Devon Shelley v. Pete Geren

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEVON S. SHELLEY, 

Plaintiff-Appellant,

No. 10-35014

v.



D.C. EDWA No.

PETE GEREN, Secretary of the 08-cv-5045-RHW

Army, United States Army Corps OPINION

of Engineers, Agency,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of Washington

Robert H. Whaley, District Judge, Presiding

Argued and Submitted

November 4, 2010—Seattle, Washington

Filed January 12, 2012

Before: Betty B. Fletcher and Jay S. Bybee, Circuit Judges,

and Claudia Wilken, District Judge.*

Opinion by Judge Wilken;

Partial Concurrence and Partial Dissent by Judge Bybee

*The Honorable Claudia Wilken, United States District Judge for the

Northern District of California, sitting by designation.

141

SHELLEY v. GEREN 145

COUNSEL

David M. Rose, Minnick-Hayner, P.S., Walla Walla, Wash-

ington, for the plaintiff-appellant.

James A. McDevitt, United States Attorney, Frank A. Wilson,

Assistant United States Attorney, Spokane, Washington; Wil-

liam E. Edwards, United States Army Corps of Engineers,

Kansas City, Missouri, for the defendant-appellee.

OPINION

WILKEN, District Judge:

Plaintiff-Appellant Devon Scott Shelley appeals the district

court’s grant of summary judgment in favor of Defendant-

Appellee Pete Geren, Secretary of the Army and the United

States Army Corps of Engineers (collectively, the Corps).

Shelley sued the Corps for violating the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. § 621 et seq., by fail-

ing to interview him and rejecting his applications for two

promotions. We have jurisdiction pursuant to 28 U.S.C.

§ 1291 to consider Shelley’s appeal. We find that Shelley

presented a prima facie case of age discrimination and evi-

dence of pretext sufficient to create a material dispute as to

whether age-related bias was the “but-for” cause of the Corps’

failure to interview and promote him. The district court’s

grant of summary judgment in favor of the Corps is reversed.

BACKGROUND

In 2005, the Corps sought to fill a GS-14 Supervisory Pro-

curement Analyst position in the Contracting Division at its

Kansas City District. The position was also known as Chief

of Contracting. The Corps pursued a two-step hiring process,

in which it advertised an opening for a 120-day temporary

146 SHELLEY v. GEREN

position, and then announced a formal process to hire a per-

manent Chief of Contracting.

An email announcement of the 120-day position was made

on October 3, 2005, and courtesy copies were sent to Major

Kelly Butler and Regional Contracting Chief Joseph Scanlan.

The announcement explained that recruitment for the perma-

nent position would begin in the near future. Applicants were

instructed to email or fax their current resume/application,

copies of their two most recent performance appraisals, proof

that they had completed the educational requirements, and

proof of eligibility for a Critical Acquisition Position.

Shelley applied for the 120-day position. At the time, he

had been serving as Assistant Chief of the Contracting Divi-

sion for the Walla Walla District, a GS-13 position, for over

a year. In that position, Shelley supervised, coordinated, and

managed the work of Team Leaders. Shelley was supervised

by Connie Oberle, the Chief of Contracting at Walla Walla.

He held a master’s degree in business administration, had

twenty-nine years of experience in contracting (twenty-six of

which were with the Corps), and had received numerous

awards for his work. In 2005, Shelley had received a “Special

Act Award” for “major acquisition accomplishments and

acquisition research [and] policy.” In 2003, he had received

a Bronze Star Medal for exceptionally meritorious acquisition

service as a Contracting Officer with the Corps while

deployed to the Afghanistan Area Office. He was born in

1951 and was fifty-four years old at the time of his applica-

tion for the 120-day position.

Butler served as the selecting official for the 120-day posi-

tion. She received about nine resumes and rated them accord-

ing to the criteria from the position announcement, which she

summarized as “[b]asically their experience.” No other offi-

cials reviewed the resumes for the 120-day position. Butler

also spoke with the applicants’ references.

SHELLEY v. GEREN 147

Butler testified that Oberle gave a negative reference for

Shelley. She stated, “I called Connie for a reference for [Shel-

ley]. And, really, Connie’s reference is why we did not

choose [Shelley].” Butler explained, “When I get a big No

feeling from the supervisor, that sends a red flag.” Later, But-

ler changed her testimony, stating that Oberle’s reference was

“one of the reasons we did not choose [Shelley].” Oberle,

however, denied ever having spoken with Butler regarding

Shelley’s qualifications. Oberle testified that she spoke with

Scanlan and informed him that Shelley was interested in the

120-day position, and that the job would be a “wonderful

opportunity for him.”

Butler consulted about the applicants with Colonel Michael

Rossi, Commander of the Kansas City District, and Steve

Iverson, Deputy District Engineer for Project Management for

the same district. They agreed that Vince Marsh should be

hired. Marsh was serving as a Supervisory Procurement Ana-

lyst and Chief of the Business Management Division in

Huntsville, Alabama, a GS-14 position, and had been serving

in the position for more than a year. He supervised approxi-

mately fifteen employees and served as Director of Contract-

ing for the Business Management Division “as requested.” In

his prior position, as Business Operations Manager at the

United States Army Contracting Command in Europe, Marsh

had also served as Director of Contracting “as requested,”

supervising seventy-five contract specialists on those occa-

sions. He was forty-two years old at that time, born in 1963.

He had twenty years of experience in contracting (fourteen in

contracting positions and six in procurement positions). He

had been with the Corps for less than two years. The most

recent award listed on Marsh’s resume was a “Sustained

Superior Performance Award” he had received in 2002,

before joining the Corps.

Butler interviewed Marsh for the position. There is no evi-

dence that she interviewed other candidates.

148 SHELLEY v. GEREN

On November 2, 2005, Kevin Brice, Business Management

Division Chief, sent an email seeking approval to hire Marsh

for the 120-day position. Brice stated that he and Rossi rec-

ommended Marsh for the position, that Scanlan had partici-

pated in the selection process, and that Butler believed Marsh

was Scanlan’s top pick. Marsh’s selection was approved.

Scanlan knew Shelley and was aware that Shelley was in

his fifties. Scanlan had served as a superior to Shelley, and

had worked with him for about six years. He was familiar

with Shelley’s credentials and experience working for the

Corps. He knew that, as Assistant Chief of Contracting for the

Walla Walla District, Shelley had, at various times, served as

Acting Chief of Contracting when Oberle was absent. Scanlan

expressed confidence in Shelley’s performance of his duties

as Acting Chief of Contracting and testified that both techni-

cally and professionally Shelley was a good contracting offi-

cer.

At the time Scanlan supported Marsh for the 120-day posi-

tion, he knew Marsh only by reputation. They had met at a

social event for the Army Contracting Command in Germany.

Scanlan’s belief that Marsh was the best candidate for the

120-day position was not based on any personal experience

working with him. Scanlan, however, told Butler, Brice, Iver-

son, Rossi and Kevin Bond, District Counsel Chief, who later

joined the selection panel for the permanent position, that he

had worked with Marsh in Germany, and that he believed

Marsh would do very well in the 120-day position.

Shelley learned that he was not selected for the 120-day

position on or about November 4, 2005.

Meanwhile, on October 24, 2005, the permanent position

and job description had been announced, and the Corps began

accepting applications. The selection plan called for a panel

of five members to review applications. The panel members

were Scanlan, Brice, Rossi, Bond, and Mary Parks, Chief

SHELLEY v. GEREN 149

Contracting Specialist. Scanlan, Brice and Rossi had all par-

ticipated in the hiring decision for the 120-day position. Rossi

was assigned to chair the panel.

The selection plan identified four criteria on which to

screen applicants for interviews: technical competency, man-

agement skills, leadership and teamwork. On each criterion,

the applicants were to be evaluated as “outstanding,” “fully

successful,” or “minimally acceptable.” Possession of a grad-

uate level degree was a factor in ranking a candidate as out-

standing for technical competency. A factor to be considered

with regard to management skills was supervision of over

thirty employees.

Oberle testified that, around the time the hiring process was

taking place, Scanlan and Brice requested from the contract-

ing chiefs information about projected retirement dates for

employees in their districts and divisions. Scanlan did not

recall asking his chiefs for information on retirement eligibil-

ity. He admitted, though, that in 2004 or 2005 he had

requested, from the districts, certain data which, at that time,

was provided in a spreadsheet entitled Capable Workforce

Matrix. Although the matrix did not include the names of the

employees, it included information such as job titles, grade

levels, number of employees in a particular position in a divi-

sion, as well as their anticipated retirement dates. The exam-

ple in the record of this matrix for the Walla Walla

Contracting Division is dated March 21, 2006, but apparently

the same format was used in 2004 and 2005. It is clear from

the 2006 version of the matrix for the Walla Walla Contract-

ing Division that it would be a simple matter to deduce the

names of the incumbents from the position titles within the

division.

