United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 10, 2008 Decided May 16, 2008
No. 07-7077
JAMES ADEYEMI,
APPELLANT
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cv01684)
Leah M. Quadrino argued the cause for appellant. With
her on the briefs was Steven Reed.
Mary T. Connelly, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellee. With her on the brief were Peter J.
Nickles, Interim Attorney General, Todd S. Kim, Solicitor
General, and Donna M. Murasky, Deputy Solicitor General.
Edward E. Schwab, Deputy Attorney General, entered an
appearance.
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: James Adeyemi is deaf.
After failing to obtain an information technology position in
the D.C. Public School System, he sued the District of
Columbia for unlawful employment discrimination under the
Americans with Disabilities Act. The District of Columbia
responded that it hired two candidates who were better
qualified than Adeyemi. The U.S. District Court granted
summary judgment for the District of Columbia. We affirm:
Adeyemi did not produce sufficient evidence for a reasonable
jury to find that the District of Columbia’s legitimate, non-
discriminatory reason – that it hired better-qualified
candidates – was not the actual basis for the decision and that
it intentionally discriminated against Adeyemi on account of
his disability.
I
In 2002, the D.C. Public School System (DCPS)
abolished its existing employment positions and advertised
the resulting job “vacancies” both within DCPS and to the
general public. Incumbent workers could re-apply but were
not guaranteed their old jobs.
The DCPS Office of Information Technology announced
seven vacancies for Level 11 Information Technology
Specialists. The vacancy announcement listed the necessary
qualifications in general terms and requested that each
applicant submit a resumé and written statement.
The DCPS Human Resources Department screened the
applications and selected 20 interviewees for the Level 11
positions. Five of the 20 interviewees were incumbents; they
3
already worked for DCPS in the Office of Information
Technology. Two IT employees were assigned to interview
the 20 Level 11 candidates. Ulysses Keyes, the Director of
Enterprise Information Systems for the Office of Information
Technology, was responsible for making the final hiring
decisions after considering the applicants’ resumés, written
statements, experience, and interview performances, as well
as DCPS’s particular needs.
James Adeyemi applied for the Level 11 position, as well
as for a higher-grade Level 12 position. His application did
not note his disability. Based on Adeyemi’s application,
DCPS’s Human Resources Department initially determined
he possessed the minimal qualifications for the Level 11
position (but not for the higher-grade Level 12 position) and
selected him as one of the 20 Level 11 interviewees.
Manuel Farfan and Henry Thompson interviewed
Adeyemi. Farfan and Thompson first learned that Adeyemi
was deaf when he arrived for his interview. Because a sign-
language interpreter was not available on such short notice,
Farfan and Thompson typed questions that appeared on a
computer screen and Adeyemi then typed his responses.
During the interview, Thompson also passed Adeyemi a note
asking how he communicated in offices where no one knew
sign language. Adeyemi responded that he often used written
communication, and he explained that he had “no problem
with writing as [his] basic communication.” Interview Notes,
Joint Appendix (“J.A.”) 130.
When Farfan, Thompson, and Keyes later met to discuss
the applicants, Farfan asked Keyes how DCPS could
accommodate Adeyemi if he were hired. Keyes stated “we
can always accommodate him.” Farfan Deposition, J.A. 331.
4
After all of the interviews were completed, DCPS offered
five of the seven available Level 11 positions to the five
incumbents who had interviewed. Keyes later explained that
the incumbents had desirable “qualifications, experience, and
backgrounds” and performed well in their interviews. Keyes
Deposition, J.A. 21. Moreover, he had concerns about
starting the school year with an entirely new staff; the
incumbents’ institutional knowledge gave them “a very big
advantage coming back on board.” Id. at 55.
For the remaining two Level 11 vacancies, however,
Keyes was not satisfied with the pool and decided not to
extend offers at that time to any of the numerous other Level
11 candidates. Instead, he asked the Human Resources
Department to re-advertise for the remaining two Level 11
vacancies. But this renewed effort still did not produce any
viable candidates. At that point, Keyes had his back “against
the wall timewise”: He had to fill the vacancies within days
or risk losing the positions altogether due to funding
constraints. Id. at 33.
Out of time to find new candidates for the remaining two
Level 11 vacancies and not particularly happy with the
remaining Level 11 candidates, Keyes looked to the pool of
applicants for the separate Level 12 positions. To qualify for
the higher-grade Level 12 position, applicants had to meet
more demanding knowledge and experience requirements. As
noted above, Adeyemi himself had applied for a Level 12
position but did not make the initial cut for the Level 12
interviews.
Keyes asked the Human Resources Department if he
could fill a Level 11 position with a candidate who had
applied and was qualified for the Level 12 position. Human
Resources informed Keyes it was permissible because
5
candidates qualified for the Level 12 positions were
automatically qualified for the lower-grade Level 11
positions.
