United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2004 Decided March 22, 2005
No. 03-7174
LUIS SALAZAR,
APPELLANT
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 99cv01631)
Gary T. Brown argued the cause and filed the briefs for
appellant.
Sara L. Bloom, Assistant General Counsel, Washington
Metropolitan Area Transit Authority, argued the cause for
appellee. With her on the brief were Carol B. O’Keeffe, Acting
General Counsel, Bruce P. Heppen, Associate General Counsel,
and Gerard J. Stief, Associate General Counsel.
Before: SENTELLE and TATEL , Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
2
Dissenting opinion filed by Senior Circuit Judge WILLIAMS.
TATEL, Circuit Judge: Following several promotion
denials, appellant, a mechanic, sued the Washington
Metropolitan Area Transit Authority, alleging that it had
violated Title VII by discriminating against him on the basis of
national origin and by retaliating against him for engaging in
protected activities. The district court granted summary
judgment for WMATA. Because we believe that a reasonable
jury could find in appellant’s favor with regard to one of his
claims, we reverse the summary judgment ruling on that count
and remand that portion of the case for further proceedings.
I.
Appellant Luis Salazar, a Peruvian-born Latino, began
working for WMATA in 1982 as a bus cleaner. Over the next
six years, he worked his way up through several promotions to
“Mechanic AA” for Heating, Ventilation, and Air Conditioning.
During these and later years, Salazar took numerous night
classes in technical skill subjects and pursued a B.A. at the
University of the District of Columbia.
As a Mechanic AA, Salazar held the highest nonsupervisory
ranking available at WMATA and occasionally served as acting
supervisor at his post in Greenbelt, Maryland. Seeking to
advance further, he applied five times from 1992 to 1999 for
promotions to entry-level supervisory positions. The application
process for each position had the same general structure.
WMATA first screened out applicants who failed to meet
certain minimum requirements. It then selected a panel of
supervisors to interview the remaining candidates. The
chairperson developed a list of interview questions and assigned
each one a weight. At the interviews, some of which were
attended by an observer from WMATA’s Office of Civil Rights,
each panel member graded each candidate on his or her response
3
to each question. After tallying the scores, the panel
recommended that the appointment go to the candidate with the
highest total points.
Salazar’s first four promotion applications met with failure.
The fifth time—the one chiefly at issue in this case—Salazar
applied for the position of Craft Supervisor in General
Equipment at Metro Center. That position required certain
mechanical knowledge, including skill at “trouble shooting the
electrical/mechanical systems located at bus and rail facilities,
and operating/repairing the smoke ventilation fans, drainage
pumping stations, sewage ejectors and pneumatic damper
sections.” When Salazar applied for this position, he contacted
Charles Thomas, the Deputy General Manager at Metro, and
asked him to ensure that Gary Lewis, the Superintendent for
Plant Equipment Maintenance, would not select the members of
the interview panel. According to Salazar, Lewis, who had
selected the panel members for at least some of Salazar’s prior
promotion denials, discriminated against Latinos. Indeed,
Salazar had filed at least one grievance accusing Lewis of
supporting a racially discriminatory supervisor. In his affidavit,
Salazar states that he “explained to Mr. Thomas how each time
Gary Lewis selected the panel I was . . . denied the promotion
because Mr. Lewis would ‘stack’ the panel with his friends.
These friends, like Mr. Lewis, were discriminatory against
Latino people, like myself.” Responding sympathetically,
Thomas, according to Salazar’s affidavit, “selected the panel,
which included only three persons,” all of whom Salazar
acknowledged were not Lewis’s friends and not likely to be
discriminatory.
Salazar and five other applicants met the minimum
qualifications and advanced to the interview round. Of these
applicants, Salazar had the most seniority by several years.
Expecting an interview with the three men selected by
Thomas, Salazar was surprised to find a fourth man, Buddy
4
Jaggie, serving as chair. Salazar’s surprise stemmed not only
from Thomas’s promise of just three panelists, but also from the
fact that “all the panels I had interviewed with in the past years
had been made up of three members, not four.” More
significantly, Jaggie, who held the post of Assistant
Superintendent for Plant Maintenance, was Lewis’s assistant as
well as his close friend. Salazar distrusted Jaggie not just
because of Jaggie’s relationship with Lewis but also because,
while working towards the Mechanic AA position years ago,
Salazar had consistently failed a test administered by Jaggie,
passing only after filing a grievance to obtain outside review.
