Jackson v. Gonzales

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 19, 2007 Decided August 10, 2007

No. 06-5053

KEVIN L. JACKSON,
APPELLANT

v.

ALBERTO GONZALES, ATTORNEY GENERAL,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 03cv01596)

Debra A. D’Agostino argued the cause for appellant. On
the briefs was Sandra Mazliah.

Beverly M. Russell, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Michael J. Ryan, Assistant U.S. Attorney, entered an
appearance.

Before: HENDERSON, ROGERS, and KAVANAUGH, Circuit
Judges.
 2

Opinion for the Court filed by Circuit Judge KAVANAUGH,
in which Circuit Judge HENDERSON joins.

Dissenting opinion filed by Circuit Judge ROGERS.

KAVANAUGH, Circuit Judge: Kevin Jackson worked as a
GS-13 employee in the Bureau of Prisons. Jackson and six other
individuals applied for an open GS-14 research analyst position.
The Bureau selected Jennifer Batchelder, a Caucasian woman.
Jackson, who is African-American, sued and alleged racial
discrimination in violation of Title VII. In its defense, the
Bureau said it selected Batchelder because she was more
qualified than Jackson. The District Court granted summary
judgment to the Bureau, concluding that a reasonable jury could
not find the Bureau’s explanation a pretext for racial
discrimination. We agree with the District Court and therefore
affirm.

I

Kevin Jackson, an African-American man, and Jennifer
Batchelder, a Caucasian woman, worked as GS-13 employees in
the Bureau of Prisons. Both applied for a GS-14 research
analyst job at the Bureau, as did five other individuals. A two-
person initial evaluation board scored all applicants based on six
general qualifications – also called “KSAs,” short for
“knowledge, skills, and abilities” – and other personal
characteristics needed in the job to be filled. J.A. 276.1 The

1
The generic KSAs included the applicant’s: (1) ability to
manage resources; (2) ability to communicate orally; (3) ability to
communicate in writing; (4) ability to apply social science research
methods; (5) knowledge of statistical methods; and (6) ability to
assign responsibility and delegate authority. J.A. 276. The Bureau
also posted a more detailed job description, which listed the
 3

board members sought to hire an applicant who had experience
with the Bureau’s main data management tool, known as the
Key Indicators Strategic System, although the job description
documents did not expressly refer to Key Indicators experience
as a specific qualification (the documents listed more general
qualifications). The Key Indicators system includes information
about all aspects of the Bureau’s operations, such as health care,
sentencing issues, and inmate conduct and misconduct. In
addition to aggregating the data, the system uses statistical and
graphical tools to show how the relevant aspects of the Bureau’s
operations change over time.

Batchelder received by far the highest numerical score on
the KSAs – 52 out of 60 possible points. By contrast, Kevin
Jackson received 22 points out of 60, which placed him third
among the seven applicants. Batchelder also had significantly
more experience than Jackson with the Key Indicators system.
Both employees received 15 points for past performance and six
points for awards – yielding total scores of 73 points for

following skills and knowledge as job requirements: in-depth
knowledge of correctional programs and Bureau operations and a
knowledge of Bureau policies and regulations; knowledge of theories
in sociology, social psychology, corrections, criminal justice, and
criminology; knowledge of research designs; knowledge of an array
of research methodologies for the observation and measurement of
behavior and attitudes; knowledge of univariate or multivariate
mathematical statistical theory and techniques appropriate for
particular research designs and methodologies; knowledge of
statistical computer programs; knowledge of IBM CMS Timesharing
System, TSO, and OS Batch System; knowledge of mainframe and
micro computer software; skill in teaching and supervising research
assistants and technicians in the knowledge and techniques necessary
for social science research; and skill in writing research reports for
Bureau managers or for distribution in the social science community.
J.A. 280.
 4

Batchelder and 43 points for Jackson. Because Batchelder’s
score was much higher than all the other candidates, the board
forwarded only her name to the final decision-maker, Thomas
Kane. Kane in turn selected Batchelder for the position.

Jackson then sued, alleging racial discrimination in
violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16.
In the district court, the Bureau explained that it hired
Batchelder because she was better qualified, particularly in light
of her extensive experience with the Key Indicators system. The
District Court granted summary judgment to the Bureau, stating
that Jackson failed to show he was significantly more qualified
and that it was “therefore not proper to ‘second-guess [the]
employer’s personnel decision.’” Jackson v. Gonzales, No.
Civ.A. 03-1596, 2005 WL 3371041, at *11, *13 (D.D.C. Dec.
12, 2005) (quoting Fischbach v. D.C. Dep’t of Corr., 86 F.3d
1180, 1183 (D.C. Cir. 1996)) (alteration in original). The
District Court also concluded that the Bureau’s reliance on a
factor not expressly listed in the job description (Key Indicators
experience) did not undermine the Bureau’s explanation for its
hiring decision because such experience was clearly
encompassed by the qualifications listed in the job description.
See id. at *10 (“[I]t is clear that Key Indicator System skills are
a component of the overall skills necessary for the GS-14
position.”); id. (“[A]lthough not specifically mentioned in the
vacancy announcement or job description, the general terms
used in these documents clearly indicate a desire on the part of
the defendant to hire someone with skills acquired from working
with the Key Indicator System.”).