Keyes then offered the last two Level 11 positions to two
Level 12 candidates: Qaiser Iqbal and Cynthia Wang.
According to Keyes, Iqbal had desirable skills from his 10
years as a programmer/analyst working with enterprise-wide
computer systems in the corporate world; that experience
would be useful because Level 11 Specialists used
mainframes on a daily basis. Keyes later stated that Iqbal’s
corporate experience “was really what it came down to.” Id.
at 49. Keyes further explained that Iqbal “was more
qualified” and a “better match for [DCPS] than anybody else
in the untapped pool, including Mr. Adeyemi.” Id. at 48.
Keyes stated that he chose Wang for the Level 11
position because she had “documented experience” with the
PeopleSoft application. Id. at 37. This experience was “very
attractive” to DCPS because it was “in the middle of a
PeopleSoft implementation” and “in the process of hiring
consultants and trying to get staff up to speed with someone
who understood the HR portion.” Id. at 37, 51. None of the
Level 11 candidates – including Adeyemi – had PeopleSoft
experience.
After learning that he did not obtain the position,
Adeyemi filed an administrative complaint with the Equal
Employment Opportunity Commission claiming that DCPS
had discriminated against him in violation of the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq. Following an
unsuccessful mediation, Adeyemi filed a complaint in the
U.S. District Court for the District of Columbia. After
discovery was completed, the District Court granted the
District of Columbia’s motion for summary judgment, finding
6
that Adeyemi had not established a prima facie case of
disability discrimination. Adeyemi v. District of Columbia,
2007 WL 1020754, at *21 (D.D.C. 2007). In the alternative,
the District Court concluded that Adeyemi had not produced
sufficient evidence to cast doubt on DCPS’s legitimate, non-
discriminatory explanation that it had hired Iqbal and Wang
because they were better qualified. See id. Adeyemi appeals;
we review the District Court’s summary judgment de novo.
II
A
The Americans with Disabilities Act makes it unlawful
for an employer to “discriminate against a qualified individual
with a disability because of the disability of such individual in
regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). Putting aside the issue
of reasonable accommodation, the two basic elements of a
disability discrimination claim are that (i) the plaintiff
suffered an adverse employment action (ii) because of the
plaintiff’s disability.
The District Court in this case first carefully analyzed
whether Adeyemi had made out a “prima facie case” under
the McDonnell Douglas analysis. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973). On appeal, the parties –
particularly the plaintiff – similarly have devoted large
portions of their briefs to that question. As we recently
explained in Brady v. Office of the Sergeant at Arms,
however, “the prima facie case is a largely unnecessary
sideshow.” 2008 WL 819989, at *3 (D.C. Cir. 2008). As
Supreme Court precedents establish, the prima-facie-case
7
aspect of McDonnell Douglas is irrelevant when an employer
has asserted a legitimate, non-discriminatory reason for its
decision – as an employer almost always will do by the
summary judgment stage of an employment discrimination
suit. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-
11 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 714-16 (1983); see also Rodgers v. U.S. Bank, N.A.,
417 F.3d 845, 856 (8th Cir. 2005) (Colloton, J., concurring in
judgment); Wells v. Colorado Dep’t of Transp., 325 F.3d
1205, 1221, 1224-28 (10th Cir. 2003) (Hartz, J., concurring).
Therefore, if an employer asserts a legitimate, non-
discriminatory reason for an adverse employment action, the
district court must conduct one central inquiry in considering
an employer’s motion for summary judgment or judgment as
a matter of law: whether the plaintiff produced sufficient
evidence for a reasonable jury to find that the employer’s
asserted non-discriminatory reason was not the actual reason
and that the employer intentionally discriminated against the
plaintiff on a prohibited basis. See Brady, 2008 WL 819989,
at *2-3.
As we explained in Brady and as this case again
illustrates, this streamlined approach will assist courts and
litigants alike. The district courts can focus on the key
question of discrimination without slogging through the
McDonnell Douglas prima facie factors, which in any event
do little more than generate “enormous confusion.” Id. at *3.
And litigants need not devote briefing and oral argument to
the often difficult and usually irrelevant prima-facie-case
question.1
1
Although the prima facie case is ultimately irrelevant here,
Adeyemi correctly points out that the District Court did not analyze
the factors that previous cases have identified. The District Court
asked whether Adeyemi: (1) had a disability; (2) was qualified for
the position; and (3) suffered an adverse employment action
8
B
In this disparate-treatment disability discrimination suit,
as in most cases that reach court, the parties do not dispute
that the plaintiff suffered an adverse employment action under
the statute – here, not being hired. DCPS has asserted a
legitimate, non-discriminatory reason for not hiring Adeyemi
– namely, that it hired Iqbal and Wang because they were
better qualified. We therefore turn directly to the central
issue: whether Adeyemi produced evidence sufficient for a
reasonable jury to find that the employer’s stated reason was
not the actual reason and that the employer intentionally
discriminated against Adeyemi based on his disability. When
considering whether summary judgment or judgment as a
matter of law is warranted for the employer in an employment
discrimination case, the court considers all relevant evidence
presented by the plaintiff and defendant. See Brady, 2008
WL 819989, at *3.
