Timothy Jeffries v. William Barr ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2019 Decided July 14, 2020
No. 17-5008
TIMOTHY JEFFRIES,
APPELLANT
v.
WILLIAM P. BARR, ATTORNEY GENERAL, U.S. DEPARTMENT
OF JUSTICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01007)
Jerry R. Goldstein argued the cause and filed the briefs for
appellant.
Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Jessie K. Liu, U.S.
Attorney, and R. Craig Lawrence and Marsha W. Yee,
Assistant U.S. Attorneys.
Before: PILLARD, WILKINS and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
2
Opinion concurring in part and dissenting in part filed by
Circuit Judge PILLARD.
WILKINS, Circuit Judge: Timothy Jeffries brought suit
against the Department of Justice (“DOJ”) under Title VII of
the Civil Rights Act of 1964, alleging discrimination on the
basis of his race and his sex, as well as retaliation for protected
activity. Specifically, he cites seven instances of being passed
over for positions for which he believes he was qualified. DOJ
moved for summary judgment before any formal discovery had
taken place, and the District Court granted that motion. At the
same time, the District Court denied Jeffries’s motion, brought
under Federal Rule of Civil Procedure (“Rule”) 56(d),
requesting to be allowed to take discovery.
In one sense, the posture of this case seems out of order,
as a motion for summary judgment typically follows the
conduct of at least some formal discovery rather than preceding
it entirely. But Rule 56(b) provides that, with certain
exceptions inapplicable here, “a party may file a motion for
summary judgment at any time until 30 days after the close of
all discovery.” FED. R. CIV. P. 56(b) (emphasis added). A
nonmovant may well be surprised by an early-filed summary-
judgment motion, but the timing of such a motion need not be
a death knell: The Rules also iterate that relief – including
discovery – may be obtained by a nonmovant who makes the
required showing. See id. 56(d).
In the case at bar, the District Court determined that
Jeffries failed to make that showing as to each one of the
disputed nonselections. For the most part, we find that the
District Court acted within its discretion in so finding – with
the notable exception of the handling of Jeffries’s quest for
discovery on his first nonselection. In that respect, the District
Court’s denial of Jeffries’s Rule 56(d) motion was premised on
3
error and was thus an abuse of discretion. We therefore vacate
the District Court’s entry of judgment as to that nonselection
and reverse its denial of the relevant portion of Jeffries’s Rule
56(d) motion. But perceiving neither genuine issues of
material fact nor any abuse of discretion in the District Court’s
treatment, respectively, of DOJ’s motion for summary
judgment or Jeffries’s Rule 56(d) motion with regard to the
second through seventh nonselections, we affirm on those
claims the District Court’s entry of judgment in DOJ’s favor
and its denial of Jeffries’s Rule 56(d) motion.
I.
We recite the facts based upon the parties’ summary-
judgment filings below, considering those facts in the light
most favorable to Jeffries. See Wilson v. Cox, 753 F.3d 244,
245 (D.C. Cir. 2014).
The Office of Justice Programs (“OJP”) is a component of
DOJ, and the Bureau of Justice Assistance (“BJA”) is a bureau
of OJP. Timothy Jeffries is an African-American male who
has been employed with OJP since 2000 and with BJA since
2002. Sometime between his hire and 2008, Jeffries filed three
complaints against DOJ with the Equal Employment
Opportunity Commission (“EEOC”). These complaints were
consolidated and were the subject of a March 2008 settlement
agreement, which resulted in Jeffries’s reassignment to a GS-
13 Policy Advisor position in the Substance and Mental Health
Division (“SAMH”) of BJA, the position he held while this
case was pending below.
Priority Consideration and First Nonselection (Supervisory
Grants Program Manager)
In 2006, Jeffries was not interviewed for a GS-14 Program
Analyst position in SAMH due to an error with the processing
4
of his application. On July 30, 2007, as a result of this lack of
consideration, OJP issued Jeffries a “priority consideration”
letter, which provided that Jeffries would “receive priority
consideration for the next open position similar and in the same
geographical area to the one [for] which proper consideration
was missed,” and that such consideration would “be granted to
[Jeffries] prior [to DOJ] issuing public notice of the vacancy.”
J.A. 546. The letter also said that Jeffries would be notified in
writing when priority consideration had taken place.
Regarding priority consideration, OJP’s Merit Promotion Plan
provides that candidates afforded priority consideration
are considered by the selecting official, ahead of
other candidates for a particular job vacancy.
Priority consideration does not place conditions
on the selecting official’s right to select or not
to select from any appropriate source at any
point in the recruitment and staffing process. A
candidate who receives priority consideration is
entitled to such consideration until referred for
the next open similar position in the same
geographical areas to one for which
consideration was missed.
Id. 94-95. At oral argument, DOJ conceded that, when priority
consideration is normally being applied, the candidate gets the
first interview and a decision “up or down” on her candidacy
before other candidates are considered. Oral Arg. Recording
13:48-13:59.
On March 29, 2011, Jeffries notified the human resources
department at OJP of his desire to use the letter for a GS-14
Supervisory Grants Program Manager position, for which two
vacancies had already been publicly announced. Jeffries does
not contend that the Supervisory Grants Program Manager
5
position was similar to the Program Analyst position (as would
have triggered the automatic use of his priority consideration
letter). After Jeffries invoked his priority consideration letter,
but prior to his interview, OJP personnel compiled a list of
“best qualified” applicants for the Supervisory Grants Program
Manager position. J.A. 566-71.
Jeffries was interviewed on May 11, 2011. The interview
panel consisted of Edmund Aponte (Hispanic male), Tammy
Reid (African-American female), and Jonathan Faley
(Caucasian male). All of the panelists were aware of Jeffries’s
having engaged in previous equal employment opportunity
(“EEO”) activity, and indeed Faley and Aponte had been
named as responsible management officials in Jeffries’s prior
EEO complaints.
Aponte and Reid later indicated that they had compared
Jeffries’s qualifications to those of other applicants. DOJ
conceded at oral argument that such comparisons are generally
“not kosher” in the context of priority consideration and that
they occurred in this instance. Oral Arg. Recording 15:47-
16:04. There is a factual dispute as to whether the panelists
told Jeffries at the conclusion of his interview that they had to
interview other applicants before making a decision.
On July 29, 2011, OJP’s human resources department
informed Jeffries via letter that he had not been selected for the
Supervisory Grants Program Manager position, and included
four critiques of his interview performance, explaining that he
had not demonstrated his fitness for the position. Tracey
Trautman, the selecting official,1 noted in a later affidavit that
1
Jeffries attempts to create a dispute of fact as to the identity of the selecting
official, but cites only his own declaration that he “was told via email by
HR that the selecting official was James Burch[.]” J.A. 466; see Appellant’s
6
Jeffries had provided the panel with a writing sample
containing spelling and grammatical errors, and that the
panelists’ notes indicated that Jeffries had failed to give
complete answers to several interview questions. The
panelists’ notes corroborate the incompleteness of some of
Jeffries’s answers. The panel interviewed other applicants in
September 2011. The ultimate selectees were Naydine Fulton-
Jones (African-American female) and Esmerelda Womack
(Caucasian female). Neither selectee had previously filed a
formal EEO complaint against DOJ.
Second Nonselection (Special Assistant)
In September 2011, DOJ advertised a vacancy for a
Special Assistant, a GS-13/14 position. The interview panel
consisted of Patrick McCreary (Caucasian male), Ruby
Qazilbash (Caucasian and Asian female), and Ellen Williams
(African-American female). The panel interviewed eight
applicants in total, scoring each of them on their interview
(representing 35% of the total score), work history (20%),
experience (35%), and “[r]esume – [e]ducation” (10%). J.A.
159. The Interview Guide for the Special Assistant position
contained a five-point proficiency scale and allowed panel
members to assign applicants a score for each of the fourteen
interview questions. The interview panel discussed the
applicants and “had the opportunity to reconcile the scores they
attributed to candidates based upon this discussion and the
opportunity for clarification.” Id. 154. Williams’s interview
Br. 30. The best evidence rule, together with this Circuit’s precedent,
preclude consideration of Jeffries’s statement. See FED. R. EVID. 1002;
Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369
(D.C. Cir. 2000) (“While a nonmovant is not required to produce evidence
in a form that would be admissible at trial, the evidence still must be capable
of being converted into admissible evidence.” (emphasis in original)).
7
scoresheet for Jeffries’s interview (which is the only scoresheet
from this selection in the record) shows that Williams changed
her scores in three instances, each time downgrading Jeffries
by one point on the scale.
Jeffries was interviewed on December 2, 2011. Neither
Williams nor McCreary was aware at the time of Jeffries’s
interview of any of his prior EEO complaints. Qazilbash
averred in May 2012 that she learned in 2008 that Jeffries was
being transferred onto her team as a result of some sort of
settlement, which she “assumed to be EEO-related,” and that
in March 2011 she was informed that Jeffries would be
afforded priority consideration “as a result of an EEO-related
settlement a few years earlier[.]” Id. 125-26. In August 2012,
Qazilbash averred that she had learned of EEO complaints or
pre-complaints filed by Jeffries on July 1, 2011, December 28,
2011, and April 17, 2012.
The selectee was Cornelia Sorensen Sigworth (Caucasian
female). Shortly before the vacancy announcement was
posted, Sigworth was given a special assignment to work with
grant-funded programming and technical assistance to Puerto
Rico. The interview panel scored her higher than Jeffries in
three of the four categories, and she tied with him in the
“[r]esume – [e]ducation” category. Id. 159. Overall, Jeffries
was ranked sixth of the eight applicants, with a combined score
of 76.09 out of 100, and Sigworth scored 95.7 and was ranked
first. Sigworth had made no prior formal EEO complaints
against DOJ.