Thirty-three individuals applied for the permanent position,

including Shelley, Marsh, and Oberle. The panel members

independently evaluated the applicants as outstanding, fully

successful, or minimally acceptable, on each of the four selec-

150 SHELLEY v. GEREN

tion criteria, based on their resumes. On December 19, 2005,

the panel members convened by teleconference to select can-

didates for interviews. Scanlan testified that he did not share

any age-related information about Shelley at the teleconfer-

ence. Brice testified that age was not a consideration in evalu-

ating the applicants, although information on the resumes

could allow panelists to estimate applicants’ ages.

During the teleconference, each panelist placed the candi-

dates in either the top third, middle third, or bottom third of

the applicant pool. The spreadsheet summarizing these scores

does not identify the panelists by name, but it shows that two

candidates received a top score from each of the five panel-

ists. Marsh and another candidate received four top scores and

a mid score. A fifth candidate received four top scores and a

bottom score. An applicant named Robert received three top

scores and two mid scores. These were the six candidates

selected for interviews. Shelley was given a top score by three

of the five panelists. He was initially given a mid score by

two panelists. This ranking would have been equal to that

which had earned Robert an interview. But one panelist—

whose identity is not disclosed in the record—changed Shel-

ley’s mid score to a bottom score. Shelley was not given an

interview.

Marsh was, at forty-two years old, the youngest inter-

viewee. The oldest interviewee was fifty-five years old, one

year older than Shelley. The other interviewees were forty-six

(two of them), fifty, and fifty-three years old.

On January 20, 2006, the panel recommended Marsh for

the permanent position. On or about February 17, 2006, Shel-

ley learned that he had not been afforded an opportunity to

interview for the permanent position. On April 16, 2006,

Marsh was reassigned to the permanent Chief of Contracting

position.

On March 6, 2006, seventeen days after Shelley learned

that he had been denied an interview for the permanent posi-

SHELLEY v. GEREN 151

tion, he made initial contact with the Corps’ Equal Employ-

ment Opportunity (EEO) officer. On May 12, 2006, after

receiving notice of his right to file a formal complaint of dis-

crimination, Shelley did so, alleging that he had been discrim-

inated against between November 2005 and January 2006 due

to his age, in that he was “not afforded the anticipated inter-

view opportunity . . . thereby eliminating his promotion

opportunity for the Kansas City District GS-14, Chief, Con-

tracting Division position.” After the EEO office denied his

claim in its Final Agency Action on June 27, 2008, Shelley

filed suit in federal district court on July 28, 2008.

The district court granted summary judgment in favor of

the Corps. The court assumed, without deciding, that Shelley

timely exhausted his administrative remedies as to both the

120-day position and the permanent position. The court

declined to analyze the motion in accordance with McDonnell

Douglas Corporation v. Green, 411 U.S. 792 (1973), finding

it inapplicable to ADEA cases after the Supreme Court’s deci-

sion in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343

(2009). Relying on Gross, the district court held that Shelley

put forth insufficient facts that his age was the “but-for” cause

of his non-selection for the 120-day position and for an inter-

view for and promotion to the permanent position.

Shelley appeals.

STANDARD OF REVIEW

We review de novo a district court’s grant of summary

judgment. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.

1994). We must determine, viewing the evidence in the light

most favorable to the non-moving party, whether there are

any genuine issues of material fact, and whether the district

court applied the relevant substantive law. Id. “Whether a

plaintiff has exhausted administrative remedies as required

before filing suit is a question of law, which we review de

novo.” Bankston v. White, 345 F.3d 768, 770 (9th Cir. 2003).

152 SHELLEY v. GEREN

DISCUSSION

I. Administrative Remedies

Preliminarily, the Corps argues that we may not consider

Shelley’s complaint of non-selection for the 120-day position

because he failed to seek administrative remedies for that

decision in a timely manner. The Corps argues that Shelley

failed to contact the EEO office within forty-five days of

learning that he was not selected for the 120-day position and

failed to complain about his non-selection for the 120-day

position in his formal complaint of discrimination in the EEO

administrative process.

Federal employees who believe they have been discrimi-

nated against on the basis of age have “the option of pursuing

administrative remedies, either through the agency’s EEO

procedures, or through the Merit Systems Protection Board.”

Bankston, 345 F.3d at 770 (internal citations omitted). Equal

Employment Opportunity Commission (EEOC) regulations

provide that an aggrieved federal employee who pursues the

EEO avenue must consult an EEO counselor within forty-five

days of the effective date of the contested personnel action,

prior to filing a complaint alleging age discrimination. 29

C.F.R. §§ 1614.103, 1614.105(a)(1).1 We have stated that

although the regulatory pre-filing exhaustion

requirement at § 1614.105 “does not carry the full

weight of statutory authority” and is not a jurisdic-

tional prerequisite for suit in federal court, we have

consistently held that, absent waiver, estoppel, or

1

As an alternative to filing an administrative complaint, a federal

employee may file a civil action in a United States district court under the

ADEA after giving the EEOC not less than thirty days’ notice of intent to

sue. 29 U.S.C. § 633a(d); 29 C.F.R. § 1614.201(a); see Bankston, 345 F.3d

at 770. There is no evidence that Shelley provided the EEOC with notice

of his intent to sue the Corps, and he does not appear to rely on this alter-

native avenue.

SHELLEY v. GEREN 153

equitable tolling, “failure to comply with this regula-

tion [is] . . . fatal to a federal employee’s discrimina-

tion claim” in federal court.

Kraus v. Presidio Trust Facilities Div./Residential Mgmt.

Branch, 572 F.3d 1039, 1043 (9th Cir. 2009) (alterations in

the original) (quoting Lyons v. England, 307 F.3d 1092, 1105

(9th Cir. 2002)).

Shelley took the position that he timely initiated the EEO

process on March 6, 2006, after he learned on or about Febru-

ary 17, 2006, that he had been denied an opportunity to inter-

view for the permanent Chief of Contracting position. In his

EEO complaint, Shelley asserted that he was discriminated

against, between November 2005 and January 2006, based on

his age. Shelley asserted that because of his age he was not

given an interview, thereby eliminating his promotion oppor-

tunity. Shelley learned that he was not selected for the 120-

day position on or about November 4, 2005. Thus, the time

period Shelley specified in his EEO complaint encompasses

the hiring process for both the 120-day and the permanent

Chief of Contracting positions. Reading the EEO complaint

liberally, as we must, see Greenlaw v. Garrett, 59 F.3d 994,

999 (9th Cir. 1995), it is apparent that Shelley complained

about both hiring decisions.

Further, the decisions were not discrete employment

actions, but were part of a single, two-step, hiring process.

The Corps sought to fill the position first on a temporary

basis, followed by a permanent appointment after 120 days.

It is obvious that the person selected for the temporary posi-

tion would have a significant competitive advantage over the

other applicants for the permanent position, and therefore that

the temporary appointment could be seen as a step towards

the permanent appointment. Also, the limited nature of the

hiring process for the temporary position, and the fact that the

recruitment for the permanent position started less than a

154 SHELLEY v. GEREN

month after the temporary position was announced, could

have led an applicant to view the processes as a continuum.

The interrelatedness of the two positions and of the hiring

processes for them persuades us that the process for filling the

Chief of Contracting position was a single course of conduct

that began in 2005 with the selection of Marsh for the 120-

day position and ended on April 16, 2006, when Marsh was

confirmed as the new Chief of Contracting. Because Shelley

filed his EEO complaint on March 6, seventeen days after he

learned that he had not been selected to interview for the per-

manent position, he met the 45-day requirement of 29 C.F.R.

§ 1614.105(a).

Even if we assume that the two promotions were discrete

employment actions, Shelley’s complaint was still timely.

“Incidents of discrimination not included in an EEOC charge

may not be considered by a federal court unless the new

claims are like or reasonably related to the allegations con-

tained in the EEOC charge.” Green v. Los Angeles County

Superintendent of Schools, 883 F.2d 1472, 1476 (9th Cir.

