UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-1513

ROBERT M. MOORE, 

 Plaintiff – Appellant, 

 v. 

MICHAEL B. MUKASEY, Attorney General, 

 Defendant – Appellee. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Gerald Bruce Lee, District 

Judge. (1:06-cv-00602-GBL-BRP) 

Argued: September 24, 2008 Decided: December 30, 2008 

Before MOTZ, GREGORY, and SHEDD, Circuit Judges. 

Affirmed by unpublished per curiam opinion. Judge Gregory wrote 

a dissenting opinion. 

ARGUED: Janice F. Willis, Fairfax, Virginia, for Appellant. 

Lauren Anne Wetzler, OFFICE OF THE UNITED STATES ATTORNEY, 

Alexandria, Virginia, for Appellee. ON BRIEF: Chuck Rosenberg, 

United States Attorney, Ralph Andrew Price, Jr., Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Robert M. Moore, an African-American male, alleges that his 

former employer, the United States Drug Enforcement 

Administration (the “DEA”), denied him a promotion because of 

his race and gender in violation of Title VII of the Civil 

Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. 

Moore now appeals the district court’s order granting summary 

judgment to the United States Attorney General (the 

“Government”). For the reasons set forth below, we affirm the 

district court’s judgment. 

I. 

 The following facts are presented in the light most 

favorable to Moore. See Howard v. Winter, 446 F.3d 559, 562 n.2 

(4th Cir. 2006). Moore was employed by the DEA from 1985 until 

he retired in 2004. At all times relevant to this appeal, Moore 

was a GS-13 Information Technology Specialist. 

 Deborah Roberts, a white female – and the DEA employee who 

received the challenged promotion at issue in this appeal – 

became a GS-13 Information Technology Specialist with the DEA in 

1998. Prior to accepting that position, Roberts was employed as 

a Programmer Analyst/Senior Consultant with a government 

contractor from 1990-1998. 

2 
 In January 2003, one of Roberts’ and Moore’s supervisors, 

Dennis McCrary, a white male, temporarily promoted Roberts to 

Acting Unit Chief of the DEA’s Enterprise and Field Systems Unit 

(the “SISE”). At the time, Roberts was a GS-13 employee in SISE 

and the temporary promotion, which was only scheduled to last 

120 days, elevated her to the GS-14 pay scale. The permanent 

SISE Unit Chief position was vacant because McCrary had 

reassigned the Unit Chief, Kenneth Tyskowski, a white male, to 

another section. In explaining why he gave Roberts the 

temporary promotion, McCrary stated that “she had some of the 

more visible and difficult projects in that organization and she 

was doing them very well.” J.A. 326-27. 

 McCrary terminated Roberts’ promotion in May 2003 to comply 

with federal regulations requiring that temporary details 

lasting longer than 120 days be subject to a merit promotion 

program. The salary increase associated with Roberts’ temporary 

promotion also ended in May 2003, and she was returned to GS-13 

pay. However, McCrary allowed Roberts to continue performing 

the duties of Acting Unit Chief until November 2003. During 

this time period, Moore told McCrary that it would be unfair if 

he did not allow other employees to serve as Acting Unit Chief. 

McCrary replied that “[l]ife isn’t fair.” J.A. 788. McCrary 

later explained that he allowed Roberts to continue serving in 

an acting capacity “to maintain continuity and reduce turmoil” 

3 
in the unit. J.A. 392. While serving as Acting Unit Chief, 

Roberts supervised employees who would ultimately compete with 

her for the permanent Unit Chief position, and she had the 

opportunity to attend and participate in certain management 

meetings. 

 In August 2003, the DEA sought applicants to fill the SISE 

Unit Chief position on a permanent basis. One of the DEA’s 

Human Resources Specialists advertised the vacancy, reviewed all 

of the applications, and compiled a “best qualified list” 

(“BQL”) for the vacancy. The BQL listed all of the applicants 

who possessed at least the minimum qualifications necessary for 

the permanent position. In this case, the BQL listed Roberts, 

Moore, and five other individuals: Patrick Duffy (white male), 

Terry Ford (African-American male), Evelyn Kelley (AfricanAmerican female), Dorretha Tumlin (African-American female), and 

Mark Kirksey (African-American male). 

