R. Civ. P. 56(d).

I agree with my colleagues that the district court erred in

rejecting Jeffries’s Rule 56(d) submission. The information he

sought regarding his first promotion denial was not “irrelevant”

on the ground that “plaintiff’s objective shortcomings for the

position at issue” were “undisputed.” Jeffries v. Lynch, 217 F.

Supp. 3d 214, 232 nn.12, 13 (D.D.C. 2016). The interviewing

officials’ unilateral and untested conclusions as to Jeffries’s

ostensible “shortcomings,” id. at 232 n.12, are far from

settled—they lie at the heart of his challenge. And Jeffries has

a right to explore known irregularities with the priority-

consideration process because they could be probative of

BJA’s allegedly discriminatory and retaliatory motive. Maj.

3

Op. at 20-22; see also Jeffries’s Rule 56(d) Mot. 4 (J.A. 888).

We thus correctly hold on this record that it was an abuse of

discretion to deny Jeffries discovery on the first promotion

denial.

But once we recognized Jeffries’s right to discovery, we

should have remanded the whole case. I see no basis to draw

the line where the majority does. If on remand Jeffries

discovers that BJA had a discriminatory or retaliatory motive

for preventing his advancement into one job opening, that

might have some bearing on later denials of promotions in the

same office. For example, regarding his second promotion

denial, Jeffries asked to depose one member of the selection

panel who had admitted to reconciling scores, scratching out

scores for Jeffries and lowering them, Jeffries’s 56(d) Mot. 5,

and another panelist whom Jeffries had named as a responsible

management official in prior EEO claims, id. at 5-6. Jeffries

sought to investigate the reason the Department changed the

listing related to his fifth promotion denial from GS-14 to GS-

13/14, which he suspects was to enable the Department to hire

someone preselected for the position but ineligible at the GS-

14 level. Jeffries’s 56(d) Mot. 8. And the court denied

discovery on the seventh promotion denial, even though

Jeffries’s Rule 56(d) submission listed reasons to suspect that

job, too, was filled by someone preselected. Id. at 12-13. To

test those irregularities, he seeks to collect the very types of

evidence that we have previously held probative of pretext.

See, e.g., Stoe v. Barr, No. 18-5315, 2020 WL 2781649, at *4,

6, 8 (D.C. Cir. May 29, 2020); Wheeler v. Georgetown Univ.

Hosp., 812 F.3d 1109, 1115 (D.C. Cir. 2016). I see no reason

to cut off Jeffries’s discovery rights piecemeal on closely

similar claims in view of what strikes me as a more-than-

adequate Rule 56(d) filing.

4

An employer’s filing of a pre-discovery motion for

summary judgment does not raise the substantive threshold for

access to discovery. Our precedent interpreting Rule 56(d) has

been informed by the broader context of the civil rules, under

which a plaintiff who has stated a legally viable claim has a

right to take discovery into matters in the opposing party’s

control.1 Outside of the Rule 56(d) context, parties need no

court permission to take discovery. In the ordinary course, a

plaintiff in civil litigation is entitled to discovery after filing a

complaint alleging “sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P.

8(a)(2). Discovery “is available in all types of cases at the

behest of any party, individual or corporate, plaintiff or

defendant.” Hickman v. Taylor, 329 U.S. 495, 507 (1947).

BJA did not attack the sufficiency of Jeffries’s complaint,

presumptively entitling him to discovery, but instead answered

and moved for judgment on the pleadings or summary

1

The majority emphasizes that the Federal Rules allow summary

judgment and an accompanying Rule 56(d) motion at any time. Maj.

Op. at 2. While self-evidently correct, it is also obvious that certain

types of cases are more amenable than others to summary judgment

without discovery. For instance, district courts routinely resolve

reviews of administrative action where the record is already

complete, see, e.g., People of State of Cal. v. EPA, 689 F.2d 217, 218

(D.C. Cir. 1982), arbitration or contract disputes where disputes

concern written terms, see, e.g., Wash. Mailers Union No. 29 v.

Wash. Post Co., 233 F.3d 587, 589 (D.C. Cir. 2000), and questions

of law based on stipulated facts, see, e.g., Am. Postal Workers Union,

AFL-CIO v. USPS, 830 F.2d 294, 299-300 (D.C. Cir. 1987), without

the need for discovery backed by compulsory process. As discussed

infra, the requisite proof in Title VII cases, in contrast, is virtually

always in the opposing party’s control.