Jaggie acknowledged that he was “probably” appointed to
the panel by Lewis. He explained that before the interview, he
“made up [the] questions” and assigned a point value to each
question. He consulted with Lewis in determining these
weights. Ultimately, Jaggie developed 13 questions worth a
total of 190 points: 12 questions calling for a spoken answer (8
worth 10 points each and 4 worth 20 points each) and 1 question
(worth 30 points) requiring a written answer. Only 2
questions—each worth 10 points and thus amounting to less
than a ninth of the total—directly addressed the candidates’
experience and education. Other questions posed hypothetical
scenarios (3 questions worth 50 total points), inquired about
Metro policies and their implementation (3 questions worth 30
total points), called for technical responses (4 questions worth
80 total points), and probed the candidates’ motivation levels (1
question worth 10 points). Jaggie also drafted model answers
for the panelists to use during the interviews.
At the interviews, the four panelists asked Jaggie’s
questions and scored the six candidates. On the two experience-
related questions, Salazar scored above all other candidates, but
overall he came in fourth. Jaggie and two other panelists gave
Salazar mediocre scores, while the remaining panelist scored
Salazar better than all other candidates. Had Jaggie’s scores not
5
counted, Salazar would still have finished fourth overall.
WMATA’s observer thought “[t]he interviews were conducted
in a fair and nondiscriminatory manner.”
According to Salazar—and WMATA offers no evidence to
the contrary—WMATA did not assign the successful candidate,
Timothy Tucker, to the Metro Center supervisory “position for
which he was selected.” Instead, Salazar states, “Gary Lewis
moved Mr. Tucker to Greenbelt to work as a support equipment
supervisor. . . . Working at Greenbelt required less responsibility
than in Metro Center.”
After exhausting the EEO process, Salazar sued WMATA,
alleging discrimination and retaliation in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3,
with regard to all five promotion denials. The district court
found his claims related to the first three promotion denials to be
procedurally barred, and it granted WMATA’s motion for
summary judgment on the claims related to Salazar’s last two
promotion denials—the one described above for the position in
General Equipment at Metro Center and one earlier that spring
for a position in Metro’s shop in Alexandria. Specifically, the
court held that Salazar could not show that WMATA’s asserted
reason for refusing to promote him was pretextual. Salazar v.
Wash. Metro. Area Transit Auth., No. 99-1631, slip op. at 5
(D.D.C. Oct. 30, 2003). Salazar now appeals.
II.
We review the district court’s grant of summary judgment
de novo, viewing the evidence in the light most favorable to
Salazar and drawing all reasonable inferences accordingly. E.g.,
Dunaway v. Int’l Bhd. of Teamsters, 310 F.3d 758, 761 (D.C.
Cir. 2002). We will affirm only if no reasonable jury could find
in his favor. Id.
The district court granted summary judgment to WMATA
on four counts: Salazar’s discrimination claims related to the
6
Alexandria and Metro Center positions and his parallel
retaliation claims. As an initial matter, we find that Salazar has
preserved only his discrimination claim regarding the Metro
Center position. His briefs address none of the other three
claims, and while his retaliation claim as to the Metro Center
position undoubtedly has much in common with his
discrimination claim, he never refutes WMATA’s argument that
he has failed to prove a prima facie case for retaliation. Salazar
has thus waived these three claims. See, e.g., Ark Las Vegas
Rest. Corp. v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003)
(observing that an argument not raised in briefs is waived).
We view Salazar’s remaining claim through the framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). To survive summary judgment, Salazar must first show
that he satisfies the four elements of the prima facie case for a
discrimination claim. WMATA concedes that Salazar has made
this showing: as a foreign-born Latino, he is a member of a
protected class; he applied for the promotions; he had the
minimum qualifications needed; and he lost out to a non-Latino.