 Next, one of the DEA’s Unit Chiefs, Ruth Torres (white 

female) convened an interview/evaluation panel (the “Panel”) to 

interview the seven candidates and make a hiring recommendation 

to McCrary. Torres selected three other DEA Unit Chiefs — one 

white male, one African-American female, and one Asian-American 

male – to serve on the Panel with her. The Panel developed 

interview questions and asked each of the seven candidates the 

4 
same questions. After every interview, each Panel member 

independently rated the candidates’ responses to the questions. 

 After completing the interviews, the Panel ranked all seven 

candidates. The Panel unanimously agreed that Roberts was one 

of the top two candidates; specifically, two panelists ranked 

Roberts first and two panelists ranked her second. The Panel 

concluded that Roberts had in-depth working knowledge, 

experience, and managerial potential, which she demonstrated 

through her resume, interview, and work experience. J.A. 229-

30, 377-79. The Panel also concluded that Roberts demonstrated 

her ability to manage multiple complex tasks in a highly 

efficient and effective manner. Id. Ultimately, the Panel 

recommended three candidates to McCrary: Roberts, Tumlin, and 

Kirksey. The Panel did not rank Moore as one of the top three 

candidates, and it did not recommend him to McCrary for the 

promotion. 

 Upon receiving the Panel’s recommendation, McCrary ranked 

the three candidates in order of his preference: (1) Roberts, 

(2) Tumlin, and (3) Kirksey. McCrary then forwarded this list 

to his supervisor who allowed him to promote Roberts to SISE 

Unit Chief. Roberts was promoted in November 2003. 

 After exhausting his administrative remedies, Moore filed 

this action alleging that he was intentionally discriminated 

against and denied a promotion to the SISE Unit Chief position 

5 
because of his race and gender. In response, the Government 

moved for summary judgment, arguing that Moore was not denied a 

promotion or otherwise discriminated against because of his race 

or gender. The district court entered summary judgment in favor 

of the Government on the grounds that (1) the DEA offered 

legitimate, non-discriminatory reasons for not promoting Moore, 

and (2) Moore failed to establish that the DEA’s stated reasons 

were pretext for race or gender discrimination. Moore timely 

appealed. 

II. 

 “We review the district court’s order granting summary 

judgment de novo, viewing the facts in the light most favorable 

to, and drawing all reasonable inferences in favor of, the 

nonmoving party.” Garofolo v. Donald B. Heslep Assocs., Inc., 

405 F.3d 194, 198 (4th Cir. 2005). At the same time, however, 

such inferences must “fall within the range of reasonable 

probability and not be so tenuous as to amount to speculation or 

conjecture.” Thompson Everett, Inc. v. Nat’l Cable Adver., 

L.P., 57 F.3d 1317, 1323 (4th Cir. 1995). 

 Summary judgment “should be rendered if the pleadings, the 

discovery and disclosure materials on file, and any affidavits 

show that there is no genuine issue as to any material fact and 

that the movant is entitled to judgment as a matter of law.” 

6 
Fed. R. Civ. P. 56(c). The relevant inquiry in a summary 

judgment analysis is “whether the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so 

one-sided that one party must prevail as a matter of law.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). 

Indeed, there must be “sufficient evidence favoring the 

nonmoving party for a jury to return a verdict for that party. 

If the evidence is merely colorable, or is not significantly 

probative,” summary judgment should be granted. Id. at 249-50 

(citations omitted). 

III. 

A. 

 In general, a Title VII plaintiff may defeat summary 

judgment through one of two avenues of proof. First, a 

plaintiff may establish through direct or circumstantial 

evidence that race or gender was a “motivating factor” in the 

adverse employment action. Hill v. Lockheed Martin Logistics 

Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc). 

