UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1513
ROBERT M. MOORE,
Plaintiff – Appellant,
v.
MICHAEL B. MUKASEY, Attorney General,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:06-cv-00602-GBL-BRP)
Argued: September 24, 2008 Decided: December 30, 2008
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Gregory wrote
a dissenting opinion.
ARGUED: Janice F. Willis, Fairfax, Virginia, for Appellant.
Lauren Anne Wetzler, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Chuck Rosenberg,
United States Attorney, Ralph Andrew Price, Jr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert M. Moore, an African-American male, alleges that his
former employer, the United States Drug Enforcement
Administration (the “DEA”), denied him a promotion because of
his race and gender in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.
Moore now appeals the district court’s order granting summary
judgment to the United States Attorney General (the
“Government”). For the reasons set forth below, we affirm the
district court’s judgment.
I.
The following facts are presented in the light most
favorable to Moore. See Howard v. Winter, 446 F.3d 559, 562 n.2
(4th Cir. 2006). Moore was employed by the DEA from 1985 until
he retired in 2004. At all times relevant to this appeal, Moore
was a GS-13 Information Technology Specialist.
Deborah Roberts, a white female – and the DEA employee who
received the challenged promotion at issue in this appeal –
became a GS-13 Information Technology Specialist with the DEA in
1998. Prior to accepting that position, Roberts was employed as
a Programmer Analyst/Senior Consultant with a government
contractor from 1990-1998.
2
In January 2003, one of Roberts’ and Moore’s supervisors,
Dennis McCrary, a white male, temporarily promoted Roberts to
Acting Unit Chief of the DEA’s Enterprise and Field Systems Unit
(the “SISE”). At the time, Roberts was a GS-13 employee in SISE
and the temporary promotion, which was only scheduled to last
120 days, elevated her to the GS-14 pay scale. The permanent
SISE Unit Chief position was vacant because McCrary had
reassigned the Unit Chief, Kenneth Tyskowski, a white male, to
another section. In explaining why he gave Roberts the
temporary promotion, McCrary stated that “she had some of the
more visible and difficult projects in that organization and she
was doing them very well.” J.A. 326-27.
McCrary terminated Roberts’ promotion in May 2003 to comply
with federal regulations requiring that temporary details
lasting longer than 120 days be subject to a merit promotion
program. The salary increase associated with Roberts’ temporary
promotion also ended in May 2003, and she was returned to GS-13
pay. However, McCrary allowed Roberts to continue performing
the duties of Acting Unit Chief until November 2003. During
this time period, Moore told McCrary that it would be unfair if
he did not allow other employees to serve as Acting Unit Chief.
McCrary replied that “[l]ife isn’t fair.” J.A. 788. McCrary
later explained that he allowed Roberts to continue serving in
an acting capacity “to maintain continuity and reduce turmoil”
3
in the unit. J.A. 392. While serving as Acting Unit Chief,
Roberts supervised employees who would ultimately compete with
her for the permanent Unit Chief position, and she had the
opportunity to attend and participate in certain management
meetings.
In August 2003, the DEA sought applicants to fill the SISE
Unit Chief position on a permanent basis. One of the DEA’s
Human Resources Specialists advertised the vacancy, reviewed all
of the applications, and compiled a “best qualified list”
(“BQL”) for the vacancy. The BQL listed all of the applicants
who possessed at least the minimum qualifications necessary for
the permanent position. In this case, the BQL listed Roberts,
Moore, and five other individuals: Patrick Duffy (white male),
Terry Ford (African-American male), Evelyn Kelley (African-
American female), Dorretha Tumlin (African-American female), and
Mark Kirksey (African-American male).
Next, one of the DEA’s Unit Chiefs, Ruth Torres (white
female) convened an interview/evaluation panel (the “Panel”) to
interview the seven candidates and make a hiring recommendation
to McCrary. Torres selected three other DEA Unit Chiefs — one
white male, one African-American female, and one Asian-American
male – to serve on the Panel with her. The Panel developed
interview questions and asked each of the seven candidates the
4
same questions. After every interview, each Panel member
independently rated the candidates’ responses to the questions.