1989) (internal quotation marks omitted). In determining

whether a new claim is like or reasonably related to allega-

tions contained in the previous charge, the court inquires into

“whether the original EEOC investigation would have encom-

passed the additional charges.” Id. The same is true of a com-

plaint of discrimination submitted to a federal agency’s EEO

office. See Greenlaw, 59 F.3d at 1000 (citing Sosa v. Hiraoka,

920 F.2d 1451, 1456-57 & n.2 (9th Cir. 1990)).

Here, the crux of Shelley’s complaint is that he was

bypassed for promotion to the permanent Chief of Contracting

position because of his age. Because of the close relationship

between the two positions and the temporally-overlapping hir-

ing processes for them, an EEO investigation into the hiring

process for the permanent position would necessarily have led

to the investigation of the hiring process for the temporary

position. The case is therefore distinguishable from Williams

SHELLEY v. GEREN 155

v. Little Rock Municipal Water Works, 21 F.3d 218 (8th Cir.

1994), upon which the Corps relies. There, the Eighth Circuit

affirmed partial summary judgment in favor of the defendant

on the plaintiff’s racial discrimination claim, finding that the

plaintiff’s EEOC complaint for retaliation included no men-

tion of racial discrimination, and her allegations of racial dis-

crimination submitted to the EEOC years earlier were not

deemed reasonably related to her current claim for retaliation.

Id. at 222-23.

[1] In sum, Shelley’s initial contact with the Corps’ EEO

officer seventeen days after he learned that he had been

denied the opportunity to interview for the permanent Chief

of Contracting position timely initiated his administrative

claim based on being denied interviews and selection for the

120-day and the permanent positions, all of which occurred as

part of the same course of conduct by the Corps. Shelley

timely exhausted available administrative remedies.

II. Summary Judgment Disposition of Age Discrimination

Claim

[2] Shelley’s failure-to-promote claim is a claim of dispa-

rate treatment under the ADEA. The ADEA makes it unlaw-

ful for an employer to discriminate “because of [an]

individual’s age.” 29 U.S.C. § 623(a)(1). The prohibition is

“limited to individuals who are at least 40 years of age.” 29

U.S.C. § 631(a). The ADEA applies to protect federal

employees and applicants for federal employment. 29 U.S.C.

§ 633a(a). To prevail on a claim for age discrimination under

the ADEA, a plaintiff must prove at trial that age was the

“but-for” cause of the employer’s adverse action. Gross, 129

S. Ct. at 2350. “Unlike Title VII, the ADEA’s text does not

provide that a plaintiff may establish discrimination by show-

ing that age was simply a motivating factor.” Id. at 2349.

[3] This case, however, was resolved on summary judg-

ment, and not on the merits. Prior to Gross, our circuit applied

156 SHELLEY v. GEREN

the burden-shifting evidentiary framework of McDonnell

Douglas, 411 U.S. at 802, to motions for summary judgment

on ADEA claims. See, e.g., Coleman v. Quaker Oats Co., 232

F.3d 1271, 1281 (9th Cir. 2000); Wallis v. J.R. Simplot Co.,

26 F.3d 885, 889 (9th Cir. 1994); Rose v. Wells Fargo & Co.,

902 F.2d 1417, 1420 (9th Cir. 1990); Steckl v. Motorola, Inc.,

703 F.2d 392, 393 (9th Cir. 1983). The district court declined

to apply this framework, believing that Gross rejected it. The

Corps argues to the same effect.

[4] We disagree. In Gross, the Court grappled with

whether a mixed-motives instruction may be given to the jury

in an ADEA case.2 129 S. Ct. at 2348. Relying on the text of

29 U.S.C. § 623(a)(1) and case law allocating the burden of

persuasion, the Court held that a plaintiff retains at all times

the burden of persuasion to establish that age was the “but-

for” cause of an employer’s adverse action. Id. at 2352.

Because Gross involved a case that had already progressed to

trial, it did not address the evidentiary framework applicable

to a motion for summary judgment. The Court, in fact, explic-

itly noted that it “has not definitively decided whether the evi-

dentiary framework of McDonnell Douglas utilized in Title

VII cases is appropriate in the ADEA context.” Id. at 2349

n.2.

[5] Since the decision in Gross, several sister circuits have

continued to utilize the McDonnell Douglas framework to

decide motions for summary judgment in ADEA cases. See,

e.g., Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir.

2

Mixed-motives jury instructions are used in Title VII cases where an

employee alleges that he or she suffered an adverse employment action

because of both permissible and impermissible considerations, i.e., a

“mixed-motives” case. Gross, 129 S. Ct. at 2347 (citing Price Waterhouse

v. Hopkins, 490 U.S. 228 (1989)). Under such instructions, if a Title VII

plaintiff shows that discrimination was a “motivating” or a “substantial”

factor in the employer’s action, the burden of persuasion would shift to the

employer to show that it would have taken the same action regardless of

that impermissible consideration. Id.

SHELLEY v. GEREN 157

2009); Velez v. Thermo King Day P.R., Inc., 585 F.3d 441,

446-47 (1st Cir. 2009); Connolly v. Pepsi Bottling Grp., LLC,

2009 WL 3154445 at *2-3 (3d Cir. 2009) (unpublished).3 We

join them and hold that nothing in Gross overruled our cases

utilizing this framework to decide summary judgment

motions in ADEA cases. The McDonnell Douglas test is used

on summary judgment, not at trial. Costa v. Desert Palace,

Inc., 299 F.3d 838, 855 (9th Cir. 2002) (“This legal proof

structure is a tool to assist plaintiffs at the summary judgment

stage so that they may reach trial. . . [I]t is not normally

appropriate to introduce the McDonnell Douglas burden-

shifting framework to the jury.”). The McDonnell Douglas

test shifts only the burden of production, after the plaintiff

makes a prima facie case. See, e.g., Tusing v. Des Moines

Cmty. Sch. Dist., 639 F.3d 507, 515 n.3 (8th Cir. 2011) (“The

McDonnell Douglas analysis is likely still an appropriate way

to analyze ADEA ‘pretext’ claims, however, because McDon-

nell Douglas only shifts the burden of production.”); Smith v.

City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009) (“Gross

stands for the proposition that it is improper to shift the bur-

den of persuasion to the defendant in an age discrimination

case. McDonnell Douglas, however, imposes no shift in that

particular burden.”). “If plaintiffs establish a prima facie case,

‘[t]he burden of production, but not persuasion, then shifts to

the employer to articulate some legitimate, nondiscriminatory

reason for the challenged actions.’ ” Hawn v. Exec. Jet Mgmt.,

Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (quoting Chuang v.

Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123-24 (9th

Cir. 2000)). “If defendant meets this burden, plaintiffs must

then raise a triable issue of material fact as to whether the

defendant’s proffered reasons for their terminations are mere

pretext for unlawful discrimination.” Id. Because the contin-

ued use of McDonnell Douglas in summary judgment motions

3

We have done the same in non-precedential, unpublished decisions.

Russell v. Mountain Park Health Ctr. Props., LLC, 403 Fed. App’x. 195,

196 (9th Cir. 2010); EEOC v. Banner Health, 402 Fed. App’x. 289, 2010

WL 4324409, at *1 (9th Cir. 2010).

158 SHELLEY v. GEREN

on ADEA claims is not inconsistent with Gross, we cannot

overrule our prior precedent because of Gross.

[6] Thus, to survive summary judgment on his claim for a

violation of the ADEA under the disparate treatment theory of

liability, Shelley must first establish a prima facie case of age

discrimination. Coleman, 232 F.3d at 1280-81. If he is suc-

cessful, the burden of production shifts to the Corps to articu-

late a legitimate non-discriminatory reason for its adverse

employment action. Id. at 1281. It is then Shelley’s task to

demonstrate that there is a material genuine issue of fact as to

whether the employer’s purported reason is pretext for age

discrimination. Id. At trial, he must carry the burden to prove

that age was the “but-for” cause of his non-selection.

A. Prima Facie Case

A “prima facie case requires evidence adequate to create an

inference that an employment decision was based on a[n]

[illegal] discriminatory criterion.” O’Connor v. Consol. Coin

Caterers Corp., 517 U.S. 308, 312 (1996) (internal quotation

marks omitted) (alterations in original).

[7] In a failure-to-promote case, a plaintiff may establish a

prima facie case of discrimination in violation of the ADEA

by producing evidence that he or she was (1) at least forty

years old, (2) qualified for the position for which an applica-

tion was submitted, (3) denied the position, and (4) the pro-

motion was given to a substantially younger person. See

Steckl, 703 F.2d at 393 (holding that the plaintiff established

a prima facie case for age discrimination under the McDon-

nell Douglas framework because he “was clearly within the

protected class, had applied for an available position for

which he was qualified, and was denied a promotion which

was given to a younger person”); see also O’Connor, 517

U.S. at 313 (“Because the ADEA prohibits discrimination on

the basis of age and not class membership, the fact that a

replacement is substantially younger than the plaintiff is a far

SHELLEY v. GEREN 159

more reliable indicator of age discrimination than is the fact

that the plaintiff was replaced by someone outside the pro-

tected class.”); Nidds v. Schindler Elevator Corp., 113 F.3d

912, 917 (9th Cir. 1996) (finding that the requirements for a

prima facie case of age discrimination were satisfied by evi-

dence that the fifty-four year old plaintiff was discharged, he

was performing his job satisfactorily, and his duties continued

to be performed by a substantially younger employee, and

holding that the district court “erred in concluding that to

establish a prima facie case, [the plaintiff] was required to

show that he was at least as qualified as his replacement”).4

[8] It is undisputed that Shelley was fifty-four at the rele-

vant time, he was qualified for both the temporary and the

permanent positions, he was denied both positions, and both

went to a substantially younger candidate. Accordingly, Shel-

ley has established a prima facie case of age discrimination.

