United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2011 Decided January 17, 2012 

No. 10-5419 

GARY HAMILTON, 

APPELLANT

v. 

TIMOTHY F. GEITHNER, SECRETARY OF THE UNITED STATES 

TREASURY, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:05-cv-01549) 

David A. Branch argued the cause and filed the briefs for 

appellant. 

Jeremy S. Simon, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Ronald C. 

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant 

U.S. Attorney. 

Before: TATEL and GARLAND, Circuit Judges, and 

GINSBURG, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge TATEL. 
2 

TATEL, Circuit Judge: Appellant, an employee of the 

Internal Revenue Service, alleges that the Service 

discriminated against him on the basis of race and gender 

when it awarded a temporary detail and then a permanent 

promotion to a white female employee. Appellant also claims 

that the IRS retaliated against him when he pursued the matter 

with its Equal Employment Opportunity office. The district 

court granted summary judgment to the government on all 

three claims. We agree that appellant failed to exhaust his 

claim regarding the temporary detail and so affirm that 

portion of the district court’s judgment. But because we 

conclude that a reasonable jury could find that the 

government’s proffered nondiscriminatory reason for denying 

appellant the permanent promotion was pretextual and that 

discrimination was the real reason, we reverse the grant of 

summary judgment on the discriminatory promotion claim 

and remand to allow that claim to proceed to trial. And 

because we conclude that appellant established a prima facie 

case of retaliation, we remand that claim for further 

proceedings consistent with this opinion. 

I.

Gary Hamilton, an African American man, has served as 

an industrial hygienist in the federal government for much of 

his career. After earning a bachelor’s degree in industrial 

hygiene and a master’s degree in public health, Hamilton 

spent approximately fifteen years as an Industrial Hygienist 

for the Navy and the Department of Defense, a GS-13 grade 

position under the federal government’s General Schedule 

pay scale. In October 2001, when Hamilton’s position was 

relocated to another city, he accepted employment as a GS-12 

Industrial Hygienist within the IRS’s Real Estate and 

Facilities Management department.
3 

About a year-and-a-half later, the IRS announced a 

vacancy for a GS-14 “Safety Specialist (Safety/ 

Occup[ational] Health Manager)” position, which we shall 

refer to as the Safety Manager position. In May 2003, 

Hamilton applied for that position, as did other IRS 

employees. Paul Carroll, an IRS program analyst, ranked the 

candidates based upon knowledge, skills, and abilities (KSA) 

criteria provided to him by IRS personnel staff. Based on 

Carroll’s rankings, personnel staff selected the four highestscoring candidates for the “best qualified” list, including 

Hamilton, Annette Burrell (a white female), Camille 

Carraway (a white female), and Michael Perkins (a white 

male). Of these, Hamilton, Burrell, and Caraway had each 

received the highest possible KSA ranking score of 25, while 

Perkins had received a score of 19. The four candidates were 

interviewed by a three-member panel consisting of “selecting 

official” Stuart Burns (a white male), Mike Huston (a white 

male), and Tatika Mitchell (an African American female). 

Although panel members took notes during the interviews, 

they neither rated nor scored the applicants. In July 2003, 

Burns selected Annette Burrell for the position. 

Hamilton learned of Burrell’s selection sometime in 

August. He also discovered that one year earlier, in August 

2002, Burrell had received a temporary detail assignment as a 

GS-14 Management Analyst/National Safety and Health 

Project Manager, a position Hamilton claims was expressly 

designed to qualify Burrell for the Safety Manager position. 

Shortly thereafter, Hamilton contacted the IRS’s Equal 

Employment Opportunity (EEO) office for a counseling 

session, in which he claimed that IRS officials acted with a 

discriminatory motive in (1) selecting Burrell, a 

“demonstrably” less-qualified white female, for the Safety 

Manager position; (2) affording Burrell preferential treatment 

by “giving [her] a detail (for 12 months) into the position”; 
4 

and (3) using a subjective evaluation process to create a 

legitimate explanation for its discriminatory selection. EEO 

Counseling Report at 2; see also 29 C.F.R. § 1614.105(a) 

(requiring aggrieved persons to “consult a Counselor prior to 

filing a complaint in order to try to informally resolve the 

matter”). On October 21, 2003, Hamilton filed a formal EEO 

complaint alleging that IRS selecting officials discriminated 

against him on the basis of gender and race by “select[ing] a 

Caucasian female with observably and vastly inferior 

qualifications” for the Safety Manager position. EEO Compl. 

at 2. Later, in January 2004, Hamilton learned that Burns had 

detailed Camille Carraway—the other white female 

interviewed for the Safety Manager position—to a temporary 

GS-14 Safety Manager position, prompting Hamilton to file 

another EEO complaint, this one alleging discrimination and 

retaliation in the decision to award the detail to Carraway. 

When the EEO failed to take any action within 180 days 

from the filing of Hamilton’s complaint, see 29 C.F.R. 

