UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA VIVIAN VASSER, : : Plaintiff, : Civil Action No.: 14-0185 (RC) : v. : Re Document Nos.: 66, 67, 77 : DAVID SHULKIN, Secretary, : United States Department of Veterans Affairs : : Defendant. :
MEMORANDUM OPINION
D ENYING D EFENDANT ’ S M OTION F OR S UMMARY J UDGMENT ; G RANTING D EFENDANT ’ S M OTIONS FOR L EAVE TO F ILE U NDER S EAL
I. INTRODUCTION This case involves an employment discrimination action brought by Plaintiff, Vivian Vasser, against David Shulkin i n his capacity a s Secretary of t he United States Department of Veterans Affairs (“VA”). Ms. Vassers claims that the VA discri minated and retaliated against her when it failed to promote her to a position of either the D eputy Regional Manager or Regional Manager for the VA’s Readjustment Counseling Service i n Region 3A, headquartered in Bay Pines, Florida. This matte r now comes before the Court on the Secretary’s Motion for Summary Judgment (“Def.’s Mot .”), ECF No. 66. For the reasons stated below, that motion is denied.2 II. BACKGROUND 1 Ms. Vasser, an African-American w oman, is a licensed social wor ker who has worked for the VA in its Readjustment Couns eling Service (“RCS”) since the early 1990s. See Def.’s Resp. Pl.’s Counter-StatementMaterial Facts in D ispute (“Def.’s Resp . Pl.’s Counter-SMF”) ¶ 11, ECF No. 76-1; Pl.’s Counter-Statement M aterial Facts in Dispute (“P l.’s Counter-SMF) ¶¶ 1, 11, ECF No. 72-18; Pl.’s Opp’n Def.’s Mot . Summ. J. (“Pl.’s Opp’n”), Ex . 10, ECF No. 72-2. RCS is a division of the Veteran s Health Administration within the VA an d is responsible for providing counseling and psychosocial servi ces to returning combat veterans and their family members primarily through individual “Vet Centers.” See 38 U.S.C. §§ 1712A, 7309(a). RCS is divided into seven regions, each of which is overseen by a Regional Man ager with assistance from a Deputy Regional Manager and Associ ate Regional Managers. Pl.’s Counter-SMF ¶ 5; Def.’s Resp. Pl.’s Counter-SMF ¶ 5. These Regional Managers report to RCS’s Chief Officer, who retains responsibility for all Re gional Offices and Vet Centers nationwide. Pl.’s Counter-SMF ¶ 7; Def.’s SMF ¶ 7. At all times relevant to this suit, RCS’s C hief Officer was Dr. Alfonso Batres. Pl.’s Counter-SMF ¶ 8; D ef.’s Resp. Pl.’s Counter-SMF ¶ 8 Ms. Vasser first started worki ng at RCS as a clinical social wo rker in 1993 and eventually rose to the rank of Supervisory S ocial Worker/Team Leader (“Team Leader”), a position that she has held since January 2000. See Pl.’s Opp’n, Ex. 10. As a Team Leader, Ms. Vasser was responsible for hiring, managi ng budgets, and supervising the c are of veterans at the Eastside Vet Center in Maple Heights, Ohio. See Def.’s Resp. Pl.’s Counter-S MF ¶¶ 14–15; Pl.’s CounterSMF ¶¶ 14–15. In addition to her experience within RCS, Ms. Va sser has also held various

1 Unless otherwise noted, this s ection recounts only facts that the parties do not dispute or facts substantiated by the record.3 positions involving behavioral heal th and social work as an off icer in the U.S. Army Reserves.
See Pl.’s Opp’n, Ex. 10. Between 2007 and 2011, Ms. Vasser vigorou sly pursued promotion to several high-level positions w ithin RCS, including positions as RCS Deputy Regional Manager and RCS Regional Manager. See Pl.’s Counter-SMF ¶¶ 52, 60, 64, 123, 162-63; Def.’s Resp. Pl.’s Counter-SMF ¶¶ 52, 60, 64, 123, 162-63. A. Deputy Regional Manager Position Beginning in 2008, RCS began seeking a new Deputy Regional Mana ger for Region 3A, headquartered in Bay Pines, Florida. 2 See Pl.’s Opp’n, Ex. 4, ECF No. 72-1. The position had been left vacant after John Wa lker, the former Deputy Regional Manager, was promoted to Regional Manager in 2007. Def.’s St atement Material Facts (“De f.’s SMF”) ¶ 11, ECF No. 66- 1; Pl.’s Resp. Def.’s Statement Material Facts (“Pl.’s Resp. De f.’s SMF”) ¶ 11, ECF No. 72-18. On August 29, 2008, the VA solicited a pplications for the Deputy Regional Manager position under Announcement Number MPA-08-351, see Pl.’s Opp’n, Ex. 4, and Ms. Vasser submitted an application, Pl.’s Counte r-SMF ¶ 64. Although the Secretarydenies her account, Ms. Vasser claims that not only did she a pply for the position, but that M r. Walker interviewed her and recommended that Dr. Batres sel ect her for the job. Compare Pl .’s Counter-S MF ¶¶ 64–74, with Def.’s Resp. Pl.’s Counter-SMF ¶¶ 64–74. Nevertheless, the par ties agree that on January 2009, Mr. Walker canceled the vacancy announcement without any applic ant receiving a formal offer.
See Decl. John Walker (“Walker Decl .”) at Ex. 1, ECF No. 66-3; Pl.’ s Counter-SMF ¶ 82; Def.’s Resp. Pl.’s Counter-SMF ¶ 82.