B. Facial Legitimacy of the Corps’ Explanation

[9] The burden now shifts to the Corps to provide a non-

discriminatory explanation for its hiring decisions. Coleman,

232 F.3d at 1281. The Corps did so here. In its brief on

appeal, the Corps proffers as its non-discriminatory explana-

tion that Marsh was already employed as a GS-14 Supervi-

sory Procurement Analyst, and hiring him caused a lateral

move, whereas the position would have been a promotion for

Shelley, who was serving at the GS-13 level. This is a facially

legitimate explanation.

4

It thus appears that, as part of the prima facie case, a plaintiff does not

have to show that he was discriminated against in favor of a substantially

younger employee with equal or inferior qualifications. If Shelley were

required to show this, he has done so, as discussed below in connection

with his showing of pretext. See Lowe v. City of Monrovia, 775 F.2d 998,

1005 (9th Cir. 1985), as amended, 784 F.2d 1407 (1986) (holding that in

order to show pretext, a plaintiff may rely on the same evidence that he

offered to establish a prima facie case).

160 SHELLEY v. GEREN

C. Pretext

[10] The Corps’ articulation of a legitimate non-

discriminatory reason shifts the burden back to Shelley to

raise a genuine factual question as to whether the proffered

reason is pretextual. The plaintiff can prove pretext “(1) indi-

rectly, by showing that the employer’s proffered explanation

is ‘unworthy of credence’ because it is internally inconsistent

or otherwise not believable, or (2) directly, by showing that

unlawful discrimination more likely motivated the employer.”

Chuang, 225 F.3d at 1124. All of the evidence—whether

direct or indirect—is to be considered cumulatively. Id. We

conclude that Shelley offered both direct and indirect evi-

dence of pretext.

i. Direct Evidence

[11] Shelley presented direct evidence of age discrimina-

tion to rebut the Corps’ purported non-discriminatory reason.

Oberle testified that Scanlan and Brice inquired about the pro-

jected retirement dates for employees in the contracting divi-

sions during the hiring period for the 120-day and permanent

positions. A fact-finder could infer from this that they consid-

ered age and projected retirement relevant to the hiring deci-

sion. Despite the absence of names in the Capable Workforce

Matrix, the format of the matrix permitted the identification

of specific employees. The matrix contradicts Scanlan’s testi-

mony that individual age information was not provided in that

format.5

[12] The Corps contends that the matrix, at best, estab-

lishes that Scanlan and Brice knew Shelley’s prospective

5

Although the Walla Walla Capable Workforce Matrix in the record is

dated March 21, 2006, after Shelley was denied an opportunity to inter-

view, it displays the same information that Scanlan and Brice had

requested earlier, and shows that one could deduce the names of individual

employees.

SHELLEY v. GEREN 161

retirement date, which, standing alone, would not support an

inference of age discrimination. But the fact that Scanlan and

Brice sought out the retirement dates at the time of their par-

ticipation in the hiring process for the temporary and perma-

nent positions shows more than that the decision-makers may

have known of the candidates’ ages. It raises an inference that

they considered this information relevant to their decisions.

Although Scanlan and Brice did not make the hiring decisions

alone, evidence of their inquiry and of their influence over the

process supports an inference that the Corps’ proffered expla-

nation for hiring Marsh was a pretext for age discrimination.

See Staub v. Proctor Hospital, 131 S. Ct. 1186, 1194 (2011)

(under Uniformed Services Employment and Reemployment

Rights Act, discriminatory motive imputed to employer where

a supervisor performs an act motivated by discriminatory ani-

mus that is intended by the supervisor to cause an adverse

employment action, and that act is a proximate cause of the

ultimate employment action).

ii. Indirect Evidence

[13] Evidence of a plaintiff’s superior qualifications,

standing alone, may be sufficient to prove pretext. Raad v.

Fairbanks North Star Borough School Dist., 323 F.3d 1185,

1194 (9th Cir. 2003) (citing Odima v. Westin Tucson Hotel,

53 F.3d 1484, 1492 (9th Cir. 1995)). A comparison of Shel-

ley’s and Marsh’s resumes gives rise to a factual dispute as

to whether Shelley was better qualified for the position than

Marsh. Compared to Marsh, Shelley had significantly more

years of work experience related to contracting, and more

experience employed in the Corps. As of October 2005, Shel-

ley had twenty-nine years of experience in contracting,

whereas Marsh had twenty years. Unlike Marsh, Shelley spent

most of his career in the Corps. Shelley had been an employee

of the Corps for over nineteen years, Marsh for five and a half

years.

Furthermore, Shelley was already employed in a Contract-

ing Division, while Marsh was a Supervisory Procurement

162 SHELLEY v. GEREN

Analyst in a Business Management Division. Shelley had

been employed as Assistant Chief in the Contracting Division

under Oberle in Walla Walla for over a year, and before that

for four years as a Team Leader in Walla Walla under Oberle.

Contrary to the Corps’ contention, Marsh served as Director

of Contracting only “as requested.” Shelley, too, served as

Acting Chief of Contracting in his supervisor’s absence.

Although this fact was not included in his resume, Scanlan

was aware of it, and testified that he had confidence in Shel-

ley’s performance as Acting Chief of Contracting. Shelley’s

resume identified more impressive and recent awards for on-

the-job accomplishments than Marsh’s.

Shelley’s educational qualifications were superior to

Marsh’s. Shelley held an M.B.A., while Marsh had no gradu-

ate level degree. The selection criteria for the permanent posi-

tion indicate that possession of a graduate level degree is a

factor in ranking a candidate as outstanding for technical

competency.

The selection criteria for the permanent position listed

supervision of at least thirty employees as a factor to be con-

sidered in evaluating management skills. The Corps incor-

rectly asserts that Shelley’s resume failed to indicate that he

acted as a supervisor. While Shelley’s resume did not specify

the number of employees he supervised, it did disclose that,

as Assistant Chief of Contracting, he supervised, coordinated

and managed the work of subordinate Team Leaders, who

presumably led teams. Marsh relayed that he supervised fif-

teen employees in the position that he held at the time of his

application. Although Marsh had supervised seventy-five

employees on occasion when he served temporarily as Direc-

tor of Contracting in Europe, it was not part of his regular job

duties. Neither candidate clearly demonstrated that he met this

criterion.

[14] The Corps argues that, while Shelley’s qualifications

as described after the fact were extensive, he did not include

SHELLEY v. GEREN 163

all of his work experience and skills in his resume. On appeal,

however, Shelley relies exclusively on information that was

listed in his resume to argue that his qualifications for the

position were superior. Even absent the additional information

(e.g., the value of construction contracts he successfully shep-

herded), Shelley’s resume demonstrated sufficient qualifica-

tions that a reasonable jury could find that he was

substantially better qualified than Marsh. In addition, Scanlan

testified that he had worked with Shelley for six years, and

was familiar with Shelley’s experience and credentials.

Further, that Shelley was a GS-13 employee, while Marsh

was a GS-14, was relevant only as to the 120-day position.

Had Shelley been given that position, he would have become

a GS-14 and his move to the permanent position would have

been lateral, like Marsh’s.

None of the officials whose support for Marsh was cited in

the email seeking approval for his hire for the 120-day posi-

tion had reviewed the applicants’ resumes. Only Butler

reviewed the resumes. Viewed in the light most favorable to

Shelley, Butler’s testimony, read in conjunction with Oberle’s

testimony, could be understood to indicate that Butler initially

favored Shelley for the position, but that she used an alleged

negative reference from Oberle (which Oberle denies she ever

gave) as a pretext for hiring Marsh after learning that Scanlan

favored Marsh for the position. Scanlan, it bears repeating,

represented to Butler, Rossi, Brice, Iverson and Bond that he

had worked with Marsh in Germany. He testified, however,

that he recommended Marsh based only on his reputation.