Next, if the employer “produce[s] admissible evidence that, if
believed, would establish that [its] action was motivated by a
legitimate, nondiscriminatory reason,” the plaintiff must show
that a reasonable jury could nonetheless infer discrimination.
Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151 (D.C.
Cir. 2004). In this case, WMATA claims that it did not promote
Salazar because “[m]ore qualified candidates were selected for
the position through a fairly administered selection process.”
Appellee’s Br. at 13. For purposes of this appeal, the question
then becomes whether a reasonable jury could find in Salazar’s
favor based on all the evidence, including “(1) the plaintiff’s
prima facie case; (2) any evidence the plaintiff presents to attack
the employer’s proffered explanation for its actions; and (3) any
further evidence of discrimination that may be available to the
plaintiff (such as independent evidence of discriminatory
statements or attitudes on the part of the employer).”
7
Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (D.C.
Cir. 2002) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,
1289 (D.C. Cir. 1998) (en banc)) (internal quotation marks
omitted).
In claiming that it rejected Salazar through a fair process,
WMATA relies on our decision in Fischbach v. District of
Columbia Department of Corrections, 86 F.3d 1180 (D.C. Cir.
1996), which found no inherent discrimination in a job
application process structured similarly to WMATA’s. We held
that where the employer had followed its usual procedure, there
was “nothing the least bit fishy about the interviewers’ giving
slightly less emphasis to the applicants’ credentials than to the
manner in which each candidate proposed to do the
job—especially when one considers that they had the benefit of
a prior determination that all of the interviewees were qualified.”
Id. at 1184. We reversed the district court’s ruling in favor of
the plaintiff, since that court had based its conclusion on “its
own opinion that [the plaintiff] was more qualified than the
[successful candidate].” Id.
Unlike the plaintiff in Fischbach, Salazar does not allege
that WMATA’s selection process is discriminatory simply
because it may not always end up with the best-qualified
candidate. Indeed, Salazar never claims that WMATA’s general
process is discriminatory. His challenge turns instead on the
specific process used by WMATA in selecting a candidate for
the Metro Center position. Although we find the fact that
Salazar had a four- rather than three-member panel not all that
probative—particularly since WMATA had deviated from its
normal appointment process in response to Salazar’s
concerns—we are more troubled by Jaggie’s role as chair.
Salazar alleges that after he told Thomas that Lewis and his
panel appointees discriminated against Latinos, Thomas
promised Salazar a panel that Lewis would have no hand in
selecting. Yet Lewis ended up appointing Jaggie as the panel’s
8
chair and even helped determine the weights of the questions.
We agree with Salazar that a jury could infer something “fishy”
from the fact that Lewis placed himself squarely at the center of
a process designed to exclude him. Specifically, a jury could
conclude that WMATA failed to provide a “fairly administered
selection process” and that its claim to the contrary is pretextual.
Cf. Lathram v. Snow, 336 F.3d 1085, 1093-94 (D.C. Cir. 2003)
(holding that a jury could draw an inference of discrimination
where an agency departed from its normal process without
justification); Johnson v. Lehman, 679 F.2d 918, 922 (D.C. Cir.
1982) (noting that although “a finding of a failure on the part of
the prospective employer to follow its own regulations and
procedures, alone, may not be sufficient to support a finding of
. . . discrimination,” such a failure “is a factor that the trier of
fact may deem probative . . . in determining the true motivation
behind the hiring decision of the prospective employer”).
To be sure, the scores Jaggie gave Salazar differed little
from those given by two other panelists whom Salazar himself
acknowledges would be unlikely to discriminate. It is also true
that Salazar would have finished fourth even had Jaggie’s scores
not counted, and no evidence suggests that Jaggie attempted to
influence the other panelists’ scores during the interview. As
Salazar points out, however, Jaggie’s role in the process went
beyond the specific scores he gave Salazar. Jaggie “not only
developed the questions but assigned the relative value for
each,” Appellant’s Br. at 20, and had apparently unfettered
discretion in doing so. Jaggie consulted with Lewis as to the
weights of the questions—thus extending Lewis’s influence
beyond Jaggie’s appointment—and they developed an interview
format that by design assigned only marginal value to
candidates’ experience and education, which were Salazar’s
particular strengths.