Sigworth and Qazilbash were part of a self-described
“mommies group” at BJA whose members spent time together
outside of work. Id. 464. Another member of this group, Kim
Ball Norris, expressed to a supervisee her belief that Jeffries
held his then-current position only because of his race and EEO
8
activity, and professed an intention to get Jeffries and another
African-American employee fired.
Third Nonselection (Senior Policy Advisor for Evidence
Integration)
DOJ advertised an opening for a Senior Policy Advisor for
Evidence Integration in October 2012. Six candidates were
interviewed by a panel that consisted of Aponte, Elizabeth
Griffith (Caucasian female), and either Rebecca Rose
(Caucasian female) or Kristina Rose (Caucasian female).
Kristina Rose participated in Jeffries’s interview. It appears
that Jeffries’s interview took place in November or December
2012.
Aponte had learned of Jeffries’s EEO activity in 2007, and
evidently learned of it again in August 2012 when he
completed an EEO-related affidavit. Griffith became aware of
Jeffries’s EEO activity at some unspecified point in time,
having been deposed twice in connection with his prior EEO
cases. Kristina Rose was not aware of Jeffries’s prior EEO
activity.
The panel interviewed six candidates and reached a
“strong consensus” that Edward Banks (African-American
male) and Kristina Kracke (female of unknown race) “were
clearly the top candidates” and were recommended for a
second interview.2 Def.’s Statement of Material Facts (“SMF”)
Ex. 19, ECF No. 7-3 at 175, Jeffries v. Lynch, 217 F. Supp. 3d
214 (D.D.C. 2016), No. 15-cv-01007. Banks was ultimately
2
Jeffries asserts without citation to the record that neither Banks nor Kracke
had engaged in “prior EEO activity.” Appellant’s Br. 40. We take no view
on Jeffries’s unsupported contention that, when they interviewed for the
Senior Policy Advisor for Evidence Integration position, Banks and Kracke
had engaged in no “prior EEO activity.”
9
selected. According to Aponte, Banks had a Ph.D, had
published articles on evidence integration, and scored a 5 out
of 5 in the application process, whereas Jeffries scored a 1.6.
Kristina Rose stated that Banks “scored the highest on the
interview[]” and that Jeffries “scored the lowest of all the
candidates.” J.A. 121.
Fourth Nonselection (Administrative Services and Logistics
Director)
In October 2012, DOJ posted a vacancy for an
Administrative Services and Logistics Director. The interview
panel consisted of Shanetta Cutlar (African-American female),
Hope Janke (Caucasian female), and Kristen Mahoney
(Caucasian female). There were only two applicants: Michelle
Martin (Caucasian female) and Jeffries. Martin was
recommended for a second-round interview, while Jeffries was
not. The candidates were assessed on their resume, “[w]ork
[e]xperience (KSAs)”,3 interview performance, and work
history. See Lynch, Def’s SMF Ex. 25, ECF No. 7-3 at 221.
Mahoney gave Jeffries an overall score of 77 and Martin a 90;
Janke gave Jeffries a 71 and Martin an 84; and Cutlar gave
Jeffries a 63 and Martin a 73. Cutlar (the only panelist whose
affidavit is in the record) stated that Martin’s “experience
related more to the qualifications and the job advertisements,”
while Jeffries “readily identified that he did not have the
experience in the area.” J.A. 180.
3
KSAs stands for “[k]nowledge, [s]kills, and [a]bilities.” Appellant’s Br.
viii; Appellee’s Br. 37.
10
Fifth Nonselection (Supervisory Grants Management
Specialist)
In November 2012, DOJ posted a vacancy for a
Supervisory Grants Management Specialist. The
announcement stated that there was one vacancy, but in fact
two applicants were selected. Prior to the posting of the
vacancy, the position was downgraded from a GS-14 position
to a GS-13/14 position. Cory Randolph, a biracial African-
American and Caucasian male who was one of the selectees,
was at the time ineligible for a GS-14 position. Jonathan Faley,
an OJP supervisor, encouraged Randolph and a handful of
other people to apply.
The first-round interview panel was made up of Kellie
Dressler (Caucasian female), Aponte, and Faley. Four
candidates, including Jeffries, were interviewed in the first
round. The ultimate selectees – Randolph and Brenda
Worthington (Caucasian female) – received second-round
interviews, which were conducted by Trautman and Denise
O’Donnell (Caucasian females). Prior to his second-round
interview, Randolph received an email from the vice president
of his union congratulating him “on the [j]ob.” Id. 818, 820-
22.
The members of the first-round interview panel stated that
Jeffries failed to fully answer the interview questions and to
demonstrate that he had relevant experience or abilities, and
that the selectees performed better in both these regards. The
record does not reveal the date(s) of the first-round interviews,
but the second-round interviews took place on February 13,
2013. On March 1, 2013, Trautman and Faley had an email
exchange in which they discussed having jokingly told others
that Jeffries had been selected for this position.
11
Sixth Nonselection (Senior Policy Advisor for Byrne Criminal
Justice Innovation/Building Neighborhood Capacity
Programs)
In late 2012 and early 2013, thirteen applicants were
interviewed in the first round by one of two three-person
panels. The panel that interviewed Jeffries was made up of
Banks, David Adams (Caucasian male), and Rebecca Rose.
The parties agree that Jeffries’s first-round panel interviewed
the ultimate selectee as well. After the first round of
interviews, applicants were assigned scores based on their
interview, resume, experience, and work history; Jeffries was
ranked fourth with a total score of 62.80, and the ultimate
selectee, Alissa Huntoon (Caucasian female), was ranked first
with a score of 93.73. Although initially only Huntoon and the
second-highest-scoring candidate were recommended for
second-round interviews, six candidates, including Jeffries,
received second-round interviews with Griffith, Mahoney, and
O’Donnell. Huntoon was given the position. As the February
2013 memorandum recommending Huntoon stated, “[t]he
management team concluded that [Huntoon] stood out in
particular in two areas that are core to the skills needed . . . :
Subject matter expertise . . . [and] Strong Policy Orientation
and Project Leadership.” See Lynch, Def.’s SMF Ex. 40, ECF
No. 7-4 at 33 (discussing Huntoon’s qualifications at some
length).
In December 2012, prior to her selection, Huntoon was one
of a number of BJA employees invited to a meeting with
personnel from the National Institute of Justice (“NIJ”). The
stated purpose of the meeting was to share information and find
potential areas of collaboration. Huntoon and the other invitees
were asked to speak about their work.
12
Seventh Nonselection (Senior Policy Advisor for Health and
Criminal Justice)
In April 2014, DOJ posted a vacancy for a Senior Policy
Advisor for Health and Criminal Justice. According to his
resume, Jeffries had served in this position in an acting capacity
from June to August 2010. The first-round interview panel for
the 2014 selection was made up of Sigworth, Anna Johnson
(female of unknown race), and Michael Dever (Caucasian
male). Based on numerical scores given for resume,
experience, interview, and work history, Jeffries was ranked
fifth of eight interviewees after the first round with a 4.5.
Danica Binkley (Caucasian female), the ultimate selectee, was
ranked third with a 4.7. The five top candidates received a
second interview. The second-round interviews were
conducted by a panel consisting of O’Donnell, Mahoney, and
Qazilbash. In a June 30, 2014, memorandum recommending
Binkley’s hire, Qazilbash stated that Binkley “became the top
candidate” during the second round of interviews. J.A. 229.
Qazilbash further stated that Binkley
demonstrated strong communication skills,
provided complete responses to all questions,
was motivated and detail oriented, and had an
advanced understanding of the technical
qualifications of the position. . . . Ms. Binkley
has experience with each major aspect of the
portfolio . . . . She has performed to a very high
level in her work as a policy advisor within the
Substance Abuse and Mental Health portfolio
including meeting significant challenges in
managing difficult projects [and] developing
communication materials at an advanced policy
level[,] and has proven her skills to develop new
ideas and programming.
13
Id. 229-30; see also id. 210 (affidavit of O’Donnell discussing
Binkley’s qualifications), 219 (affidavit of Mahoney
discussing the same), 226 (affidavit of Qazilbash stating that
Binkley’s qualifications “were demonstrated through her
resume and interview responses”). The panelists cited
Jeffries’s difficulty “articulating a vision,” id. 210; accord id.
219, 226, and noted that his responses to questions lacked
depth, see id. 210 (“His responses during the interview process
focused more on process than substance.”), 219 (“He left the
impression during the interview that this focus or policy
perspective is one dimensional[.]”), 227 (“[Jeffries] indicated
that he does not have an understanding of priority work in the
mental health side of the portfolio, and has limited
understanding of the healthcare coverage priority area.”).
II.
Jeffries timely filed EEOC complaints regarding each of
the seven nonselections.4 Written discovery was undertaken
only with regard to Jeffries’s complaint over the second
nonselection, but some documents related to the other
nonselections were produced in said discovery. Jeffries then
filed the instant action against the then-Attorney General.5
Prior to the conduct of any formal discovery in this case,
DOJ moved for judgment on the pleadings, or for summary
4
Jeffries also made complaints to EEOC regarding “several instances where
he did not receive cash and time-off awards like his coworkers.” J.A. 900.
These issues were included in his complaint to the District Court and were
also encompassed within the District Court’s grant of summary judgment
to DOJ. Jeffries does not, however, raise those claims before this Court.
5
DOJ concedes in its brief to this Court that Jeffries filed suit “[a]fter
enough time had passed without resolution by the Commission[.]”
Appellee’s Br. 7.