After completing the interviews, the Panel ranked all seven
candidates. The Panel unanimously agreed that Roberts was one
of the top two candidates; specifically, two panelists ranked
Roberts first and two panelists ranked her second. The Panel
concluded that Roberts had in-depth working knowledge,
experience, and managerial potential, which she demonstrated
through her resume, interview, and work experience. J.A. 229-
30, 377-79. The Panel also concluded that Roberts demonstrated
her ability to manage multiple complex tasks in a highly
efficient and effective manner. Id. Ultimately, the Panel
recommended three candidates to McCrary: Roberts, Tumlin, and
Kirksey. The Panel did not rank Moore as one of the top three
candidates, and it did not recommend him to McCrary for the
promotion.
Upon receiving the Panel’s recommendation, McCrary ranked
the three candidates in order of his preference: (1) Roberts,
(2) Tumlin, and (3) Kirksey. McCrary then forwarded this list
to his supervisor who allowed him to promote Roberts to SISE
Unit Chief. Roberts was promoted in November 2003.
After exhausting his administrative remedies, Moore filed
this action alleging that he was intentionally discriminated
against and denied a promotion to the SISE Unit Chief position
5
because of his race and gender. In response, the Government
moved for summary judgment, arguing that Moore was not denied a
promotion or otherwise discriminated against because of his race
or gender. The district court entered summary judgment in favor
of the Government on the grounds that (1) the DEA offered
legitimate, non-discriminatory reasons for not promoting Moore,
and (2) Moore failed to establish that the DEA’s stated reasons
were pretext for race or gender discrimination. Moore timely
appealed.
II.
“We review the district court’s order granting summary
judgment de novo, viewing the facts in the light most favorable
to, and drawing all reasonable inferences in favor of, the
nonmoving party.” Garofolo v. Donald B. Heslep Assocs., Inc.,
405 F.3d 194, 198 (4th Cir. 2005). At the same time, however,
such inferences must “fall within the range of reasonable
probability and not be so tenuous as to amount to speculation or
conjecture.” Thompson Everett, Inc. v. Nat’l Cable Adver.,
L.P., 57 F.3d 1317, 1323 (4th Cir. 1995).
Summary judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.”
6
Fed. R. Civ. P. 56(c). The relevant inquiry in a summary
judgment analysis is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
Indeed, there must be “sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party.
If the evidence is merely colorable, or is not significantly
probative,” summary judgment should be granted. Id. at 249-50
(citations omitted).
III.
A.
In general, a Title VII plaintiff may defeat summary
judgment through one of two avenues of proof. First, a
plaintiff may establish through direct or circumstantial
evidence that race or gender was a “motivating factor” in the
adverse employment action. Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc).
Second, a plaintiff may proceed under the “burden-shifting
framework” adopted by the Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Hill, 354 F.3d at 285,
298.
7
On appeal, Moore confines his argument to the McDonnell
Douglas burden-shifting framework. Under McDonnell Douglas, the
plaintiff bears the initial burden of establishing, by a
preponderance of the evidence, a prima facie case of unlawful
discrimination. Id. at 285. If the plaintiff carries this
initial burden, then “the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the
adverse employment action.” Id. “This burden, however, is a
burden of production, not persuasion.” Holland v. Washington
Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007). “Assuming the
employer meets this burden of production, ‘the McDonnell Douglas
framework-with its presumptions and burdens-disappear[s], and
the sole remaining issue [is] discrimination vel non.’” Hill,
354 F.3d at 285 (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142-43 (2000)). In other words, the burden
shifts back to the plaintiff to prove by a preponderance of the
evidence that the employer’s stated reasons for taking the
employment action were not its true reasons, but rather
“pretext” for unlawful discrimination. Hill, 354 F.3d at 285.
Even under the McDonnell Douglas framework, however, the
plaintiff bears the ultimate burden of demonstrating that the
employer’s actions were discriminatory. See St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 507-08, 511-12 (1993). Indeed,
“[r]egardless of the type of evidence offered by a plaintiff as
8
support for her discrimination claim (direct, circumstantial, or
evidence of pretext), . . . [t]he ultimate question in every
employment discrimination case involving a claim of disparate
treatment is whether the plaintiff was the victim of intentional
discrimination.” Hill, 354 F.3d at 286 (internal quotation
marks omitted).