§ 1614.407(b) (authorizing civil actions if no final action is 

taken within 180 days after a complaint is filed), Hamilton 

sued the Treasury Secretary in the United States District 

Court for the District of Columbia. In his original complaint, 

Hamilton asserted two claims under Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.: that the 2003 

selection of Annette Burrell over Hamilton for the Safety 

Manager position was motivated by race- and gender-based 

discrimination (the “discriminatory promotion claim”), and 

that the 2004 selection of Camille Carraway for the Safety 

Manager detail amounted to retaliation in response to 

Hamilton’s EEO filing (the “retaliation claim”). Hamilton 

subsequently amended his complaint to assert a third claim 

alleging that the 2002 selection of Burrell for a temporary GS14 Management Analyst detail was discriminatory and a 
5 

prohibited personnel practice in violation of the Civil Service 

Reform Act, 5 U.S.C. § 2302 (the “detail claim”).

The Secretary moved for summary judgment on all 

claims. As to Hamilton’s discriminatory promotion claim, the 

Secretary, though conceding that Hamilton had established a 

prima facie case of discrimination, claimed that the IRS had a 

legitimate, nondiscriminatory reason for promoting Burrell 

over Hamilton, namely, that Hamilton did not perform as well 

as Burrell in the interview. In considering Hamilton’s 

argument that this proffered nondiscriminatory reason was 

pretextual, the district court first addressed his claim that the 

“inexplicable gulf between the credentials of [Hamilton] and 

Burrell” was “inherently indicative of discrimination.” 

Hamilton v. Paulson, 542 F. Supp. 2d 37, 44 (D.D.C. 2008) 

(“Hamilton I”) (internal quotation marks omitted). Although 

acknowledging that Hamilton’s “superior educational 

credentials and experience as an industrial hygienist suggests 

that he may have had a stronger grasp of the technical aspects 

of occupational safety,” the court observed that Burrell’s 

“considerable experience in developing safety management 

programs at a national level” indicated that she might have 

been “better equipped” for other aspects of the position. Id. at 

47. After reviewing the two candidates’ relevant experience, 

and noting that each had received perfect KSA scores, the 

court found “no factual basis whatsoever for a jury to 

conclude that there are disparities in the relative qualifications 

of the plaintiff and Burrell” significant enough to support an 

inference of discrimination. Id. The court then reviewed 

Hamilton’s allegations that the selection process suffered 

from numerous irregularities, that the IRS had destroyed 

evidence, that inconsistencies undermined its evidence, and 

that it exhibited a pattern of promoting white females over 

African Americans. As to each of these claims, the court 

found that Hamilton’s allegations either lacked support in the 
6 

record or suggested no bias. Id. at 48–57. “Nothing in the 

record,” the district court concluded, “would permit a 

reasonable jury to infer that the defendant’s explanation . . . is 

in any way a pretext for discrimination.” Id. at 57. 

Accordingly, the court granted summary judgment to the 

Secretary on Hamilton’s discriminatory promotion claim. 

The district court also granted summary judgment to the 

government on Hamilton’s retaliation claim. Id. at 61. The 

court found that Hamilton had failed to establish a prima facie 

case because he had shown no causal connection between his 

statutorily protected EEO activity and the selection of 

Carraway for the 2004 Safety Manager detail. Observing that 

although a plaintiff may establish causation by showing that 

the defendant “had knowledge of his protected activity and 

that the adverse personnel action took place shortly after that 

activity,” the court pointed out that district courts in this 

circuit generally follow an informal “three-month rule” for 

cases in which a plaintiff attempts to establish a prima facie 

case of retaliation based on temporal proximity alone. Id. at 

58 (quotation and alterations omitted). Measuring temporal 

proximity based solely on Hamilton’s first protected 

activity—the August 2003 EEO counseling session—the 

district court concluded that the five- to six-month gap 

between that session and the January 2004 Carraway selection 

precluded Hamilton from establishing causation based on 

temporal proximity alone. In so concluding, the district court 

rejected Hamilton’s argument that the time period between his 

protected activity and the adverse employment action should 

be measured from October 2003, when he filed his EEO 

complaint, and that Burns had engaged in a “pattern of 

antagonism” against Hamilton in the months leading up to 

Carraway’s selection. Id. at 58–61.
7 

In a later ruling, the district court granted summary 

judgment to the Secretary on Hamilton’s 2002 detail claim. 

According to the district court, Hamilton had failed to exhaust 

his administrative remedies as required by both Title VII and 

the Civil Service Reform Act. Hamilton v. Geithner, 743 F. 

Supp. 2d 1, 13–14 (D.D.C. 2010) (“Hamilton II”). 

Hamilton now appeals, and we review the district court’s 

grant of summary judgment de novo. Jones v. Bernanke, 557 

F.3d 670, 674 (D.C. Cir. 2009). 

II.

We begin with Hamilton’s claim that the 2002 selection 

of Burrell for a temporary GS-14 detail violated both Title VII 

and the Civil Service Reform Act. Government employees 

alleging discrimination in violation of Title VII or challenging 

personnel practices prohibited by the Civil Service Reform 

Act must exhaust administrative remedies before bringing 

their claims to federal court. See Payne v. Salazar, 619 F.3d 

56, 65 (D.C. Cir. 2010) (“Title VII complainants must timely 

exhaust their administrative remedies before bringing their 

claims to court.” (internal quotation marks and alterations 

omitted)); Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1433 

(D.C. Cir. 1996) (“Under the [Civil Service Reform Act], 

exhaustion of administrative remedies is a jurisdictional 

prerequisite to suit.”). Because Hamilton’s 2002 detail claim 

presented a “mixed case,” involving charges of both 

discrimination and prohibited personnel practices, Hamilton 

could have exhausted his administrative remedies by 

presenting his claim either to the IRS’s EEO office or to the 

Merit Systems Protection Board. Butler v. West, 164 F.3d 

634, 638 (D.C. Cir. 1999) (“An employee who intends to 

pursue a mixed case . . . can choose between filing a ‘mixed 

case complaint’ with her agency’s EEO office and filing a 
8 

‘mixed case appeal’ directly with the MSPB.”). As the district 

court found, however, Hamilton did neither. 