2 Region 3A encompasses Florida, N orth Carolina, South Carolina, Georgia, Puerto Rico, and the U.S. Virgin Islands. Def .’s SMF ¶ 10; Pl.’s Resp. Def. ’s SMF ¶ 10.4 A few months later, in April 2009, the same position was re-adv ertised under Announcement Number 2009-196-AA. See Def.’s Mot., Ex. 1, ECF N o. 66-6; Pl.’s CounterSMF ¶ 86; Def.’s Resp. Pl.’s C ounter-SMF ¶ 86. Ms. Vasser once again applied for the position and was ultimately found to be one o f four eligible candidates. Def.’s SMF ¶ 17; Pl.’s Resp. Def.’s SMF ¶ 17. This time, e ven though no interviews were con ducted, Mr. Walker recommended, and Dr. Batres appr oved, the selection of a white man named Wayne Plummer who had, at that time, been servi ng as a Team Leader in Region 3A for a little under two years.
See Walker Decl. ¶¶ 10, 12; Def.’s Mot., Ex. 2, ECF No. 66-6. On October 30, 2009, Ms. Vasser becam e aware of her non-selecti on and, shortly thereafter, filed an informal co mplaint of discrimination with the Office of Resolution Management. Pl.’s Counter-SMF ¶121; Def.’s Resp. Pl.’s Counte r-SMF ¶ 121. She later filed a formal complaint on February 17, 2010. Pl.’s Counter-SMF ¶ 121 ; Def.’s Resp. Pl.’s CounterSMF ¶ 121. B. Regional Manager Position In August 2010, Mr. Walker, the the n-Regional Manager for Regio n 3A, retired from the VA. Walker Decl. ¶ 4. That fall, RCS reached out to Rachelle Seybold, a Senior Human Resource Specialist, t o fill that vacancy. Def.’s SMF ¶ 38; Pl .’s Resp. Def.’s SMF ¶ 38. Ms. Seybold received certain informa tion from RCS in Washington, D. C., such as the position description, area of consider ation, and the knowledge, skills, and abilities requirements that were to be used in advertising the position vacancy. Def.’s SMF ¶ 3 9; Pl.’s Resp. Def.’s SMF ¶ 39. Using this information, Ms. Seybold developed Vacancy Announcem ent Number 417114 and posted the announcement to an offici al federal employment websi te. See Def.’s SMF ¶¶ 40–41; Pl.’s Resp. Def.’s SMF ¶¶ 40–41. T he position, as listed in th e Announcement, was for a GS-145 Regional Manager and was open to all current, permanent VA empl oyees nationwide. See Def.’s SMF ¶ 41; Pl.’s Resp. Def.’s SMF ¶ 41; Def.’s Mot., Ex. 5. The VA accepted applications for that position from December 2010 through January 2011. See Def.’s Mot., Ex. 5, ECF No. 66-6. In total, eleven candidates appl ied, five of whom the VA deemed qualified and placed on a certificate of eligible candidates, includi ng Ms. Vasser. Def. ’s SMF ¶¶ 46–48; Pl.’s Resp. Def.’s SMF ¶¶ 46–48. Nevertheless, Dr. B atres did not make a selectio n based on that certificate. Def.’s SMF ¶ 53; Pl.’s Resp. Def.’s SMF ¶ 53 On March 30, 2011, RCS advertised the Regional Manager positiona second time, this time under Vacancy Announcement Number 454888. Pl.’s Counter-S MF ¶ 162; Def.’s Resp. Pl.’s Counter-SMF ¶ 162. This ann ouncement, like the first, wa s advertised as a GS-14 position, but unlike the first announcemen t, this one was open to all U.S . Citizens, not just VA employees.
See Def.’s SMF ¶ 59; Pl.’s Resp. Def.’s SMF ¶ 59; Def.’s Mot., Ex. 8, ECF No. 66-7. The VA accepted applications from March 30, 2011 through April 6, 2011 and, in all, 113 people applied.
See Def.’s SMF ¶¶ 60–61; Pl.’s Res p. Def.’s SMF ¶¶ 60–61; Def.’s Mo t., Ex. 8. Of those 113 applicants, five were placed on the certificate of eligibles, i ncluding Ms. Vasser. See Def.’s SMF ¶¶ 60–61; Pl.’s Resp. Def.’s SMF ¶¶ 60–61. Again, however, Dr. Batres did not make a selection based on the certificate. See Def.’s SMF ¶ 65; Pl.’s Resp. Def.’s SMF ¶ 65. Ultimately, Dr. Batres selected Sarita Figueroa after yet anoth er vacancy announcement was issued. At that time, Ms. Figueroa was a GS-15 Associate D irector of the VA Caribbean Healthcare System. See Def.’s SMF ¶ 76 Pl.’s Resp. Def.’s SMF ¶ 76. Ms. Figueroa and Dr. Batres, however, were not unknow n to one other. Indeed, the VA Office of Inspector General (“OIG”) later described Dr. Batres and Ms. Figueroa as “being c lose, personal friends, and [as]6 having a deep-felt respect and a dmiration for one another.” De f.’s Mot., Ex. 22 at ¶ 54, ECF No. 66-10; see also Pl.’s Opp’n, Ex. 55, ECF No. 72-10. By April 2011, Ms. Figueroa had exp ressed to Dr. Batres that sh e was interested in returning to Florida. See Decl. Dr. Alfonso Batres (“Batr es Decl.”) ¶ 33, ECF No. 66-3; P l.’s Counter-SMF ¶ 165; Def.’s Res p. Pl.’s Counter-SMF ¶ 165. On Ap ril 5, one day before the close of the second vacancy announcement, Dr. Batres asked Ms. Figueroa to call him. See Pl.’s Opp’n, Ex. 55. Although the substance of that conversation is unclear, on April 18, Ms. Figueroa emailed Dr. Batres to t ell him she had contacted HR ab out applying for the Bay Pines Regional Manager position, but ha d missed the deadline to submi t an application. Def.’s Resp. Pl.’s Counter-SMF ¶ 170; P l.’s Counter-SMF ¶ 170; see also Pl.’s Opp’n, Ex. 29, ECF No. 72-5. Though Dr. Batres was the formal selecting official for the p osition, much of the recruitment effort was performe d by Greg Harms, Dr. Batres’s administrative officer. See Def.’s Mot., Ex. 22 at ¶ 2; Pl.’s Counter-SMF ¶ 172; Def.’s Resp. Pl.’ s Counter-SMF ¶ 172. By the summer of 2011, Mr. Harms was seek ing advice from Denis McNamar a, an RCS Human Resources Specialist/Consultant stationed in Milwaukee, Wiscons in, about