B.
Applying these principles to this case, Moore can establish
a prima facie case of discriminatory failure to promote by
establishing: (1) he is a member of a protected group, (2) he
applied for the position in question, (3) he was qualified for
the position, and (4) the DEA rejected his application under
circumstances giving rise to an inference of unlawful
discrimination. Anderson v. Westinghouse Savannah River Co.,
406 F.3d 248, 268 (4th Cir. 2005). For purposes of our
analysis, we will assume, without deciding, that Moore has
established a prima facie case of discrimination.
Under McDonnell Douglas, the burden then shifts to the DEA
to articulate a legitimate, nondiscriminatory reason for
selecting Roberts instead of Moore. In this regard, the
Government states that Roberts was a better qualified candidate.
It supports this assertion by noting, inter alia, (1) Roberts
was highly recommended to McCrary by the Panel; (2) Roberts had
in-depth working knowledge, experience, and managerial
9
potential, which she demonstrated through her resume, interview,
and work experience; and (3) Moore was not among the top three
candidates recommended by the Panel.
As a threshold matter, Moore contends that summary judgment
should not have been granted because the Government failed to
rebut his prima facie case. Moore argues that the Government’s
articulated reason for not promoting him – namely, that Roberts
was better qualified – is not a legitimate, nondiscriminatory
reason because it is not credible. In Moore’s view, Roberts
gained her experience and qualifications in an unlawful manner
and, therefore, she was not actually a better qualified
candidate. 1 Consequently, Moore argues, there is no need to
proceed to the pretext stage of the McDonnell-Douglas analysis.
In pressing this claim, however, Moore misapprehends the
Government’s burden. As noted above, the Government’s burden at
this stage of the McDonnell Douglas analysis is one of
production, not persuasion; it “can involve no credibility
assessment.” St. Mary’s, 509 U.S. at 509. Rather, the
Government need only articulate “reasons for its actions which,
if believed by the trier of fact, would support a finding that
1
Moore alleges that Roberts gained her experience and
qualifications for the Unit Chief position in an unlawful manner
because McCrary elevated her to the Acting Unit Chief position
and allowed her to stay in that position longer than 120 days in
violation of federal law. Without this experience, Moore
contends, Roberts would not have been better qualified.
10
unlawful discrimination was not the cause of the employment
action.” Id. at 507. Applying this standard, we conclude that
the Government satisfied its burden. If Roberts was better
qualified than Moore, then promoting her on that basis would be
legitimate and non-discriminatory.
Because the Government satisfied its burden under McDonnell
Douglas, the burden now shifts to Moore to establish by a
preponderance of the evidence that the Government’s stated
reasons were pretext for unlawful discrimination. “A plaintiff
alleging a failure to promote can prove pretext by showing that
he was better qualified, or by amassing circumstantial evidence
that otherwise undermines the credibility of the employer’s
stated reasons.” Heiko v. Colombo Savings Bank, F.S.B., 434
F.3d 249, 259 (4th Cir. 2006). Moore offers several arguments
which, in his view, establish that the Government’s stated
reasons were pretext. Mindful of our obligation to draw all
reasonable, non-speculative inferences in Moore’s favor, we
conclude, for the reasons set forth below, that Moore has not
carried his burden.
First, Moore contends the Government’s stated reasons were
pretext because he was better qualified than Roberts. Moore
11
argues that he had a superior educational background, 2 had been
employed by the federal government for a longer period of time,
and had experience supervising enlisted reserve members as a
Leading Petty Officer of a Naval Reserve Unit. However, Moore
undercuts this argument by stating that Roberts’ applicable work
experience – and, in particular, her experience serving as
Acting Unit Chief – “made Roberts as qualified as Moore.”
Appellant’s Br. at 20 (emphasis added); id. at 13 (stating that
Roberts’ experience placed her “on a level playing field with
Moore”). Under our case law, a Title VII plaintiff cannot rely
on his qualifications to establish pretext if he asserts that
his qualifications are similar or only slightly superior to
those of the person ultimately selected for promotion. See,
e.g., Heiko, 434 F.3d at 261 (“When a plaintiff asserts job
qualifications that are similar or only slightly superior to
those of the person eventually selected, the promotion decision
remains vested in the sound business judgment of the
employer.”).