Second, a plaintiff may proceed under the “burden-shifting 

framework” adopted by the Supreme Court in McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973). See Hill, 354 F.3d at 285, 

298. 

7 
 On appeal, Moore confines his argument to the McDonnell 

Douglas burden-shifting framework. Under McDonnell Douglas, the 

plaintiff bears the initial burden of establishing, by a 

preponderance of the evidence, a prima facie case of unlawful 

discrimination. Id. at 285. If the plaintiff carries this 

initial burden, then “the burden shifts to the employer to 

articulate a legitimate, nondiscriminatory reason for the 

adverse employment action.” Id. “This burden, however, is a 

burden of production, not persuasion.” Holland v. Washington 

Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007). “Assuming the 

employer meets this burden of production, ‘the McDonnell Douglas

framework-with its presumptions and burdens-disappear[s], and 

the sole remaining issue [is] discrimination vel non.’” Hill, 

354 F.3d at 285 (quoting Reeves v. Sanderson Plumbing Prods., 

Inc., 530 U.S. 133, 142-43 (2000)). In other words, the burden 

shifts back to the plaintiff to prove by a preponderance of the 

evidence that the employer’s stated reasons for taking the 

employment action were not its true reasons, but rather 

“pretext” for unlawful discrimination. Hill, 354 F.3d at 285. 

 Even under the McDonnell Douglas framework, however, the 

plaintiff bears the ultimate burden of demonstrating that the 

employer’s actions were discriminatory. See St. Mary’s Honor 

Ctr. v. Hicks, 509 U.S. 502, 507-08, 511-12 (1993). Indeed, 

“[r]egardless of the type of evidence offered by a plaintiff as 

8 
support for her discrimination claim (direct, circumstantial, or 

evidence of pretext), . . . [t]he ultimate question in every 

employment discrimination case involving a claim of disparate 

treatment is whether the plaintiff was the victim of intentional 

discrimination.” Hill, 354 F.3d at 286 (internal quotation 

marks omitted). 

B. 

 Applying these principles to this case, Moore can establish 

a prima facie case of discriminatory failure to promote by 

establishing: (1) he is a member of a protected group, (2) he 

applied for the position in question, (3) he was qualified for 

the position, and (4) the DEA rejected his application under 

circumstances giving rise to an inference of unlawful 

discrimination. Anderson v. Westinghouse Savannah River Co., 

406 F.3d 248, 268 (4th Cir. 2005). For purposes of our 

analysis, we will assume, without deciding, that Moore has 

established a prima facie case of discrimination. 

Under McDonnell Douglas, the burden then shifts to the DEA 

to articulate a legitimate, nondiscriminatory reason for 

selecting Roberts instead of Moore. In this regard, the 

Government states that Roberts was a better qualified candidate. 

It supports this assertion by noting, inter alia, (1) Roberts 

was highly recommended to McCrary by the Panel; (2) Roberts had 

in-depth working knowledge, experience, and managerial 

9 
potential, which she demonstrated through her resume, interview, 

and work experience; and (3) Moore was not among the top three 

candidates recommended by the Panel. 

 As a threshold matter, Moore contends that summary judgment 

should not have been granted because the Government failed to 

rebut his prima facie case. Moore argues that the Government’s 

articulated reason for not promoting him – namely, that Roberts 

was better qualified – is not a legitimate, nondiscriminatory 

reason because it is not credible. In Moore’s view, Roberts 

gained her experience and qualifications in an unlawful manner 

and, therefore, she was not actually a better qualified 

candidate.1 Consequently, Moore argues, there is no need to 

proceed to the pretext stage of the McDonnell-Douglas analysis. 