On appeal, Jackson argues that there is a genuine issue of
material fact regarding whether the Bureau’s real reason for not
selecting him was racial discrimination. Our review is de novo.
Haynes v. Williams, 392 F.3d 478, 481 (D.C. Cir. 2004).
 5

II

Title VII of the Civil Rights Act, as amended, provides that
all “personnel actions affecting employees or applicants for
employment” in Executive agencies “shall be made free from
any discrimination based on race.” 42 U.S.C. § 2000e-16(a).
“Where, as here, the record contains no direct evidence that the
adverse employment action of which the plaintiff complains was
caused by prohibited discrimination, we turn to the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802–05 (1973), to analyze the claim.” Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citation omitted in
part). Although “intermediate evidentiary burdens shift back
and forth under this framework, ‘[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the
plaintiff.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 143 (2000) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981)) (alteration in original).

The McDonnell Douglas framework first requires the
plaintiff to establish a prima facie case of discrimination by
showing that: “(1) he is a member of a protected class; (2) he
applied for and was qualified for an available position;
(3) despite his qualifications he was rejected; and (4) either
someone . . . filled the position or the position remained vacant
and the employer continued to seek applicants.” Lathram v.
Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (quotation marks
omitted and alteration in original). If the plaintiff establishes a
prima facie case of discrimination, the burden shifts to the
defendant employer to produce “‘evidence that the plaintiff was
rejected, or someone else was preferred, for a legitimate,
nondiscriminatory reason.’” Reeves, 530 U.S. at 142 (quoting
Burdine, 450 U.S. at 254). “If the defendant satisfies that
burden, the McDonnell Douglas framework – with its
 6

presumptions and burdens – disappears, and the sole remaining
issue is discrimination vel non.” Waterhouse v. District of
Columbia, 298 F.3d 989, 992 (D.C. Cir. 2002) (quotation marks
and alterations omitted). At that point, the plaintiff can survive
summary judgment only by showing “that a reasonable jury
could conclude that [he] was terminated for a discriminatory
reason.” Id. To make such a showing, the plaintiff must prove
that a reasonable jury could infer that the employer’s given
explanation was pretextual and that this pretext shielded
discriminatory motives. See Murray v. Gilmore, 406 F.3d 708,
713 (D.C. Cir. 2005).

The Bureau here said it selected Jennifer Batchelder
because she was more qualified and had superior Key Indicators
experience. When an employer says it made a hiring decision
based on the relative qualifications of the candidates, “we must
assume that a reasonable juror who might disagree with the
employer’s decision, but would find the question close, would
not usually infer discrimination on the basis of a comparison of
qualifications alone.” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284,
1294 (D.C. Cir. 1998) (en banc). On the other hand, if a
factfinder can conclude that a “reasonable employer would have
found the plaintiff to be significantly better qualified for the job,
but this employer did not, the factfinder can legitimately infer
that the employer consciously selected a less-qualified candidate
– something that employers do not usually do, unless some other
strong consideration, such as discrimination, enters into the
picture.” Id.; see also Holcomb, 433 F.3d at 897; Stewart v.
Ashcroft, 352 F.3d 422, 429-30 (D.C. Cir. 2003). Applying Aka,
we have explained that “[i]n order to justify an inference of
discrimination, the qualifications gap must be great enough to be
inherently indicative of discrimination.” Holcomb, 433 F.3d at
897. To conclude otherwise would be to render the judiciary a
“super-personnel department that reexamines an entity’s
business decisions” – a role we have repeatedly disclaimed. See
 7

id. (quotation marks omitted).

Here, as the KSA scores indicate, the evidence presented by
Jackson does not suggest that he was “significantly better
qualified” than Jennifer Batchelder. Aka, 156 F.3d at 1294. On
the contrary, it plainly suggests that Batchelder was better
qualified. To be sure, we have also stated that a plaintiff may
present evidence to show that the employer’s
qualifications-based explanation “is incorrect or fabricated.” Id.
at 1295; see also Holcomb, 433 F.3d at 898. Jackson thus
alleges certain discrepancies between the candidates’
qualifications and the evaluation board’s ratings. But it is
undisputed that Batchelder had been an outstanding employee
at the Bureau; that her experience with the Key Indicators
system was substantially superior to Jackson’s; that the Key
Indicators system was important to the Bureau’s operations; and
that Batchelder received by far the highest KSA scores of any
candidate who applied for the job.