2
Moore earned an Associate’s Degree in Computer Science
from the University of the District of Columbia and a Bachelor’s
Degree in Business Management from the University of Maryland.
Moore also served as Leading Petty Officer of a Naval Reserve
Unit from 1984-1995 where he supervised 15 other reserve
members. Roberts earned a high school diploma in 1974 and had
66 hours towards an Associate’s Degree in Business
Administration at Charles County Community College.
12
Further, Moore cannot rely on his qualifications to
establish pretext because he has not presented evidence that
would allow a reasonable jury to conclude that he was better
qualified than Roberts. The undisputed facts establish that
both Moore and Roberts were at least minimally qualified to
serve as SISE Unit Chief. It is also undisputed that the Panel
– which was composed of a diverse group of four current DEA Unit
Chiefs – interviewed all seven candidates and unanimously
concluded that Roberts was one of the top two candidates and
recommended her for the promotion. Moreover, the Panel rated
Roberts, but not Moore, “highly in the key areas of project
management, potential for leadership and overall understanding
of [applicable] . . . business processes.” J.A. 229. It is
also undisputed that the Panel did not rank Moore as one of the
top three candidates for the promotion. Even construed in the
light most favorable to Moore, our case law makes plain that
Moore’s self-assessment of his superior aptitude for the
position fails to rebut the Government’s legitimate explanation.
See, e.g., Anderson, 406 F.3d at 269 (holding that a Title VII
plaintiff “cannot establish her own criteria for judging her
qualifications for the promotion” but “must compete for the
promotion based on the qualifications established by her
employer”).
13
Next, Moore contends that McCrary’s decision to use the
Panel establishes pretext. In particular, Moore alleges that
the Panel was not a lawful part of the promotion process, but
rather a “sham” designed to exclude Moore from competition and
to conceal McCrary’s unlawfully discriminatory animus. Beyond
his assertions, however, Moore offers no evidence that would
allow us to conclude that McCrary’s use of the Panel was either
unlawful or pretext for illegal discrimination. 3 Instead, the
evidence establishes that the Panel was part of the DEA’s normal
promotion process. See J.A. 133-35, 544-52.
Finally, Moore argues that the Government’s non-
discriminatory reasons for promoting Roberts were pretext
because McCrary unlawfully preselected her for the promotion.
In particular, Moore alleges that McCrary promoted Roberts to
Acting Unit Chief and allowed her to serve in that capacity for
longer than 120 days in violation of federal law so that she
could gain the experience necessary to compete with Moore and,
ultimately, outperform him during the Panel’s interviews. In
response, the Government argues that McCrary did not violate
federal law because Roberts’ temporary promotion, as well as her
salary increase, did not last longer than 120 days. According
3
In this regard, we note that one of the three candidates
recommended by the Panel shared the same race and gender as
Moore, and another one of the three shared the same race.
14
to the Government, McCrary merely allowed Roberts to continue to
perform the duties of Acting Unit Chief beyond 120 days to
maintain continuity and reduce turmoil in the unit.
We conclude that Moore’s argument regarding preselection
does not establish that the Government’s stated reasons were
pretext for unlawful discrimination. Indeed, rather than
undermining the credibility of the Government’s stated reasons
for not promoting Moore, his argument actually supports the
Government’s assertion that McCrary promoted Roberts because she
was better qualified than him due, in part, to the experience
she gained during her temporary promotion.
Importantly, there is no evidence that McCrary preselected
Roberts on the basis of race or gender. Consequently, even if
McCrary preselected Roberts by promoting her in violation of
governing regulations – a question we do not decide – this type
of preselection would be insufficient in this case to establish
pretext. See, e.g., Anderson, 406 F.3d at 271 (“[W]hile
preselection may establish that an employee was unfairly
treated, it does not by itself prove racial discrimination.”)