14
judgment in the alternative, relying on extensive
documentation apparently produced in the course of EEOC
proceedings. Along with his opposition to DOJ’s motion,
Jeffries filed a motion for relief under Rule 56(d) and an
accompanying declaration of counsel, requesting an order
allowing Jeffries to take discovery. Jeffries sought broad
discovery on each nonselection, asserting that “the facts
developed” thereby would “demonstrate that [DOJ’s]
rationales for not selecting Jeffries for any of the positions in
issue . . . are pretext and that the true reasons are discrimination
and/or retaliation.” J.A. 898.
Having before it DOJ’s sixty-two exhibits and Jeffries’s
sixty-six, and finding no genuine dispute of material fact, the
District Court granted DOJ’s motion for summary judgment.
Lynch, 217 F. Supp. 3d 214. The District Court also denied
Jeffries’s Rule 56(d) motion in a series of footnotes to its
Memorandum Opinion, holding that Jeffries’s filings did not
meet the first requirement set forth in Convertino v. U.S.
Department of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012): that
is, they did not “outline the particular facts [Jeffries] intend[ed]
to discover and describe why those facts are necessary to the
litigation,” Lynch, 217 F. Supp. 3d at 227; see id. 232 n.13, 235
n.16, 236 n.17, 238 n.19, 241 n.21, 243 n.23, 246 n.24.6
6
After filing a notice of appeal of the District Court’s order, Jeffries moved
this Court to remand the case, citing the need to explore allegations
contained in a May 2017 email from Jeffries’s union president that one of
the interview panelists for several of the nonselections at issue had
committed various acts of sexual impropriety with women in BJA. Jeffries
also filed in the District Court a motion for relief from judgment, pursuant
to Federal Rule of Civil Procedure 60(b)(2), on the same basis. The District
Court denied the motion without prejudice via a minute order, citing
Jeffries’s motion to remand. This Court then held the parties’ motions for
summary affirmance and summary reversal in abeyance and directed the
15
III.
We consider first the District Court’s denial of Jeffries’s
Rule 56(d) motion.
Rule 56(d) provides an avenue for relief for nonmovants
who can show, by affidavit or declaration, that “for specified
reasons” they “cannot present facts essential to justify” their
opposition to summary judgment. FED. R. CIV. P. 56(d). A
successful Rule 56(d) motion can result in a district court’s
deferring consideration of a pending summary judgment
motion, denying the motion, allowing time to take discovery,
or issuing “any other appropriate order.” Id. To obtain relief,
a Rule 56(d) movant must: (1) “outline the particular facts [the
party defending against summary judgment] intends to
discover and describe why those facts are necessary to the
litigation”; (2) explain why the party could not produce those
facts in opposition to the pending summary-judgment motion;
District Court to address the merits of Jeffries’s 60(b) motion. Following
the District Court’s denial of Jeffries’s motion for relief from judgment, this
Court denied the motions for summary reversal, summary affirmance, and
remand, noting that Jeffries had not filed an amended notice of appeal to
include the District Court’s denial of his Rule 60(b) motion, meaning that
denial “is not properly before this [C]ourt.” No. 17-5008, May 9, 2018
Order, at 1. The Court further noted that Jeffries had not shown “why this
[C]ourt should depart from its ordinary practice and consider his new
evidence on appeal.” Id.
Jeffries cites repeatedly to the May 2017 email in his briefing, arguing that
it creates a factual dispute as to whether the panelist in question favored
female applicants for several of the at-issue positions in an attempt to curry
favor with them to nefarious ends. In light of the Court’s earlier ruling on
this issue, we do not consider those of Jeffries’s arguments that are premised
on the May 2017 email.
16
and (3) “show [that] the information is in fact discoverable.”
Convertino, 684 F.3d at 99-100.
We review the denial of a Rule 56(d) motion for abuse of
discretion. Cruz v. McAleenan, 931 F.3d 1186, 1191 (D.C. Cir.
2019). A district court’s error of law is “by definition” an abuse
of discretion, so our review comprehends ensuring “that the
discretion was not guided by erroneous legal conclusions.”
Koch v. Cox, 489 F.3d 384, 388 (D.C. Cir. 2007) (citation
omitted). But “[o]ur review for abuse of discretion does not
permit us to substitute our judgment for that of the trial court.”
United States v. Mathis-Gardner, 783 F.3d 1286, 1288 (D.C.
Cir. 2015) (citation and internal quotation marks omitted).
“Trial courts have a broad discretion in discovery matters and
appellate courts will reverse only for abuse for action which is
arbitrary, fanciful, or clearly unreasonable.” In re Multi-Piece
Rim Prods. Liab. Litig., 653 F.2d 671, 679 (D.C. Cir. 1981)
(internal quotation marks omitted).
Though “[s]ummary judgment usually ‘is premature unless
all parties have had a full opportunity to conduct discovery,’”
Haynes v. D.C. Water & Sewer Auth., 924 F.3d 519, 530 (D.C.
Cir. 2019) (quoting Convertino, 684 F.3d at 99), a Rule 56(d)
motion “must be resolved through ‘application of the
Convertino criteria to the specific facts and circumstances
presented in the request,’ rather than on the basis of
presumptions about a given stage of litigation,” id. (quoting
U.S. ex rel. Folliard v. Gov’t Acquisitions, Inc., 764 F.3d 19,
27 (D.C. Cir. 2014)). This Court has regularly looked beyond
a litigant’s declaration to his briefing in analyzing whether the
Convertino elements have been satisfied. See, e.g., Haynes,
924 F.3d at 531; Smith v. United States, 843 F.3d 509, 513
(D.C. Cir. 2016); Ikossi v. Dep’t of Navy, 516 F.3d 1037, 1045-
46 (D.C. Cir. 2008).
17
The District Court’s reasoning in denying Jeffries’s Rule
56(d) motion was based on the first Convertino element. The
District Court explained that Jeffries had failed to outline what
facts he hoped to discover and why those facts were necessary
to support his claims. See Lynch, 217 F. Supp. 3d at 232 n.13,
235 n.16, 236 n.17, 238 n.19, 241 n.21, 243 n.23, 246 n.24.
Jeffries makes a general statement that the District Court
abused its discretion by ruling that his discovery requests were
either irrelevant or vague, but he never develops the argument.
Instead, he lists in general terms the discovery he seeks and
essentially reargues his Rule 56(d) motion. But we do not find
an abuse of discretion based on whether we, if standing in the
District Court’s shoes, would have granted the motion. See
Mathis-Gardner, 783 F.3d at 1288. Rather, Jeffries must
contend with the applicable standard of review, which here
means showing either a legal error in the District Court’s
reasoning or a basis for this Court to conclude that the District
Court’s action was “arbitrary, fanciful, or clearly
unreasonable.” In re Multi-Piece Rim Prods. Liab. Litig., 653
F.2d at 679.
With respect to the second through seventh nonselections,
the District Court acted within its discretion in ruling as it did.
It is true that this Court has displayed a willingness to apply the
criteria iterated in Convertino less than stringently; in Ikossi,
for example, we excused the relative “lack of precision” of an
affidavit that sought the depositions of a Title VII plaintiff’s
supervisors, finding that the stated desire to discover “their
motivations in taking disciplinary action against” the plaintiff
made “the nature of the evidence [sought]” “self-evident.” 516
F.3d at 1045. Here, though, Jeffries’s brief and his counsel’s
declaration are quite far removed from Jeffries’s claims.
Rather than being directed at “particular facts,” Jeffries’s
filings in the District Court express a desire to discover general
18
facts about what happened. See, e.g., J.A. 902 (“[T]here are
many ambiguous and unknown facts with respect to each of the
non-selections . . . in issue which are essential to Jeffries’[s]
opposition to the Defendant’s Motion, as well as to proving his
case at trial.”), 890 (“[T]he panelists for this position need to
be deposed to explain their notes and scoring and exactly what
occurred during the interview process.”).
And even were we to construe the broad categories of
information sought as constituting “particular facts” under
Convertino, Jeffries simply does not “describe why those facts
are necessary to the litigation.” Convertino, 684 F.3d at 99.
Said differently, Jeffries does not state in his Rule 56(d) filings
how the information he seeks would assist him in creating a
genuine issue of material fact. Indeed, far from connecting the
requested discovery to the substance of his claims, Jeffries
barely even mentions his claims in his Rule 56(d) filings, and
those few included references are in very broad terms. See,
e.g., J.A. 898 (“It is anticipated that the facts developed through
the depositions and other discovery sought . . . will demonstrate
that the Defendant’s rationales for not selecting Jeffries for any
of the positions in issue . . . are pretext and that the true reasons
are discrimination and/or retaliation.”), 902 (“[F]urther
discovery is needed as to all of the selections . . . in issue to
demonstrate that the rationales asserted by the Defendant for
not selecting Jeffries are pretext and the true reasons are
discrimination and/or retaliation.”). We cannot say the District
Court abused its discretion in concluding, as to the second
through seventh nonselections, that Convertino requires more.7
7
Our dissenting colleague, analogizing Jeffries’s Rule 56(d) filings to
commensurate filings in Chappell-Johnson v. Powell, 440 F.3d 484 (D.C.
Cir. 2006), and Ikossi, 516 F.3d 1037, asserts that we should find the District
Court to have abused its discretion in denying Jeffries’s Rule 56(d) motion,
19
see Dissenting Op. at 7-8. But in Chappell-Johnson, we had no occasion to
address whether the plaintiff’s filings were sufficiently detailed, because the
issue there presented was the district court’s error in confining the plaintiff
to a particular legal theory. 440 F.3d at 487 (noting that the district court
had denied plaintiff’s motion for discovery on finding that, as pled, the
plaintiff’s claim “necessarily failed”); id. at 488-89 (explaining the legal
error and reversing the district court’s denial of the motion for discovery on
that basis).