Adeyemi challenges DCPS’s qualifications-based
explanation on three main grounds.
because of his disability. In analyzing the third factor, the court
focused on the question of causation – that is, whether plaintiff was
not hired because of his disability. However, even under the
original McDonnell Douglas test that was used pre-Aikens, the
prima facie case did not require a full causation analysis in a
failure-to-hire case, but only asked whether after the rejection, “the
position remained open and the employer continued to seek
applicants from persons of complainant’s qualifications.”
McDonnell Douglas, 411 U.S. at 802. In any event, this further
illustrates our point that “[d]isagreement and uncertainty over the
content, meaning, and purpose of the McDonnell Douglas prima
facie factors have led to a plethora of problems,” thereby “wasting
litigant and judicial resources.” Brady, 2008 WL 819989, at *2 n.1,
*3.
9
First, according to Adeyemi, a reasonable jury could find
discrimination because he was not hired despite his high
ranking within the Level 11 applicant pool. But when an
employer says it made a hiring or promotion decision based
on the relative qualifications of the candidates, a plaintiff can
directly challenge that qualifications-based explanation only if
the plaintiff was “significantly better qualified for the job”
than those ultimately chosen. Holcomb v. Powell, 433 F.3d
889, 897 (D.C. Cir. 2006). The qualifications gap must be
“great enough to be inherently indicative of discrimination.”
Jackson v. Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007)
(internal quotation marks omitted). Only then could the fact-
finder “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. (internal
quotation marks omitted). In cases where the comparative
qualifications are close, a reasonable jury would not usually
find discrimination because the jury would “assume that the
employer is more capable of assessing the significance of
small differences in the qualifications of the candidates, or
that the employer simply made a judgment call.” Aka v.
Washington Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir. 1998)
(en banc); see also Jackson, 496 F.3d at 707. We must
“respect the employer’s unfettered discretion to choose
among qualified candidates.” Fischbach v. D.C. Dep’t of
Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996). To conclude
otherwise, we have said, “would be to render the judiciary a
super-personnel department that reexamines an entity’s
business decisions – a role we have repeatedly disclaimed.”
Jackson, 496 F.3d at 707 (internal quotation marks omitted).
The record here shows that Adeyemi was not as qualified
as either Iqbal or Wang – much less “significantly better
qualified,” as our cases require. Holcomb, 433 F.3d at 897.
10
Unlike Adeyemi, both Iqbal and Wang possessed the requisite
qualifications not just for the Level 11 position but also for
the higher-grade Level 12 position. Both Iqbal and Wang
also possessed significant experience that Adeyemi largely
lacked – Iqbal with mainframe computers and Wang with
PeopleSoft. To be sure, as Adeyemi notes, those particular
qualifications were not specifically mentioned in the vacancy
announcement. But they were fairly encompassed within the
announcement, which sought candidates with a broad range of
computer knowledge and skills. And as this Court has
explained, 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.” Jackson, 496 F.3d at 709.
Adeyemi points out that his interview score tied him for
fifth place among the 20 people who interviewed for the
Level 11 positions and that the Human Resources Department
ranked him fourth overall out of the 20 original applicants
deemed eligible for the Level 11 positions. For purposes of
summary judgment, we accept that characterization of the
scores. But the problem for Adeyemi is that those facts do
not show he was significantly better qualified than the two
successful candidates, Iqbal and Wang. To begin with the
obvious: Both Iqbal and Wang made the initial cut to be
interviewed for the higher-grade Level 12 positions.
Adeyemi did not make that cut. And the Level 12 cut
occurred before DCPS knew he was deaf, thereby establishing
that the initial Level 12 cut was not discriminatory, a point
Adeyemi does not contest. Wang interviewed only for the
Level 12 positions, so she was not even part of the Level 11
rankings that Adeyemi relies on. Iqbal interviewed for both
the Level 11 and Level 12 positions. But the record is silent
as to Iqbal’s overall rank in the Level 11 pool. Indeed, he
11
could have ranked first, second, or third in that Level 11 pool.
In any event, a slight difference in ranking would not show
that Adeyemi was “significantly better qualified,” particularly
given Iqbal’s mainframe experience and DCPS’s needs.