whether Dr. Batres could laterally transfer Ms. Fi gueroa noncompetitively into the Bay Pines Regional Manager position at a grade of GS-14. Def .’s Resp. Pl.’s Counter SMF ¶177; Pl.’s Counter-SMF ¶ 177; Dep. Denis McNamara (“McNamara Dep.”) at 76:3–16, ECF No. 72-13 . Although Mr. McNamara was unsure, Wayne Davis, a Human Resources Officer, al so stationed in Wisconsin, believed that such a transfer would be possible as long as Ms. Figueroa was qualified. Pl.’s Counter-SMF ¶ 179; Def.’s Res p. Pl.’s Counter-SMF ¶ 179. In Ju ly, Mr. Davis forwarded Ms. Figueroa’s resume, along with the formal position description f or Regional Manager to yet another HR Specialist named Theresa Lasota and asked her whethe r she considered Ms. Figueroa7 qualified for the posi tion. Def.’s Resp. Pl.’s Counter SMF ¶ 1 88; Pl.’s Counter-SMF ¶ 188; Pl.’s Opp’n, Ex. 28, ECF No. 72-5. The nextday Ms. Lasota wrote to Mr. Davis stating that she would not qualify Ms. Figueroa for the position “at any grade l evel” because, not only did she “not possess the education require ments, she also [did] not hav e the experience required by the [position description].” Def.’s Resp. Pl.’s Counter SMF ¶¶ 189 , 192; Pl.’s Counter-SMF ¶¶ 189, 192; Pl.’s Opp’n, Ex. 28. Mr. McNamara forwarded Ms. Lasota’s comments to Mr. Harms and suggested that “[p]erhaps the re is more work to do on this?” P l.’s Opp’n, Ex. 28. Later, Mr. Davis expressed his belief that they still might be able to rea ssign Ms. Figueroa, but that they might need to adjust th e position description. See McNamara Dep. at 91:20–92:5; Pl.’s Opp’n, Ex. 32, ECF No. 72-6. In the meantime, however, the tw o previous certificates of elig ible candidates were still outstanding. On July 22, 2011, Mr. McNamara emailed Mr. Harms, proposing that no one be selected under the outstanding cer tificates and that the positi on be reclassified as a GS-15 position and “either open the job un der Merit Systems or seek alateral placement of a top executive to that position.” See Pl.’s Opp’n, Ex. 33, ECF No. 72-6. T he ostensible purpose for the reclassification was to attr act applicants with greater lea dership experience than they had seen under the last two announcements. See Pl.’s Opp’n, Ex. 33. In his email, Mr. McNamara explained that Bay Pines was f acing “unique circumstances” and that it “present[ed] the most difficult situation with reg ards to leadership.” See Pl.’s Opp’n, Ex. 33. He did not, however, elaborate on what either the cir cumstances or difficulties were

. See Pl.’s Opp’n, Ex. 33. Nevertheless, he suggested that th is proposed course of action be shared with Dr. Batres and that they urge him to accept it. See Pl.’s Opp’n, Ex. 33. About two hours later, Mr. Harms emailed Ms. Seybold to inform her that D r. Batres was returning the certificates without making a8 selection. See Def.’s Resp. Pl.’s Counter SMF ¶ 205; Pl.’s Counter-SMF ¶ 205; Pl.’s Opp’n, Ex. 34, ECF No. 72-6. RCS then set out to rewrite the BayPines Regional Manager posi tion description to reflect a GS-15 position. Def.’s Resp. Pl.’s Counter-SMF ¶ 207 ; Pl.’s Counter-SMF ¶ 207. After the new position description was complete, Mr. Harms sent Ms. Figueroa a copy and Mr. Harms and Mr. McNamara then proceeded to help Ms. Figueroa tail or her resume for that newly described position. See Def.’s SMF ¶ 80; Pl.’s Counter-SMF ¶¶ 213–14; Def.’s Resp. Pl.’ s Counter SMF ¶ 213–14; Pl.’s Opp’n, Exs. 37–38; McNamara Dep. at 105:15–106:2. Although the VA had previously b een discussing the possibility of laterally transferring Ms. Figueroa into the Regional Ma nager position, the VA eventua lly decided to issue a new competitive announcement based upon a recommendation from Ms. S eybold. See Dep. Gregory Harms (“Harms Dep.”) at 123:11–22, 126:21–127:14, ECF No. 72-13 . Following this decision, Ms. Seybold began preparing a new vacancy announcement for publ ic dissemination. Def.’s Resp. Pl.’s Counter SMF ¶ 220; Pl.’s Counter-SMF ¶ 220. On Sep tember 2, 2011, she asked Mr. Harms whether the area of consideration for the vacancy should be open to all RCS employees or whether external applicants could also be considered. See Pl.’s Opp’n, Ex. 41, ECF No. 72-8. But rather than expand the area of consideration, Mr. Harms ind icated that it shou ld be restricted to only VISN 8 employees—the same area in which Ms. Figueroa wa s employed. 3 See Pl.’s Opp’n, Exs. 41, 44, ECF No. 72-8. Doi ng so eliminated 99% of a ll VA staff that could be considered for the position. Def .’s SMF ¶ 90; Pl.’s Resp. Def. ’s SMF ¶ 90. In addition, now that the position was upgraded to GS- 15, it now required applicants to have one year of specialized