Hamilton has never claimed that he sought review before 

the Merit Systems Protection Board, insisting instead that he 

exhausted his detail claim before the IRS’s EEO Office. But 

Hamilton’s formal EEO complaint makes no mention of the 

2002 detail. Instead, the complaint identifies only the 2003 

Safety Manager selection as the alleged discriminatory action. 

Indeed, it describes that selection decision quite specifically, 

providing both the position title and vacancy announcement 

number. Moreover, in a follow-up letter to Hamilton, the EEO 

office identified the claim to be investigated as whether 

Hamilton had been discriminated against “when he was not 

selected on August 11, 2003, for promotion to the position of 

Safety and Health Manager, GS-0018-14, under Vacancy 

Announcement Number 15-02-OFM03706.” Letter from Jerry 

Armstrong, Dir., Treasury Compl. Ctr., to Howard Wallace, 

Designated Representative for Gary Hamilton (Dec. 17, 

2003). The letter goes on to state: “If you disagree with the 

claim, please notify me in writing within 15 days of the date 

of the letter. . . . If no response is received, I will assume that 

you agree with the claim(s) and will proceed with the 

investigation of the complaint.” Id. Hamilton neither 

responded to this letter nor “amend[ed] [his] complaint at any 

time prior to the conclusion of the investigation,” 29 C.F.R. 

§ 1614.106(d), to include the 2002 detail claim. 

Hamilton nonetheless argues that he satisfied the 

exhaustion requirement by presenting his detail claim to the 

IRS during his August 2003 EEO counseling session, 

approximately two months before he filed his formal EEO 

complaint. In support, he cites the EEO counseling report, 

pointing out that it lists the 2002 detail as part of the basis for 

his discrimination claim. See EEO Counseling Report at 2 
9 

(describing Hamilton’s allegation that IRS “[p]lanned, 

arranged and executed with a discriminatory motive to give 

[Burrell] preferential treatment by giving a detail (for 12 

months) into the [Safety Manager] position”). But this does 

not help Hamilton. Filing a formal complaint is a prerequisite 

to exhaustion, see 29 C.F.R. § 1614.407 (“A complainant who 

has filed an individual complaint . . . is authorized under title 

VII . . . to file a civil action in an appropriate United States 

District Court” after final EEO action or after 180 days 

(emphasis added)), so Hamilton cannot rely on the EEO 

counseling report to establish exhaustion of a claim that he 

failed to include in his formal complaint. 

According to Hamilton, however, the government has 

waived its exhaustion defense. But Hamilton’s first argument 

in support of this proposition—that the IRS “waived” 

exhaustion by accepting and then dismissing his detail claim 

without proper notice—fails because his formal EEO 

complaint omitted the detail claim. See 29 C.F.R. 

§ 1614.107(b) (“Where the agency believes that some but not 

all of the claims in a complaint should be dismissed . . . the 

agency shall notify the complainant in writing of its 

determination[.]” (emphasis added)). His second argument—

that the Secretary waived the defense in the district court—

likewise fails because the Secretary not only raised exhaustion 

as an affirmative defense in his answer, but also moved to 

dismiss on exhaustion grounds after Hamilton asserted the 

detail claim in his amended complaint. We shall therefore 

affirm the district court’s dismissal of Hamilton’s detail claim 

for failure to exhaust administrative remedies and turn our 

attention to the two claims properly before us. 

III.

In support of his promotion discrimination claim, 

Hamilton argues that the Secretary’s proffered reason for 
10 

denying him the GS-14 Safety Manager promotion—that 

Hamilton “ ‘did not perform well in his interview . . . as 

compared to [Burrell’s] performance,’ ” Hamilton I, 542 F. 

Supp. 2d at 43 (quoting Def.’s Mem. at 7)—was pretext for 

discrimination. According to Hamilton, the district court erred 

in granting summary judgment on this claim because a 

reasonable jury could infer discrimination based on evidence 

of (1) Hamilton’s superior qualifications for the Safety 

Manager position, (2) the highly subjective nature of the 

government’s reasons for not hiring Hamilton, and (3) 

procedural irregularities in the selection process. 