And while in Ikossi we did engage in a relevant discussion of the sufficiency
of the plaintiff’s filings, 516 F.3d at 1045-46, those filings, as already noted,
stand in contrast to Jeffries’s. The affidavit submitted in support of Ikossi’s
request for discovery set forth in some detail both the information sought in
the requested discovery and how that information was pertinent to Ikossi’s
prosecution of her case. See, e.g., Aff. of Michael D. Kohn Submitted
Pursuant to Rule 56[(d)] Fed R. Civ. P., ECF
No. 10-2 at ¶ 3, Ikossi v. England, 406 F. Supp. 2d 23 (D.D.C. 2005), No.
04-cv-1392 (“Each of the [prospective deponents] possesses substantial
relevant information pertaining to Defendants’ motives for taking the
challenged disciplinary actions against Plaintiff.”); id. at ¶ 4 (“Plaintiff’s
first-level supervisor . . . is in possession of information regarding
Plaintiff’s claims that her work performance was acceptable.”); id. at ¶ 5
(prospective-deponent supervisor “initiated Defendants’ official personnel
actions against Plaintiff” and “therefore has direct knowledge of
Defendants’ motives for terminating Plaintiff”); id. at ¶ 7 (“Plaintiff should
be afforded the opportunity to depose [her supervisor] to determine whether
he was motivated to take action against Plaintiff for discriminatory or
retaliatory reasons.”). While noting that the affidavit “d[id] not identify
precisely what evidence it is hoped will be discovered,” we observed that
“[t]his lack of precision does not make any less self-evident . . . the nature
of the evidence Dr. Ikossi seeks[.]” 513 F.3d at 1045.
The circumstances in Ikossi are to be contrasted with those here present.
Jeffries’s Rule 56(d) filings lack even the precision of those in Ikossi, and
instead are cast in very general terms. See, e.g., J.A. 891-93 (listing
purported irregularities with a nonselection and simply concluding that,
“[b]ased on these irregularities, [several named people] need to be
deposed”); id. 902 (“[T]here are many ambiguous and unknown facts with
respect to each of the non-selections . . . in issue which are essential to
Jeffries’ opposition to the Defendant’s Motion[.]”). The infirmities of
20
The District Court’s ruling on that portion of Jeffries’s Rule
56(d) motion that addressed his first nonselection, however, is
a different story. Here we find that the District Court abused
its discretion in denying the motion, as the denial was premised
in part on an erroneous view that the discovery sought about
the priority consideration was “irrelevant.” Lynch, 217 F.
Supp. 3d at 232 n.13; see id. at 230 n.10 (holding that any claim
premised on the priority consideration itself “fails at the
threshold”).8 In so holding, the District Court failed to
appreciate the relevance of the priority consideration to
Jeffries’s claim over the first nonselection.
DOJ conceded at oral argument that (1) when a candidate
gets priority consideration under normal circumstances, it is
improper for the interview panelists to compare that
candidate’s qualifications with others’, Oral Arg. Recording
Jeffries’s motion and affidavit take his filings outside the ambit of Ikossi,
such that we cannot say that the District Court abused its discretion in
finding that Jeffries failed to “outline the particular facts he intends to
discover and describe why those facts are necessary to the litigation.”
Convertino, 684 F.3d at 99.
Convertino is the law of the Circuit. Were we to conclude that the District
Court abused its discretion in not finding Jeffries’s Rule 56(d) filings to
have satisfied Convertino’s first prong, we would be diluting the dictates of
Convertino to such a degree as to functionally overrule them. This is
something that we, sitting as a three-judge panel, cannot do. See LaShawn
A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc) (“One three-
judge panel . . . does not have the authority to overrule another three-judge
panel of the court.”).
8
Because we find that the District Court erred in denying Jeffries’s Rule
56(d) motion with regard to priority consideration due to its relevance to
Jeffries’s claims over the first nonselection, we need not and do not reach
the separate questions of whether a failure to afford priority consideration
constitutes an adverse employment action or whether Jeffries would be
entitled to discovery on the priority-consideration claim standing alone.
21
15:47-16:04, and (2) there is some indication that the panelists
who interviewed Jeffries for the Supervisory Grants Program
Manager position made comparisons between Jeffries and
other applicants, id. 16:40-17:12. (This latter point is
supported by the record. See J.A. 78, 637.) DOJ contends that
any deviations from its standard priority consideration
procedure were the result of Jeffries’s belated invocation of his
priority consideration letter. But nothing about the fact that
Jeffries did not request to use the letter until after the vacancies
had posted compelled the panelists to make comparisons
between Jeffries and the other candidates. In other words, there
was an unexplained deviation from DOJ’s standard practices –
and such a deviation “can justify an inference of discriminatory
motive.” Lathram v. Snow, 336 F.3d 1085, 1093 (D.C. Cir.
2003). Of course, “[a]n employer’s failure ‘to follow its own
regulations and procedures, alone, may not be sufficient to
support’ the conclusion that its explanation for the challenged
employment action is pretextual,” Fischbach v. D.C. Dep’t of
Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (quoting Johnson
v. Lehman, 679 F.2d 918, 922 (D.C. Cir. 1982)) – but such a
failure is certainly not irrelevant.
Moreover, some of the discovery Jeffries sought with
respect to the priority consideration has the potential to call into
question the credibility of the panelists and the selecting
official, on whose stated observations and judgments DOJ
relied for its legitimate, nondiscriminatory reason for Jeffries’s
nonselection. Jeffries proffered evidence indicating that
Naydine Fulton-Jones, one of the ultimate selectees, was
interviewed either before he was interviewed or before he
received notice that he was not selected – in any case, prior to
September 2011, which is when all three panelists and Tracey
Trautman averred that the competitive interviewing took place.
Although this evidence is inadmissible hearsay and cannot
itself create a genuine issue of fact, Jeffries sought in his Rule
56(d) motion to depose Fulton-Jones on this issue. Such
22
deposition testimony from Fulton-Jones, which likely would be
admissible, could call into question the veracity of DOJ’s
proffered reason for Jeffries’s nonselection for this position.
Such testimony could also clarify whether DOJ failed to follow
its standard priority consideration practices in this regard.
Again, discovery on this issue is not irrelevant.
And in light of other record evidence relating to this
nonselection, we do not believe the District Court’s error here
to have been harmless. See 28 U.S.C. § 2111. For instance,
the record reveals that DOJ generated a “best qualified” list of
applicants for this position after Jeffries’s invocation of the
priority consideration letter but prior to his interview and
rejection, J.A. 569, which appears to be an additional departure
from DOJ’s standard practices for priority consideration.
There is also a dispute of fact as to whether the panelists told
Jeffries at the conclusion of his interview that they had to
interview other candidates before making a decision. See id.
71 (Faley affidavit), 466 (Jeffries’s declaration), 640 (Reid
affidavit). And there is an unresolved question – not addressed
below – as to whether Jeffries may be entitled to an adverse
inference on the basis of DOJ’s apparent destruction of
documents pertaining to this nonselection.9 In view of the
existing record and DOJ’s concessions regarding the panelists’
comparisons between Jeffries and other applicants, the
9
In opposing DOJ’s summary-judgment motion, Jeffries pointed out that
DOJ claimed, in its answers to interrogatories proffered in EEOC
proceedings, to have destroyed some of the records with respect to the first
nonselection “‘on or about November 6, 2013’ pursuant to its policy of only
maintaining them for two years from the selection date.” Lynch, Pl.’s Opp.
to Summ. J., ECF No. 9 at 28; see J.A. 491. Jeffries argued for his
entitlement to an adverse inference as a result of the destruction of these
documents, id. at 29, but the District Court’s Memorandum Opinion
contains no mention of this argument in the context of the first nonselection,
see generally Lynch, 217 F. Supp. 3d at 229-32.
23
requested discovery into the priority consideration could raise
questions about DOJ’s proffered reason for Jeffries’s
nonselection.
For these reasons, we find it appropriate to reverse the
denial of Jeffries’s Rule 56(d) motion as to the first
nonselection and vacate the District Court’s entry of judgment
in DOJ’s favor on those of Jeffries’s claims arising out of that
nonselection.
IV.
The above represents the only respect in which we find the
District Court to have erred, as we cannot say that the fate
suffered by Jeffries’s claims over the second through seventh
nonselections was undeserved. In each instance, Jeffries failed
to create a genuine issue of fact as to whether DOJ’s
qualifications-based explanations were pretextual for
discrimination or retaliation, and the District Court’s grant of
summary judgment as to the claims over those nonselections
was in each instance proper. We address those nonselections
now, in turn.
A.
1.
This Court’s review of the District Court’s grant of
summary judgment is de novo. Aka v. Wash. Hosp. Ctr., 156
F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). Summary
judgment is appropriate where the movant can demonstrate
“that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a). A fact is material if it is one “that might affect
the outcome of the suit under the governing law[.]” Anderson
24
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute
about a material fact “is ‘genuine’ . . . if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.” Id. A properly supported motion for summary
judgment may not be opposed by “mere allegation or denial[]”;
rather, the nonmovant must come forward with “specific facts
showing that there is a genuine issue for trial.” Id. at 256. The
nonmovant’s evidence “is to be believed, and all justifiable
inferences are to be drawn in his favor.” Id. at 255; see also
Aka, 156 F.3d at 1295 (noting that the Court must view the
evidence “as favorably to [the non-movant] as reason will
permit”).
2.
Title VII of the Civil Rights Act protects federal
employees against disparate treatment in “personnel actions
affecting employees” on the basis of, inter alia, race and sex.
42 U.S.C. § 2000e-16(a). The aim of disparate-treatment
claims is to ferret out and eliminate intentional discrimination.
Segar v. Smith, 738 F.2d 1249, 1267 (D.C. Cir. 1984). “‘Proof
of illicit motive is essential,’ and the employee ‘at all times’
has the burden of proving ‘that the defendant intentionally
discriminated against’ her.” Figueroa v. Pompeo, 923 F.3d
1078, 1086 (D.C. Cir. 2019) (quoting Segar, 738 F.2d at 1267).
