Kimberly Barnes-Staples v. Robin Carnahan

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 22-3275

KIMBERLY BARNES-STAPLES,

Plaintiff-Appellant,

v.

ROBIN CARNAHAN, * Administrator,

General Services Administration,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 20-cv-03627 — Virginia M. Kendall, Judge.

____________________

ARGUED SEPTEMBER 27, 2023 — DECIDED DECEMBER 18, 2023

____________________

Before SYKES, Chief Judge, and FLAUM and LEE, Circuit

Judges.

FLAUM, Circuit Judge. Kimberly Barnes-Staples applied for

a Real Estate Director position with the General Services

* The Court has substituted Robin Carnahan, the current Administra-

tor for the United States General Services Administration, for the original

defendant, Emily W. Murphy. See Fed. R. App. P. 43(c)(2).

2 No. 22-3275

Administration (GSA), but the GSA hired a different candi-

date. Staples sued, alleging that the GSA’s interview process

discriminated against her because of her race and sex in vio-

lation of Title VII of the Civil Rights Act. The district court

granted summary judgment in favor of the GSA, and for the

following reasons, we affirm.

I. Background

A. Factual Background

In March 2019, the GSA announced a job opening for a re-

gional Real Estate Director. As the job posting explained, the

position was at the GS-15 pay grade, and applicants needed

“at least one year of specialized experience equivalent to the

GS-14 level or higher in the Federal service” to be considered.

No additional educational or professional accreditations were

listed in the vacancy announcement. Rather, as the posting

explained, candidates would be evaluated based on their re-

sponses to job-related interview questions.

The GSA began its hiring process by screening applicants

through written applications. From there, it advanced five

candidates to a first round of interviews: Kimberly Barnes-

Staples, a Black woman; Matt Poisson, Russell Riberto, and

Joseph Skach, all White men; and Shery Wittstock, a White

woman.

The GSA uses an internal document referred to as the

Guideline when interviewing candidates. Included in the

Guideline are procedures that seek to help prevent unlawful

discrimination in the GSA’s hiring process. To accord with

these procedures, a three-person panel conducted the first-

round interview for the five candidates. Candidates were all

No. 22-3275 3

asked the same questions and given equal time to answer. The

interviewers independently scored the candidates’ answers

on each question from one to five. The panelists then collabo-

rated to create consensus scores for each candidate’s answers

to each question, which were in turn used to calculate overall

scores for the five candidates. Their overall scores were as fol-

lows: (1) Wittstock, 3.9; (2) Riberto, 3.8; (3) Staples, 3.15; (4)

Poisson, 3.1; and (5) Skach, 2.85. At the time of the interviews,

Poisson was the Real Estate Division’s Acting Director, so the

panel designed the scoring cutoff to advance all candidates at

or above his score to the second and final round.

A new set of three panelists conducted the second-round

interviews. Before discovering who advanced to that round,

the second panel devised three new interview questions

aimed at assessing the candidates’ decision-making and prob-

lem-solving skills. Just as in the first round of interviews, the

second panel agreed that Wittstock had the strongest second-

round interview performance. As a result, the GSA offered

her the Real Estate Director position.

B. Procedural Background

Staples attributed the GSA’s decision to hire a different

candidate to sex and race discrimination, so she filed an EEOC

complaint. After the EEOC dismissed it, Staples filed suit for

violations of Title VII of the Civil Rights Act. 1 The GSA moved

1 In addition to her race and sex discrimination claims, her complaint

also alleged a retaliation claim. The district court dismissed this claim be-

cause Staples did not exhaust her administrative remedies. Barnes-Staples

v. Murphy, No. 20 C 3627, 2022 WL 4534686, at *6 (N.D. Ill. Sept. 28, 2022).

She does not press her retaliation claim on appeal, so we decline to enter-

tain it further. Ezell v. Potter, 400 F.3d 1041, 1045 n.1 (7th Cir. 2005).

4 No. 22-3275

for summary judgment, which the district court granted. Sta-

ples now appeals.

II. Discussion

We review the district court’s summary judgment ruling

de novo and “construe all facts and draw all reasonable infer-

ences in the nonmoving party’s favor.” Lewis v. Ind. Wesleyan

Univ., 36 F.4th 755, 759 (7th Cir. 2022). “[T]he moving party

may prevail by showing an absence of evidence to support

the nonmoving party’s claims.” Id. (citation and internal quo-

tation marks omitted).