5

judgment—before discovery commenced. Viewing the record

through the lens of summary judgment, the court held Jeffries’s

Rule 56(d) submission failed to preserve his discovery right.

The district court stressed that BJA had produced documents

and declarations to the Equal Employment Opportunity

Commission, but Jeffries has not had a chance to test his

employer’s account, and we have repeatedly “rejected the

notion that a district court can ordinarily resolve a Title VII

complaint based on the administrative record.” Ikossi v. Dep’t

of Navy, 516 F.3d 1037, 1045 (D.C. Cir. 2008) (citing Hackley

v. Roudebush, 520 F.2d 108, 149, 151 (D.C. Cir. 1975)).

The logic of the right to discovery to substantiate an

adequately pleaded claim is especially strong as applied to

claims of intentional workplace discrimination or retaliation,

which are virtually always fact-intensive and discovery-

dependent. Disputes about intent, of course, “frequently turn

on credibility assessments.” Crawford-El v. Britton, 523 U.S.

574, 599 (1998). A plaintiff bearing the burden to establish the

state of mind of the defendant decision makers must be able to

probe her employer’s proffered rationales if she is to have any

hope of overcoming Brady’s demand for “sufficient evidence

. . . that the employer’s asserted non-discriminatory reason was

not the actual reason and that the employer intentionally

discriminated against the employee.” Brady v. Office of

Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).

The Supreme Court has unanimously rejected a

“heightened pleading standard in employment discrimination

cases,” acknowledging that “[b]efore discovery has unearthed

relevant facts and evidence, it may be difficult to define the

precise formulation of the required prima facie case in a

particular case.” Swierkiewicz v. Sorema, 534 U.S 506, 512

(2002). Akos Swierkiewicz did not have to allege specific

irregularities in the employer’s process, nor even a prima facie

6

case as such, nor did he have to show that he had or would

likely uncover evidence of bias in order to open the door to

discovery. Acknowledging the employer’s argument that such

a minimal pleading standard “will burden the courts and

encourage disgruntled employees to bring unsubstantiated

suits,” the Court nevertheless insisted that “[w]hatever the

practical merits of that argument,” the pleading standard

remains the same. Swierkiewicz, 534 U.S. at 514-15. The

Supreme Court expressly reaffirmed Swierkiewicz in Twombly.

550 U.S. at 569-70.

Remanding with an invitation for discovery on all the

promotion-denial claims would not have compelled an

unmanageable discovery burden for the defendants. District

courts have “broad discretion to tailor discovery narrowly and

to dictate the sequence of discovery.” Crawford-El, 523 U.S.

at 598; see id. at 598-99 (citing Rule 26(b)(2)). They have

many options for setting the “timing and sequence of

discovery,” id. at 599 (citing Rule 26(d)), and “may at first

permit the plaintiff to take only a focused deposition of the

defendant before allowing any additional discovery,” id. It is

the requirement to plausibly plead a legally cognizable claim

together with a district court’s discretion to manage discovery

under Rule 26—not a heightened Rule 56(d) standard out of

line with Rule 8(a)(2) as understood in Swierkiewicz—that

provide appropriate protection from unduly burdensome

discovery.

Contrary to the majority’s characterization, Maj. Op. at 17,

our approach to Rule 56(d) has not been lax, but appropriately

attentive to context. Accounting for the catch-22 that a party

cannot know in detail the nature of information to which he

lacks access, we have refrained from reading a demand for

heightened specificity into Rule 56(d), the text of which asks

only for the “reasons” the nonmovant “cannot present facts

7

essential to justify its opposition” to summary judgment.

Convertino calls for a plaintiff to “outline” the particular facts

he intends to discover and “describe why those facts are

necessary to the litigation.” Convertino v. U.S. Dep’t of

Justice, 684 F.3d 93, 99 (D.C. Cir. 2012). And, as we

emphasized in Convertino itself, “summary judgment is

premature unless all parties have ‘had a full opportunity to

conduct discovery.’” Id. (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 257 (1986)). The adequacy of a Rule 56(d)

submission “will necessarily be a case-specific inquiry,

dependent on the nature of the claims and the existing record.”