Scanlan had met him at a social event, but had never worked

with him. As noted, Scanlan had sought out information about

employees’ retirement eligibility at the time of the hiring pro-

cess.

[15] Accordingly, Shelley’s rejection for the 120-day posi-

tion could be found to be based on age discrimination. If it

was, then the inference that the decision-makers were biased

164 SHELLEY v. GEREN

would carry over to their decision-making for the permanent

position. Further, the denial of the temporary position was

clearly a causative factor in the denial of the interview and

selection for the permanent position. If the first decision was

caused by discrimination, a strong inference is raised that the

subsequent decisions were as well.

The Corps argues that age bias cannot be inferred in the

selection for the permanent position, because other applicants

close in age to Shelley were interviewed for that position and

Shelley was not. Those applicants, however, were not selected

for the position, and instead Marsh, the significantly younger

applicant, was hired. Stacking the interview pool with older

candidates does not immunize the decision to hire a younger

one. Of the five panelists who selected the interviewees,

Scanlan, Brice, and Rossi had all participated in the hiring

decision for the 120-day position. Shelley received a top score

from three of the five panelists. It was only the alteration of

one unidentified panelist’s score for Shelley from mid to bot-

tom that cost Shelley an interview and disqualified him for the

permanent position. The evidence of Scanlan’s discriminatory

animus discussed above supports an inference that Scanlan

was biased against Shelley and in favor of Marsh based on

age. The evidence of the workings of the hiring process sup-

ports an inference that Scanlan was able to influence the inter-

view and selection decisions. Neither Shelley’s non-selection

for an interview for the permanent position, nor the interviews

of other older applicants who were not selected for promotion,

disproves Shelley’s evidence supporting a prima facie case

and pretext.

[16] The evidence, viewed in the light most favorable to

Shelley, is sufficient to allow a reasonable jury to find that the

Corps’ reliance on Marsh’s GS-14 level, as compared to Shel-

ley’s GS-13 level, was pretextual in the light of Shelley’s oth-

erwise superior experience, education and recognition.

In sum, Shelley produced sufficient evidence to establish a

prima facie case of age discrimination, and has responded to

SHELLEY v. GEREN 165

the Corps’ alleged non-discriminatory reason for refusing to

promote him by identifying evidence, both direct and indirect,

showing that the Corps’ explanation is pretextual.

CONCLUSION

[17] Because Shelley initiated a timely administrative

complaint and produced sufficient evidence in support of his

ADEA claim, the district court’s grant of summary judgment

in the Corps’ favor is reversed. The case is remanded to the

district court for further proceedings in accordance with this

opinion.

REVERSED and REMANDED.

BYBEE, Circuit Judge, concurring in part and dissenting in

part:

This should be a straightforward case. Plaintiff Devon Scott

Shelley (“Shelley”) claims he became a victim of age discrim-

ination when the Army Corps of Engineers (“the Corps”)

denied him an opportunity to interview for a GS-14 position

as Chief of the Contracting Division that ultimately went to

a younger candidate. An unfiltered look at the facts reveals

that of the six finalists the Corps interviewed, one candidate

was older than Shelley, and two others were close to Shelley

in age. The candidate the Corps ultimately hired, Vince

Marsh, was already a GS-14 Supervisory Procurement Ana-

lyst, while Shelley was a GS-13 Assistant Chief.

On this record, there is no way Shelley can show that the

Corps passed him over for an equally or less qualified candi-

date on account of his age. Rather, the record shows that 32

individuals applied for the position. A five-member selection

committee, chaired by an army colonel and advised by an

EEO officer, independently ranked the candidates on the basis

166 SHELLEY v. GEREN

of their resumes. Based on their individual evaluations of the

candidates, the committee held a telephone conference and

produced a list of the top six candidates. Shelley was not ran-

ked among the top six, but was included in the second-tier

group of nine candidates. The six finalists included three men

and three women (one of whom was Shelley’s own supervi-

sor, Connie Oberle), and were born in 1950, 1952, 1955, 1959

(2), and 1963; Shelley was born in 1951. The committee then

jointly interviewed the finalists and unanimously recom-

mended hiring Marsh. In its report, the committee found that

Marsh had the “strongest interview. . . . [It] demonstrated

[his] technical competency, professionalism, leadership and

strategic thinking.” The committee also found that Marsh had

“the highest overall positive references.” In the Corps’s own

investigation of Shelley’s complaint, every member of the

committee denied that age played any role in the committee’s

decision.

To this overwhelming evidence that age was not the reason

the committee decided to hire Marsh and not Shelley, the

majority simply points to two facts: (1) some members of the

committee likely knew how old Shelley was, Maj. Op. at 161,

and (2) Shelley believed he had more experience and, there-

fore, was better qualified than Marsh, Maj. Op. at 161-163.

This doesn’t come close to proving that the Corps “refuse[d]

to hire [Shelley] . . . because of such individual’s age. 29

U.S.C. § 623(a)(1) (emphasis added). And because the Age

Discrimination in Employment Act (“ADEA”) does not per-

mit a mixed-motive theory, Gross v. FBL Fin. Servs., Inc.,

129 S. Ct. 2343, 2350 (2009), Shelley has no case at all. I

would affirm the district court’s award of summary judgment,

and I respectfully dissent.1

1

Because I agree that Shelley exhausted his administrative remedies, I

concur in Part I of the majority opinion. I also agree that the district court

erred in holding that the McDonnell Douglas framework does not apply

to ADEA claims. Accordingly, I concur in Parts I through II.A of the

majority opinion.

SHELLEY v. GEREN 167

I

In Gross, the Supreme Court held that “under the plain lan-

guage of the ADEA . . . a plaintiff must prove that age was

the ‘but-for’ cause of the employer’s adverse decision.” Id. at

2350. This “but-for” test applies no matter whether the case

was resolved on summary judgment or after a jury trial, and

it does not permit the plaintiff to rely on a mixed-motive the-

ory. See id.

Because Shelley has no direct evidence of discrimination

based on age, he must rely on the burden-shifting approach

articulated in McDonnell Douglas Corp. v. Green, 411 U.S.

792 ( 1973). The majority holds that Gross did not overrule

our prior cases holding that the McDonnell Douglas frame-

work applies to a disparate-treatment ADEA claim. Maj. Op.

at 156-158. I concur in that part of the opinion. Although I

think the McDonnell Douglas framework is going to be diffi-

cult to apply to an ADEA claim after Gross—and the Court

was coy about whether McDonnell Douglas is compatible

with Gross, 129 S. Ct. at 2349 n.2—I agree that Gross does

not clearly overrule our prior precedents. See Smith v. City of

Allentown, 589 F.3d 684, 691 (3d Cir. 2009) (“Gross does not

conflict with our continued application of the McDonnell

Douglas paradigm in age discrimination cases.”).

Even if we continue to apply the McDonnell Douglas

framework to the ADEA, Shelley still shoulders the ultimate

burden of showing that the Corps’s explanation—that Shelley

was not as qualified as Marsh—was pretextual and that the

necessary reason Shelley was not hired was because of his

age. “To establish a disparate-treatment claim under the plain

language of the ADEA . . . a plaintiff must prove that age was

the ‘but-for’ cause of the employer’s adverse decision,”

Gross, 129 S. Ct. at 2350, because “the burden of persuasion

[n]ever shifts to the party defending an alleged mix-motives

discrimination claim brought under the ADEA,” id. at 2348.

168 SHELLEY v. GEREN

That is a heavy burden for Shelley to carry. And he doesn’t

come close on this record. The processes used by the Corps

rule out impermissible bias, and the evidence relied on by the

majority is insufficient to raise an issue of material fact.

II

The majority finds that “Shelley’s rejection for the 120-day

position could be found to be based on age discrimination.”

Maj. Op. at 163. It claims that Major Kelly Butler’s and Con-

nie Oberle’s testimonies could show that “Butler initially

favored Shelley for the position, but that she used an alleged

negative reference from Oberle (which Oberle denies she ever

gave) as a pretext for hiring Marsh after learning that Scanlan

favored Marsh for the position.” Id. at 163. I think the 120-

day position is not really an issue.2 In any event, this is simply

not a reasonable inference. Although there is some dispute

over whether or how Oberle conveyed a reference to Butler,

whether she did offer a negative reference is beside the point

(though she was going to be a candidate for the permanent

position herself). It is not reasonable to infer that Butler

would have chosen Shelley but for an alleged reference from

Oberle. See Maj. Op. at 163. Butler did state in the Depart-

2

The majority mischaracterizes the Corps’s explanation for its decisions

as being that Marsh was already a GS-14 whereas Shelley was only a GS-

13. Maj. Op. at 159. As I discuss in Part IV, Marsh’s prior permanent GS-

14 position is of course relevant and demonstrates his superior qualifica-

tions, though it is hardly the only way in which he was a better applicant

than Shelley. The Corps has contended throughout that the six candidates

selected for an interview were each generally better qualified than Shelley

and that the selection process worked correctly; even Shelley acknowl-

edged this as the explanation offered by the Corps. Because of this mis-

characterization, the majority can claim that the Corps’s explanation was

irrelevant for the permanent hiring decision because if Shelley had

received the temporary position, his receiving the permanent position

would have been a lateral move, too. See Maj. Op. at 163. It also paves

the way for the majority’s erroneous conclusion that a “reasonable jury

[could] find that the Corps’ reliance on Marsh’s GS-14 level, as compared

to Shelley’s GS-13 level, was pretextual.” Maj. Op. at 164.