In pressing this claim, however, Moore misapprehends the 

Government’s burden. As noted above, the Government’s burden at 

this stage of the McDonnell Douglas analysis is one of 

production, not persuasion; it “can involve no credibility 

assessment.” St. Mary’s, 509 U.S. at 509. Rather, the 

Government need only articulate “reasons for its actions which, 

if believed by the trier of fact, would support a finding that 

 1

 Moore alleges that Roberts gained her experience and 

qualifications for the Unit Chief position in an unlawful manner 

because McCrary elevated her to the Acting Unit Chief position 

and allowed her to stay in that position longer than 120 days in 

violation of federal law. Without this experience, Moore 

contends, Roberts would not have been better qualified. 

10 
unlawful discrimination was not the cause of the employment 

action.” Id. at 507. Applying this standard, we conclude that 

the Government satisfied its burden. If Roberts was better 

qualified than Moore, then promoting her on that basis would be 

legitimate and non-discriminatory. 

 Because the Government satisfied its burden under McDonnell 

Douglas, the burden now shifts to Moore to establish by a 

preponderance of the evidence that the Government’s stated 

reasons were pretext for unlawful discrimination. “A plaintiff 

alleging a failure to promote can prove pretext by showing that 

he was better qualified, or by amassing circumstantial evidence 

that otherwise undermines the credibility of the employer’s 

stated reasons.” Heiko v. Colombo Savings Bank, F.S.B., 434 

F.3d 249, 259 (4th Cir. 2006). Moore offers several arguments 

which, in his view, establish that the Government’s stated 

reasons were pretext. Mindful of our obligation to draw all 

reasonable, non-speculative inferences in Moore’s favor, we 

conclude, for the reasons set forth below, that Moore has not 

carried his burden. 

 First, Moore contends the Government’s stated reasons were 

pretext because he was better qualified than Roberts. Moore 

11 
argues that he had a superior educational background,2 had been 

employed by the federal government for a longer period of time, 

and had experience supervising enlisted reserve members as a 

Leading Petty Officer of a Naval Reserve Unit. However, Moore 

undercuts this argument by stating that Roberts’ applicable work 

experience – and, in particular, her experience serving as 

Acting Unit Chief – “made Roberts as qualified as Moore.” 

Appellant’s Br. at 20 (emphasis added); id. at 13 (stating that 

Roberts’ experience placed her “on a level playing field with 

Moore”). Under our case law, a Title VII plaintiff cannot rely 

on his qualifications to establish pretext if he asserts that 

his qualifications are similar or only slightly superior to 

those of the person ultimately selected for promotion. See, 

e.g., Heiko, 434 F.3d at 261 (“When a plaintiff asserts job 

qualifications that are similar or only slightly superior to 

those of the person eventually selected, the promotion decision 

remains vested in the sound business judgment of the 

employer.”). 

 2

 Moore earned an Associate’s Degree in Computer Science 

from the University of the District of Columbia and a Bachelor’s 

Degree in Business Management from the University of Maryland. 

Moore also served as Leading Petty Officer of a Naval Reserve 

Unit from 1984-1995 where he supervised 15 other reserve 

members. Roberts earned a high school diploma in 1974 and had 

66 hours towards an Associate’s Degree in Business 

Administration at Charles County Community College. 

12 
 Further, Moore cannot rely on his qualifications to 

establish pretext because he has not presented evidence that 

would allow a reasonable jury to conclude that he was better 

qualified than Roberts. The undisputed facts establish that 

both Moore and Roberts were at least minimally qualified to 

serve as SISE Unit Chief. It is also undisputed that the Panel 

– which was composed of a diverse group of four current DEA Unit 

Chiefs – interviewed all seven candidates and unanimously 

concluded that Roberts was one of the top two candidates and 

recommended her for the promotion. Moreover, the Panel rated 

Roberts, but not Moore, “highly in the key areas of project 

management, potential for leadership and overall understanding 

of [applicable] . . . business processes.” J.A. 229. It is 

also undisputed that the Panel did not rank Moore as one of the 

top three candidates for the promotion. Even construed in the 

light most favorable to Moore, our case law makes plain that 

Moore’s self-assessment of his superior aptitude for the 

position fails to rebut the Government’s legitimate explanation. 