Jackson’s evidence at most shows that the evaluators could
have given him somewhat higher scores and Batchelder
somewhat lower scores than they did. That is not enough,
however, to demonstrate that the Bureau’s reliance on
comparative qualifications was a pretext for discrimination:
“This Court will not reexamine governmental promotion
decisions where it appears the Government was faced with a
difficult decision between two qualified candidates, particularly
when there is no other evidence that race played a part in the
decision.” Stewart, 352 F.3d at 430. Like the plaintiff in
Stewart, Jackson “was simply not discernibly better” than the
candidate promoted. Id. at 429.

Jackson also contends that a reasonable jury could
disbelieve the Bureau’s reliance on Batchelder’s superior Key
Indicators experience as the overriding factor because the job
 8

description documents did not expressly refer to Key Indicators
knowledge or experience. Although this argument may present
a closer question given the somewhat unusual facts of this case,
we agree with the District Court that the evidence presented by
Jackson does not create an inference of discrimination sufficient
to overcome summary judgment.2

To begin with, as the District Court correctly recognized,
Key Indicators experience was clearly encompassed by the
qualifications listed in the job description. See Jackson, 2005
WL 3371041, at *10 (noting that Bureau sought applicants with
ability to use statistics to describe and predict trends in Bureau
data). Indeed, Key Indicators experience was directly relevant
to at least two of the KSAs set forth in the generic vacancy
announcement: ability to manage resources, and ability to assign
responsibility and delegate authority. In addition, the more
detailed list of qualifications set out in the position description
included “[k]nowledge of statistical computer programs” and
“computer software,” and thus plainly encompassed Key
Indicators experience. J.A. 280.

As we have explained before, moreover, job descriptions are

2
The dissenting opinion appears to suggest that Jackson’s case
survives summary judgment in part because the Bureau lacked high-
level African-American employees. See Dissenting Op. at 2-3, 7.
But Jackson never made such an argument either before the District
Court in opposing summary judgment or before this Court on appeal.
On the contrary, Jackson has consistently maintained that “[t]he
material factual dispute here is rooted in the two employees’
respective performance histories and qualifications.” Pl.’s Opp’n to
Def.’s Mot. for Summ. J. at 14 (emphasis added). Cf. Aka, 156 F. 3d
at 1295 n.11 (“For instance, if a female plaintiff claims sex
discrimination, evidence that the defendant employs women at rates
far below their numbers in the applicant pool and the general
population may well help her case.”).
 9

often phrased in general terms, and employers then make the
ultimate hiring decision in light of more specific factors – such
as their strategic priorities and goals at the time, the strengths
and weaknesses of the applicant pool, and the overall skills of
and gaps in their existing workforce, among many other factors.
We have said that courts must not second-guess an employer’s
initial choice of appropriate qualifications; rather the courts
“defer to the [employer’s] decision of what nondiscriminatory
qualities it will seek” in filling a position. Stewart, 352 F.3d at
429; see also Browning v. Dep’t of the Army, 436 F.3d 692, 698
(6th Cir. 2006) (“Questioning [the employer’s] hiring criteria is
not within the province of this court . . . .”). Particularly given
the dynamic nature of the hiring process, moreover, we have also
stated that we will not second-guess how an employer weighs
particular factors in the hiring decision. See Barnette v. Chertoff,
453 F.3d 513, 517 (D.C. Cir. 2006) (“[C]ourts must defer to the
employer’s decision as to which qualities required by the job . . .
it weighs more heavily.”). Indeed, we have even said that an
employer may select “a candidate who on paper is less qualified
for other reasons, such as subjective reactions that emerge in the
interview” – although we are of course cautious in accepting
such purely subjective explanations when the plaintiff otherwise
is “significantly better qualified.” Aka, 156 F.3d at 1294 & n.10.

In Aka, we explained that courts must be sensitive to the
necessary and appropriate realities of hiring processes.
Reasonable employers, we said, “do not ordinarily limit their
evaluation of applicants to a mechanistic checkoff of
qualifications required by the written job descriptions.
Obviously, they will take additional credentials into account, if
those credentials would prove useful in performing the job.” Id.
at 1297 n.15. Other courts of appeals have reached the same
conclusion. See Lamb v. Boeing Co., 213 F. App’x 175, 180 (4th
Cir. 2007) (“Title VII does not impose the impracticable
obligation of anticipating and recording before the fact a
 10

company’s valuation of every credential with which it might be
presented, and we cannot sanction the inference that the
credentials upon which the hiring managers said they relied were
pretexts merely because they were not listed in advance.”);
Browning, 436 F.3d at 696-97 (“employers are not rigidly bound
by the language in a job description”; employer’s “decision to
weigh administrative/managerial experience more heavily than
the job description suggested [was] simply not sufficient to
demonstrate” falsity of employer’s qualifications-based
explanation); Lee v. GTE Fla., Inc., 226 F.3d 1249, 1255 n.2
(11th Cir. 2000) (evidence that employer “changed the
importance of the criteria he used in the selection process” did
not tend to show that employer’s asserted nondiscriminatory
explanation was false); Nichols v. Lewis Grocer, 138 F.3d 563,
568 (5th Cir. 1998) (hiring decisions are “dynamic,” and
“relative importance placed on various selection criteria cannot
be expected to remain fixed and unyielding” throughout the
process).