The possibility that the interview process for the Metro
Center job may not have been fairly designed increases in light
9
of the fact that Tucker, the successful candidate, never held that
job. Instead, Lewis transferred Tucker to what Salazar
described as a less difficult job in Greenbelt—a characterization
not contested by WMATA. From this, we think a reasonable
jury could infer that Tucker was unsuited for the Metro Center
job and that the selection process was geared not to finding the
best person for the position, but rather to keeping Salazar from
advancing.
In sum, though it is a close call, when we view the evidence
in the light most favorable to Salazar and make all reasonable
inferences in his favor, as we must at this stage of the litigation,
see Dunaway, 310 F.3d at 761, we think a reasonable jury could
find pretextual WMATA’s assertion that it employed a fairly
administered selection process with regard to the Metro Center
job. The jury could base this determination on Lewis’s
unexplained participation—despite Thomas’s assurances—that
in turn led to the appointment of Jaggie and the development of
the interview agenda, including the weights of the questions,
along with Tucker’s subsequent move to Greenbelt.
The dissent disagrees with our conclusion that a reasonable
jury could infer that WMATA’s claim of a fairly administered
selection process was pretextual. In reaching its own conclusion
to the contrary, the dissent both ignores this court’s obligation
to draw reasonable inferences in Salazar’s favor and relies on
arguments never made by WMATA.
First, the dissent doubts that a reasonable jury could find
anything suspect about the fact that Tucker moved to a less
rigorous job rather than ending up in the Metro Center position,
speculating that “the innocent reasons why a winning competitor
might take another job are legion—personal convenience, a
better fit with his skills, a better match with fellow workers,
etc.” Dissenting op. at 2. Although we agree that a jury may
draw such inferences, nothing in the record suggests it must, and
at this stage in the process we are required to view the evidence
10
in Salazar’s favor, not WMATA’s, see Dunaway, 310 F.3d at
761. The dissent’s list of “innocent reasons” has another
problem: WMATA never offers any, much less the ones
suggested by the dissent. Indeed, WMATA’s brief never
mentions Tucker’s transfer at all. Attempting to neutralize the
implications of this transfer, the dissent abandons our general
rule of requiring parties to make their own arguments. See, e.g.,
Williams v. United States, 396 F.3d 412, 415 (D.C. Cir. 2005)
(noting that we find forfeited any arguments not raised in
briefs).
Second, the dissent points out that a “departure from [a]
departure” from existing practice could be unsuspicious. See
dissenting op. at 3. Once again, we see no reason to assume that
a reasonable jury must make that inference; a jury could instead
see this fact as undermining WMATA’s assertion that it
provided a fair and neutral selection process. This is particularly
true since WMATA neither disputes the substance of Thomas’s
promise to Salazar nor explains why, in light of that promise,
Lewis nonetheless ended up appointing the chairperson and
helping him determine weights.
Lastly, the dissent reasons that WMATA’s given
explanation—that it had a fairly administered selection
process—must be true because, as the dissent sees it, Salazar
would have lost under virtually any circumstances. See id. at 3-
6. We are not as certain. The parties’ arguments on this front
are piecemeal. Salazar claims that “because Mr. Jaggie assigned
the weights to the questions asked by the panel, he was able to
minimize Mr. Salazar’s strengths, which included his vastly
superior experience and training.” Appellant’s Br. at 20.
Attempting to neutralize Salazar’s claim that Jaggie tainted the
process, WMATA points out—correctly—that Salazar would
not have won even had Jaggie’s scores and the technical
questions been eliminated. Appellee’s Br. at 17. Salazar
responds less specifically, but also accurately, that by “weighing
less significant questions more and by minimizing the value of
11
the important questions regarding experience, education and
training, the selectee came up with a higher score,” and he calls
into question “the validity of those values, how significant [sic]
items were weighted heavily and significant ones given less
weight and the reasonableness of the method of obtaining them.”
Reply Br. at 2. Although a reasonable jury could well embrace
WMATA’s position that Jaggie arranged a fair interview process
based on his conduct at the interview and the content of the
interview questions, we think it also possible that a jury could
infer, in line with Salazar’s arguments, that Jaggie and Lewis
selected an interview agenda which, though facially acceptable,
was designed to downplay Salazar’s strengths.