Haynes v. D.C. Water & Sewer Auth., 924 F.3d 519, 532 (D.C.

Cir. 2019). In the typical Rule 56(d) case discovery has already

been taken, so the question is whether the nonmovant is entitled

to further discovery to oppose a summary judgment motion.

See, e.g., U.S. ex rel. Folliard v. Gov’t Acquisitions, Inc., 764

F.3d 19, 23 (D.C. Cir. 2014) (referring to “further” and

“additional” discovery sought); Convertino, 684 F.3d at 97

(referring to a four-year process of discovery that “was both

slow and litigious” before the Rule 56(d) filing).

In a case like this one, in which no discovery has yet

occurred and virtually all the evidence essential to the

nonmovant’s proof lies in the hands of the opposing party, the

nonmovant’s burden to say why “it cannot present facts

essential to justify its opposition” is not onerous. Fed. R. Civ.

P. 56(d). Reasoning from Swierkiewicz, we have noted that

holding a Title VII plaintiff to “a particular method of raising

an ‘inference of discrimination’ is especially inappropriate”

before discovery, and required only that a Rule 56(d)

submission “point[] to the types of evidence that might raise an

inference of discrimination.” Chappell-Johnson v. Powell, 440

F.3d 484, 488-89 (D.C. Cir. 2006) (emphases added) (citing

Swierkiewicz, 534 U.S. at 511-12). The Title VII plaintiff in

Ikossi, for example, did not spell out in detail reasons to doubt

8

her supervisors’ motivations in taking disciplinary action

against her, but we reasoned that “[t]his lack of precision does

not make any less self-evident . . . the nature of the evidence

[plaintiff] seeks.” 516 F.3d at 1045. It was clear enough that,

“[b]y providing an explanation for their actions” at deposition,

the decision makers “may reveal their motives, which lie at the

heart of Dr. Ikossi’s discrimination claims.” Id. at 1045-46.

We thus held that the district court abused its discretion in

denying the plaintiff leave to depose those witnesses and take

“reasonable discovery in this trial de novo.” Id. at 1047. Like

the Rule 56(d) filings in Ikossi and Chappell-Johnson,

Jeffries’s request for an opportunity to probe BJA’s asserted

reasons for repeatedly denying him promotions for which he

alleges he was qualified falls into the category of “cases [in

which] the relevance and necessity of the requested discovery

are so obvious given the claims that little more than

identification of the information is required to head off a pre-

discovery motion for summary judgment.” Haynes, 924 F.3d

at 532-33 (citing Ikossi, 516 F.3d at 1045-46).2

At the end of the day, the majority’s approach constitutes

an error in the scope of Rule 56(d) relief warranted on a

particular set of facts. We do not change the Rule 56(d)

standard—nor could we. In affirming the district court’s

decision as to several of Jeffries’s promotion denials, my

2

We denied discovery in Haynes itself because, faced with the

employer’s evidence that all the laid-off electricians—including

Haynes—lacked the license newly required under D.C. law whereas

all the retained electricians had obtained that license, Haynes failed

to explain the relevance of the discovery he sought regarding non-

electricians not even subject to the requirement. 924 F.3d at 531-33.

Needless to say, nothing in Rule 56(d) requires discovery not

reasonably calculated to lead to information relevant to a claim or

defense, nor need discovery be allowed where information not

reasonably subject to dispute bars the claim or defense.

9

colleagues emphasize the abuse-of-discretion standard,

appropriately noting that “we do not find an abuse of discretion

based on whether we, if standing in the District Court’s shoes,

would have granted the motion.” Maj. Op. at 17. I take it, then,

that if the district court on second look were to conclude that

discovery regarding other promotion denials is also

appropriate, nothing would foreclose the court from exercising

discretion to permit it. The district court’s familiarity with the

claims puts it in a strong position efficiently to supervise party-

controlled discovery. And, with limited time, resources, and

discovery opportunities, it is in the plaintiff’s interest to focus

discovery on the denied promotion(s) for which his

qualifications were strongest, and where BJA’s decision

seemed the most questionable.

Because I would have remanded the case as a whole to the

district court for appropriate discovery, I concur only in the

majority’s decision on Rule 56(d) as to the first promotion

denial and respectfully dissent from its holdings on the others.