All of these various formulations and precedents establish
a clear principle for purposes of this case: The fact that an
employer based its ultimate hiring decision on one or more
specific factors encompassed within a broader and more general
job description does not itself raise an inference of
discrimination sufficient to overcome summary judgment.
Indeed, we are aware of no previous case from this or any other
circuit suggesting that an employee gets past summary judgment
simply by showing that a factor in the hiring decision was not
expressly listed in the job description when the factor was
encompassed by the job description. Therefore, Jackson cannot
overcome summary judgment on this basis.

Finally, we do not agree with Jackson that the timing of the
Bureau’s explanation of its hiring decision somehow casts doubt
on the credibility of that explanation and therefore is evidence of
 11

pretext. Before Jackson commenced this employment
discrimination suit, the Bureau simply had no occasion to explain
its decision to hire Batchelder; rather, the first time the Bureau
had to explain that decision was in defending this case. The
Bureau’s explanation therefore cannot be considered “post-hoc”
or “tardily” asserted. Cf. Dissenting Op. at 6, 12-13. To suggest
otherwise is essentially to direct employers to publish a
contemporaneous statement of reasons every time they make a
hiring or firing decision – a requirement that Title VII has never
been understood to impose.

III

We affirm the District Court’s grant of summary judgment
to the Bureau of Prisons.

So ordered.
 ROGERS, Circuit Judge, dissenting: Contrary to the court’s
suggestion, Kevin L. Jackson’s appeal does not ask the court to
micromanage a personnel decision. See Op. at 6, 9. Instead
Jackson presents a question that goes to the heart of Title VII
and the federal civil service system. The court chooses to ignore
this fact by casting the case in terms of who was more qualified
for a promotion. See id. at 2. However, Jackson’s appeal is
based on evidence suggesting that the employer’s asserted
nondiscriminatory reason for selecting another candidate was
fabricated to mask unlawful discrimination. “Credibility
determinations [and] the weighing of the evidence” are functions
of the trier of fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); see Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986); FED. R. CIV. P. 56(c). Accordingly, because
summary judgment was inappropriate, I would remand the case
to the district court for further proceedings.

I.

Title VII is aimed at protecting victims of unlawful
discrimination. See, e.g., Landgraf v. Usi Film Prods., 511 U.S.
244, 254 (1994) (quoting Albemarle Paper Co. v. Moody, 422
U.S. 405, 418-422 (1975)). The federal civil service system
serves a complimentary purpose as it is designed to afford equal
opportunity by requiring job announcements and job
descriptions to set forth the job requirements and selection to be
based on the listed requirements, and not on an unmentioned
consideration. See 5 U.S.C. § 2301(b); Nat’l Treasury
Employees Union v. Horner, 854 F.2d 490, 492 (D.C. Cir.
1988); Nat’l Treasury Employees Union v. U.S. Customs Serv.,
802 F.2d 525, 529 (D.C. Cir. 1986). Enacted in 1833, the
Pendleton Act, 22 Stat. 403, “replace[d] the ‘spoils system,’
under which the President could dispense federal jobs as
rewards for political patronage, with a ‘merit system’ that would
base selection and promotion of most civil servants on
competence.” Frazier v. Merit Sys. Protection Bd., 672 F.2d
 2

150, 153 (D.C. Cir. 1982); see Sampson v. Murray, 415 U.S. 61,
71 (1974). Subsequent legislation furthered Congress’s
objective of establishing an efficient and competent civil service
and providing greater statutory protections for federal
employees. The Civil Service Reform Act (“CSRA”), enacted
in 1978, restructured the federal civil service in order to
“promote a more efficient civil service while preserving the
merit principle in Federal employment.” Developments in the
Law — Public Employment, 97 HARV. L. REV. 1611, 1632 & n.3
(1984) (quoting S. REP. NO. 969, 95th Cong., 2d Sess. 1, at 2
(1978), reprinted in 1978 U.S. CODE CONG. & AD. NEWS 2723).
To this end, the CSRA provides that “[f]ederal personnel
management should be implemented consistent with” several
“merit system principles,” which provide, among others, that
“advancement should be determined solely on the basis of
relative ability, knowledge, and skills, after fair and open
competition which assures that all receive equal opportunity.”
5 U.S.C. § 2301(b); see Horner, 854 F.2d at 492; U.S. Customs
Serv., 802 F.2d at 529. Under regulations promulgated by the
Office of Personnel Management, which supervises the
administration of the civil service system, Frazier, 672 F.2d at
154; see 5 U.S.C. § 1302, all federal agencies, including the
Bureau of Prisons (“BOP”) in the Department of Justice, are
required to provide a notice of job announcement for
competitive positions that includes the position’s
“[q]ualification requirements, including knowledges [sic], skills,
and abilities.” 5 C.F.R. § 330.707(b)(5).