SHELLEY v. GEREN 169

ment of Defense Fact-Finding Conference of March 14, 2007

that “really, Connie’s reference is why we did not choose

Scott [Shelley].” Yet the Fact-Finding Conference at which

she testified was not convened to consider Shelley’s com-

plaint, and, in context, her statement is not particularly proba-

tive. Moreover, in her deposition for this case she clarified her

testimony, saying: “I didn’t mean to indicate that I was ready

to hire him and Connie Oberle said no. That’s not the case.

. . . Connie’s reference is one of the reasons we did not choose

Scott. . . . I did not mean to infer that she was the only reason

that . . . he wasn’t chosen.” She stated that she based her hir-

ing decision on Marsh’s being “the most qualified out of the

nine” who applied.

Furthermore, it is unreasonable to infer that Butler changed

her mind after input from Scanlan. She testified that she was

the only one who reviewed the resumes for that position, and

she made the decision in consultation with Colonel Michael

Rossi, Commander for the Kansas City District, and Steve

Iverson, Deputy District Engineer for Project Management for

the Kansas City District. Although Scanlan may have been “a

part of the process” and let Butler know that Marsh was his

top pick, there is no indication that he was involved in the

substance of the decision, and Shelley produced no evidence

to contradict Butler’s account of how the decision was made.

A reasonable jury could not reasonably conclude from the

evidence that discrimination was the but-for cause of Shelley

failing to receive the 120-day position.

With regard to the permanent position, Shelley’s biggest

problem is that before he can make out a case that he did not

get the position because of his age, Shelley has to show that

he was passed over for an interview because of his age. This

he cannot do. Of the six candidates who were actually

selected for a final interview (from a list of 32), one was older

than Shelley, one was only a year younger, and another was

four years younger. The fact that the Corps considered quali-

fied candidates older than (or about the same age as) Shelley

170 SHELLEY v. GEREN

without offering Shelley an interview is fatal to his claim. It

is true that the fourth traditional element for establishing a

prima facie case in failure to promote cases under the

McDonnell-Douglas framework—that the employee be

replaced by someone substantially younger, O’Connor v.

Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996)—is

not a strict requirement. A plaintiff can produce more proba-

tive evidence of discrimination, or he can show that the deci-

sion to hire another member of the protected class (or in

ADEA cases, a person of similar age) was a pretext to hide

the discriminatory decision. See Diaz v. Am. Tel. & Tel., 752

F.2d 1356, 1359-62 (9th Cir. 1985) (Title VII); see also Diaz

v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207-08 & n.2

(9th Cir. 2008). While I deal with the former type of evidence

below, there is no evidence of the latter grand conspiracy, that

candidates of the same age as Shelley were given interviews

to hide the already-made decision that Marsh would be given

the position. Because age must be the but-for cause, see

Gross, 129 S. Ct. at 2350, the fact that the committee ranked

other similarly-aged applicants higher than Shelley suggests

that even without any alleged age bias, he still would have not

received the job because another similarly-aged applicant

would have taken it instead.

Since the Corps interviewed similarly situated candidates,

but not Shelley, the only plausible conclusion from this set of

facts is that some reason other than age caused the selection

committee to decide not to interview Shelley. And if the com-

mittee had some reason other than age—indeed, if it had any

other reason—then Shelley cannot satisfy Gross’s “but-for”

test.

III

The majority finds that “Shelley presented direct evidence

of age discrimination to rebut the Corps’ purported non-

discriminatory reason.” Maj. Op. at 160. The majority is just

wrong on all accounts.

SHELLEY v. GEREN 171

First, the majority (as did Shelley) framed its theory of the

case in terms of the McDonnell Douglas burden-shifting anal-

ysis. See Maj. Op. at 157. But that test is used when the plain-

tiff has to rely on inferences that are not based on direct

evidence. As we have explained, “[w]hen a plaintiff alleges

disparate treatment based on direct evidence in an ADEA

claim, we do not apply the burden-shifting analysis set forth

in [McDonnell Douglas].” Enlow v. Salem-Keizer Yellow Cab

Co., 389 F.3d 802, 812 (9th Cir. 2004). In Enlow, we were

simply following the Supreme Court’s instruction that “the

McDonnell Douglas test is inapplicable where the plaintiff

presents direct evidence of discrimination.” Trans World Air-

lines, Inc. v. Thurston, 469 U.S. 111, 121 (1985).

Second, even if we look at the majority’s “direct evidence,”

it is anything but direct. As we explained in Coghlan v. Amer-

ican Seafoods Co.: “Direct evidence is evidence ‘which, if

believed, proves the fact [of discriminatory animus] without

inference or presumption.’ ” 413 F.3d 1090, 1095 (9th Cir.

2005) (alteration in original) (quoting Godwin v. Hunt Wes-

son, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)). It “typically

consists of clearly sexist, racist, or similarly discriminatory

statements or actions by the employer.” Id.; see also Enlow,

389 F.3d at 812 (“Direct evidence, in the context of an ADEA

claim, is defined as ‘evidence of conduct or statements by

persons involved in the decision-making process that may be

viewed as directly reflecting the alleged discriminatory atti-

tude . . . sufficient to permit the fact finder to infer that that

attitude was more likely than not a motivating factor in the

employer’s decision.’ ” (quoting Walton v. McDonnell Doug-

las Corp., 167 F.3d 423, 426 (8th Cir. 1999) (internal quota-

tion marks omitted)).

The majority’s “direct evidence” is a single fact—that two

members of the permanent position selection committee

(Regional Contracting Chief Joseph Scanlan and Business

Management Division Chief Kevin Brice) obtained a docu-

ment called the “Capable Workforce Matrix” (the “matrix”),

172 SHELLEY v. GEREN

which lists projected vacancies in what appears to be the

Walla Walla Contracting Division.3 Maj. Op. at 160. The

matrix lists each of the positions in the division and, among

other information, when the positions were expected to

become vacant due to planned departures or retirements. The

matrix does not mention the name of any member of the divi-

sion, but one who is familiar with the division could deduce

names based on the titles listed. For instance, the matrix indi-

cates that the division currently employs one Assistant Chief

of Contracting, and that the incumbent is scheduled to either

leave or retire in fiscal year 2006. One who is familiar with

the division would know that the Assistant Chief of Contract-

ing is Shelley and would know, based on the matrix, that he

is scheduled to either leave or retire from his position in the

Walla Walla division in 2006. From this fact, the majority

deduces “an inference that they considered this information

relevant to their decision.” Maj. Op. at 161 (emphasis added).

But an inference, we have said quite clearly, is not direct evi-

dence. Coghlan, 413 F.3d at 1095.

Moreover, even taking this evidence as circumstantial evi-

dence, it doesn’t amount to a hill of beans. There is no evi-

dence in the record that Scanlan or Brice actually looked at

the list, that either of them tried to link up Shelley’s name to

the list, or (even assuming that they did) that either took into

account Shelley’s age. In fact, the only evidence in the record

is to the contrary. Scanlan testified that although he probably

received the matrix, he did not recall seeing it; both testified

that age was not a consideration. Nothing indicates that this

request was anything out of the ordinary. Scanlan and Brice

were entitled to these documents by virtue of their positions.

Scanlan testified that “the matrix is a working document used

for regional workforce planning purposes[, a]nd it is updated

periodically for workforce planning purposes”; all of the dis-

3

For the reasons set out above, this piece of evidence is irrelevant to the

120-day position and only potentially probative for discrimination in the

selection for the permanent position.

SHELLEY v. GEREN 173

tricts, not just Walla Walla, were periodically to provide that

information for use in projecting future requirements for dif-

ferent types of positions. So even if Scanlan or Brice had

determined Shelley’s retirement date from the matrix, that

fact, without more, is irrelevant. And because Shelley’s super-

visor, Oberle, was on the same sheet and as readily identifi-

able as Shelley, there is no reason to think that they would not

also deduce her age and discriminate against her—which they

did not, because she received an interview.