See, e.g., Anderson, 406 F.3d at 269 (holding that a Title VII 

plaintiff “cannot establish her own criteria for judging her 

qualifications for the promotion” but “must compete for the 

promotion based on the qualifications established by her 

employer”). 

13 
 Next, Moore contends that McCrary’s decision to use the 

Panel establishes pretext. In particular, Moore alleges that 

the Panel was not a lawful part of the promotion process, but 

rather a “sham” designed to exclude Moore from competition and 

to conceal McCrary’s unlawfully discriminatory animus. Beyond 

his assertions, however, Moore offers no evidence that would 

allow us to conclude that McCrary’s use of the Panel was either 

unlawful or pretext for illegal discrimination.3 Instead, the 

evidence establishes that the Panel was part of the DEA’s normal 

promotion process. See J.A. 133-35, 544-52. 

 Finally, Moore argues that the Government’s nondiscriminatory reasons for promoting Roberts were pretext 

because McCrary unlawfully preselected her for the promotion. 

In particular, Moore alleges that McCrary promoted Roberts to 

Acting Unit Chief and allowed her to serve in that capacity for 

longer than 120 days in violation of federal law so that she 

could gain the experience necessary to compete with Moore and, 

ultimately, outperform him during the Panel’s interviews. In 

response, the Government argues that McCrary did not violate 

federal law because Roberts’ temporary promotion, as well as her 

salary increase, did not last longer than 120 days. According 

 3

 In this regard, we note that one of the three candidates 

recommended by the Panel shared the same race and gender as 

Moore, and another one of the three shared the same race. 

14 
to the Government, McCrary merely allowed Roberts to continue to 

perform the duties of Acting Unit Chief beyond 120 days to 

maintain continuity and reduce turmoil in the unit. 

 We conclude that Moore’s argument regarding preselection 

does not establish that the Government’s stated reasons were 

pretext for unlawful discrimination. Indeed, rather than 

undermining the credibility of the Government’s stated reasons 

for not promoting Moore, his argument actually supports the 

Government’s assertion that McCrary promoted Roberts because she 

was better qualified than him due, in part, to the experience 

she gained during her temporary promotion. 

 Importantly, there is no evidence that McCrary preselected 

Roberts on the basis of race or gender. Consequently, even if 

McCrary preselected Roberts by promoting her in violation of 

governing regulations – a question we do not decide – this type 

of preselection would be insufficient in this case to establish 

pretext. See, e.g., Anderson, 406 F.3d at 271 (“[W]hile 

preselection may establish that an employee was unfairly 

treated, it does not by itself prove racial discrimination.”) 

(internal quotation marks omitted); Kennedy v. Landon, 598 F.2d 

337, 341 (4th Cir. 1979) (“Although the pre-selection of Hardy 

may have violated the rules and regulations of the Department of 

15 
16 

Corrections, it does not evidence the type of discrimination 

that is prohibited by Title VII.”).4 

IV. 

 As established above, the Government articulated 

legitimate, non-discriminatory reasons for not promoting Moore. 

In turn, Moore did not present sufficient evidence to establish 

that the Government’s stated reasons were pretext for race or 

gender discrimination. Consequently, we affirm the district 

court’s decision to enter summary judgment. 

AFFIRMED

 4 Accord Mackey v. Shalala, 360 F.3d 463, 468-69 (4th Cir. 

2004). Relatedly, and as noted above, Moore states that he 

informed McCrary that there were concerns about not rotating 

different DEA employees into the Acting Unit Chief position. 

According to Moore, he told McCrary “[i]t would be unfair if no 

one else was given the opportunity to serve in that capacity” 

and Moore purportedly responded: “Life isn’t fair.” J.A. 788. 