Title VII prohibits employers from “refus[ing] to

hire … any individual … because of such individual’s race

[or] … sex.” 42 U.S.C. § 2000e-2(a)(1). “[T]o hold the [GSA] li-

able, [Staples] must show that her race [or sex] ‘played a part’

in” the hiring decision. Crain v. McDonough, 63 F.4th 585, 591

(7th Cir. 2023) (citation omitted). “She can do so through di-

rect or circumstantial evidence of discrimination.” Id. In eval-

uating Staples’s claims, we ask whether “a reasonable jury

[could] find based on all available evidence that a discrimina-

tory … motive caused” the GSA to select a different candidate

for the Real Estate Director job over Staples. Grant v. Trs. of

Ind. Univ., 870 F.3d 562, 569 (7th Cir. 2017).

Staples brings her claims under the McDonnell Douglas

burden-shifting framework. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802–07 (1973); see also Ferrill v. Oak Creek-Franklin

Joint Sch. Dist., 860 F.3d 494, 499–500 (7th Cir. 2017) (applying

the McDonnell Douglas framework). The GSA concedes that

Staples has stated a prima facie case of discrimination, but it

presents a “legitimate, nondiscriminatory reason” for hiring

No. 22-3275 5

another candidate: Wittstock was more qualified. See Lewis, 36

F.4th at 760.

Consequently, “the burden shifts back to [Staples] to sub-

mit evidence that the [GSA’s] explanation is pretextual,”

McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 368 (7th

Cir. 2019), meaning it is a “lie” or a “phony reason.” Ferrill,

860 F.3d at 500. If the GSA “honestly believed” it made the

correct employment decision—even if its decision was “inac-

curate[,] unfair[,] … foolish, trivial, or baseless”—Staples’s

claims cannot succeed. Coleman v. Donahoe, 667 F.3d 835, 852–

53 (7th Cir. 2012) (citation omitted).

A. Race Discrimination

Staples advances multiple arguments supporting her ra-

cial discrimination claims. She argues that the GSA did not

follow its internal antidiscrimination procedures, which al-

lowed it to hire an inferior candidate. Staples further contends

that she was the superior candidate, so the GSA’s offered hir-

ing justification—that Wittstock was the better candidate—

was pretextual. Operating in the background, Staples asserts,

is a GSA practice of discrimination against Black candidates

and employees.

1. Failure to Follow Procedures

According to Staples, one of the GSA’s second-round in-

terview questions violated the Guideline because it was “tai-

lored to a specific candidate.” She further contends that the

question also contravened the Guideline’s suggestion to not

ask questions that assess competencies learned on the job. 2

2 Although the parties dispute whether the Guideline applied during

the GSA’s second-round interviews, we assume for the sake of this

6 No. 22-3275

These shortcomings, she explains, evince the GSA’s pre-

textual representation that it hired the best candidate in Witt-

stock. The question asked about the following scenario: “The

Commissioner has increased the leasing performance stand-

ards for the Region by 50%. How would you address this chal-

lenge?”

The first stumbling block for Staples’s argument is that the

panel drafted the question before it knew the identities of the

second-round candidates. On the contrary, the person who

wrote the question did not know that Wittstock would make

it to the second round. Still, Staples speculates that the GSA

created this question for Wittstock because she could answer

it well based on her experience. Nothing she points to in the

record, however, suggests that the second panel tailored the

question to Wittstock. Consequently, there is no evidence that

the second question violated the Guideline’s prohibition

against questions that give a specific candidate an unfair ad-

vantage over others.

The question also did not violate the Guideline by asking

about a competency expected to be learned on the job. The

Guideline’s examples of on-the-job competency questions—

such as those relating to a candidate’s familiarity with an in-

ternal company policy or procedure—go to information

uniquely accessible to only internal candidates. Answering

the leasing performance question did not depend on this type

of Real Estate Division-specific prior knowledge. Rather, it is

an expertise-based hypothetical question routinely asked

opinion that it does because its application does not affect our ultimate

conclusion.

No. 22-3275 7

during job interviews to assess candidates’ problem-solving

skills—as described in the vacancy announcement.

Staples also asserts that the GSA’s failure to employ a

ranked scoring system during the second-round interviews

violated the Guideline. The lack of an objective scoring sys-

tem, she contests, allowed the panel to “manipulate[] the pro-

cess” to her disadvantage and in favor of Wittstock. This

Court, however, “has … never held that a job interview must

be scored according to some sort of objective criteria” to avoid

triggering Title VII liability. Blise v. Antaramian, 409 F.3d 861,

868 (7th Cir. 2005). Indeed, “nothing in Title VII bans outright

the use of subjective evaluation criteria.” Sattar v. Motorola,

Inc., 138 F.3d 1164, 1170 (7th Cir. 1998).