Where (as here) there is no direct evidence of discrimination, a
plaintiff bringing a disparate-treatment claim may avail herself
of the three-step, burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
Texas Department of Community Affairs v. Burdine, 450 U.S.
248 (1981). See Wheeler v. Georgetown Univ. Hosp., 812 F.3d
1109, 1113 (D.C. Cir. 2016). Under the McDonnell Douglas
framework, a plaintiff must make out a prima facie case of
discrimination; once she has done so, the defending employer
must “articulate some legitimate, nondiscriminatory reason”
25
for its action. Burdine, 450 U.S. at 252-53 (quoting McDonnell
Douglas, 411 U.S. at 802). Should the employer carry its
burden at the second step, the plaintiff must prove that the
employer’s asserted reasons “were not its true reasons, but
were a pretext for discrimination.” Id. at 253.
Federal agency employers are also prohibited by Title VII
from retaliating against employees for asserting their Title VII
rights. Calhoun v. Johnson, 632 F.3d 1259, 1261 (D.C. Cir.
2011). The McDonnell Douglas burden-shifting framework
may be applied to claims of retaliation. See McGrath v.
Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012).
Recognizing that courts frequently waste time on the early
stages of the McDonnell Douglas analysis, this Court held in
Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C. Cir.
2008), that, “[i]n a Title VII disparate-treatment suit where an
employee has suffered an adverse employment action and an
employer has asserted a legitimate, non-discriminatory reason
for the decision,” a district court faced with an employer’s
motion for summary judgment “must resolve one central
question: Has the employee 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 employee on
the basis of race, color, religion, sex, or national origin?” Id. at
494; see also Cruz, 931 F.3d at 1194 (applying this analysis in
the context of Title VII retaliation). In other words, district
courts in this Circuit are directed, where appropriate, to avoid
the “unnecessary sideshow” of the first two prongs, Brady, 520
F.3d at 494, and proceed to consider the question of pretext.
In order for a Title VII plaintiff to “survive summary
judgment based solely on evidence of pretext,” – i.e., in the
absence of direct evidence – “the evidence must be ‘such that
26
a reasonable jury not only could disbelieve the employer’s
reasons, but also could conclude that the employer acted, at
least in part, for a prohibited reason.’” Mayorga v. Merdon,
928 F.3d 84, 90 (D.C. Cir. 2019) (quoting Walker v. Johnson,
798 F.3d 1085, 1096 (D.C. Cir. 2015)). “In an appropriate
case, the factfinder’s disbelief of the reasons put forward by the
defendant will allow it to infer discrimination.” Aka, 156 F.3d
at 1294 (citation, internal quotation marks, and alteration
omitted).
“A plaintiff may support an inference that her employer’s
stated reasons for undertaking the adverse employment action
in question were pretextual by citing a number of possible
sources of evidence, including ‘the employer’s better treatment
of similarly situated employees outside the plaintiff’s protected
group, its inconsistent or dishonest explanations, its deviation
from established procedures or criteria, [ ] the employer’s
pattern of poor treatment of other employees in the same
protected group as the plaintiff, or other relevant evidence that
a jury could reasonably conclude evinces an illicit motive.’”
Wheeler, 812 F.3d at 1115 (quoting Walker, 798 F.3d at 1092)
(alteration in original).
B.
Before proceeding to our review of the summary-judgment
motion, we must pause and observe that this case’s (minor)
curiosity flows not only from its procedural posture, but also
from the plaintiff’s untraditional style of briefing. Jeffries
frequently fails to develop arguments for his claims, often
choosing instead to simply state facts (inviting the Court,
perhaps, to make of them what it will) and to point without
elaboration to errors the District Court allegedly made on
summary judgment (a peculiar approach, given our de novo
review). This Court is not in the habit of doing parties’
27
lawyering for them, and we decline to take up that task now.
See Jones v. Kirchner, 835 F.3d 74, 83 (D.C. Cir. 2016)
(“[J]udges are not like pigs, hunting for truffles buried in briefs
or in the record[.]”); Consol. Edison Co. of N.Y., Inc. v. FERC,
510 F.3d 333, 340 (D.C. Cir. 2007) (“It is not enough merely
to mention a possible argument in the most skeletal way,
leaving the court to do counsel’s work, create the ossature for
the argument, and put flesh on its bones.”). Our discussion of
Jeffries’s claims, therefore, is the result of the separation of the
wheat of arguments made from the chaff of those potential
arguments that might have been constructed from the raw
materials Jeffries includes or alludes to in his briefing. We
address only the former.
Second Nonselection (Special Assistant)
Jeffries’s iterated qualms with his nonselection for Special
Assistant are twofold: the potential that Qazilbash (the only one
of the three panelists who knew of Jeffries’s prior EEO
activity) influenced the others during score reconciliation, and
the possibility that Sigworth was preselected for the position.
But Jeffries puts forth no evidence of the alleged influence or
of how Sigworth’s “special assignment shortly before the
selection . . . enabled her to enhance her qualifications.”
Appellant’s Br. 39. “[S]peculations and allegations” are no
substitute for record evidence and cannot by themselves “create
a genuine issue of fact” as to pretext. Porter v. Shah, 606 F.3d
809, 816 (D.C. Cir. 2010)).
Moreover, as to the score reconciliation (which we
consider only in the context of retaliation, as Jeffries does not
argue it was discriminatory), Jeffries fails to point to any
positive evidence connecting it with his protected activity.
Qazilbash acquired knowledge of Jeffries’s EEO activity three
years before the interview, then again nine months prior, and
28
possibly again five months prior. This temporal proximity is
the only causation evidence to which Jeffries points, and it is,
“at best, weak.” See Iyoha v. Architect of the Capitol, 927 F.3d
561, 574 (D.C. Cir. 2019). And even assuming that Jeffries’s
evidence of temporal proximity is sufficient to make out a
prima facie case of retaliation, he has failed to come forward
with “positive evidence beyond mere proximity,” which “is
required to defeat the presumption” that DOJ’s proffered
explanation for his nonselection is genuine. Woodruff v.
Peters, 482 F.3d 521, 530 (D.C. Cir. 2007).
Third Nonselection (Senior Policy Advisor)
Jeffries contends that he was more qualified for the Senior
Policy Advisor position than was the ultimate selectee, that
Jeffries had experience that “should have been highly relevant
to the duties of the position,” and that Aponte retaliated against
him by giving him low scores on the interview questions.
Appellant’s Br. 40-42.
A plaintiff attacking a qualifications-based explanation
may establish pretext by either (1) presenting evidence
showing “a reasonable employer would have found the plaintiff
significantly better qualified for the job but nevertheless failed
to offer the position to her,” Holcomb v. Powell, 433 F.3d 889,
897 (D.C. Cir. 2006) (emphasis in original), or (2) “expos[ing]
other flaws in the employer’s explanation,” Aka, 156 F.3d at
1295; see also id. (“For example, the plaintiff can attempt to
show that the employer’s explanation was fabricated after the
fact by showing that it contradicts other contemporaneous
accounts of the employer’s decision. Or a plaintiff can attempt
to show that the employer’s explanation misstates the
candidate[’s] qualifications.”). But a Title VII plaintiff “is not
limited to challenging the employer’s explanation; she can also
avoid summary judgment by presenting other evidence . . . that
29
permits an inference of discrimination.” Holcomb, 433 F.3d at
899 (citing Aka, 156 F.3d at 1295 n.11).
Jeffries’s arguments on this score simply never get off the
ground. He states that he was the “only applicant to collaborate
with the [NIJ] on a joint solicitation to package evidence into
useful tools,” Appellant’s Br. 42, and cites to his affidavit
further fleshing out his qualifications – but he fails to establish
or even argue for the “significant[]” superiority of his own
qualifications to the selectee’s, see Holcomb, 433 F.3d at 899,
as by discussing the selectee’s qualifications at all. And
although Jeffries baldly states that he had relevant experience,
he fails to establish that DOJ misstated his qualifications. See
Aka, 156 F.3d at 1295. To the extent Jeffries is arguing that
DOJ misjudged his qualifications – that it “should have”
considered him to be more qualified than it did – “[w]e have
said that courts must not second-guess an employer’s initial
choice of appropriate qualifications,” Jackson v. Gonzales, 496
F.3d 703, 708 (D.C. Cir. 2007), but “rather . . . [should] ‘defer
to the [employer’s] decision of what nondiscriminatory
qualities it will seek’ in filling a position,” id. at 708-09
(quoting Stewart v. Ashcroft, 352 F.3d 422, 429 (D.C. Cir.
2003)) (last alteration in original).
Jeffries’s attempt to present other evidence that permits an
inference of unlawful motive also fails. Jeffries’s contention
that this nonselection was due to Aponte’s retaliatory animus
is unsupported by any record evidence other than the weak
temporal relationship between Aponte’s knowledge of
Jeffries’s protected activity, acquired in August 2012, and
Jeffries’s November or December 2012 interview. Again,
temporal proximity alone is insufficient to establish pretext.
See Woodruff, 482 F.3d at 530.
30
Fourth Nonselection (Administrative Services and Logistics
Director)
With regard to his fourth nonselection, Jeffries argues that
the panelists’ scoring of the applicants was subjective because
the interview notes do not indicate how “scoring for the
resumes, work experience, and work history was actually
determined.” Appellant’s Br. 43. Jeffries also contends that
Martin, the selectee, may have been preselected.