3 “VISN” stands for “Veterans Int egrated Service Networks,” of w hich there are twentyone across the country. Def.’s SMF ¶ 84; Pl.’s Resp. Def.’s SM F ¶ 84. VISN 8 covers Florida, Puerto Rico, and the Virgi n Islands. Def.’s SMF ¶ 85.9 experience equivalent to that of a position at GS-14. See Pl.’s Opp’n, Ex. 44. On September 13, 2011, the position was publicized under Vacancy Announcement Nu mber NY-11-RNS-535157, which was scheduled to rema in open for a period of one week. See Pl.’s Opp’n, Ex. 44. In the weeks leading up to the a nnouncement of the position ope ning, Ms. Figueroa and Mr. Harms communicated on multiple occasions. See Pl.’s Opp’n, Ex. 36 at VA003440, ECF No. 72-6. In several of those communications, Ms. Figueroa ask ed for an “update.” See Pl.’s Opp’n, Ex. 36 at VA003440. Then, on September 8, 2011, Mr. Harms indicated that the position “[s]hould be opening in the next serval days” and he would “let [her] know.” Pl.’s Opp’n, Ex. 36 at VA003440. On September 13, 2011—the day that the vacancy announcement was released— Ms. Figueroa submitted her application. See Pl.’s Opp’n, Ex. 47, ECF No. 72-9. One week later, on the final day of the announcement, Ms. Vasser submitt ed her own application. Pl.’s Opp’n, Ex. 47. But, because Ms. Vasser was not a VISN 8 employ ee, she was determined ineligible for the position. Pl. ’s Counter-SMF ¶ 265; Def.’s R esp. Pl.’s Counter SMF ¶ 265. And, in fact, of the eleven people who applied, only two were d eemed eligible—Ms. Figueroa and another candidate. See Pl.’s Opp’n, Exs. 47, 49, ECF No. 72-9. Mr. Harms later convened an inter view panel of three RCS employ ees to review the candidates. Pl.’s Counter-SMF ¶ 269; Def.’s Resp. Pl.’s Counte r-SMF ¶ 269. Despite having provided Ms. Figueroa assistan ce in her application, both Mr. M cNamara and Mr. Davis were chosen to serve on the panel. P l.’s Counter-SMF ¶ 269–70; Def. ’s Resp. Pl.’s Counter SMF ¶ 269–70. The panel interviewed both candidates and ultimately r ated Ms. Figueroa substantially higher than the other candidate . Def.’s Mot., Ex. 19, ECF No. 67-3. In fact, Mr. McNamara and Mr. Davis each gave Ms. Figueroa a perfect score in every categ ory except one, in which Mr. Davis scored her 4 out of 5. See Def.’s Mot., Exs. 19, 22 at ¶ 57. Based on this result, the panel10 recommended that Ms. Figueroa be selected for the GS-15 Regiona l Manager position. Pl.’s Resp Def.’s SMF ¶ 98; Def.’s SM F ¶ 98. Dr. Batres adopted the recommendation and selected her to fill the position. Pl.’s Resp Def.’s SMF ¶ 99; Def.’s S MF ¶ 99. C. OIG Investigation In 2012, the VA Office of Inspector General (“OIG”) investigate d claims that Dr. Batres had engaged in prohibited personne l practices by giving prefere nce to three of his “long-time friend[s]” by selecting them for open positions or creating pos itions for them within RCS. Def.’s Mot., Ex. 22 at ¶ 1. One of the claims that OIG investigated i nvolved the circumstances of Ms. Figueroa’s selection for the Ba y Pines Regional Manager positio n. See Def.’s Mot., Ex. 22 at ¶ 1. After reviewing the evidence , OIG concluded that “the evi dence, as a whole, shows that Dr. Batres intended to hire Ms. Figue roa for the GS-15 Regional Man ager position before the position was announced and that he l ied to OIG inve stigators ab out his relationship and frequency of contact with Ms. Fi gueroa in an attempt to cover u p his actions.” See Def.’s Mot., Ex. 22 at ¶ 51. OIG also stated that even though “Dr. Batres c laimed that his relationship with Ms. Figueroa was ‘all work’ and s trictly professional,” the “te nor and substance of some of the email messages indicated that th eir relationship was that of be ing close, personal friends, and of having a deep-felt respect and a dmiration for one another,” whi ch was quite different from what Dr. Batres led OIG to believe. See Def.’s Mot., Ex. 22 at ¶ 54. Ultimately, OIG concluded that “Dr. Batres, [and certain other RCS employees] committed a proh ibited personnel practice when they provided Ms. Figueroa with a n advantage not afforded to an y other applicant.” See Def.’s Mot., Ex. 22 at ¶ 5.11 D. Present Action In 2014, Ms. Vasser brought suit i n this Court alleging sex and race discrimination and retaliation based on her non-select ion for numerous vacancies w ithin the VA. Ms. Vasser later amended her Complaint on two occasions, but in December 2016, this Court issued an opinion dismissing many of her claims. See Vasser v. McDonald , 228 F. Supp. 3d 1 (D.D.C. 2016). The only claims that now remain are he r discrimination claims relat ing to non-selection for the Deputy Regional Manager posi tion and her discrimination and ret aliation claims relating to her non-selection for the Regiona l Manager position. On July 14, 2 017, the Secretary filed the present motion for summary judgm ent on all claims, which the parties have fully briefed and is now ripe for decision. 4

III. LEGAL STANDARD A court may grant summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to j udgment as a matter of law.” Fed. R. Civ. P. 56(a). A “material” fact is one capable of affectin g the substantive outcome of the litigation. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evi dence for a reasonable jury to return a verdict for the nonmovant. See Scott v. Harris , 550 U.S. 372, 380 (2007). The principal purpose of summar y judgment is to streamline liti gation by disposing of factually unsupported claims or defenses and determining whethe r there is a genuine need for trial. See Celotex Corp. v. Catrett , 477 U.S. 317, 323–24 (1986). The movant bears the initial