Adeyemi also notes that his interview score in isolation was
slightly higher than Iqbal’s Level 11 interview score, but such
small differences were considered “a wash.” Keyes
Deposition, J.A. 59. Moreover, as in most job hiring
situations, the interview score here was only one of many
factors DCPS considered in the hiring process; DCPS also
weighed the applicants’ experience and qualifications, as well
as DCPS’s needs.
Adeyemi also asserts that there is no contemporaneous
evidence of DCPS’s qualifications-based explanation. And
Adeyemi hints that DCPS has manufactured its justifications
after the fact. But the absence of contemporaneous evidence
is hardly unusual; employers ordinarily do not “publish a
contemporaneous statement of reasons every time they make
a hiring or firing decision.” Jackson, 496 F.3d at 710. We
therefore decline to find any significance in the timing of
DCPS’s explanation.
In short, under our precedents, the evidence of
comparative qualifications here does not raise an inference of
discrimination sufficient for Adeyemi to overcome summary
judgment; in fact, the evidence of Iqbal’s and Wang’s
superior qualifications tends to undermine any suggestion of
discrimination.
Second, Adeyemi argues that a reasonable jury could find
discrimination from the supposed “irregularities” in DCPS’s
hiring process – namely, that DCPS (i) re-advertised the Level
11 position after hiring the five incumbents and then (ii) hired
individuals for the Level 11 position from the separate Level
12
12 candidate pool. Adeyemi finds it suspicious that DCPS
passed over the remaining candidates in the Level 11 pool.
But this does not raise an inference of discrimination because
DCPS passed over all non-incumbent candidates. Keyes
declined to fill the two vacant Level 11 positions with any of
the numerous remaining Level 11 candidates because he was
not satisfied that they were the best he could find. He asked
Human Resources to re-advertise the positions because he
wanted a “star” who could take DCPS “to the next level.”
Keyes Deposition, J.A. 55. When that proved unattainable,
Keyes said “let’s settle for a doubles hitter, not a home-run
hitter.” Id. at 57. At that point, Keyes turned to the Level 12
pool. Keyes rationally considered the Level 12 applicants
superior to the Level 11 applicants because those who
qualified for the Level 12 position possessed greater
knowledge and experience. Moreover, Keyes had personally
interviewed the Level 12 candidates and testified that he felt
he knew them. A reasonable jury ordinarily cannot find
discrimination simply from the fact that an employer takes
extra steps to find better-qualified employees. Here,
therefore, we do not believe a reasonable jury could find
unlawful discrimination in the sequence of events by which
DCPS filled the final two Level 11 positions.
Third, Adeyemi points to statements made by DCPS
employee Thompson that, according to Adeyemi, evince a
discriminatory animus. As Adeyemi correctly argues, this
Court has held that a plaintiff may overcome summary
judgment by presenting specific evidence suggesting the
“decision maker harbors discriminatory animus.” Holcomb,
433 F.3d at 899. But Adeyemi has not presented sufficient
evidence to meet this standard.
Adeyemi focuses on one of Thompson’s interview
questions and Thompson’s subsequent explanation of that
13
question. During the interview, Thompson asked Adeyemi
how he communicated in offices where no one knew sign
language; during his deposition, Thompson explained that he
had asked that question because he did not know whether and
how a reasonable accommodation could be made. But the
Americans with Disabilities Act expressly permits employers
“to make preemployment inquiries into the ability of an
applicant to perform job-related functions”; therefore,
Thompson could lawfully inquire how Adeyemi would
perform specific job-related tasks. 42 U.S.C.
§ 12112(d)(2)(B), see 29 C.F.R. § 1630.14(a); 29 C.F.R. Pt.
1630, App. § 1630; ADA Enforcement Guidance:
Preemployment Disability-Related Questions and Medical
Examinations, http://www.eeoc.gov/policy/docs/medfin5.pdf.
We agree with the District Court that Thompson’s question
and discussion about possible accommodation were “entirely
appropriate” given the circumstances here. Adeyemi v.
District of Columbia, 2007 WL 1020754, at *18 (D.D.C.
2007). And contrary to Adeyemi’s argument, we see nothing
in Thompson’s deposition explanation of the interview to
suggest discriminatory animus.
In any event, Thompson was not the decisionmaker for
those positions. Rather, Keyes made the hiring decisions, and
he did not express any concern about DCPS’s ability to
accommodate Adeyemi. On the contrary, Keyes expressed
confidence that DCPS could and would accommodate
Adeyemi’s deafness if Adeyemi were hired.
In short, Thompson’s statements do not suffice for
Adeyemi to overcome summary judgment.
14
***
We affirm the judgment of the District Court granting
summary judgment to the District of Columbia.
So ordered.