Where, as here, the employer claims a legitimate, nondiscriminatory explanation for its decision to promote one 

employee over another, the “one central inquiry” on summary 

judgment is “whether the plaintiff produced sufficient 

evidence for a reasonable jury to find that the employer’s 

asserted non-discriminatory reason was not the actual reason 

and that the employer intentionally discriminated against the 

plaintiff on a prohibited basis.” Adeyemi v. District of 

Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008). We 

consider this question “in light of the total circumstances of 

the case,” asking “whether the jury could infer discrimination 

from the combination of (1) the plaintiff's prima facie case; 

(2) any evidence the plaintiff presents to attack the 

employer’s proffered explanation for its actions; and (3) any 

further evidence of discrimination that may be available to the 

plaintiff . . . or any contrary evidence that may be available to 

the employer.” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289, 

1291 (D.C. Cir. 1998) (en banc). Because in appropriate cases 

a “factfinder’s disbelief of the reasons put forward by the 

defendant” may support an inference of intentional 

discrimination, St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 

511 (1993), we do not routinely require plaintiffs “to submit 

evidence over and above rebutting the employer’s stated 
11 

explanation in order to avoid summary judgment.” Aka, 156 

F.3d at 1290. In reviewing the district court’s grant of 

summary judgment, moreover, we view the evidence in the 

light most favorable to Hamilton and draw all reasonable 

inferences in his favor, taking care neither to make credibility 

determinations nor weigh the evidence before us. Jones, 557 

F.3d at 674, 681. Ultimately, we may affirm the district 

court’s judgment only if we are able to conclude that no 

reasonable jury could reach a verdict in Hamilton’s favor. Id.

at 674. 

Although Hamilton relies on a wide range of evidence to 

attack the Secretary’s proffered nondiscriminatory 

explanation, the parties’ briefs focus first and foremost on the 

evidence of Hamilton’s and Burrell’s qualifications, so we 

shall begin there as well. The Supreme Court has held that 

“qualifications evidence may suffice, at least in some 

circumstances,” to show that an employer’s proffered 

explanation is pretext for discrimination. Ash v. Tyson Foods, 

Inc., 546 U.S. 454, 457 (2006). Although the Court has 

declined to define “precisely what standard should govern,” 

id., our cases have developed a framework for evaluating 

claims “involving a comparison of the plaintiff’s 

qualifications and those of the successful candidate.” Aka, 156 

F.3d at 1294. Pursuant to our decision in Aka v. Washington 

Hospital Center, “[i]f a factfinder can conclude that a 

reasonable employer would have found the plaintiff to be 

significantly better qualified for the job, but this employer did 

not, the factfinder can legitimately infer that the employer 

consciously selected a less-qualified candidate—something 

that employers do not usually do, unless some other strong 

consideration, such as discrimination, enters into the picture.” 

Id. That said, “we must assume that a reasonable juror who 

might disagree with the employer’s decision, but would find 

the question close, would not usually infer discrimination on 
12 

the basis of a comparison of qualifications alone.” Id. For this 

reason, a disparity in qualifications, standing alone, can 

support an inference of discrimination only when the 

qualifications gap is “great enough to be inherently indicative 

of discrimination”—that is, when the plaintiff is “markedly 

more qualified,” “substantially more qualified,” or 

“significantly better qualified” than the successful candidate. 

Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) 

(internal quotation marks omitted). 

Applying this standard here, we believe, as explained in 

detail below, that a jury confronted with the record evidence 

could find that Hamilton had far more formal training and 

education than Burrell, significantly greater technical 

expertise, and broader experience developing and managing 

complex safety programs. Whether this evidence would be 

sufficient to allow such a jury to find Hamilton “significantly” 

or “markedly” more qualified than Burrell, Holcomb, 433 

F.3d at 897, and thus to infer discrimination based on 

qualifications evidence alone, presents a relatively close 

question. Given the record in this case, however, it is a 

question we need not conclusively resolve. Our task is to 

“review the record taken as a whole,” Reeves v. Sanderson 

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (internal 

quotation marks omitted), and plaintiffs are “expressly not

limited to comparing [their] qualifications against those of the 

successful applicant; [they] may seek to expose other flaws in 

the employer’s explanation.” Holcomb, 433 F.3d at 897; see 

also Ash, 546 U.S. at 458 (noting approvingly the Eleventh 

Circuit’s suggestion that “superior qualifications may be 

probative of pretext when combined with other evidence”). 

Here, Hamilton relies not only on comparative qualifications 

evidence, but also “seek[s] to expose,” Holcomb, 433 F.3d at 

897, procedural irregularities in a highly subjective selection 

process. Reviewing the record as a whole, we agree that the 
13 

evidence of Hamilton’s superior qualifications taken together 

with “other flaws in the employer’s explanation,” id., creates 

a genuine issue of material fact that only a jury can resolve. 

The qualifications evidence includes the position 

description, the candidates’ applications, Hamilton’s 

declaration, and Burrell’s deposition testimony. According to 

the position description, the GS-14 Safety Manager position 

“provides senior analytical support to management in 

assessing and defining the needs of the Agency for 

implementation and evaluation of IRS Safety Program.” 