Jackson proffered evidence that in March 2001, when he
applied for a GS-14 social science research analyst position, the
evaluation board gave him a score of 98 out of 100, but the BOP
Office of Research and Evaluation (“ORE”) never filled that
position. At the time, the ORE had no African-Americans in
GS-13, GS-14, or GS-15 positions. Six months later ORE
announced another GS-14 social science research analyst
 3

position. This job announcement asked each applicant to
address in his or her application six categories of Knowledge,
Skills, and Abilities (“KSAs”)1 “in a . . . manner which will
enable [the BOP] to make a reasonable determination about
qualifications.” Job Announcement at 1-2. The announcement
made no reference to experience with the Key Indicators
Strategic System (“Key Indicators”)2 as a requirement. The job
description included a more detailed description of the
“KNOWLEDGE AND SKILLS REQUIRED BY THE
POSITION,”3 but it also made no reference to Key Indicators

1
The generic KSAs listed in the job announcement were the
applicant’s: (1) “[a]bility to manage resources”; (2) “[a]bility to
communicate [] orally”; (3) “[a]bility to communicate in writing”; (4)
“[a]bility to apply social science research methods”; (5) “[k]nowledge
of statistical methods”; and (6) “[a]bility to assign responsibility and
delegate authority.” Job Announcement at 2.
2
According to one of Jackson’s evaluators, Key Indicators is
an “elaborate, comprehensive, and technically detailed” data
warehousing system. It includes information about all aspects of
BOP’s operations and provides data to managers in aggregate form as
well as statistical and graphic analyses. See Gerald Gaes Dep. at 28-
29 (June 11, 2004).
3
The posted job description listed on page 2 the following
“KNOWLEDGE AND SKILLS”:
—In depth knowledge of correctional programs and
BOP operations and a knowledge of Department and
Bureau policies and regulations.
—Knowledge of theories in sociology, social
psychology, corrections, criminal justice, and
criminology.
—Knowledge of research designs . . . .
—Knowledge of an array of research methodologies
for the observation and measurement of behavior and
attitudes . . . .
 4

experience. Jackson applied for the position, as did six other
individuals, including Jennifer Batchelder, who is caucasian. At
the time of her application, Batchelder, like Jackson, was a
GS-13 social science research analyst, who had received
outstanding performance evaluations from her supervisor, as
Jackson had from his, but her principal work involved
programming and collecting and processing data for use by
others to carry out research. According to Thomas Kane, the
BOP Assistant Director, Batchelder’s work “focus[ed] more on
statistical analysis and computer programming [while] Jackson
[focused] more on program management and facilitation.”
Thomas Kane Dep. at 47 (June 14, 2004). The evaluation board
gave Jackson a score of 43 out of 81, and Batchelder a score of
73. Kane, upon being presented only with the recommendation
to promote Batchelder, selected her for the GS-14 position.

In response to Jackson’s Title VII lawsuit, the two persons
in the BOP who had evaluated the applications claimed in sworn
statements that they had relied on Batchelder’s work on Key
Indicators in awarding her significantly higher KSA scores than
the other applicants. Batchelder’s application referred to articles

—Knowledge of univariate or multivariate
mathematical statistical theory and techniques
appropriate for particular research designs and
methodologies. . . .
—Knowledge of statistical computer programs . . . .
—Knowledge of IBM CMS Timesharing System,
TSO, and OS Batch System.
—Knowledge of mainframe and micro computer
software . . . .
—Skill in teaching and supervising research
assistants and technicians in the knowledge and
techniques necessary for social science research.
—Skill in writing research reports for BOP managers
or for distribution in the social science community.
 5

that she had written for staff and users of Key Indicators but,
unlike Jackson, Batchelder did not identify any papers that she
had published, although she had written the introduction for a
publication. By contrast, the evaluators justified Jackson’s
lower KSA scores by emphasizing the narrow nature of his work
projects and technical problems with his statistical research in
the papers he authored, including his masters thesis, which had
been published. No mention was made of Jackson’s experience
with Key Indicators.