Still, it is true that an employer’s divergence from its

standard hiring practices can establish, or at least be evidence

of, pretext and defeat summary judgment. Rudin v. Lincoln

Land Cmty. Coll., 420 F.3d 712, 727 (7th Cir. 2005). We have

placed a particular emphasis on this principle when an em-

ployer has applied its policies differently between protected-

class and non-protected-class members. Baines v. Walgreen

Co., 863 F.3d 656, 664–65 (7th Cir. 2017) (holding summary

judgment improper where manager made “highly unusual”

deviation from standard rehiring procedures with respect to

a Black candidate); Buie v. Quad/Graphics, Inc., 366 F.3d 496,

508 (7th Cir. 2004) (“The disparate treatment of similarly-sit-

uated employees who were involved in misconduct of com-

parable seriousness, but did not have a similar disability,

could establish pretext.”). In those cases, “[e]vidence that the

employer selectively enforced a company policy … would go

to … the pretext analysis.” Coleman, 667 F.3d at 858.

8 No. 22-3275

This is not such a case. The lack of a scoring system af-

fected all candidates equally. In any event, the record shows

that Wittstock performed the best during both the numeri-

cally scored first round and the unscored second round.

Nothing in the record suggests the second panel thought an-

ybody other than Wittstock was the best candidate at any

point. Sattar, 138 F.3d at 1170–71 (holding that subjective cri-

teria did not support inference of pretext absent evidence that

criteria were “a mask for discrimination”). The GSA’s failure

to abide by its policy is “insufficient, without more, to cre-

ate … an inference” of pretext. United States ex rel. Hamrick v.

GlaxoSmithKline LLC, 814 F.3d 10, 22 (1st Cir. 2016).

2. Credentials and Interviews

Next, we turn to Staples’s contention that the GSA tailored

its hiring criteria to hire the less-qualified Wittstock instead of

Staples.

Staples was not “clearly better qualified” than Wittstock

for the Real Estate Director position, at least when evaluated

under the GSA’s criteria. Riley v. Elkhart Cmty. Schs., 829 F.3d

886, 894 (7th Cir. 2016). The job posting’s “qualifications” sec-

tion only required candidates to have “at least one year of spe-

cialized experience equivalent to GS-14 level or higher.” Both

Staples and Wittstock met this requirement. Beyond that,

when the GSA hired Wittstock, although Staples had an MBA

(whereas Wittstock did not), Wittstock had more recent and

total experience within the Real Estate Division than Staples

did.

The GSA’s job posting indicated that it would evaluate

candidates based on their responses to competency-related

interview questions. However, since “both candidates

No. 22-3275 9

presented attractive qualifications” and the GSA selected

Wittstock based on interview performance, Staples’s “own

opinions about [her] … qualifications [do not] give rise to a

material factual dispute.” Robertson v. Dep’t of Health Servs.,

949 F.3d 371, 380–81 (7th Cir. 2020) (alteration in original) (ci-

tation and internal quotation marks omitted).

Since the GSA evaluated candidates based on their an-

swers to interview questions, Staples argues her second-

round interview answers were better than Wittstock’s. The

panelists’ depositions, affidavits, and interview notes refute

that assertion. Instead, they illustrate the panel’s belief that

Wittstock provided the strongest responses to their questions.

While Staples might believe Wittstock’s answers were unim-

pressive, what matters is whether the GSA believed they were

unimpressive and then lied about it. See Coleman, 667 F.3d at

852–53 (explaining that what matters is what the GSA “hon-

estly believed” in a pretext analysis).

Staples’s only substantiated support is a statement from a

panelist explaining that Wittstock’s answer to one question

did not discuss what the Division was doing well. That fact

does not render pretextual the GSA’s professed belief that

Wittstock was impressive and the best candidate. See Cichon

v. Exelon Generation Co., 401 F.3d 803, 814 (7th Cir. 2005) (hold-

ing that, “in choosing between different candidates, all of

whom are qualified, an employer may legitimately use sub-

jective qualifications” assessed through interview perfor-

mance). Although Staples disagrees with the GSA about

whether she or Wittstock gave the best interview, her disa-

greement does not give rise to an inference of pretext.