Position Description at 2. The position requires a mix of 

technical and policy expertise, including “[e]xpert level 

knowledge of and extensive experience in the theories, 

principles, practices and advances pertaining to safety and 

occupational health disciplines and administration.” Id. The 

position description lists the Safety Manager’s four major 

duties: (1) developing policies, procedures, and standards for 

the IRS Safety Program and providing technical guidance to 

protect IRS personnel and property “from the full spectrum of 

intentional and non-intentional human threats, as well as manmade and natural disasters”; (2) advising “top management on 

the most complex safety matters,” including budgetary and 

resource-distribution issues related to safety; (3) interpreting 

national safety directives, formulating broad policy direction, 

and preparing policy and program statements for senior 

management; and (4) serving both as a “top liaison” to other 

government agencies and as a “technical authority” on novel 

safety issues. Id. Although focusing primarily on the required 

technical expertise and safety policy experience, the position 

description also states that the Safety Manager position 

involves “[f]requent, extensive personal contacts . . . with top 

levels of management and staff . . . . to defend, promulgate, 

secure, and gain compliance with the Service’s Safety 

Program.” Id. at 3. 
14 

When Hamilton applied for the position in May 2003, he 

had approximately nineteen years of experience working in 

industrial hygienist and safety professional positions within 

the federal government, including approximately fifteen years 

as a GS-13 Industrial Hygienist with the Navy and 

Department of Defense and nearly two years as a GS-12 

Industrial Hygienist with the IRS. Hamilton has a bachelor’s 

degree in industrial hygiene (defined as “the science of 

anticipating, recognizing, evaluating, and controlling 

workplace conditions that may cause workers’ injury or 

illness,” Occupational Safety & Health Admin., Informational 

Booklet on Industrial Hygiene (1998), available at 

http://www.osha.gov/Publications/OSHA3143/ 

OSHA3143.htm), as well as a master’s degree in public health 

with a specialty in environmental and occupational health. 

Hamilton has been certified by the American Board of 

Industrial Hygiene since 1995, and he completed a master’s 

level Senior Executive Leadership Training program for the 

federal government sector in 2000. 

By contrast, Burrell has no college degree and little 

formal training in occupational safety. Her knowledge of 

safety practice and policy comes mostly from on-the-job 

training, as well as one forty-hour OSHA class and a few twoto three-day courses on indoor air quality, electrical standards, 

and principles of industrial hygiene. In comparison to 

Hamilton’s nineteen consecutive years of service as an 

industrial hygienist, Burrell had approximately eight years of 

substantive safety experience at the time of her application, 

much of it prior to 1997. Specifically, she worked for 

approximately four years as a GS-11 Program 

Analyst/Regional Safety Officer (1990–1994), two-and-a-half 

years as a GS-12 Safety and Occupational Health Manager 

(1994–1997), and less than one year on a temporary detail as 

a GS-14 National Safety and Health Project Manager (2002–
15 

2003). During the more than five years between April 1997, 

when she left her GS-12 Safety and Occupational Health 

Manager position, and August 2002, when she began her 

temporary detail, Burrell appears to have had little contact 

with the safety field, having transferred first to a position as a 

Space Acquisition Specialist (1997–2000) and then to a Client 

Services Specialist position (2000–2002). Perhaps because of 

Burrell’s less extensive training and experience, selecting 

official Burns stated that she “was not as qualified as 

[Hamilton] in the technical aspects of industrial hygiene and 

safety.” Burns Decl. at 3. The district court agreed, finding 

that Hamilton’s “superior educational credentials and 

experience as an industrial hygienist suggest[] that he may 

have had a stronger grasp of the technical aspects of 

occupational safety.” Hamilton I, 542 F. Supp. 2d at 47. 

In addition to Hamilton’s superior technical expertise, he 

possessed wide-ranging experience in developing safety 

policies and managing complex, large-scale safety programs. 

While working at the Defense Department, for instance, 

Hamilton managed the Department’s Worker Safety Pilot 

Program, a large project that involved analyzing privatesector safety programs, implementing and evaluating pilot 

programs at different military sites, integrating budgeting and 

fiscal planning with safety program development, and 

preparing a final report to Congress. In that position, 

Hamilton also served as the point of contact for the 

administration of a memorandum of understanding between 

the Assistant Secretary of Defense and the Deputy Under 

Secretary, and communicated with senior Defense 

Department program officers to coordinate safety and health 

policy across military departments. Similarly, while working 

for the Navy, Hamilton managed its Hazard Abatement 

Program, leading a group of forty base safety managers, 

playing a leadership role in setting mission priorities for all 
16 

Navy divisions, and managing a $4.5 million budget. Finally, 

during his most recent IRS assignment, Hamilton’s 

responsibilities included conducting resource assessments, 

developing budgets, managing safety inspectors, and 

developing and writing policy. He also developed the first 

standard operating procedure for the Service’s semi-annual 

safety inspections and created a database program “capable of 

inputting, retrieving, and reporting specific safety inspection 

data.” Hamilton Appl. Given this extensive, detailed, and 

concrete evidence of Hamilton’s safety policy and program 

experience, a reasonable jury could easily find him wellpositioned to perform the “extremely complex and significant 

functions in the development of [safety] decisions and 

policies,” Position Description at 2, required by the Safety 

Manager position. 

To be sure, Burrell also has experience in safety policy 

and project management. In her application for the Safety 

Manager position, she states that as a GS-12 Safety and 

Occupational Health Manager, she “[d]eveloped policies and 

procedures for use Servicewide . . . to enable regions to 

implement programs,” designed a nationwide safety 

management system for use in analyzing data and identifying 

safety-related trends, and “was responsible for setting regional 

and national policy and program direction.” Burrell Appl. 