In moving for summary judgment, the Department claimed
that Key Indicators experience was the critical consideration in
the BOP’s selection of Batchelder: “At the time of the selection
consideration, the overriding objective for the [ORE] was to hire
someone who could maintain . . . the Key Indicators Strategic
System.” Def’s Mem. Supp. Summ. J. at 17–18 (emphasis
added). The Department argued that the evaluators had
legitimate, nondiscriminatory “concerns about [Jackson’s]
abilities” and properly weighed “Batchelder’s expertise with
Key Indicators” in awarding her higher scores. Id. at 18. On
appeal, the Department reasserts that “[a]t the time of the
selection consideration, the overriding objective for the [ORE]
was to hire someone who could maintain [ORE’s] essential and
most important function — i.e., the Key Indicators Strategic
System.” Appellee’s Br. at 21 (emphasis added). In support,
the Department points to the deposition of William Saylor, who
was one of the evaluators, stating that his “concern was to make
certain” to hire “someone who had the skill set that would be
needed to keep th[e] key indicators application functional.”
William Saylor Dep. at 147 (June 23, 2004).

II.

Common sense would suggest that if Key Indicators
experience was the “overriding objective” underlying the
 6

selection of the GS-14 research analyst position, then the BOP
would have mentioned that qualification in announcing and
describing the job to ensure that it would receive applications
from candidates with the desired experience and thus be in a
position to select the candidate most qualified to maintain Key
Indicators. Jackson, however, does not contend that the general
nature of the job description alone creates an inference of
discrimination sufficient to overcome summary judgment.
Rather, Jackson contends that the inconsistency between the
descriptions in the job announcement and description, on the one
hand, and the evaluators’ post-hoc reasons for the selection, on
the other, raises an inference sufficient to preclude summary
judgment. It is the specific centrality of Key Indicators
experience — tardily so claimed by the Department — that
contradicts the general job description and the evaluators’
explanations of Jackson’s low scores, neither of which mentions
Key Indicators experience. Given the emphasis the Department
placed on Key Indicators experience after the fact, and
according Jackson as the nonmoving party all reasonable
inferences, as the court is required to do, see Anderson, 477 U.S.
at 255; Shekoyan v. Sibley Int’l, 409 F.3d 414, 422-23 (D.C. Cir.
2005) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S.
133, 150 (2000), “a reasonable juror could conclude that [the
BOP] would have included this qualification in the job listing
had it honestly believed that it was of primary importance for
the new position.” Courtney v. Biosound, Inc., 42 F.3d 414, 421
(7th Cir. 1994) (emphasis added) (citing Gallo v. Prudential
Residential Servs., 22 F.3d 1219, 1225 (2d Cir. 1994)).

Although a decision to promote, like a hiring decision, may
involve a “dynamic” process, Nichols v. Lewis Grocer, 138 F.3d
563, 568 (5th Cir. 1998), dynamism cannot serve as an excuse
for failing to adhere to the underlying purposes of the federal
civil service system — to ensure equal opportunity and fair and
open competition — by allowing the process to “drift” in its
 7

employment objective without raising an inference, given
Jackson’s evidence, that such inconsistency could mask
unlawful discrimination. Put otherwise, Jackson’s contention is
that he presented evidence, including the absence of African-
Americans from high-level positions at the BOP and the BOP’s
failure several months earlier to fill another GS-14 research
analyst position for which he had received a score of 98 out of
100, from which a reasonable inference of unlawful
discrimination may be drawn. The Department does not
challenge the district court’s finding that Jackson had
established a prima facie case of discrimination. In contending
that he also has shown that the Department’s explanation was
pretextual, Jackson is not relying merely on the fact that the
BOP based its ultimate hiring decision on one or more specific
factors encompassed within a broader and more general job
description, see Op. at 10, but rather on the undisputed evidence
that Key Indicators experience is not mentioned in the job
announcement, the job description, or the evaluators’
explanations of Jackson’s low KSA scores, all of which
conversely reflect a primary focus on research.4

4
The job announcement stated that the responsibilities of the
position include supervising research analysts and “conducting
research on crime and corrections.” Job Announcement at 1. Further,
“the research the employee conducts contributes to” several fields
including, “corrections, criminal justice, criminology, and sociology”
and the “[r]esearch will be utilized by the Executive Staff of the
[BOP] to study the effectiveness of [BOP] programs and polices and
to prescribe prescriptions for improvement.” Id. The job description
similarly focuses on research: The incumbent’s primary
responsibilities are supervising Ph.D. level research analysts and
designing and conducting research that assists the BOP in improving
and developing policies and programs and contributes to several fields
of knowledge. The job description states that the “MAJOR DUTIES
AND RESPONSIBILITIES” involve “formulat[ing] and direct[ing]
research that answers questions of interest to the [BOP]
 8

The court treats this case as involving the question of who
as between Jackson and Jennifer Batchelder was more qualified
for the GS-14 position. See id. at 2, 6-7. It states the evidence
in the light most favorable to the Department, accepting the
Department’s tardy explanation that Key Indicators experience
was the “overriding objective” as an established, undisputed
fact. See id. at 2-3. Upon acknowledging that a Title VII
plaintiff may prevail by showing that an employer’s
qualification-based explanation “is incorrect or fabricated,” id.
at 7 (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1295
(D.C. Cir. 1998) (en banc)), the court dismisses Jackson’s
evidence as showing only that the evaluators could have given
him higher KSA scores. See id. By treating this case as simply
a matter of the BOP choosing the more qualified applicant, see
id. at 6-7, however, the court ignores the material issue of
disputed fact raised by Jackson’s evidence that goes directly to
the question of what type of applicant BOP actually sought in
announcing the GS-14 research analyst position — a research
analyst with the announced skills and experience or a computer
programmer with Key Indicators experience?