(internal quotation marks omitted); Kennedy v. Landon, 598 F.2d
337, 341 (4th Cir. 1979) (“Although the pre-selection of Hardy
may have violated the rules and regulations of the Department of
15
Corrections, it does not evidence the type of discrimination
that is prohibited by Title VII.”). 4
IV.
As established above, the Government articulated
legitimate, non-discriminatory reasons for not promoting Moore.
In turn, Moore did not present sufficient evidence to establish
that the Government’s stated reasons were pretext for race or
gender discrimination. Consequently, we affirm the district
court’s decision to enter summary judgment.
AFFIRMED
4
Accord Mackey v. Shalala, 360 F.3d 463, 468-69 (4th Cir.
2004). Relatedly, and as noted above, Moore states that he
informed McCrary that there were concerns about not rotating
different DEA employees into the Acting Unit Chief position.
According to Moore, he told McCrary “[i]t would be unfair if no
one else was given the opportunity to serve in that capacity”
and Moore purportedly responded: “Life isn’t fair.” J.A. 788.
We conclude that this exchange is insufficient to establish that
the Government’s articulated explanations were pretext for
unlawful discrimination because, inter alia, this evidence does
not allow anything other than speculation about McCrary’s
motives.
16
GREGORY, Circuit Judge, dissenting:
The majority’s opinion invites us to overlook the
Government’s incredible deviation from its own regulations and
procedures and the Appellant’s evidence that this deviation was
racially motivated. Because I believe that Mr. Moore’s
preselection theory of pretext has significantly more merit than
the majority accords it, I must respectfully dissent.
I.
The Government has a minimal burden to rebut a Title VII
plaintiff’s prima facie case under the McDonnell Douglas burden-
shifting scheme. 1 Thus, I will assume here that the Government’s
explanation that Roberts was better qualified suffices as a
legitimate, nondiscriminatory reason. But, even once the
McDonnell Douglas presumption has dropped from the case, we must
1
The majority’s opinion assumes without deciding that Moore
has established his prima facie case. In fact, Moore’s prima
facie burden is easily met because (1) he is a member of a
protected class; (2) he applied for the SISE Unit Chief
position; (3) he was qualified for that position, as evidenced
by his placement on the BQL; and (4) he was rejected from that
position under circumstances giving rise to an inference of
discrimination. See Anderson v. Westinghouse Savannah River
Co., 406 F.3d 248, 268 (4th Cir. 2005). This last element can
be satisfied by demonstrating that the position was filled by a
similarly qualified applicant outside the protected class, Hill
v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th
Cir. 2004) (en banc), and, in this case, the position was filled
by Roberts, a Caucasian woman.
17
still deal with Moore’s contention that the only reason that
Roberts was more qualified than other applicants was that she
was allowed to remain in the Acting Chief position for months
beyond the 120 days specified in the federal regulations. The
majority dismisses this theory of pretext, suggesting that
Moore’s “argument actually supports the Government’s assertion
that McCrary promoted Roberts because she was better qualified
than him due, in part, to the experience she gained during her
temporary promotion,” supra. The majority, it seems, sees
nothing wrong with the fact that the very advantages that
Roberts had in the bid for the Unit Chief position were
advantages that she had gained in apparent violation of federal
regulations.
Office of Personnel Management regulations specify that
competitive procedures must be used for all details “for more
than 120 days to a higher grade position or to a position with
higher promotion potential.” 5 C.F.R. § 335.103(c)(ii) (2008).
The DEA’s own personnel manual echoes this language. (See J.A.
854 (“Temporary assignments (details) to higher-graded positions
or to positions with promotion potential for more than 120 days
must be made under competitive promotion procedures.”).) The
Government suggests that it complied with these regulations by
terminating Roberts’ salary increase as Acting Chief after 120
days. But the regulations are not concerned with the length of
18
non-competitive details simply because of the pay increases that
accompany them. The regulations make clear that competitive
procedures are needed to select longer-term detailees to both
higher-graded positions and positions with “higher promotion
potential.” 5 C.F.R. § 335.103(c)(ii) (2008). Thus it is the
increase in pay and the increased opportunity for promotion that
prompted OPM to mandate that competitive procedures be used for
long-term details. In other words, the regulations anticipate
and seek to avoid just the outcome that we find in this case --
a situation where a detailee who was not competitively selected
is allowed to stay past 120 days, albeit at her normal salary,
in a position that she is essentially being groomed to assume
permanently.