Burrell also revitalized Atlanta’s Federal Safety and Health 

Council, a task requiring that she establish an alliance 

between the IRS and OSHA. Finally, during her detail as 

National Safety and Health project manager, Burrell played a 

key role in developing a National Concept of Operations for 

IRS’s National Safety and Health Program, id., acting as 

project leader and bringing in various stakeholders to develop 

safety procedures. 
17 

That said, the Secretary’s evidence that Burrell actually 

formulated policies or provided guidance “on the most 

complex safety matters,” Position Description at 2, is 

comparatively thin. While Burrell may have gained some 

safety policy experience during her two-and-a-half years as a 

GS-12 Safety and Occupational Health Manager, the record 

contains scant evidence of specific policies or programs that 

Burrell herself developed. See Burrell Appl. (stating only in 

general terms that she “[d]eveloped policies and procedures 

for use Servicewide to regional staffs to enable regions to 

implement programs” and “was responsible for setting 

regional and national policy and program direction”). 

Moreover, a jury could find that Burrell’s recent detail 

focused significantly more on planning activities and 

“ensur[ing] buy-in” from stakeholders than on formulating 

safety policy or providing advice on complex safety matters. 

See Burrell Appl. (describing her work as “plan[ing] 

numerous activities associated with the reengineering” of the 

safety program, leading a working group with business unit 

representatives to “ensure buy-in,” developing “action plans 

. . . to ensure that each [business stakeholder] had a chance to 

comment on the Vision of the new Safety and Health 

program,” and holding monthly meetings with stakeholder 

points of contact to address concerns and provide 

consultations). Indeed, asked during her deposition what 

safety policies she had written, Burrell was unable to name a 

single one. Burrell Dep. at 59 (“Q: What policy did you 

write? A: I—I don’t recall.”). She was also unable to cite 

specific safety-related policies or executive orders or to 

articulate “major conflicts in safety policy and program 

objectives,” Burrell Dep. at 59–61, 68–70, knowledge 

specifically required for the Safety Manager position, Position 

Description at 2. In contrast to this relatively weak evidence 

of Burrell’s policy knowledge and experience, the evidence 

supporting Hamilton’s qualifications demonstrates a deep 
18 

understanding of safety policies and procedures and contains 

specific and extensive descriptions of safety policies he 

himself developed and administered. See supra 15–16. 

The government argues that Burrell’s perfect KSA score 

is dispositive of her comparative qualifications. We disagree. 

Not only did Hamilton also have a perfect KSA score, but that 

score, a preliminary assessment designed to identify 

candidates worthy of further consideration, makes no 

comparison of one candidate’s qualifications to another’s. See

Carroll Dep. at 87 (“I don’t rank [the candidates] against each 

other. I rank them against the KSAs.”). Underscoring the 

preliminary nature of the KSA rankings, the interview 

panelists reviewed the candidates’ full application packages, 

see Burns Decl. at 2, and considered themselves responsible 

for assessing the candidates’ qualifications, see Mitchell Decl. 

at 2 (stating that the interview panel assessed candidates “on 

their knowledge of the safety program, their knowledge of the 

IRS . . . their experience working program items at a national 

level and their abilities to lead”). Given all this, a jury could 

conclude that the KSA scores were never intended to be 

conclusive and that there might be substantial variation in 

qualifications between candidates with identical scores, 

particularly where, as here, the ranking official had no formal 

safety or security training. See Carroll Dep. at 36. 

Accordingly, and drawing all reasonable inferences in 

Hamilton’s favor, we believe that a reasonable jury could find 

that, by comparison to Burrell, Hamilton had much greater 

technical expertise, more experience developing complex, 

large-scale safety programs, and far more formal training in 

occupational health and safety. This combination of superior 

knowledge and experience, in turn, could lead the jury to 

conclude that Hamilton was significantly better qualified for 

the Safety Manager promotion. But even if this disparity 
19 

alone is insufficient, a reasonable jury, considering 

Hamilton’s stronger qualifications together with “other flaws 

in the employer’s explanation,” Holcomb, 433 F.3d at 897, 

could still reach a verdict in Hamilton’s favor. These flaws 

fall into two categories. 

First, the record contains no contemporaneous 

documentation of the Secretary’s proffered explanation—that 

Burrell outperformed Hamilton in the interview. Neither 

selecting official Burns nor the other panelists appear to have 

created any written evidence of their deliberations or their 

reasons for choosing Burrell, leaving us with no record of the 

decisionmaking process beyond notes taken during the 

interviews. Burns’s and Mitchell’s notes contain no 

comments, positive or negative, regarding Hamilton’s 

interview performance or communications skills, thus 

weakening their claim that they selected Burrell because 

Hamilton’s interview “did not go well,” Mitchell Decl. at 2. 

See Aka, 156 F.3d at 1298 (reasoning that the decisionmaker 

“did not comment at all on Aka’s enthusiasm (or the lack 

thereof) on the interview summary sheet, weakening her 

claim that Aka’s lack of enthusiasm motivated her decision”). 