While recognizing that “employers may of course take
subjective considerations into account in their employment
decisions,” this Court has repeatedly expressed concern over
employers’ heavy reliance on such factors, “[p]articularly in
cases where a jury could reasonably find that the plaintiff was
otherwise significantly better qualified than the successful
applicant[.]” Aka, 156 F.3d at 1298; see also Hamilton v.
Geithner, 666 F.3d 1344, 1356 (D.C. Cir. 2012) (warning of
“the ease with which heavy reliance on subjective criteria may
be used to mask or camouflage discrimination” (citation and
internal quotation marks omitted)). Some of the “subjective”
assessments we have historically treated with caution are
criteria like “interpersonal skills,” Fischbach, 86 F.3d at 1184,
“enthusiasm,” Aka, 156 F.3d at 1298, and “presentation of
self,” Hamilton, 666 F.3d at 1356-57. Even where an employer
does rely on “disputed subjective assessments,” that reliance
“will not create a jury issue in every employment
discrimination case,” as where it “is modest[] and the employer
has other, well-founded reasons for the employment
decision[.]” Aka, 156 F.3d at 1298.
The circumstances surrounding Jeffries’s fourth
complained-of nonselection are a far cry from those that have
in the past raised the Court’s hackles; in fact, Jeffries has failed
to point to any troubling subjectivity at all. The panelists’
31
interview sheets indicate that applicants’ resumes were
assessed for “written presentation, relevant experience
highlighted, etc.,” and that their work history was assessed for
“stability, leadership, etc.” Lynch, Def’s MSJ Ex. 25, ECF No.
7-3 at 221. And although the sheets contain no explicit detail
as to the scoring for “[w]ork [e]xperience (KSAs),” all three
panelists assigned each applicant the same score for work
experience (24 for Jeffries, and 27 for Martin), and each
corrected her scoresheet to reflect that there were only 32
points available for work experience rather than 35 – both of
which indicate that the scores for work experience/KSAs were
grounded in objective considerations. An employer cannot be
held liable for “simply ma[king] a judgment call” on
permissible grounds. See Holcomb, 433 F.3d at 897.
Jeffries’s preselection argument also fails. In support of
his assertion that there is a “possibility that [the position] was
tailored for Martin,” Jeffries points to “substantial changes
[made] to the KSAs for the position before the vacancy
announcement,” Appellant’s Br. 43 – but he fails to explain
how those changes advantaged Martin and thus amounted to
preselection. Again, we decline to join Jeffries in
unsubstantiated speculation, and he cannot create a triable issue
of fact on conjecture alone.
Fifth Nonselection (Supervisory Grants Management
Specialist)
Jeffries’s contentions with regard to the fifth nonselection
are threefold. Jeffries gestures at arguments that Randolph
(biracial male who was one of the ultimate selectees) was
preselected for the position, and that the email correspondence
between Trautman and Faley revealed discriminatory attitudes.
He also asserts an entitlement to an adverse inference on the
basis of spoliation of evidence.
32
Jeffries does point to evidence that, viewed in the light
most favorable to him, could indicate that DOJ preselected
Randolph: Faley’s having encouraged Randolph to apply; the
position’s downgrade to a GS-13/14, which meant Randolph
was eligible for it; the email to Randolph from the vice
president of his union congratulating him on the promotion,
sent before the second interview; and the fact that two
applicants were selected rather than the one the vacancy
announcement called for. But Jeffries fails to produce any
evidence from which a reasonable jury could conclude that the
purported preselection was animated by discrimination or
retaliation. See Mayorga, 928 F.3d at 90; see also Anderson v.
Westinghouse Savannah River Co., 406 F.3d 248, 271 (4th Cir.
2005) (“[W]hile preselection may establish that an employee
was unfairly treated, it does not by itself prove racial
discrimination.” (citation and internal quotation marks
omitted)); Blue v. Widnall, 162 F.3d 541, 547 (9th Cir. 1998)
(“[O]nly preselection based on discriminatory motives violates
Title VII.” (citing Goostree v. Tennessee, 796 F.2d 854, 861-
62 (6th Cir. 1986)). Moreover, DOJ’s selection of Randolph –
a biracial African-American/Caucasian male, arguably in the
“same protected class” as Jeffries – “cuts strongly against any
inference of discrimination” on the basis of Jeffries’s race or
sex. Murray v. Gilmore, 406 F.3d 708, 715 (D.C. Cir. 2005).
As to the email correspondence between Faley and
Trautman in which they joked about having told others that
Jeffries had been selected, while it was perhaps inappropriate,
no reasonable jury could, on the basis of the email exchange,
disbelieve DOJ’s proffered qualifications-based explanation or
conclude that explanation was pretextual.
Finally, Jeffries asserts – with no support from the record
– that some interview notes related to this nonselection “are
missing from the ROI,” Appellant’s Br. 46, which the Court
33
presumes to be reference to a report of investigation completed
in connection with one of his EEO complaints. Citing Gerlich
v. U.S. Department of Justice, 711 F.3d 161 (D.C. Cir. 2013),
Jeffries asserts that “[t]he missing interview notes to support
the ratings can lead to an adverse inference, or at least preclude
summary judgment.” Appellant’s Br. 46. But we have no basis
to consider this argument absent any citation to the record to
support it. Anderson, 477 U.S. at 256; see Jones, 835 F.3d at
83.
Because Jeffries failed to create a triable issue of fact as to
whether DOJ’s explanation for the fifth nonselection was
pretextual, the District Court’s entry of judgment in DOJ’s
favor was proper.
Sixth Nonselection (Senior Policy Advisor for Byrne Criminal
Justice Innovation/Building Neighborhood Capacity
Programs)
With regard to the sixth nonselection, Jeffries argues that
there are “questions about possible discriminatory/retaliatory
pre-selection,” and that one of the panelists arrived late to his
interview “and rushed through it, cutting off his answers . . . as
if she had already determined who she was going to select, or
did not want to select him.” Appellant’s Br. 50-51. Neither of
these arguments assists Jeffries in establishing that DOJ’s
proffered reasons for this nonselection were pretextual for
discrimination or retaliation.
Given the weakness of the evidence on which he relies,
Jeffries’s cautious framing of the preselection issue – as a
question about a possibility – is apt. Jeffries points to the fact
that changes were made to the position’s KSAs prior to its
posting, to evidence that “persons outside of BJA with whom
the selectee for the position would interact may have”
participated in the selectee’s interview, and to the selectee’s
34
having been invited to participate in meetings prior to her
interview. Id. 50-51. But the pre-posting changes made to the
position do not evince preselection, as Jeffries again fails to
connect those changes to the selectee’s qualifications. And the
only record evidence to which Jeffries points for his contention
that outside personnel may have attended Huntoon’s interview
is an email exchange between O’Donnell and Griffith, in which
O’Donnell stated a desire not to include outside personnel in
the interviews and Griffith proposed meeting with those
personnel instead. This indicates that it is unlikely that non-
BJA personnel participated in any of the interviews. While this
Court is bound to view the facts in the light most favorable to
Jeffries and to draw all legitimate inferences therefrom in his
favor, see Anderson, 477 U.S. at 248, we will not step past
inference into imagination. To be fair, Jeffries did not overplay
his hand here, framing this allegation as something that “may
have” happened – but again, the creation of a genuine issue of
fact requires more than “speculations and allegations.” Porter,
606 F.3d at 816.
As to the selectee’s participation in meetings, Jeffries does
overplay his hand, stating that Huntoon “was invited to attend
meetings about the anticipated work of the position,”
Appellant’s Br. 51, when in fact the record reveals that
Huntoon was invited to a single meeting to discuss work she
had already done. Jeffries also states in his declaration that
“such meetings . . . are normally attended only by persons at
the GS-14 level and higher,” J.A. 468, but as Jeffries has failed
to draw any connection between the meeting and the at-issue
position, any deviation from DOJ’s standard practices that
occurred via Huntoon’s invitation to the meeting is of no
moment to Jeffries’s claim over this nonselection.
Jeffries’s assertion that O’Donnell, one of the panelists,
arrived late to the interview and cut off his answers fares no
35
better. No reasonable factfinder could conclude, on the basis
of O’Donnell’s conduct, that DOJ’s proffered reason for this
nonselection was incredible or pretexual.10 “Even if a plaintiff
‘was victimized by poor selection procedures,’ we may not
‘second-guess an employer’s personnel decision absent
demonstrably discriminatory motive.’” Hairston v. Vance-
Cooks, 773 F.3d 266, 272 (D.C. Cir. 2014) (quoting Fischbach,
86 F.3d at 1183).
Seventh Nonselection (Senior Policy Advisor for Health and
Criminal Justice)
Attempting to demonstrate that DOJ’s qualifications-
based explanation for Binkley’s selection was pretextual,
Jeffries seems to argue that, in explaining its decision to select
Binkley, DOJ misstated both her qualifications and Jeffries’s.
He also contends that he was more qualified for the position
than was Binkley.11
Jeffries’s first argument relies entirely on statements in his
own unsworn declaration. Jeffries asserts in his declaration
10
Jeffries’s statement in his opening brief (made without comment or
citation) that at the time of the interview he “had two pending EEO
cases . . . naming O’Donnell as a responsible management official,”
Appellant’s Br. 49, lends no support to his argument, as the statement is
both “mention[ed] . . . in the most skeletal way,” see Consol. Edison Co. of
N.Y., Inc., 510 F.3d at 340, and unsupported by the record.
11
Relying entirely on assertions in his own unsworn declaration as to what
Binkley told him, Jeffries also asserts that DOJ departed from its normal
procedures or practices by “secretly reassign[ing]” Binkley to the SAMH
division at some unspecified point in the past. Appellant’s Br. 55, 56 (citing
J.A. 879). But Jeffries cannot rely on this inadmissible hearsay to create a
genuine issue of fact, as it would not be converted into admissible evidence
even were Jeffries to testify to the conversation. See Gleklen, 199 F.3d at
1369.