We conclude that this exchange is insufficient to establish that 

the Government’s articulated explanations were pretext for 

unlawful discrimination because, inter alia, this evidence does 

not allow anything other than speculation about McCrary’s 

motives. 
GREGORY, Circuit Judge, dissenting: 

 The majority’s opinion invites us to overlook the 

Government’s incredible deviation from its own regulations and 

procedures and the Appellant’s evidence that this deviation was 

racially motivated. Because I believe that Mr. Moore’s 

preselection theory of pretext has significantly more merit than 

the majority accords it, I must respectfully dissent. 

I. 

 The Government has a minimal burden to rebut a Title VII 

plaintiff’s prima facie case under the McDonnell Douglas burdenshifting scheme.1 Thus, I will assume here that the Government’s 

explanation that Roberts was better qualified suffices as a 

legitimate, nondiscriminatory reason. But, even once the 

McDonnell Douglas presumption has dropped from the case, we must 

 1

 The majority’s opinion assumes without deciding that Moore 

has established his prima facie case. In fact, Moore’s prima 

facie burden is easily met because (1) he is a member of a 

protected class; (2) he applied for the SISE Unit Chief 

position; (3) he was qualified for that position, as evidenced 

by his placement on the BQL; and (4) he was rejected from that 

position under circumstances giving rise to an inference of 

discrimination. See Anderson v. Westinghouse Savannah River 

Co., 406 F.3d 248, 268 (4th Cir. 2005). This last element can 

be satisfied by demonstrating that the position was filled by a 

similarly qualified applicant outside the protected class, Hill 

v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th 

Cir. 2004) (en banc), and, in this case, the position was filled 

by Roberts, a Caucasian woman. 

17 
still deal with Moore’s contention that the only reason that 

Roberts was more qualified than other applicants was that she 

was allowed to remain in the Acting Chief position for months 

beyond the 120 days specified in the federal regulations. The 

majority dismisses this theory of pretext, suggesting that 

Moore’s “argument actually supports the Government’s assertion 

that McCrary promoted Roberts because she was better qualified 

than him due, in part, to the experience she gained during her 

temporary promotion,” supra. The majority, it seems, sees 

nothing wrong with the fact that the very advantages that 

Roberts had in the bid for the Unit Chief position were 

advantages that she had gained in apparent violation of federal 

regulations. 

 Office of Personnel Management regulations specify that 

competitive procedures must be used for all details “for more 

than 120 days to a higher grade position or to a position with 

higher promotion potential.” 5 C.F.R. § 335.103(c)(ii) (2008). 

The DEA’s own personnel manual echoes this language. (See J.A. 

854 (“Temporary assignments (details) to higher-graded positions 

or to positions with promotion potential for more than 120 days 

must be made under competitive promotion procedures.”).) The 

Government suggests that it complied with these regulations by 

terminating Roberts’ salary increase as Acting Chief after 120 

days. But the regulations are not concerned with the length of 

18 
non-competitive details simply because of the pay increases that 

accompany them. The regulations make clear that competitive 

procedures are needed to select longer-term detailees to both 

higher-graded positions and positions with “higher promotion 

potential.” 5 C.F.R. § 335.103(c)(ii) (2008). Thus it is the 

increase in pay and the increased opportunity for promotion that 

prompted OPM to mandate that competitive procedures be used for 

long-term details. In other words, the regulations anticipate 

and seek to avoid just the outcome that we find in this case -- 

a situation where a detailee who was not competitively selected 

is allowed to stay past 120 days, albeit at her normal salary, 

in a position that she is essentially being groomed to assume 

permanently. 

 While the Government has suggested that there was some need 

to maintain continuity and to reduce turmoil while the unit was 

going through a reorganization, these assertions, without more, 

cannot justify leaving Roberts as Acting Chief for eleven months 

-- almost three times the length allowed under the regulations. 