While the Government has suggested that there was some need
to maintain continuity and to reduce turmoil while the unit was
going through a reorganization, these assertions, without more,
cannot justify leaving Roberts as Acting Chief for eleven months
-- almost three times the length allowed under the regulations.
Roberts’ extra time in the Acting Chief position undoubtedly
advantaged her unfairly in the promotion process. It was in
these months as Acting Chief that Roberts “demonstrated [the]
managerial potential” that qualified her for the Unit Chief
position. (J.A. 229.) Several members of the evaluation panel
that interviewed her were fellow unit chiefs, with whom she met
19
routinely for management meetings. During her time as Acting
Chief, Roberts also had access to valuable leadership training
opportunities that Moore and other applicants did not have.
McCrary was clearly aware that others had interest in being
rotated into the Acting Chief position. Moore himself had
informed McCrary that it was unfair not to allow others to serve
in that capacity, to which McCrary’s only response was, “Life
isn’t fair.” (J.A. 651, 788.) This kind of insensitive and
provocative response belies the Government’s contention that
Roberts was kept on as Acting in order to reduce turmoil in the
unit.
Of course, preselection, however unfair it may be, does not
by itself suffice to prove racial discrimination. See Anderson
v. Westinghouse Savannah River Co., 406 F.3d 248, 271 (4th Cir.
2005). But I disagree with the majority’s contention that
“there is no evidence that McCrary preselected Roberts on the
basis of race or gender,” supra. Moore alleges in both his EEO
affidavit and in his deposition testimony that, in the last
twenty years, no African-Americans have been promoted above the
GS-13 level in the DEA’s Systems Applications Section. 2 (See
J.A. 792, 670.) These statements remain uncontroverted on the
2
Moore himself was promoted to a GS-13 in 1989, and he was
never promoted again before his retirement in 2004.
20
record before us. Moreover, of the six intra-agency candidates
listed on the BQL for the Chief position, four of them -– Moore,
Terry Ford, Evelyn Kelley, and Dorretha Tumlin -– were African-
American. 3 Without the experience she gained as a result of
improperly being kept on as Acting Chief beyond the 120-day
limit, Roberts may well have not been qualified, or at least not
better qualified than others, for the permanent position. Thus,
the evidence permits an inference that McCrary, as Moore himself
puts it, “knew there was a reasonable chance than an African-
American would be Unit Chief, unless he made Roberts equally
qualified by giving her the opportunity to gain experience, so
that he could select her.” 4 (Appellant’s Br. at 20.)
Based on this evidence, a jury could very well find that
McCrary preselected Roberts for the Unit Chief position and that
her preselection was racially motivated. As the Supreme Court
noted in St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511
(1993),
3
I will exclude Mark Kirksey from this analysis since he
applied from outside DEA and would not have factored into
McCrary’s calculus of the odds of an African-American applicant
being selected for the Unit Chief position at the time McCrary
decided to keep Roberts on as Acting beyond the 120-day limit.
4
It is worth noting that McCrary himself regarded Tumlin as
the next most qualified for the job, and that Roberts and Tumlin
tied for first in the rankings of the evaluation panel.
21
The factfinder’s disbelief of the reasons put forward
by the defendant (particularly if disbelief is
accompanied by a suspicion of mendacity) may, together
with the elements of the prima facie case, suffice to
show intentional discrimination. Thus, rejection of
the defendant’s proffered reasons will permit the
trier of fact to infer the ultimate fact of
intentional discrimination, and . . . no additional
proof of discrimination is required.
(internal citation and quotations omitted) (emphasis in
original); accord Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 147 (2000); Anderson, 436 F.3d at 269 (4th Cir. 2005).
II.
There is sufficient evidence under Moore’s preselection
theory to establish that the “legitimate, nondiscriminatory
reason” that the Government proffered for promoting Roberts was
pretext for racial discrimination, and I would, accordingly,
reverse the district court’s entry of summary judgment in favor
of the Government. Thus, I dissent.
22