Furthermore, as the majority concedes, all of the applicants

had submitted resumes from which their ages could have been

estimated, Maj. Op. at 149-150, and Scanlan had worked with

Shelley for a number of years, so it would not be surprising

if he knew Shelley’s age. Indeed, the majority holds that Shel-

ley has proved a prima facie case under McDonnell Douglas,

which in the context of an ADEA claim means that Shelley

has shown that “the promotion was given to a substantially

younger person.” Maj. Op. at 158. Thus, the majority began

from the premise that everyone knew that Marsh was younger

than Shelley. But aside from the bare fact of knowing Shel-

ley’s age, there are no statements by Scanlan or Brice, no

emails, and no off-hand remarks to Shelley or others about

Shelley’s age. Yet “[w]ithout more, . . . the fact that [Marsh]

was younger than [Shelley] does not create a triable issue of

pretext.” Pottenger v. Potlatch Corp., 329 F.3d 740, 748 (9th

Cir. 2003). If mere awareness of an applicant’s age is direct

evidence of discrimination sufficient to show pretext, no

disappointed-applicant-turned-plaintiff need ever worry about

summary judgment again. Indeed, even in cases in which

employers have not only noticed but also commented in

potentially negative ways about a plaintiff’s age, we have

found that this weak evidence is insufficient to justify a trial.

See id. at 747 (compiling cases).

IV

The majority works very hard to come up with indirect evi-

dence of pretext. Shelley may establish pretext “indirectly, by

174 SHELLEY v. GEREN

showing that the [Corps]’s proffered explanation is ‘unworthy

of credence’ because it is internally inconsistent or otherwise

not believable, or [ ] directly, by showing that unlawful dis-

crimination more likely motivated the employer.” Chuang v.

Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir.

2000) (quoting Godwin, 150 F.3d at 1220-22). Because Shel-

ley has no direct evidence, the circumstantial evidence upon

which he relies to refute the Corps’s proffered explanation

must be “ ‘specific’ and ‘substantial’ to create a genuine issue

of material fact.” Cornwell v. Electra Cent. Credit Union, 439

F.3d 1018, 1029 (9th Cir. 2006) (quoting Godwin, 150 F.3d

at 1222). What the majority comes up with is strict scrutiny

of Shelley’s and Marsh’s resumes and a conclusion that

“Shelley’s resume demonstrated sufficient qualifications that

a reasonable jury could find that he was substantially better

qualified than Marsh.” Maj. Op. at 163.

The majority did not articulate the correct legal standard.

While we have held that a “district court’s finding that a Title

VII plaintiff’s qualifications were clearly superior to the qual-

ifications of the applicant selected is a proper basis for a find-

ing of discrimination,” Odima v. Westin Tucson Hotel, 53

F.3d 1484, 1492 (9th Cir. 1995), we have yet to articulate a

precise standard in the summary judgment context. In Raad

v. Fairbanks N. Star Borough School Dist., 323 F.3d 1185

(9th Cir. 2003), we declined to establish the high hurdle that

the Fifth Circuit adopted in Odom v. Frank, 3 F.3d 839, 847

(5th Cir.1993) (requiring that the “disparities [be] so apparent

as virtually to jump off the page and slap us in the face”). 323

F.3d at 1194. The Supreme Court also thought the standard in

Odom was “unhelpful and imprecise,” though it did not

choose to give its own articulation of the correct standard. Ash

v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006). Thus, we are

left with the notion in Raad that a “pronounced difference” in

qualifications can be enough, 323 F.3d at 1194, but without

more guidance on what lesser quantum would also be suffi-

cient.

SHELLEY v. GEREN 175

Yet, surely situations in which the qualifications are so sim-

ilar that they could easily be thought to be equal cannot justify

a trial. More importantly, it cannot be that the standard is that

a reasonable jury could find that one applicant is more

qualified—however slightly—than another; we cannot ask the

jurors which of two candidates they prefer. Rather, it must be

that a reasonable jury could think that there is such a disparity

in their qualifications that the choosing of Marsh over Shelley

is only explainable because of the differences in their age.

This is a higher threshold than the majority’s new formula-

tion. See Ash, 546 U.S. at 457 (“Under this Court’s decisions,

qualifications evidence may suffice, at least in some circum-

stances, to show pretext.”); Cornwell, 439 F.3d at 1033 (“[A]

reasonable jury might also view the disparity between Corn-

well’s management experience and Hall’s as proof that

Defendants’ explanation for Cornwell’s demotion was a pre-

text for race discrimination.”); Raad, 323 F.3d at 1197

(“[T]he fact that an employer hired a far less qualified person

than the plaintiff naturally gives rise to an inference that the

non-discriminatory explanation offered by the employer is pre-

textual.”).4

Shelley cannot show that his qualifications were so clearly

superior to Marsh’s that a jury could reasonably find that

Marsh was promoted over Shelley on account of age. In fact,

it is far from clear that Shelley was even marginally better

qualified than Marsh. Shelley relied on no evidence other than

his own declaration and his resume. He offered no expert wit-

nesses who could evaluate the very technical language of con-

tracting and procurement hierarchy, he proffered no

colleagues who thought that he was better qualified, and he

couldn’t point to any irregularities in the selection process.

4

I note that in these cases the standard of proof is not as demanding as

in this ADEA case. Because these cases were brought under Title VII and

similar causes of action, demonstrating mixed motives would have been

sufficient in each; the plaintiffs did not need to prove but-for causation.

See, e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003).

176 SHELLEY v. GEREN

All we have is Shelley’s own opinion of his relative qualifica-

tions. And because he has no other evidence to support his

claim of age discrimination, Shelley rests his entire case on

the theory that his qualifications are so vastly superior to

Marsh’s that there is no other explanation for the selection

committee’s decision other than the disparity in their ages.

With all due respect, we have no business substituting our

judgment for the selection committee. And our judgment does

not improve by inviting jurors to decide which of the two they

would have hired.

According to the selection criteria, the selection committee

was supposed to evaluate resumes according to four criteria:

(1) technical competency, (2) management, (3) leadership,

and (4) teamwork. With regard to technical competency, the

criteria required the committee to consider four factors: dem-

onstrated knowledge of federal contracting regulations, expe-

rience in overseeing multimillion dollar contracts, knowledge

and experience in applying federal regulations, and experi-

ence in developing contract strategies to support large acquisi-

tion programs. The selection criteria add that an outstanding

candidate should possess a graduate level degree.

Shelley had two things going for him relative to Marsh. He

had more experience—Shelley had 29 years of contracting

experience, while Marsh had 21 years of experience—and

Shelley possessed an MBA from Northwest Nazarene Univer-

sity. The MBA degree was a plus for Shelley, but the years

of experience tell us nothing. Both candidates had at least 20

years of experience. We have no basis for deciding that Shel-

ley’s additional years made him a superior candidate; if so,

then every employer must promote on the basis of years of

experience alone. But every employer knows that mere years

in service is not a perfect proxy for competence. And indeed,

if one were to rely on “experience” alone, Oberle would be an

obvious choice over Shelley because she already had the very

same position in Walla Walla as was being offered in Kansas

City.

SHELLEY v. GEREN 177

More importantly, the technical competency criterion cal-

led for the candidates to have “[e]xperience in overseeing

multi-million dollar contracts.” While Shelley’s resume lists

“supervis[ing]” and “coordinat[ing]” contracts as among his

responsibilities, he failed to list any specifics or examples of

the contracts that he managed. In his declaration prepared for

this lawsuit, Shelley claimed that he had supervised “multi-

million dollar military construction contracts” in Afghanistan,

a $100,000,000 power house at Minidoka Dam for the Bureau

of Reclamation, multi-million dollar dam projects in the

Pacific Northwest, a $200,000,000 modernization project at

McNary Dam, and other contracts exceeding $10,000,000 on

the Columbia and Snake rivers. All of that is very impressive.

Unfortunately, none of it was on Shelley’s resume. For exam-

ple, Shelley testified as to the projects he worked on in

Afghanistan, for which he was awarded the Bronze Star.

Q. Are those—are those examples listed in your

resume?

A. They’re referenced in my Bronze Star award.

Not the contracts specifically.

Q. But if I look at the passage on the Bronze Star

award will I see any reference to those specific

projects?

A. I don’t think so.

Q. Should the panel have considered those projects

when they were looking at your resume?

A. Yes.

Q. And they have done that by finding it out from

something other than your resume?

A. Yes.

178 SHELLEY v. GEREN

He didn’t fare any better on the other projects he claimed in

his declaration. Here is the testimony on the Minidoka Dam

project:

Q. Is that example listed anywhere in your resume?

....