4 Defendant has also filed two c onsent motions for leave to file several exhibits under seal. See ECF Nos. 67 & 77. Upon consideration of those motions, the Court is satisfied that leave should be granted. Accord ingly, the Court grants the mot ions.12 burden of identifying portions of the record that demonstrate t he absence of any genuine issue of material fact. See Fed. R. Civ. P. 56(c)(1); Celotex , 477 U.S. at 323. In response, the nonmovant must point to specific fact s in the record that reveal a genuine issue that is suitable for trial. See Celotex , 477 U.S. at 324. In considering a motion for summary judgmen t, a court must “eschew making credibility determ inations or weighing the evide nce[,]” Czekalski v. Peters , 475 F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and in ferences must be analyzed in the light most favorable to the non-movant, see Anderson , 477 U.S. at 255. Nevertheless, conclusory assertions offered w ithout any evidentiary support d o not establish a genuine issue for trial. See Greene v. Dalton , 164 F.3d 671, 675 (D.C. Cir. 1999). Title VII of the Civil Rights Act prohibits an employer from di scriminating against their employees on the basis of race, c olor, religion, sex, or nation al origin, 42 U.S.C. § 2000e–2(a), and forbids retaliation against an employee because he “opposed any practice made an unlawful employment practice by” Title VII, or because he “made a charge ” under Title VII, id. § 2000e– 3(a). To establish employment di scrimination, a plaintiff must demonstrate that the plaintiff suffered an adverse employment action because of the employee’s race, color, re ligion, sex, or national origin. See Baloch v. Kempthorne , 550 F.3d 1191, 1196 (D.C. Cir. 2008). On the other hand, to prove unlawful retaliation, a plaintiff must establishthat he made a charge or opposed a practice made unlawful by Title VII, that the employer took a m aterially adverse action against him, and that the employer took the action because of his prote cted conduct. See Holcomb v. Powell , 433 F.3d 889, 901–02 (D.C. Cir. 2006) (Title VII). The D.C. Circuit, however, has explained that, at the motion the summary judgment stage, “the question whether plaintiff made out a prima facie case is almost always irrelevant.” Brady v. Office of Sergeant at Arms , 520 F.3d 490, 494 (D.C. Cir. 2008). Indeed, once an employer asserts a legitimate,13 nondiscriminatory, non-retaliatoryreason for its actions, inqu iry into a plainti ff’s prima facie case typically becomes “an unnecessary and improper ‘sideshow.’ ” Jones v. Bernanke , 557 F.3d 670, 678 (D.C. Cir. 2009) (quoting Brady , 520 F.3d at 494). Instead, district c ourts should consider only whether “‘the emp loyee produced sufficient evidence for a reasonable jury to find that the employer’s asse rted non-discriminatory or nonretaliatory reason was not the a ctual reason and that the emplo yer intentionally d iscriminated or retaliated against the employee.” Allen v. Johnson , 795 F.3d 34, 39 (D.C. Cir. 2015) (quoting Brady , 520 F.3d at 493) (brackets omitted). To answer this question , the Court considers whether a reasonable jury coul d infer discrimination or retalia tion “from ‘all the evidence, which includes not only the p rima facie case but also the evidence th e plaintiff offers to attack the employer’s proffered explanation f or its actions and [any] othe r evidence.’” Morris v. McCarthy , 825 F.3d 658, 668 (D.C. Cir. 2016) (quoting Gaujacq v. EDF, Inc. , 601 F.3d 565, 577 (D.C. Cir. 2010) (alteration in Morris )). “Whether the available evidence suffices to support a jury finding of [discriminati on or] retaliation will, necessari ly, be a contextual judgment.” Allen , 795 F.3d at 40. “Typically, successful rebuttal of an employer ’s stated reason counts as evidence of the invidious motive that is a required element of a disparate treatment or retaliation claim.”
Id. (citing George v. Leavitt , 407 F.3d 405, 413 (D.C. Cir. 2005). Furthermore, “though evidence of pretext is not per se sufficient to permit an infer ence of discrimination [or retaliation], it usua lly will be enough to get a plaintiff’s cl aim to a jury.” Jones , 557 F.3d at 679 (internal quotations, citati ons, ellipses, and brackets omitted ); see also Hamilton v. Geithner , 666 F.3d 1344, 1351 (D.C. Cir. 2012) (courts “do not routinely requ ire plaintiffs to submit evidence over and above rebutting the empl oyer’s stated explanation in o rder to avoid summary judgment.”) (internal quotations omitted).14 There are multiple ways in which a plaintiff may support an inf erence that an employer’s stated reason for a challenged e mployment action was not the ac tual reason, and that the real reason was prohibited discrimin ation or retaliation. For examp le, the D.C. Circuit has held that “temporal proximity of an adverse action close on the heels of protected activity is a common and highly probative type of circumstantial evidence of retalia tion.” Allen , 795 F.3d at 40 (citing Hamilton, 666 F.3d at 1357–59). “Other common ways of proving invidious motive—whether retaliation or discrimination—inc lude pointing to evidence that the employer treated other, similarly situated employees better; that the employer is ‘lyin g about the underlying facts’ of its decision; that there were ‘changes and inconsiste ncies’ in the employer’s given reasons for the decision; that the employer faile d to ‘follow established proce dures or criteria’; or that the employer’s ‘general treatment of m inority employees’ (or, in th e retaliation context, employees who asserted their Title VII righ ts) was worse than its treatme nt of non-minorities (or employees who did not assert their Title VII rights).’” Id. (quoting Brady, 520 F.3d at 495 & n.3) (parentheses i n original).