To reach its conclusion that no reasonable jury could think
that Jaggie’s interview schema disadvantaged Salazar, the
dissent substitutes its own arguments for those made by
WMATA. The dissent relies on the fact that “[i]f all questions
had been weighted equally, Salazar would still have finished in
fourth place,” dissenting op. at 5—a point never made by
WMATA. Moreover, not only does WMATA never suggest
that equal weights are its norm, but the dissent gives no reason,
nor can we think of one, to assume that it should be. The dissent
further argues that we must discount the value of a “scoring
error” in Salazar’s favor, id., that WMATA itself neither
claimed was an error nor sought to change on the “Corrected
Scoring Matrix” it submitted to us. In relying on these points
the dissent must not only ignore our doctrine of waiver, see, e.g.,
Williams, 396 F.3d at 415, but also assume that a reasonable jury
must reach the same conclusions without WMATA even raising
the issues. Cf. Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.
1983) (noting that the “premise of our adversarial system is that
appellate courts do not sit as self-directed boards of legal inquiry
and research, but essentially as arbiters of legal questions
presented and argued by the parties before them”).
We further note that while the dissent is willing to make
unraised arguments favoring WMATA, it makes no similar
12
effort on Salazar’s behalf. The dissent never considers, for
example, whether Jaggie’s unexpected presence at the interview
may have caused Salazar to underperform, although the record
contains evidence that might support this. Nor does the dissent
point out that Salazar’s argument that Jaggie weighted the
questions to disadvantage him finds support even under the
dissent’s evenly weighted scheme. Excluding Jaggie’s scores
but using Jaggie’s and Lewis’s weights, Salazar’s average score
was 129, only 86.6% of Tucker’s 149, 87.8% of the second-best
candidate’s 147, and 91.1% of the third-best candidate’s 142.
With even weights, Salazar comes significantly closer: with an
average score of 94, he has 92.1% of Tucker’s 102, 96.6% of the
second-best candidate’s 98, and 99.1% of the third-best
candidate’s 95. And by tweaking the equal weights, there are
many possible scenarios under which Salazar can win. He
would win by tripling the two experience-and-education-related
questions, by doubling those scores and the scores of two other
questions, or by many other permutations. Even assuming, as
the dissent does—but not WMATA— that a jury must conclude
that one scorer overscored Salazar and that it must therefore
discount this score, Salazar can still win by less drastic methods
than the dissent implies, see dissenting op. at 5-6: he could win
by halving two questions and tripling two others, by tripling four
questions, by dropping three questions, or by various other
scenarios. We pose these possibilities only to illustrate the
problems implicit in abandoning our “salutary rule,” see id. at 6,
of sticking to the parties’ arguments rather than striking out on
our own.
Having failed—through unraised arguments and inferences
that favor WMATA—to find anything probative in any of
Salazar’s arguments, the dissent has no need to consider their
cumulative effect. But we do, and considering Salazar’s
evidence all together and giving him the benefit of every
reasonable inference, we think a reasonable jury could find
pretext.
13
Finally, we must consider whether a jury which found that
WMATA rigged the process to keep Salazar from getting the job
could further conclude that WMATA did so because of
Salazar’s national origin. In Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000), the Supreme Court held
that “[i]n appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose,”
particularly since “the employer is in the best position to put
forth the actual reason for its decision.” Id. at 147; see also Aka,
156 F.3d at 1293 (noting that “[t]he jury can conclude that an
employer who fabricates a false explanation has something to
hide; that ‘something’ may well be discriminatory intent”). A
reasonable jury may not infer discrimination, however, “if the
record conclusively revealed some other, nondiscriminatory
reason for the employer’s decision, or if the plaintiff created
only a weak issue of fact as to whether the employer’s reason
was untrue and there was abundant and uncontroverted
independent evidence that no discrimination had occurred.”
Reeves, 530 U.S. at 148.