A. No.

He was asked about his experience with the dams in the

Pacific Northwest:

Q. Where in your resume does it mention . . . the

complex earth dams throughout the Pacific

Northwest? Or the Grand Coulee Dam?

A. I don’t list them specifically.

His Walla Walla experience didn’t show up either:

Q. Where is that in your resume?

A. It’s not specifically stated, but it’s implied with

my unlimited warrant in my resume.

By contrast, Marsh’s resume specifies that he “[s]erved as

the Contract Administrator for the $1.3 billion Health Care

Delivery and Administrative Support Services contract.” The

majority’s answer for Shelley’s failings in this regard is to

explain that Scanlan, who served on the selection committee,

was already personally “familiar with Shelley’s experience

and credentials.” Maj. Op. at 163. But we have no idea

whether Scanlan knew all the details Shelley omitted, and

suggesting that one member of the selection committee

“knows your record” is not the same thing as submitting a

complete application to the committee. The decision not to

interview Shelley was not up to Scanlan alone—it was up to

SHELLEY v. GEREN 179

a five-member selection committee, of which Scanlan was

just one member. As Colonel Rossi, who chaired the selection

committee, explained, each member of the selection commit-

tee independently reviewed resumes from dozens of appli-

cants before convening via teleconference to decide on who

to interview. Given the structure of the application process,

Shelley should not have expected Scanlan to fill in the blanks

in his resume if he failed to submit a complete resume in the

first place; it is unreasonable for him to expect the remaining

members of the committee to rank him based on information

he didn’t supply. In sum, though Shelley claimed to have had

experience managing large contracts, there is no way to tell

based on his resume, which offers only general descriptions

of his past experience.

With respect to management and leadership, the selection

criteria emphasize experience serving as branch or section

supervisor with over 30 employees, managing “large, multi-

disciplined” organizations and overseeing the execution of

multi-million dollar contracts. Here, the differences between

the candidates’ resumes really show. At the time he applied,

Shelley was Assistant Chief in the Contracting Division, a

GS-13 position. He previously had positions as a Team

Leader, Supervisory Contract Specialist, and Contract Spe-

cialist. Although the criteria specifically mentioned that the

candidates should be “branch or section supervisor . . . with

over 30 employees,” Shelley did not list the number of

employees he supervised in any of his positions. By contrast,

Marsh was a Supervisory Procurement Analyst, which was a

GS-14 position, and he stated that he supervised 15 employ-

ees. In his previous position as Supervisory Contract Special-

ist, he had supervised 75 contract specialists, including 14

contracting officers. And prior to that he had supervised 13

German and American contract specialists and three contract-

ing officers in Germany.

The majority recognizes that Shelley didn’t respond

directly to the criteria, but props him up anyway: “While

180 SHELLEY v. GEREN

Shelley’s resume did not specify the number of employees he

supervised, it did disclose that, as Assistant Chief of Contract-

ing, he supervised, coordinated and managed the work of sub-

ordinate Team Leaders, who presumably led teams.” Maj. Op.

at 179-180 (emphasis added). Unfortunately, it is a big pre-

sumption. Shelley stated that, around 1985, he was temporar-

ily made the Chief of the Walla Walla Division. Here is his

testimony:

A. How long have you served as a Division Chief,

how many days?

Q. I can’t even number them on my head . . . . I

was constantly made the Division Chief.

....

Q. Is that noted on your resume?

....

A. I don’t see that I covered that in there. . . . They

wouldn’t have seen it from my resume.

....

Q. So is there anywhere in your resume where it

reflects that you acted as a Division Chief for

any significant period of time?

A. I don’t see it in there.

To counteract the failings in Shelley’s resume, the majority

then disparages Marsh’s resume because his supervising 75

employees was not part of his regular job duties. See Maj. Op.

at 162. From all of this, the majority calls the round a tie

because “[n]either candidate clearly demonstrated that he met

this criterion.” Id. at 162.

SHELLEY v. GEREN 181

The majority is wrong, of course. The most notable distinc-

tion between the two resumes was that Shelley was not the

head of his office and Marsh was. That inconvenient fact is

also reflected in one other critical fact: Marsh’s demonstrated

competence had been rewarded with a GS-14 position, while

Shelley was still a GS-13. The majority’s answer to this is

incomprehensible. It says that this was “relevant only as to the

120-day position” because, if Shelley had been given the 120-

day position, he too would have been a GS-14. Id. at 163. The

majority has missed the whole point: Marsh was already a

GS-14 when the 120-day position opened; even though he

was younger than Shelley and had fewer years with the Corps,

he held a higher position, at least as measured by his supervi-

sory responsibilities and his pay grade. See Pottenger, 329

F.3d at 748 (“Nor does the fact that the company moved a

younger employee ahead of Pottenger on the CEO successor

list suggest that [the company] acted with any discriminatory

motive, for that employee had held a higher position in the

company than Pottenger.”).

With regard to the final criterion, teamwork, the criteria

emphasize the ability to work with customers and other

departments, offices, and teams in a multi-disciplinary setting.

Marsh’s resume lists relevant experience such as serving as

his directorate’s point of contact with Congress and the Army

Audit Agency, in addition to maintaining working relation-

ships with counterparts throughout the Department of

Defense, U.S. Small Business Administration, and other fed-

eral agencies. Shelley’s resume, on the other hand, fails to list

any comparable experience. The majority opinion is just silent

on this criterion.

From all of this, the majority deduces that “a reasonable

jury could find that [Shelley] was substantially better quali-

fied than Marsh.” Maj. Op. at 163 (emphasis added). The

majority thus sides with Shelley, who bitterly claims that

“Marsh should have received a ‘minimally acceptable’ evalu-

ation.” But repeating it does not make it so. At the very least,

182 SHELLEY v. GEREN

Marsh had a resume equal to or better than Shelley’s. And

these were not the only two candidates. The selection commit-

tee was responsible for ranking 32 applicants, among whom

were a number of qualified individuals, including Shelley’s

supervisor. Based on the relevant resume screening criteria,

along with the fact that Marsh was already a Supervisory Pro-

curement Analyst, there is no evidence to show that Shelley

was “substantially better qualified” than Marsh. And without

that evidence, Shelley has nothing to show that the Corps’s

explanation—that the selection committee thought there were

six candidates better qualified than Shelley—was pretextual.5

Indeed, the majority overlooks a straightforward conclusion

based on evidence that it discusses. In the panel members’ ini-

tial rankings—which were done individually and prior to any

discussion with other panel members—Marsh received four

top rankings and one mid ranking; Shelley received three top

rankings and two mid rankings. Even assuming that Scanlan

was the one who gave Marsh a top ranking and Shelley a mid

ranking, that means that the other panel members indepen-

dently came to the conclusion that Marsh was at least as qual-

ified as Shelley. Furthermore, a different panel member

changed his score for Shelley (downgrading him from mid to

bottom). Even if this change came after the panel members’

discussion—in which the evidence only shows that age was

never discussed and neither was Shelley in particular—that

means that at least two panel members concluded that Marsh

was a better applicant than Shelley. Thus, even if Scanlan did

have animosity toward Shelley based on his age (for which

there is no evidence whatsoever), Marsh would still have been

strongly preferred over Shelley by the committee as a whole.

5

It should also be noted that, for the same reasons that Marsh demon-

strated better qualifications for the permanent position, he also demon-

strated better qualifications for the 120-day position. In any case, Marsh

already held the same job title as the 120-day position. Thus, for neither

position can Shelley rebut the Corps’s legitimate, nondiscriminatory justi-

fication.

SHELLEY v. GEREN 183

There is more than sufficient evidence to affirm the district

court’s grant of summary judgment, even without considering

the Gross “but-for” test. See Coleman v. Quaker Oats Co.,

232 F.3d 1271, 1285 (9th Cir. 2000) (holding that comments

related to age, the plaintiff’s own evaluations of his qualifica-

tions, and the use of subjective evaluations for promotion

were still insufficient to raise an issue of fact concerning dis-

criminatory motive). Once we factor Gross into the mix, it is

apparent that Shelley cannot show that the Corps’s decision

is unexplainable on any basis other than age discrimination.

*****

There is not only no evidence of age discrimination against

Shelley, there is no evidence of age discrimination in favor of

Marsh. On this record, Shelley has failed to satisfy even his

minimal burden of showing that his age “actually played a

role in [the Corps’s decisionmaking] process and had a deter-

minative influence on the outcome,” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (quoting

Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)), much

less advance any evidence of “but for” causation for his

ADEA claim. Accordingly, I would affirm the grant of sum-

mary judgment.