IV. ANALYSIS A. Deputy Regional Manager Position According to Mr. Walker, he selected Mr. Plummer over Ms. Vasse r for the Deputy Regional Manager position because h e determined that Mr. Plumme r was the “most qualified and best applicant for the position.” Walker Decl. ¶ 10–11. When an employer argues, like the VA does, that its hiring decisi on was based on the candidates’ relative qualifications, “a plaintiff can directly challenge that quali fications-based explanation on ly if the plaintiff was ‘ significantly better qualified for the job’ tha n those ultimately chosen.” Adeyemi v. District of Columbia , 525 F.3d 1222, 1227 (D.C. Cir. 2008) (quoting Holcomb v. Powell , 433 F.3d 889, 897 (D.C. Cir.15 2006)) (emphasis added). But “[i]n cases where the comparative qualifications are close, a reasonable jury would not usua lly find discrimination . . . .” Adeyemi , 525 F.3d at 1227. Instead, “the jury would ‘assume that the employer is more capable of as sessing the significance of small differences in the qualifications of the candidates, or that th e employer simply made a judgment call.’” Id. (quoting Aka v. Wash. Hosp. Ctr. , 156 F.3d 1284, 1294 (D.C. Cir. 1998); accord Gilbert v. Napolitano , 670 F.3d 258, 262 (D.C. Cir. 2012). I n these cases, courts “ ‘defer to the employer’s decision of what nondisc riminatory qua lities it will seek’ in filling a position,” Jackson v. Gonzales , 496 F.3d 703, 708 (D.C. Cir. 2007) (brack ets omitted) (quotin g Stewart v. Ashcroft , 352 F.3d 422, 429 (D.C. Cir. 2003)), and “ must respect the em ployer’s unfettered discretion to choose amo ng qualified applicants.” Grosdidier v. Broad. Bd. of Governors , 709 F.3d 19, 26 (D.C. Cir. 2013) (internal quotation marks omitted) (quoting Fischbach v. D.C. Dep’t of Corr. , 86 F.3d 1180, 1183 (D.C. Cir. 1996)). In considering whether there exi sts a significant disparity in the relative qualifications of Mr. Plummer and Ms. Vasser, it is helpful to consider how the D .C. Circuit has previously approached this question. In Aka , for example, the D.C. Circuit determined that a reasonable jury could conclude that the pl aintiff, who was denied a pharma cy technician job, was “markedly more qualified” than the applic ant who received the position. 156 F.3d at 1299. In that case, the plaintiff showed that he had nine teen years of experience as a hospital assistant and held both a bachelor’s degree and a master’s degrees. Id. at 1286, 1295–96. The applicant who was selected, however, had no college education, had worked in the hospital laundry for slightly over a year, and had spent only two m onths as a pharmacy volunteer. Id. at 1286, 1295–96. Thus, the court found that a reasonable jury could infer discrimination b ased on the significant qualifications gap between the plai ntiff and the successful can didate. The court in Hamilton v.16 Geithner , on the other hand, found that no such inferen ce could be raised. 666 F.3d 1344, a t 1353. There, the plaintiff had a b achelor’s and master’s degre es in relevant fields, and nineteen years of relevant experience. Id. By contrast, the successful candidate had no college degree, little formal training, and only eig ht years of relevant experi ence. Id. Even though the plaintiff “had far more formal training a nd education,” “significantly gr eater technical expertise,” and “broader [relevant] experience” than the successful candidate, the Court concluded that it was “a relatively close question” wheth er the qualifications gap was s ufficient to support an inference of discrimination. Id. at 1352. Ultimately, the Court hel d that this gap alone was no t significant enough to warrant such an inference. Id. This case is not as close as the facts presented in Hamilton . Here, both Ms. Vasser and Mr. Plummer not only held bachelor’s degrees in behavioral or s ocial sciences, a pr erequisite for the position, but both also held master’s degrees. See Pl.’s Opp’n, Ex. 4 (Deputy Regional Manager candidates must have edu cation and experience equivalen t to a degree in behavioral or social science); Def.’s Mot ., Ex. 3, ECF No. 66-6 (identifying Ms. Vasser’s educational and professional background); Def .’s Mot., Ex. 2 (identifying Mr. P lummer’s educational and professional background). More over, both Ms. Vasser and Mr. Pl ummer have multiple years of relevant experience. For examp le, Ms. Vasser spent more than f ifteen years at the VA and had been in a managerial role as a Team Leader for approximately ni ne years. See Def.’s Mot., Ex. 3. Mr. Plummer had been at the VA for approximately nine years and had been a Team Leader, the same position held by Ms. Vasser, for approximately two yea rs. See Def.’s Mot., Ex. 2. In addition, both Ms. Vasser and Mr. P lummer appear to have severa l years of relevant experience in the U.S. Army Reserves. See Def.’s Mot., Exs. 2–3. Thus, both Ms. Vasser and Mr. Plummer were clearly qualified for the position. And while Ms. Vasser may have more experience,17 particularly more managerial e xperience at the VA, and may even be considered more qualified than Mr. Plummer, in light of the case law in this Circuit, the differences in their relative credentials would not appear so sub stantial that they might alo ne raise an inference of discrimination. See e.g., Hamilton , 666 F.3d 1344, at 1352–53; Barnette v. Chertoff , 453 F.3d 513, 517 (D.C. Cir. 2006) (no inferen ce of discrimination when the selected candidate had “less supervisory experience overall (one year to [plaintiff]’s four) and her supervisory positions were at a lower grade,” but the succe ssful candidate’s “grade level qualified her for the position, she had significant operations experi ence in relevant areas, and, unlike [plaintiff], she had a permanent appointment to a position that supervised employees p erforming operations functions”). But “an employment discrimination plaintiff is not limited to a rguing that the employer’s explanation is wrong on the mer its;” she can “show by other mea ns that the explanation was made up to disguise illegitimate bias.” Aka , 156 F.3d at 1299. For instance, the plaintiff can attempt to show “that the empl oyer’s explanation was fabricated after the fact by showing that it contradicts other contemporane ous accounts of the employer’s de cision” or “that the employer’s explanation misstates the candidates’ qualifications.” Id. at 1295. A factfinder might also infer discrimination from evidence show ing “procedural irregularities in a highly subjective selection process.” Hamilton , 666 F.3d at 1352. Likewise, eviden ce of “attitudes suggestin g the decision maker harbors discriminatory a nimus” or “data showing that the defendant employs members of the plaintiff’s protected class at rates far below their number s in the applicant pool and the general population” might support an inference of discriminatio n. Holcomb , 433 F.3d at 899. Here, a jury could reasonably fi nd that the VA’s purported rati onale for not selecting her is pretext for discrimination because, according to Ms. Vasser, Mr. Walker had originally offered18 her the position, but later canceled the vacancy, re-announced it, and then gave the position to Mr. Plummer instead. Pl.’s O pp’n at 30. At her deposition, Ms . Vasser testified that, in September 2008, she had applied for the Deputy Regional Manager position under vacancy announcement MPA 08-351 and that she interviewed with Mr. Walke r. See Dep. Vivian Vasser (“Vasser Dep.”) at 58:17 –59:23, ECF No. 72-10. The next day, M s. Vasser received a call from Mr. Walker who told her that he w as going to recommend that Dr. Batres select her for the position. 5 See Vasser Dep. at 63:1–18, 64:16–19, 68:17–18, 70:2–16. When she returned home, she contacted Mr. Walker to fo llow up on the status of her sele ction at which point Mr. Walker informed her that he was still waiting for approval. Vasser De p. at 64:16-19. A few months after that, Ms. Vasser called ahuman resources representative to again inquire about the status of the position, but this time she was informed that, in fact, the VA had canceled vacancy
announcement MPA 08-351. See Vasser Dep. at 74:5–76:21. The n, in April 2009, the same Deputy Regional Manager position was advertised again, this tim e under Vacancy Announcement number 2009-196-AA. See Def.’s Mot., Ex. 1; Walker Decl. ¶ 9. But even though Ms. Vasser applied, see Pl.’s Opp’n, Ex. 10, the VA inst ead selected Mr. Plummer without even conducting interviews, see Walker Decl. ¶ 10. 6

5 Although official offers could onl y be made by the human resources department, hiring officials did sometimes inform ally tell candidates that they have been selected for a position. Dep. Rachelle Seybold (“Seybold Dep.”) at 45:14–46:9.
6 The Secretary responds to Ms. V asser’s testimony by arguing th at summary judgment is still appropriate because Ms. Vasser’s account is uncorroborate d. See Def.’s Reply at 5. But, contrary to the Secretary’s pos ition, Ms. Vasser’s account is c orroborated by at least two individuals: Ms. Elna Davis a nd Mr. Clarence Slaughter. Accord ing to Ms. Davis, when Mr. Walker first called Ms. Vasser , “Ms. Vasser placed the phone aw ay from her ear as [Ms. Davis] stood close to her and heard Mr. Walker tell Ms. Vasser that he had selected her for the Deputy Regional Manager’s position.” Decl. Elna M. Davis (“Davis Decl .”) ¶ 5, ECF No. 72-14. Similarly, Clarence Slaughter, ano ther regional manager for RCS , claimed that he had served as a reference for Ms. Vasser and, sometime after he gave his reco mmendation, Mr. Walker informed him that he had selected Ms. Vasser for the position. See Decl. Clarence Slaughter19 The Secretary points out, however , that Mr. Walker has refuted Ms. Vasser’s account of the first vacancy announcement. I ndeed, Mr. Walker attests tha t he did not “informally or formally select anyone” for the 2008 Deputy Regional Manager Po sition and that “[n]o one, including Dr. Alfonso Batres, t old [him] to cancel [the] vacanc y announcement.” Walker Decl. ¶¶ 7–8. But without weighing the evi dence and making a credibi lity determination as between Ms. Vasser and Mr. Walker, the C ourt cannot overlook Ms. Vasser ’s testimony in favor of the VA’s version of events. See Anderson , 477 U.S. at 255 (“Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences are jury functions, not those of a judge.”); Arrington v. United States , 473 F.3d 329, 338 (D.C. Cir. 2006) (“O n the record at hand, neither the District Court nor t his court can conc lude that app ellees’ story is truthful and appellant’s story is a fabricat ion, at least not if all of the evidence is viewed in the light most favorable to appellant as requi red by Federal Rule of Civil Pro cedure 56(c).”). In ruling on a summary judgment motion, “the ev idence of the non-movant is to be believed, and all justifiable inferences are to be dra wn in [her] favor.” Anderson , 477 U.S. at 255. It is for the jury, and not the Court, to determine who is telling the truth.