Staples’s claims that the GSA pretextually tailored the Real

Estate Director job requirements to suit Wittstock also lack

10 No. 22-3275

merit: The job posting never required a specific kind of edu-

cational background or a technical license. Staples cannot

fault the GSA for staying true to its job posting by not giving

those kinds of credentials significant weight in its hiring pro-

cess.

Additionally, Staples contests that the GSA did not offer

her interviews for other positions due to her lack of technical

expertise. Her argument does not provide evidence as to

whether those positions required technical expertise from the

start of the application process or instead added it in later in

the game. As such, Staples lacks the factual support needed

to illustrate that the GSA changed its hiring criteria for those

positions after Staples applied as a pretext for not interview-

ing her. See Lavite v. Dunstan, 932 F.3d 1020, 1029 n.2 (7th Cir.

2019) (“Our review cannot include facts outside of the sum-

mary judgment record, so we do not consider these asser-

tions ….”).

3. Statistical Evidence

Staples next offers data on the GSA’s promotion and em-

ployment rates for the premise that the GSA “fails to provide

growth or leadership opportunities in … higher-level posi-

tions” for Black women. In other words, she tries to use evi-

dence of systemic discrimination to bolster her individual

claims.

For statistical “evidence of a pattern or practice” to sup-

port a claim of discrimination brought by an individual (as

opposed to a class action), it must be coupled with “evidence

of specific discrimination against the plaintiff herself.” Mat-

thews v. Waukesha County., 759 F.3d 821, 829 (7th Cir. 2014).

Indeed, data alone cannot get Staples over the hump, as it

No. 22-3275 11

“must be coupled with other evidence, which does most of

the work.” Baylie v. Fed. Rsrv. Bank, 476 F.3d 522, 524 (7th Cir.

2007).

It is also not enough to present raw data. Staples must

draw statistical inferences from a similarly situated “group”

within the workforce to provide the factual context necessary

to show a pattern of discrimination. Matthews, 759 F.3d at 830.

For example, the data must be sufficiently comparable to the

“population in the relevant labor market.” Id. Here, much of

the data Staples cites originates from the GSA’s nationwide

pay distribution statistics, but Staples attacks the GSA’s hiring

practices in Region 5. Accordingly, the nationwide data does

not advance her claim because of its overbroad scope.

Staples also turns her attention to the GSA’s Region 5, GS-

15 level promotion and hiring practices since 2010, claiming

they illustrate an underrepresentation of Black candidates in

the GSA’s hiring processes. Staples does not provide evidence

about the makeup of the candidate pool for those positions

over that timeframe. We do not know how many total candi-

dates applied to Region 5, GS-15 positions since 2010, much

less how many Black candidates applied. We cannot draw

conclusions from this data because Staples does not “support

her claim that [the GSA’s] alleged failure to promote any”

Black candidates “with sufficient information about the rele-

vant applicant pool.” Sublett v. John Wiley & Sons, Inc., 463 F.3d

731, 739 (7th Cir. 2006); see Baylie, 476 F.3d at 526 (plaintiff

could not use evidence that she was passed over for promo-

tions as evidence of discrimination when she provided “no

details about who received the promotions, after what pro-

cess”).

12 No. 22-3275

In sum, none of Staples’s evidence indicates race discrim-

ination, even when considered “as a whole.” Crain, 63 F.4th at

591. The district court correctly granted summary judgment

on that claim.

B. Sex Discrimination Claim

The district court found that Staples abandoned her sex

discrimination claim because she did not argue it in her brief

opposing summary judgment. Barnes-Staples, 2022 WL

4534686, at *6. On appeal, Staples frames her sex discrimina-

tion claim as an “intersectional claim” inextricably tied to

race.

We agree with the district court. Even assuming “a[n in-

tersectional] theory of discrimination” can produce a viable

claim, Staples did not “provide evidence … that the [GSA]

took an adverse employment action at least in part on account

of sex.” Coffman v. Indianapolis Fire Dep’t, 578 F.3d 559, 564 (7th

Cir. 2009). She made only a passing mention to the lack of

Black women in GS-15 positions since 2010 within Region 5,

and she did not illustrate how she was personally discrimi-

nated against because of her sex. Since Staples did not de-

velop her sex discrimination argument before the district

court, she waived it. Reck v. Wexford Health Sources, Inc., 27

F.4th 473, 485 n.30 (7th Cir. 2022).

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment in favor of the GSA.