Indeed, the only contemporaneous documentation of 

Hamilton’s performance appears in Huston’s notes, where he 

wrote that Hamilton “[r]estated questions; thinks through 

answers,” an observation that a jury could conclude reflected 

a judgment that Hamilton carefully and thoughtfully 

responded to panelists’ questions. At the very least, Huston’s 

comment is ambiguous. And as Hamilton points out, we have 

no way of knowing what else Huston may have written during 

the interview given that one page (amounting to half of his 

notes on Hamilton’s interview) is missing and unaccounted 

for. Although we certainly do not suggest that a jury must or 

should draw an adverse inference, this absence of 

documentation, coupled with the missing page of Huston’s 
20 

interview notes, could lead a reasonable jury to doubt the 

Secretary’s explanation, particularly given that the IRS 

requires documentation of a promotion action “sufficient for a 

reviewer to reconstruct the action in its entirety” as well as 

maintenance of complete promotion files for two years. 

Internal Revenue Manual § 6.335.1.12.16 (2002). 

Second, the Secretary’s proffered non-discriminatory 

explanation relies heavily—indeed entirely—on subjective 

considerations, and our case law instructs us to treat such 

explanations with caution on summary judgment. See Aka, 

156 F.3d at 1298 (noting that “courts traditionally treat 

explanations that rely heavily on subjective considerations 

with caution” and that “an employer’s heavy use of highly 

subjective criteria, such as interpersonal skills, could support 

an inference of discrimination” (internal quotation marks 

omitted)). Although “employers may of course take subjective 

considerations into account in their employment decisions,” 

we have repeatedly expressed concern about the ease with 

which heavy reliance on subjective criteria may be used to 

“mask” or “camouflage” discrimination. Id. (internal 

quotation marks omitted). “Subjective criteria,” we have 

explained, “lend themselves to racially discriminatory abuse 

more readily than do objective criteria.” Harris v. Group 

Health Ass’n, Inc., 662 F.2d 869, 873 (D.C. Cir. 1981). 

In our view, several considerations make caution 

particularly appropriate here. For one thing, the IRS job 

description does not emphasize communications skills, 

providing only a brief description of the Security Manager’s 

representative and liaison functions at the end of a much more 

detailed discussion of the position’s technical knowledge and 

policy experience requirements. See Position Description at 

2–3. Even assuming that communications skills were critical 

to the position, the record contains only vague descriptions of 
21 

Hamilton’s interview performance. Although Burns and 

Mitchell stated generally that Hamilton’s answers were 

confusing and difficult to follow, they provided no concrete 

examples of poor answers that might have grounded their 

subjective assessment in more objective facts. Indeed, Burns 

appears to have based his assessment of Burrell’s interview 

performance in part on her “presentation of self,” Burns Decl. 

at 3, a highly subjective criterion that a jury could well view 

as “lend[ing]” itself quite “readily” to gender-based or 

“racially discriminatory abuse,” Harris, 662 F.2d at 873. 

Huston, moreover, could recall nothing at all about 

Hamilton’s performance. See Huston Decl. at 2 (stating that 

he could not “remember any specifics from the interview”). 

Given the vague and subjective nature of the panelists’ 

assessment, a jury might find further reason for caution in 

Hamilton’s performance evaluation (included in his 

application package), which rated him highly in the categories 

of “Interaction” and “Verbal Communications/Listening,” 

Hamilton Appl. And as mentioned above, Burrell had 

substantial difficulty responding to deposition questions about 

safety policies she had written or used as a federal safety 

professional. See Burrell Dep. at 58–60. Were Burrell to 

testify at trial as she did in her deposition, a jury might not 

only find her markedly less qualified than Hamilton, but also 

doubt the strength of her communications skills and her 

ability to perform well under the pressure of an interview. 

 To sum up, then, we believe that, when taken together, 

the evidence of a significant disparity in the candidates’ 

qualifications, the highly subjective nature of the Secretary’s 

proffered nondiscriminatory explanation, and the absence of 

any contemporaneous documentation supporting that 

explanation could lead a reasonable jury to disbelieve the 

Secretary and to reach a verdict in Hamilton’s favor. Of 
22 

course, after hearing live testimony, assessing witness 

credibility, and weighing the evidence, the jury might also 

conclude that Hamilton was not significantly more qualified 

than Burrell and that Burrell’s interview performance 

legitimately tipped a difficult choice in her favor. But the 

record suggests that these issues “properly can be resolved 

only by a finder of fact because they may reasonably be 

resolved in favor of either party.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 250 (1986). We shall therefore reverse the 

grant of summary judgment on Hamilton’s discriminatory 

promotion claim and remand for trial. 

IV. 

For his third and final claim, Hamilton contends that the 

decision to award Camille Carraway a GS-14 Safety Manager 

detail in January 2004 was retaliation for Hamilton’s pursuit 

of a discrimination complaint with the IRS EEO office. To 

make out a prima facie case of retaliation, a plaintiff must 

show that “(1) he engaged in protected activity; (2) he was 

subjected to an adverse employment action; and (3) there was 

a causal link between the protected activity and the adverse 

action.” Woodruff v. Peters, 482 F.3d 521, 529 (D.C. Cir. 

2007). Hamilton argues that the close temporal proximity 

between the filing of his EEO complaint and Carraway’s 

selection is sufficient to establish a prima facie case of 

retaliation. We agree. 