36
that, while Qazilbash stated in her memorandum
recommending Binkley for the position that Binkley “ha[d]
performed to a very high level in her work as a policy advisor
within the [SAMH] portfolio,” J.A. 214, Qazilbash had told
Jeffries at some unspecified point in time that she had spent
more one-on-one time with Binkley than with Jeffries due to
Binkley’s “inexperience with the [SAMH] subject matter,” id.
880. Jeffries also himself critiques Binkley’s performance in
her then-current role, stating that: Qazilbash had once replaced
one of Binkley’s assignments with another because Binkley
struggled with the first; Binkley had “cried at work repeatedly”
and had said, two years prior to her interview and selection,
that the Senior Policy Advisor position was “too demanding”
and “outside of her Adjudications experience”; and Binkley
had funded some grants in a way that was “contrary to a major
audit recommendation.” Id.
But even assuming arguendo the admissibility of the
declaration and all the statements contained therein, we fail to
perceive how these incidents, if true, belie Qazilbash’s 2014
assessment of Binkley’s overall performance. Qazilbash’s
assessment was holistic, praising Binkley for “meeting
significant challenges in managing difficult projects,
developing communication materials at an advanced policy
level[,] and . . . prov[ing] her skills to develop new ideas and
programming.” Id. 214. This evaluation is not felled by
Jeffries’s recitation of particular incidents that, in his mind,
should have led Qazilbash to a different conclusion. We have
repeatedly declined “to serve as a ‘super-personnel department
that reexamines an entity’s business decisions,’” Holcomb, 433
F.3d at 897 (quoting Barbour v. Browner, 181 F.3d 1342, 1346
(D.C. Cir. 1999)), and we do so again here.
Citing his three-month service as Acting Senior Policy
Advisor four years prior to his nonselection, Jeffries also
37
appears to contend that O’Donnell misstated his qualifications.
In support, he points to her statement that the major difference
between Jeffries and Binkley “is that while [Jeffries]
demonstrated good qualifications for his current position[,] . . .
he did not demonstrate the more advanced qualifications
needed for a GS-14 Senior Policy Advisor.” Appellant’s Br.
54 (quoting J.A. 874). However, Jeffries takes this statement,
which was a critique of his failure in the interview to
“demonstrate” his fitness for the Senior Policy Advisor
position, out of its original context. Immediately following the
sentence Jeffries quotes, O’Donnell went on to say:
[Jeffries’s] responses during the interview
process focused more on process than
substance. [He] had trouble articulating a
vision and discussing specifics about new and
innovative approaches. . . . In terms of
qualifications, [Jeffries] focused on interaction
with other BJA staff, his experience as a mentor
for state policy advisors and BJA and his
willingness to participate in a number of BJA
projects and initiatives. . . . [T]hose
behaviors . . . did not speak to his vision or
skills as a Senior Policy Advisor.
J.A. 874. This evaluation of Jeffries’s interview performance
is not rendered a misstatement by Jeffries’s post hoc assertion
to this Court that he did in fact have the needed qualifications.
Notably, Jeffries does not offer to the Court an alternative
version of his interview – one in which he contemporaneously
made his fitness for the position clear – and it is not our role to
serve as Monday-morning quarterbacks rehashing DOJ’s
employment decisions. See Holcomb, 433 F.3d at 897.
38
Finally, Jeffries points to his service as Acting Senior
Policy Advisor as evidence of his superior qualifications,
stating that it “demonstrat[ed] that he could perform in the
position, while Binkley had not” served in such a capacity.
Appellant’s Br. 54; see J.A. 439. But Jeffries does not discuss
his own qualifications any further, and this alone is not
evidence by which “a reasonable employer would have found
[Jeffries] significantly better qualified for the job.” Holcomb,
433 F.3d at 897.
V.
Finding the District Court to have abused its discretion in
denying Jeffries’s Rule 56(d) motion with respect to the first
nonselection, we reverse that denial, vacate the District Court’s
entry of judgment for DOJ on Jeffries’s claims over the first
nonselection, and remand the matter to the District Court for
further proceedings consistent with this opinion. In all other
respects, the judgment of the District Court is affirmed.
So ordered.
PILLARD, J., concurring in part and dissenting in part: I
concur in the decision to reverse the judgment against Jeffries
on his claim of discriminatory and retaliatory denial of the first
of the series of seven promotions he sought. We are unanimous
in concluding that Jeffries was entitled to discovery before the
district court could determine that neither race nor retaliation
infected that promotion denial. My colleagues nonetheless
hold that no such motive can have tainted the ensuing non-
promotions, so Jeffries has no right to discovery to test his
employer’s proffered nondiscriminatory reasons. I disagree.
Consistent with our conclusion that the district court abused its
discretion in dismissing Jeffries’s first claim, we should have
sent the entire case back to the district court for appropriate
discovery before any decision on summary judgment.
Jeffries is an African American man with a master’s
degree in social work and prior experience as a Special
Assistant at the White House Office of National Drug Control
Policy. He had been employed by the United States
Department of Justice’s Office of Justice Programs (OJP) for
more than a decade, including a stint as an Acting Branch
Chief, when he sought to advance from his position as a Policy
Analyst at the GS-13 level in OJP’s Bureau of Justice
Assistance (BJA) by seeking the various promotions at issue
here. The federal Bureau of Justice Assistance works with
local police departments and court systems across the United
States to improve how they operate in the prevention of crime,
violence, and drug abuse. Jeffries was responsible for
supervising a range of substance abuse programs, including
2,500 of the country’s drug treatment courts—and his receipt
of positive performance appraisals and awards suggests he
excelled at that work. Jeffries alleges that, when he sought the
promotions at issue here, “the leadership of BJA and the Policy
Office consisted almost entirely of Caucasians. In the Policy
Office, all but one of the GS-14 positions were occupied by
Caucasians, and all 12 GS-15 and [Senior Executive Service]
positions were occupied by Caucasians.” Compl. ¶ 9. “Prior
2
to Jeffries’ original EEO complaint there had been no African-
American males promoted or hired into management positions
at BJA for more than eight years, and no African-American
male supervisors hired in BJA in about 17 years.” Id. ¶ 10.
As we unanimously hold, Jeffries is plainly entitled to
discovery to probe whether illicit motive figured into the first
disputed promotion denial. My colleagues so conclude
because Jeffries identified a procedural irregularity in the
application of his priority-consideration right that raises a
specific red flag. Maj. Op. at 20-23. Details about an
employer’s violation of its own internal process are helpful to
explain the need for discovery, but not required—and for good
reason. It was mere happenstance that the successful selectee
for the first promotion confided to Jeffries the irregular timing
of her interview. See Compl. ¶ 16. Rule 56(d) does not
presume such leaks. All it requires is an explanation why the
nonmovant needs discovery to respond to summary judgment:
“If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its
opposition,” the district court should allow discovery before
ruling on summary judgment. Fed. R. Civ. P. 56(d).
I agree with my colleagues that the district court erred in
rejecting Jeffries’s Rule 56(d) submission. The information he
sought regarding his first promotion denial was not “irrelevant”
on the ground that “plaintiff’s objective shortcomings for the
position at issue” were “undisputed.” Jeffries v. Lynch, 217 F.
Supp. 3d 214, 232 nn.12, 13 (D.D.C. 2016). The interviewing
officials’ unilateral and untested conclusions as to Jeffries’s
ostensible “shortcomings,” id. at 232 n.12, are far from
settled—they lie at the heart of his challenge. And Jeffries has
a right to explore known irregularities with the priority-
consideration process because they could be probative of
BJA’s allegedly discriminatory and retaliatory motive. Maj.
3
Op. at 20-22; see also Jeffries’s Rule 56(d) Mot. 4 (J.A. 888).
We thus correctly hold on this record that it was an abuse of
discretion to deny Jeffries discovery on the first promotion
denial.
But once we recognized Jeffries’s right to discovery, we
should have remanded the whole case. I see no basis to draw
the line where the majority does. If on remand Jeffries
discovers that BJA had a discriminatory or retaliatory motive
for preventing his advancement into one job opening, that
might have some bearing on later denials of promotions in the
same office. For example, regarding his second promotion
denial, Jeffries asked to depose one member of the selection
panel who had admitted to reconciling scores, scratching out
scores for Jeffries and lowering them, Jeffries’s 56(d) Mot. 5,
and another panelist whom Jeffries had named as a responsible
management official in prior EEO claims, id. at 5-6. Jeffries
sought to investigate the reason the Department changed the
listing related to his fifth promotion denial from GS-14 to GS-
13/14, which he suspects was to enable the Department to hire
someone preselected for the position but ineligible at the GS-
14 level. Jeffries’s 56(d) Mot. 8. And the court denied
discovery on the seventh promotion denial, even though
Jeffries’s Rule 56(d) submission listed reasons to suspect that
job, too, was filled by someone preselected. Id. at 12-13. To
test those irregularities, he seeks to collect the very types of
evidence that we have previously held probative of pretext.
See, e.g., Stoe v. Barr, No. 18-5315, 2020 WL 2781649, at *4,
6, 8 (D.C. Cir. May 29, 2020); Wheeler v. Georgetown Univ.
Hosp., 812 F.3d 1109, 1115 (D.C. Cir. 2016). I see no reason
to cut off Jeffries’s discovery rights piecemeal on closely
similar claims in view of what strikes me as a more-than-
adequate Rule 56(d) filing.
4
An employer’s filing of a pre-discovery motion for
summary judgment does not raise the substantive threshold for
access to discovery. Our precedent interpreting Rule 56(d) has
been informed by the broader context of the civil rules, under
which a plaintiff who has stated a legally viable claim has a
right to take discovery into matters in the opposing party’s
control.1 Outside of the Rule 56(d) context, parties need no
court permission to take discovery. In the ordinary course, a
plaintiff in civil litigation is entitled to discovery after filing a
complaint alleging “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P.