Here, WMATA offers no explanation for its hiring decision
other than its “fair process” argument; indeed, WMATA gives
no explanation for how, given Thomas’s promise to Salazar,
Lewis came to appoint the panel chair. And while the presence
of the other panelists and the near parity between their scoring
and Jaggie’s scoring, see supra at 8, weakens the likelihood that
a jury could find pretext, it does not amount to “abundant and
uncontroverted independent evidence” that Lewis and Jaggie did
not discriminate. Under Reeves, then, we believe a jury might
infer discrimination if it concluded that WMATA’s proffered
reason was pretextual. See 530 U.S. at 147-49; Aka, 156 F.3d at
1290-92; cf. Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100
(2003).
Because given this evidence we would not disturb a jury
verdict in Salazar’s favor, we cannot uphold a summary
14
judgment order concluding otherwise. Reeves, 530 U.S. at 150
(noting that “the standard for granting summary judgment
mirrors the standard for judgment as a matter of law, such that
the inquiry under each is the same”) (internal quotation marks
omitted). We reverse and remand with regard to Salazar’s
discrimination claim relating to the Metro Center job. In all
other respects, we affirm.
So ordered.
WILLIAMS, Senior Circuit Judge, dissenting: The
majority concludes that a reasonable jury could find in
appellant’s favor with regard to one of his claims. Maj. Op. at
2. Like the majority, I view the evidence as a “close call,”
Maj. Op. at 9, but I believe no reasonable jury could make the
required finding.
In Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133 (2000), the Supreme Court stated that
an employer would be entitled to judgment as a matter of
law if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or
if the plaintiff created only a weak issue of fact as to
whether the employer’s reason was untrue and there was
abundant and uncontroverted independent evidence that
no discrimination had occurred.
Id. at 148; see also Aka v. Washington Hospital Center, 156
F.3d 1284, 1291-92 (D.C. Cir. 1998) (en banc). This is just a
linguistic variant of the standard rule that the party with the
burden of persuasion cannot defeat summary judgment by
offering only a “scintilla” of proof. See, e.g., Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Taylor v.
Small, 350 F.3d 1286, 1295 (D.C. Cir. 2003). In my view,
Salazar’s evidence, viewed in the light most favorable to him,
yields just such a “weak issue of fact,” no more than a
scintilla.
Salazar came in fourth in a six-person competition for
promotion to the position of Craft Supervisor in General
Equipment at WMATA’s Metro Center station. If I
understand the majority, it believes that three features of the
selection process could in the aggregate enable a reasonable
jury to find that WMATA had discriminated: first, the fact
that Timothy Tucker, number one in the competition, ended
2
up not taking the Metro Center position, but instead took what
Salazar said was a “less difficult” one in Greenbelt; second,
the role of two WMATA higher-ups, Gary Lewis and Buddy
Jaggie, in the competitive process; third, and related to the
second, the nature of the questions posed in the competition
and the weighting of questions.
The majority regards the fact that the selected applicant
(Tucker) apparently never held the Metro Center job as
increasing “the possibility that the interview process . . . may
not have been fairly designed.” Maj. Op. at 8. There is in fact
an evidentiary vacuum as to what happened after the
competition (other than Tucker’s going to Greenbelt).
Technically, this is a gap in the plaintiff’s prima facie case, in
which the fourth element is evidence that “the position
remained open [after the plaintiff lost out] and the employer
continued to seek applicants from persons of [the plaintiff’s]
qualifications.” McDonnell Douglas Corporation v. Green,
411 U.S. 792, 802 (1973). In Teneyck v. Omni Shoreham
Hotel, 365 F.3d 1139 (D.C. Cir. 2004), we held that plaintiff’s
failure to show the sequel to her rejection was fatal to her
prima facie case. Id. at 1151-53. WMATA here waived any
argument as to inadequacies in the prima facie case, but it is
still ironic that Salazar has managed to transform a similar gap
into a special point in his favor. The transformation is
especially odd because the innocent reasons why a winning
competitor might take another job are legion—personal
convenience, a better fit with his skills, a better match with
fellow workers, etc. Even winners change their minds.