For purposes of establishing a prima facie case of 

retaliation, “[t]emporal proximity can indeed support an 

inference of causation, but only where the two events are very 

close in time.” Id. (citation and internal quotation marks 

omitted); see also Singletary v. District of Columbia, 351 F.3d 

519, 525 (D.C. Cir. 2003) (“[T]his circuit has held that a close 

temporal relationship may alone establish the required causal 

connection.”). Although the Supreme Court has cited circuit 
23 

decisions suggesting that in some instances a three-month 

period between the protected activity and the adverse 

employment action may, standing alone, be too lengthy to 

raise an inference of causation, neither the Supreme Court nor 

this court has established a bright-line three-month rule. See 

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 

(2001) (citing approvingly cases finding three- and fourmonth intervals insufficient to establish a prima facie case, 

but holding only that “[a]ction taken . . . 20 months later 

suggests, by itself, no causality at all”). Instead, we have 

evaluated the specific facts of each case to determine whether 

inferring causation is appropriate. Cf. Taylor v. Solis, 571 

F.3d 1313, 1322 (D.C. Cir. 2009) (finding a two-and-a-half 

month interval insufficient to overcome the employer’s 

asserted non-retaliatory explanation “on the record [in that 

case],” without addressing the temporal proximity required to 

establish a prima facie case). 

When the district court evaluated Hamilton’s temporal 

proximity claim, it considered only the interval between 

Hamilton’s August 2003 EEO counseling session and the 

January 20, 2004 decision to detail Carraway—a five-month 

interval the court found insufficient to establish causation. 

Hamilton I, 542 F. Supp. 2d at 57–58. Apparently believing 

that only Hamilton’s first statutorily protected activity was 

relevant to the temporal proximity analysis, the district court 

rejected his argument that proximity should instead be 

measured from October 21, 2003, when he filed his formal 

EEO complaint. Id. at 58. As Hamilton points out, however, 

we have held that courts should consider later protected 

activity in determining whether evidence of temporal 

proximity satisfies the causation element. See, e.g., Jones, 557 

F.3d at 680 (“[B]ecause Title VII and the ADEA protect 

employees who engage in any protected activity, we have 

repeatedly held that an adverse action following closely on 
24 

the heels of protected activity may in appropriate cases 

support an inference of retaliation even when occurring years 

after the initial filing of charges.”); Singletary, 351 F.3d at 

524 (finding error where “[i]n concluding that there was 

insufficient temporal proximity between the defendants’ 

alleged retaliatory actions and Singletary’s protected activity, 

the district court failed to take account of protected activity 

that Singletary undertook long after the original protected 

activity” (internal quotation marks omitted)). 

Measured from the October filing of Hamilton’s formal 

complaint, the period between his statutorily protected 

activity and the adverse employment action is just under three 

months. Moreover, given Hamilton’s claim that Burns 

“ignored” him in December 2003 when he requested 

information regarding the detail, Appellant’s Br. 40; see also

Hamilton Aff. at 8, it appears that Burns actually took a first 

step toward the adverse action just two months after Hamilton 

filed his formal complaint. The Secretary insists that 

Hamilton never argued in the district court that Burns’s 

December 2003 brush-off constituted an adverse employment 

action. But Hamilton did allege that Burns’s behavior formed 

part of a pattern of antagonism leading up to the adverse 

action, see Hamilton I, 542 F. Supp. 2d at 60, and we consider 

it here as additional evidence supporting an inference of 

causation. The record before us, then, suggests that Hamilton 

was denied information about a possible detail just two 

months after filing an EEO complaint and, approximately one 

month later, was ultimately passed over for the detail. The 

Secretary claims that Hamilton failed to show that Burns 

knew of his complaint, but at the prima facie stage the fact 

that Hamilton submitted the complaint to the agency is 

sufficient. See Jones, 557 F.3d at 679 (suggesting that the 

agency’s knowledge of protected activity may be sufficient, at 

least at the prima facie stage). 
25 

Considering the “minimal burden” imposed at the prima 

facie stage, Holcomb, 433 F.3d at 903, we find the evidence 

sufficient to establish a prima facie case of retaliation. The 

Secretary, pointing out that he has already come forth with a 

legitimate, non-retaliatory explanation for Carraway’s 

selection, Def.’s Mot. for Summ. J. at 17–18, urges us to 

resolve “the ultimate issue of retaliation vel non,” Jones, 557 

F.3d at 678. But given that the issue is not fully briefed on 

appeal, we decline to do so. See Liberty Property Trust v. 

Republic Properties Corp., 577 F.3d 335, 341 (D.C. Cir. 

2009) (“Although we review all questions of law de novo and 

have the discretion to consider questions of law that were not 

passed upon by the District Court, this court’s normal rule is 

to avoid such consideration.” (alterations and internal 

quotation marks omitted)). Instead, we shall remand 

Hamilton’s retaliation claim for the district court to determine 

in the first instance whether a reasonable jury could conclude 

that the Secretary’s proffered explanation was pretext for 

retaliation, keeping in mind that “positive evidence beyond 

mere proximity is required to defeat the presumption that the 

proffered explanations are genuine.” Woodruff, 482 F.3d at 

530. 

V.

For the foregoing reasons, we affirm the district court’s 

grant of summary judgment on Hamilton’s 2002 detail claim. 

We reverse the grant of summary judgment on Hamilton’s 

promotion discrimination and retaliation claims and remand 

for further proceedings consistent with this opinion. 

So ordered.