The court’s efforts to bolster its holding do not withstand
examination. First, the court relies on the district court’s
conclusion that Key Indicators skills are a component of the
skills listed for the GS-14 position. See id. at 8. However, this
is not the same as the Department’s proffered nondiscriminatory
explanation that Key Indicators skill was the “overriding”
requirement for the research analyst position. Some of the
categories of “KNOWLEDGE AND SKILLS” listed in the job
description refer to statistical and computing skills, including
familiarity with “mainframe and micro computer software,”
Position Description at 2, but none mentions Key Indicators

administration” and describes the activities involved in the research
tasks. Job Description at 1.
 9

experience. Instead, the job description focuses on research
skills and responsibilities. Thus, the job description does not
support the Department’s contention that specific expertise in
Key Indicators was the decisive requirement for filling the GS-
14 research analyst position.

Second, the court observes that “job descriptions are often
phrased in general terms, and employers then make the ultimate
hiring decision in light of more specific factors.” Op. at 8-9.
True but irrelevant. The court ignores two undisputed facts.
One, the BOP’s job announcement and description set forth the
qualifications and nature of the position. The job announcement
outlines the “DUTIES” of the position, lists three categories of
required “SPECIALIZED EXPERIENCE,” and lists six
“KSAs.” Job Announcement at 1, 2. The job description sets
forth the incumbent’s three major responsibilities, the particular
emphasis of the studies that the GS-14 researcher will conduct,
the manner in which the research will be used by BOP’s
Executive Staff and by top management in the Federal
Sentencing Commission and other agencies, and other objectives
of the incumbent’s research. The job description also includes
two paragraphs explaining the “MAJOR DUTIES AND
RESPONSIBILITIES” and includes a page-long listing of
“KNOWLEDGE AND SKILLS REQUIRED BY THE
POSITION,” see supra note 3, and two-and-a-half additional
pages of description of various aspects of the position’s
responsibilities, including research guidelines, the complexity of
the research projects, and the “SCOPE AND EFFECT OF THE
WORK.” Job Description at 1, 2, 4. Nowhere in the job
announcement or the description is Key Indicators experience
mentioned. Two, the evaluators’ explanations for giving
Jackson low scores make no mention of his Key Indicators
experience or lack thereof and thus undercut the tardily claimed
primacy of Key Indicators experience. The evaluators’
preoccupation with Jackson’s research abilities — with
 10

inconsistent reliance on Key Indicators experience in grading
Jackson’s and Batchelder’s applications — undermines the
Department’s claim that expertise in Key Indicators was the
“overriding consideration” for the selection.

Reasonable employers may not “ordinarily limit their
evaluation of applicants to a mechanistic checkoff of
qualifications required by [a] written job description[],” Op. at
9 (quoting Aka, 156 F.3d at 1297 n.15), but a reasonable jury
could conclude that neither would a reasonable employer neglect
to mention the single most important requirement in the job
announcement, job description, and explanation of an
applicant’s low scores. If Key Indicators experience was as
crucial to the GS-14 research analyst position as the Department
now claims, then a juror could reasonably expect it to be
mentioned by the job announcement and description, much less
in the evaluators’ explanations of Jackson’s low scores. How
else could the BOP ensure, consistent with the purposes of the
federal civil service system, that it would receive applications
from the most qualified persons and be in a position to select the
most qualified individual to carry on the Key Indicators work?
Here, the job announcement and description did not refer to Key
Indicators experience and there is a disconnect between Saylor’s
assertions of Key Indicators’ primacy and the evaluators’
explanations of Jackson’s scores. This evidence raises the
question of Saylor’s credibility as to whether Key Indicators
experience was the “overriding” requirement of the GS-14 social
science research analyst position at the time of the selection. A
credibility determination is the domain of the trier of fact, see
Anderson, 477 U.S. at 255, and raises a genuine issue of
material fact as to the Department’s asserted nondiscriminatory
reason for selecting Batchelder, making summary judgment
inappropriate. In other words, from the absence of any mention
of Key Indicators experience in the announcement and
description of the GS-14 position and in the explanations of
 11

Jackson’s low scores, a reasonable juror could conclude that
Saylor’s assertion that Key Indicators experience was the central
criterion underlying the ORE’s desire to fill the GS-14 research
analyst position was fabricated.