The majority thinks that a reasonable jury “could infer
something ‘fishy’” from Lewis’s appointment of Jaggie, his
assistant, as panel chair. See Maj. Op. at 8. The majority sees
this as problematic first as a breach of Thomas’s promise that
3
the search process would be Lewis-free, and second as leading
to interview characteristics that the majority believes might
reasonably be thought discriminatory. I am unable to identify
a scintilla of evidence that Jaggie’s participation
disadvantaged Salazar.
To give weight to the broken promise, the majority cites a
line of cases holding that departures from normal hiring
processes may justify inferences of discrimination. See Maj.
Op. at 8 (citing Lathram v. Snow, 336 F.3d 1085, 1093-94
(D.C. Cir. 2003); Johnson v. Lehman, 679 F.2d 918, 922
(D.C. Cir. 1982)). But an employer’s departure from standard
procedures does not automatically support such an inference;
the plaintiff must still establish discriminatory motive.
Johnson, 679 F.2d at 922. Here, in fact, WMATA’s effort to
devise a Lewis-free hiring process was itself a departure from
existing practice; a departure from the departure merely
returned things to the status quo. See Maj. Op. at 8. So it is
far from obvious that the cases involving departure from
existing practice apply. Even assuming they do, such cases
always challenge a departure that actually disadvantaged the
applicant in some way. See, e.g., Lathram, 336 F.3d at 1093
(decision to expand search outside agency thereby allowing
second candidate to receive a veteran’s preference and thus to
outscore internal candidate); Pratt v. City of Houston, 247
F.3d 601, 605 (5th Cir. 2001) (allegation that interviewer
sprung a computer skills test on applicant, having given no
notice that such a test would be part of the process). Here
there is simply no evidence that the alleged departure from
practice hurt Salazar’s chances, much less an affirmative
showing that the “departure” was discriminatory. See Risher
v. Aldridge, 889 F.2d 592, 597 (5th Cir. 1989).
4
As the majority points out, the record evidence clearly
shows that “the scores Jaggie gave Salazar differed little from
those given by two other panelists whom Salazar himself
acknowledges would be unlikely to discriminate,” Maj. Op. at
8, that “Salazar would have finished fourth even had Jaggie’s
scores not counted,” id., and that “no evidence suggests that
Jaggie attempted to influence the other panelists’ scores
during the interview,” id. Because Jaggie’s involvement had
no measurable impact on the hiring outcome, the majority
seeks to shore up the case for a plausible inference by
emphasizing that Jaggie developed the interview questions
and assigned the relative value for each, giving “only
marginal value to candidates’ experience and education,
which were Salazar’s particular strengths.” Maj. Op. at 8.
But Salazar nowhere asserts that any of the questions
themselves was unfair or inappropriate, or that the distribution
was in any way unusual. Indeed, they would seem to cover
precisely the range of scenarios relevant to the selection of a
qualified supervisor. Compare Maj. Op. at 8 (“Jaggie not only
developed the questions but assigned the relative value for
each, and had apparently unfettered discretion in doing so.”)
(emphasis added) (internal quotation marks and citations
omitted). And lest there be any confusion about the matter, it
was not an odd or idiosyncratic weighting scheme that cost
Salazar the post. The majority notes that out of 13 questions,
11 (with a weight of nearly 90%) related to hypothetical
scenarios, Metro policies, technical responses, and candidate
motivation, and two (with a weight of slightly over 10%) to
the candidate’s experience and education. Maj. Op. at 4, 8.
The majority disparages the former by characterizing the latter
two questions as the “only” ones that “directly addressed the
candidates’ experience and education.” Id. at 4. But
interview procedures that give more weight to direct evidence
5
of a candidate’s ability to handle problems than to the length
of his resume are hardly evidence of discrimination—at least
in the absence of evidence that the weighting was unusual.
Moreover, Jaggie’s weighting decisions had no impact on
Salazar. If all questions had been weighted equally, Salazar
would still have finished in fourth place. More striking, in
light of Salazar’s and the court’s focus on “experience,”
Salazar still would not have been selected even if the scorers
had counted only the two resume questions—unless a scoring
error that awarded Salazar 20 points for a question with a
maximum allowable score of 10 points went uncorrected
(itself, one hopes, a deviation from standard practice). See
J.A. 111. Thus, in a contest focused exclusively on Salazar’s
“particular strengths,” he could still have won only by means
of an scoring error.