8(a)(2). Discovery “is available in all types of cases at the
behest of any party, individual or corporate, plaintiff or
defendant.” Hickman v. Taylor, 329 U.S. 495, 507 (1947).
BJA did not attack the sufficiency of Jeffries’s complaint,
presumptively entitling him to discovery, but instead answered
and moved for judgment on the pleadings or summary
1
The majority emphasizes that the Federal Rules allow summary
judgment and an accompanying Rule 56(d) motion at any time. Maj.
Op. at 2. While self-evidently correct, it is also obvious that certain
types of cases are more amenable than others to summary judgment
without discovery. For instance, district courts routinely resolve
reviews of administrative action where the record is already
complete, see, e.g., People of State of Cal. v. EPA, 689 F.2d 217, 218
(D.C. Cir. 1982), arbitration or contract disputes where disputes
concern written terms, see, e.g., Wash. Mailers Union No. 29 v.
Wash. Post Co., 233 F.3d 587, 589 (D.C. Cir. 2000), and questions
of law based on stipulated facts, see, e.g., Am. Postal Workers Union,
AFL-CIO v. USPS, 830 F.2d 294, 299-300 (D.C. Cir. 1987), without
the need for discovery backed by compulsory process. As discussed
infra, the requisite proof in Title VII cases, in contrast, is virtually
always in the opposing party’s control.
5
judgment—before discovery commenced. Viewing the record
through the lens of summary judgment, the court held Jeffries’s
Rule 56(d) submission failed to preserve his discovery right.
The district court stressed that BJA had produced documents
and declarations to the Equal Employment Opportunity
Commission, but Jeffries has not had a chance to test his
employer’s account, and we have repeatedly “rejected the
notion that a district court can ordinarily resolve a Title VII
complaint based on the administrative record.” Ikossi v. Dep’t
of Navy, 516 F.3d 1037, 1045 (D.C. Cir. 2008) (citing Hackley
v. Roudebush, 520 F.2d 108, 149, 151 (D.C. Cir. 1975)).
The logic of the right to discovery to substantiate an
adequately pleaded claim is especially strong as applied to
claims of intentional workplace discrimination or retaliation,
which are virtually always fact-intensive and discovery-
dependent. Disputes about intent, of course, “frequently turn
on credibility assessments.” Crawford-El v. Britton, 523 U.S.
574, 599 (1998). A plaintiff bearing the burden to establish the
state of mind of the defendant decision makers must be able to
probe her employer’s proffered rationales if she is to have any
hope of overcoming Brady’s demand for “sufficient evidence
. . . that the employer’s asserted non-discriminatory reason was
not the actual reason and that the employer intentionally
discriminated against the employee.” Brady v. Office of
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).
The Supreme Court has unanimously rejected a
“heightened pleading standard in employment discrimination
cases,” acknowledging that “[b]efore discovery has unearthed
relevant facts and evidence, it may be difficult to define the
precise formulation of the required prima facie case in a
particular case.” Swierkiewicz v. Sorema, 534 U.S 506, 512
(2002). Akos Swierkiewicz did not have to allege specific
irregularities in the employer’s process, nor even a prima facie
6
case as such, nor did he have to show that he had or would
likely uncover evidence of bias in order to open the door to
discovery. Acknowledging the employer’s argument that such
a minimal pleading standard “will burden the courts and
encourage disgruntled employees to bring unsubstantiated
suits,” the Court nevertheless insisted that “[w]hatever the
practical merits of that argument,” the pleading standard
remains the same. Swierkiewicz, 534 U.S. at 514-15. The
Supreme Court expressly reaffirmed Swierkiewicz in Twombly.
550 U.S. at 569-70.
Remanding with an invitation for discovery on all the
promotion-denial claims would not have compelled an
unmanageable discovery burden for the defendants. District
courts have “broad discretion to tailor discovery narrowly and
to dictate the sequence of discovery.” Crawford-El, 523 U.S.
at 598; see id. at 598-99 (citing Rule 26(b)(2)). They have
many options for setting the “timing and sequence of
discovery,” id. at 599 (citing Rule 26(d)), and “may at first
permit the plaintiff to take only a focused deposition of the
defendant before allowing any additional discovery,” id. It is
the requirement to plausibly plead a legally cognizable claim
together with a district court’s discretion to manage discovery
under Rule 26—not a heightened Rule 56(d) standard out of
line with Rule 8(a)(2) as understood in Swierkiewicz—that
provide appropriate protection from unduly burdensome
discovery.
Contrary to the majority’s characterization, Maj. Op. at 17,
our approach to Rule 56(d) has not been lax, but appropriately
attentive to context. Accounting for the catch-22 that a party
cannot know in detail the nature of information to which he
lacks access, we have refrained from reading a demand for
heightened specificity into Rule 56(d), the text of which asks
only for the “reasons” the nonmovant “cannot present facts
7
essential to justify its opposition” to summary judgment.
Convertino calls for a plaintiff to “outline” the particular facts
he intends to discover and “describe why those facts are
necessary to the litigation.” Convertino v. U.S. Dep’t of
Justice, 684 F.3d 93, 99 (D.C. Cir. 2012). And, as we
emphasized in Convertino itself, “summary judgment is
premature unless all parties have ‘had a full opportunity to
conduct discovery.’” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 257 (1986)). The adequacy of a Rule 56(d)
submission “will necessarily be a case-specific inquiry,
dependent on the nature of the claims and the existing record.”
Haynes v. D.C. Water & Sewer Auth., 924 F.3d 519, 532 (D.C.
Cir. 2019). In the typical Rule 56(d) case discovery has already
been taken, so the question is whether the nonmovant is entitled
to further discovery to oppose a summary judgment motion.
See, e.g., U.S. ex rel. Folliard v. Gov’t Acquisitions, Inc., 764
F.3d 19, 23 (D.C. Cir. 2014) (referring to “further” and
“additional” discovery sought); Convertino, 684 F.3d at 97
(referring to a four-year process of discovery that “was both
slow and litigious” before the Rule 56(d) filing).
In a case like this one, in which no discovery has yet
occurred and virtually all the evidence essential to the
nonmovant’s proof lies in the hands of the opposing party, the
nonmovant’s burden to say why “it cannot present facts
essential to justify its opposition” is not onerous. Fed. R. Civ.
P. 56(d). Reasoning from Swierkiewicz, we have noted that
holding a Title VII plaintiff to “a particular method of raising
an ‘inference of discrimination’ is especially inappropriate”
before discovery, and required only that a Rule 56(d)
submission “point[] to the types of evidence that might raise an
inference of discrimination.” Chappell-Johnson v. Powell, 440
F.3d 484, 488-89 (D.C. Cir. 2006) (emphases added) (citing
Swierkiewicz, 534 U.S. at 511-12). The Title VII plaintiff in
Ikossi, for example, did not spell out in detail reasons to doubt
8
her supervisors’ motivations in taking disciplinary action
against her, but we reasoned that “[t]his lack of precision does
not make any less self-evident . . . the nature of the evidence
[plaintiff] seeks.” 516 F.3d at 1045. It was clear enough that,
“[b]y providing an explanation for their actions” at deposition,
the decision makers “may reveal their motives, which lie at the
heart of Dr. Ikossi’s discrimination claims.” Id. at 1045-46.
We thus held that the district court abused its discretion in
denying the plaintiff leave to depose those witnesses and take
“reasonable discovery in this trial de novo.” Id. at 1047. Like
the Rule 56(d) filings in Ikossi and Chappell-Johnson,
Jeffries’s request for an opportunity to probe BJA’s asserted
reasons for repeatedly denying him promotions for which he
alleges he was qualified falls into the category of “cases [in
which] the relevance and necessity of the requested discovery
are so obvious given the claims that little more than
identification of the information is required to head off a pre-
discovery motion for summary judgment.” Haynes, 924 F.3d
at 532-33 (citing Ikossi, 516 F.3d at 1045-46).2
At the end of the day, the majority’s approach constitutes
an error in the scope of Rule 56(d) relief warranted on a
particular set of facts. We do not change the Rule 56(d)
standard—nor could we. In affirming the district court’s
decision as to several of Jeffries’s promotion denials, my
2
We denied discovery in Haynes itself because, faced with the
employer’s evidence that all the laid-off electricians—including
Haynes—lacked the license newly required under D.C. law whereas
all the retained electricians had obtained that license, Haynes failed
to explain the relevance of the discovery he sought regarding non-
electricians not even subject to the requirement. 924 F.3d at 531-33.
Needless to say, nothing in Rule 56(d) requires discovery not
reasonably calculated to lead to information relevant to a claim or
defense, nor need discovery be allowed where information not
reasonably subject to dispute bars the claim or defense.
9
colleagues emphasize the abuse-of-discretion standard,
appropriately noting that “we do not find an abuse of discretion
based on whether we, if standing in the District Court’s shoes,
would have granted the motion.” Maj. Op. at 17. I take it, then,
that if the district court on second look were to conclude that
discovery regarding other promotion denials is also
appropriate, nothing would foreclose the court from exercising
discretion to permit it. The district court’s familiarity with the
claims puts it in a strong position efficiently to supervise party-
controlled discovery. And, with limited time, resources, and
discovery opportunities, it is in the plaintiff’s interest to focus
discovery on the denied promotion(s) for which his
qualifications were strongest, and where BJA’s decision
seemed the most questionable.
Because I would have remanded the case as a whole to the
district court for appropriate discovery, I concur only in the
majority’s decision on Rule 56(d) as to the first promotion
denial and respectfully dissent from its holdings on the others.