Roberts’ extra time in the Acting Chief position undoubtedly 

advantaged her unfairly in the promotion process. It was in 

these months as Acting Chief that Roberts “demonstrated [the] 

managerial potential” that qualified her for the Unit Chief 

position. (J.A. 229.) Several members of the evaluation panel 

that interviewed her were fellow unit chiefs, with whom she met 

19 
routinely for management meetings. During her time as Acting 

Chief, Roberts also had access to valuable leadership training 

opportunities that Moore and other applicants did not have. 

 McCrary was clearly aware that others had interest in being 

rotated into the Acting Chief position. Moore himself had 

informed McCrary that it was unfair not to allow others to serve 

in that capacity, to which McCrary’s only response was, “Life 

isn’t fair.” (J.A. 651, 788.) This kind of insensitive and 

provocative response belies the Government’s contention that 

Roberts was kept on as Acting in order to reduce turmoil in the 

unit. 

 Of course, preselection, however unfair it may be, does not 

by itself suffice to prove racial discrimination. See Anderson 

v. Westinghouse Savannah River Co., 406 F.3d 248, 271 (4th Cir. 

2005). But I disagree with the majority’s contention that 

“there is no evidence that McCrary preselected Roberts on the 

basis of race or gender,” supra. Moore alleges in both his EEO 

affidavit and in his deposition testimony that, in the last 

twenty years, no African-Americans have been promoted above the 

GS-13 level in the DEA’s Systems Applications Section.2 (See

J.A. 792, 670.) These statements remain uncontroverted on the 

 2

 Moore himself was promoted to a GS-13 in 1989, and he was 

never promoted again before his retirement in 2004. 

20 
record before us. Moreover, of the six intra-agency candidates 

listed on the BQL for the Chief position, four of them -– Moore, 

Terry Ford, Evelyn Kelley, and Dorretha Tumlin -– were AfricanAmerican.3 Without the experience she gained as a result of 

improperly being kept on as Acting Chief beyond the 120-day 

limit, Roberts may well have not been qualified, or at least not 

better qualified than others, for the permanent position. Thus, 

the evidence permits an inference that McCrary, as Moore himself 

puts it, “knew there was a reasonable chance than an AfricanAmerican would be Unit Chief, unless he made Roberts equally 

qualified by giving her the opportunity to gain experience, so 

that he could select her.”4 (Appellant’s Br. at 20.) 

 Based on this evidence, a jury could very well find that 

McCrary preselected Roberts for the Unit Chief position and that 

her preselection was racially motivated. As the Supreme Court 

noted in St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 

(1993), 

 3

 I will exclude Mark Kirksey from this analysis since he 

applied from outside DEA and would not have factored into 

McCrary’s calculus of the odds of an African-American applicant 

being selected for the Unit Chief position at the time McCrary 

decided to keep Roberts on as Acting beyond the 120-day limit. 

4

 It is worth noting that McCrary himself regarded Tumlin as 

the next most qualified for the job, and that Roberts and Tumlin 

tied for first in the rankings of the evaluation panel. 

21 
22 

The factfinder’s disbelief of the reasons put forward 

by the defendant (particularly if disbelief is 

accompanied by a suspicion of mendacity) may, together 

with the elements of the prima facie case, suffice to 

show intentional discrimination. Thus, rejection of 

the defendant’s proffered reasons will permit the 

trier of fact to infer the ultimate fact of 

intentional discrimination, and . . . no additional 

proof of discrimination is required. 

(internal citation and quotations omitted) (emphasis in 

original); accord Reeves v. Sanderson Plumbing Prods., Inc., 530 

U.S. 133, 147 (2000); Anderson, 436 F.3d at 269 (4th Cir. 2005). 

II. 

 There is sufficient evidence under Moore’s preselection 

theory to establish that the “legitimate, nondiscriminatory 

reason” that the Government proffered for promoting Roberts was 

pretext for racial discrimination, and I would, accordingly, 

reverse the district court’s entry of summary judgment in favor 

of the Government. Thus, I dissent.