Lastly, the majority is “not as certain” as I that Salazar
would have lost under virtually any plausible circumstances,
because Salazar argues that “by weighing less significant
questions more and by minimizing the value of the important
questions regarding experience, education and training, the
selectee came up with a higher score.” Maj. Op. at 10-11
(internal quotation marks omitted). Salazar did not explain
how, but it is possible (as the majority indicates) to reverse-
engineer weighting schemes that allow Salazar to emerge the
winner (correcting errors and excluding Jaggie’s scores). One
obvious scheme would simply ignore all questions except
three—the two resume questions noted above, and a third
question on WMATA’s Five-Point Pledge. (The pledge
reads: “(a) Maintain safe, clean, and attractive facilities and
services, (b) Always be courteous, helpful and informative, (c)
Strive to provide on time service, (d) Listen and respond to
our customers, (e) Be innovative, resourceful, market driven,
6
and entrepreneurial.”) Candidates were asked to state the
pledge and explain their role in its implementation. Inclusion
of this question (and exclusion of all others) would put
Salazar over the top because of the surprising coincidence that
the candidate who did better than he on the experience and
education questions managed to do worse on the pledge. The
majority suggests other schemes in which Salazar could have
won, for example, by “halving two questions and tripling two
others, by tripling four questions,” or “by dropping three
questions.” Maj. Op. at 12. Indeed because question weights
are continuous variables, it is theoretically possible to identify
an infinite number of weighting schemes from which Salazar
would have emerged victorious, and from that trivial
epiphenomenon the majority believes the jury could infer
discrimination. Thus, it argues, a jury could infer that
WMATA’s purpose in giving material weight to questions
about technical proficiency, safety, or management of other
employees was to “get” Salazar. If such an inference is
“reasonable,” judges really are potted plants.
The court correctly points out our salutary rule against
considering arguments not raised in the parties’ briefs. Maj.
Op. at 10. But WMATA did argue that if Jaggie’s scores and
the technical questions were eliminated Salazar would still
lose. Appellee’s Br. at 17. That argument is in fact correct
(though narrower than the one I’ve made), and Salazar never
responded to it except with vague generalities. See
Appellant’s Reply Br. at 2-4. The court instead takes up the
Reply Brief’s assertion that “significant [sic] [meaning,
evidently, insignificant] items were weighted heavily.” Id. at
2; see Maj. Op. at 11. Thus the court implicitly endorses
Salazar’s characterization of virtually all the questions relating
to technical proficiency, safety and employee management as
“[in]significant.” Why? In any event, as Salazar presented
7
the argument only in his Reply Brief, I’m unsure why
WMATA should be faulted for not responding to it. More
generally, when appellate judges confront conflicting claims
about the meaning of the record, I had thought it kosher for
them—actually, their duty—to look at the record.
Because no single factor cited by Salazar could justify a
finding of discrimination, the majority turns to its own
somewhat “distorted” weighting scheme—emphasizing the
“cumulative effect” of Salazar’s arguments. Maj. Op. at 12.
Yet whether considered alone or in sum, the evidence
presented is simply not sufficient for a reasonable jury to infer
discrimination. The question is “not whether there is literally
no evidence, but whether there is any upon which a jury could
properly proceed to find a verdict for the party producing it,
upon whom the onus of proof is imposed.” Anderson, 477
U.S. at 251 (quoting Pennsylvania R. Co. v. Chamberlain, 288
U.S. 333, 343 (1933) (emphasis in original)). The evidence
must be such that a jury could find not merely that the point in
question (here, discrimination) is conceivable; the proof must
be such that the jury could—reasonably—find it more
probable than not. The majority’s method, effectively
requiring WMATA to offer proof absolutely excluding any
possibility of discrimination, however remote, is simply not
the standard for summary judgment.
In the end, the case boils down to the presence in the
hiring process of Jaggie, and thus by extension Lewis.
Believing this is too slender a reed to support a jury verdict in
Salazar’s favor, I would affirm the decision of the district
court.