The conclusion that Jackson has raised a genuine issue of
material fact in no way requires the court to “second-guess an
employer’s initial choice of appropriate qualifications” or
contravene the principle that “courts ‘defer to the [employer’s]
decision of what nondiscriminatory qualities it will seek’ in
filling a position.” Op. at 9 (quoting Stewart v. Ashcroft, 352
F.3d 422, 429 (D.C. Cir. 2003)). Neither does it mean that
employers would be required to “publish [] contemporaneous
statement[s] of reasons every time they make a hiring or firing
decision.” Id. at 11. It means only that, in accordance with the
requirements of the federal civil service, an employer must
provide notice to prospective job applicants of the relevant skills
and requirements on which it intends to rely in making a
decision. Jackson is not challenging the qualifications that the
ORE found necessary for the GS-14 research analyst position,
but instead he is challenging whether the qualification now
claimed to be the “overriding consideration” actually did play
such a central role in the selection process or whether BOP
manufactured this justification after selecting Batchelder. That
a reasonable trier of fact could accept the Department’s
explanation by crediting Saylor is not, as the court appears to
assume, see id. at 9-10, the standard for summary judgment. See
Anderson, 477 U.S. at 252.

None of the cases cited by the court, or the district court,
reach a contrary conclusion and all are factually distinguishable.
For example, in Davis v. Ashcroft, 355 F. Supp. 2d 330 (D.D.C.
2005), the job announcement did not “list the requisite
qualifications for the position,” id. at 340 — unlike the BOP’s
job announcement and description, which listed a series of
 12

qualifications and required skills but failed to mention Key
Indicators experience — and the plaintiff challenged “the
soundness” of using the disputed factor as a qualification for a
position, not whether the factor had in fact been used, see id. at
342-43. Jackson is not disputing the utility of Key Indicators
experience as a qualification but rather the Department’s claim
that Key Indicators skill was in fact the critical qualification for
the research analyst position. Neither is Jackson contesting the
Department’s evaluation of specific employment criteria;
instead he relies on an inconsistency between the job description
and the “overriding objective” that the Department claims in
litigation was the decisive factor in the selection process but was
omitted from the job description and his evaluation.

Because the timing of the Department’s emphasis on the
centrality of Key Indicators experience for the GS-14 research
analyst position defines this case, and not whether the
Department “changed the importance of the criteria [it] used in
the selection process,” Lee v. GTE Fla., Inc., 226 F.3d 1249,
1255 n.2 (11th Cir. 2000), this case also differs from Lamb v.
Boeing Co., 213 Fed. App’x 175 (4th Cir. 2007) (unpublished
opinion), and Browning v. Department of the Army, 436 F.3d
692 (6th Cir. 2006). See Op. at 9-10. In Lamb, the plaintiff
offered “no evidence” of pretext aside from the absence of the
disputed criteria from the job description, Lamb, 213 Fed. App’x
at 179-80, while Jackson points to more, see supra p. 6. In
Browning, the plaintiff was on notice that the employer
considered the disputed factor to be an important qualification
and instead challenged the weight given to an employment
criterion identified in “both the job description and the matrix”
designed to evaluate applicants. Browning, 436 F.3d at 696-97.
Jackson, however, has proffered evidence of a disconnect
between the Department’s post-hoc justification for the selection
and “[w]hat [the Department] intended when it advertised this
position,” Gallo v. Prudential Residential Servs., 22 F.3d 1219,
 13

1227 (2d Cir. 1994), thus, distinguishing this case from cases
such as Holcomb v. Powell, 433 F.3d 889, 897-99 (D.C. Cir.
2006), in which the court deferred to the employer’s weighing
of the candidates’ qualifications and found inadequate evidence
to support the plaintiff’s contention that the employer had
misstated her qualifications, and Stewart v. Ashcroft, 352 F.3d
422, 429-30 (D.C. Cir. 2003), in which the court deferred to the
employer’s comparison of the candidates’ qualifications and the
employer’s determination of the skills necessary for the position.

As the court observed in Lathram v. Snow, 336 F.3d 1085
(D.C. Cir. 2003), a “plaintiff’s discrediting of an employer’s
stated reason for its employment decision is entitled to
considerable weight” in establishing a material factual dispute
regarding unlawful discrimination. Id. at 1089 (quoting Aka,
156 F.3d at 1290). While courts must “be sensitive to the
necessary and appropriate realities of hiring processes,” Op. at
9, courts cannot ignore, in determining whether summary
judgment is appropriate, evidence that raises a material question
of fact and be so deferential as to allow employers to mask
unlawful discrimination with post-hoc justifications for
employment decisions. Because Jackson has raised a genuine
issue of material disputed fact as to the centrality of Key
Indicators experience in filling the GS-14 research analyst
position, summary judgment for the Department was
inappropriate and I would remand the case to the district court
for further proceedings. Accordingly, I respectfully dissent.