(“Slaughter Decl.”) ¶¶ 1–2, E CF 72-14. Thus, Ms. Vasser’s test imony does not stand alone. Regardless, the case law is cl ear that a plaintiff need not pre sent corroborating evidence. See Johnson v. Perez , 823 F.3d 701, 710 (D.C. Cir. 2016) (“To the extent the testim ony of a witness who is also a party may be imp aired by party self-interest, it is ordinarily the r ole of the jury— not the court on summary judgment—to discount it accordingly.”) ; George v. Leavitt , 407 F.3d 405, 414 (D.C. Cir. 2005) (“[T]here i s no rule of law that the testimony of a discrimination plaintiff, standing alone, can ne ver make out a case of discrim ination that could withstand a summary judgment motion.” (internal quotation and citation omit ted)); Benton v. Laborers’ Joint Training Fund , 210 F. Supp. 3d 99, 117 (D.D.C. 2016) (“A plaintiff’s own, ev en self-serving testimony, however, will often su ffice to defeat summary judgme nt—particularly where she has firsthand knowledge of a fact or observed an event, and where the case depends on the jury’s resolution of competing testimony and witness credibility.”) (i nternal citation omitted).20 While the hiring of one candidate over another similarly qualif ied candidate might not alone raise an inference of disc rimination, such an inference m ay be drawn when the unsuccessful candidate was previously offered the same position only to have that offer rescinded under circumstances suggestive of discrimination. See Byrd v. Vilsack , 931 F. Supp. 2d 27, 40 (D.D.C. 2013) (denying summary judgment despite “strong, countervailing evide nce” that employer selected “the mo st qualified candidate” because “ a reasonable jury could find the fact that [employer] initially offered [plaintiff] the promotio n, but then reneged on that offer just a couple of days after [plainti ff] complained about [employee]’ s racial comment, to be evidence indicative of pretext or some re taliatory motive on the Departm ent’s part.”). Assuming the truth of Ms. Vasser’s evidence, as th e Court must, a reasonable jury could conclude that Mr. Walker initially recommended that she be selected for the position, su bject to Dr. Batres’s approval, because Ms. Vasser was, or at least Mr. Walker believed that sh e was, the most qualified applicant for the position. Mr . Walker then inexplicably re-ad vertised the vacancy only to hire a white man who was arguably less qualified or, at best (accordin g to the Secretary), held “similar qualifications,” without conducti ng any interviews for the posi tion. Def.’s Mot. at 12. Under those circumstances, the Court is convinced that a reasonable j ury could conclude that the VA’s stated non-discriminatory reason f or not selecting Ms. Vasser i s, in fact, pretext for discrimination. Cf. Bowie v. Ashcroft , 283 F. Supp. 2d 25, 32 (D.D.C. 2003) (holding that employee established prima faci e case of race discrimination ba sed on canceled job vacancy that was re-posted and then filled by white employee). Accordingly, the Secretary is not entitled to summary judgment on Ms. Vasser’s D eputy Regional Manager claim.21 B. Regional Manager Position As with the Deputy Regional Mana ger position, the Secretary cla ims that the VA’s actions relating to the Regional Manager position were not disc riminatory, but instead based on the quality of the candidates who applied for the position. Ac cording to Dr. Batres, he canceled the first two announcements because “the applicants either lack ed experience in RCS, had no or little regional office experien ce, and/or in general were not the best candidates for the job as they did not have regional office and/or substantial managerial and fiscal responsibility experience [he] was looking for.” Batre s Decl. ¶ 25. As a result, he cla ims that the position was reclassified as a GS-15 position i n an effort “to attract qualifi ed candidates with significant leadership, administrative, and f iscal experience.” Batres Dec l. ¶ 35. Dr. Batres does acknowledge—somewhat counter-intuitively given his purported de sire for more-qualified applicants—that the area of cons ideration was restricted to app licants in VISN 8 in order to avoid excessive relocation cos ts, but suggests that if “RCS did not get qualified candidates, the plan was to open it up to all VA employees and then nationwide. ” Batres Decl. ¶ 36. That step was not ultimately required however because, after Ms. Figueroaapplied, he considered her to be the most qualified candidate for the position. Batres Decl. ¶¶ 34–35, 38. Having stated a non-discriminato ry, non-retaliatory reason for Ms. Vasser’s nonselection, it then becomes incumbent upon Ms. Vasser to offer e vidence showing that the stated rationale is in fact pretext fo r discrimination or retaliation. One way that this c an be achieved is through a showing of significant pr ocedural irregularities in t he selection process. See KilbyRobb v. Duncan , 77 F. Supp. 3d 164, 174 (D.D.C. 2015) (“pro cedural irregulari ties in the selection process also may demons trate that the employer’s just ification for a hiring or promotion decision was pretextual.” (citing Hamilton , 666 F.3d at 1355)). For example, in22 Hamilton , the employer required “documentation of a promotion action ‘s ufficient for a reviewer to reconstruct the action in its entirety’ as well as maintenan ce of complete promotion files for two years,” but in that case, int erviewers had retained almost no records. 666 F.3d at 1356. Here, the evidence that Ms. Va sser proffers easily suggests tha t Dr. Batres’s stated rationale is untrue and that subs tantial procedur al irregularit ies were present in the selection process. Indeed, viewed in the light most favorable to Ms. Vas ser, the evidence suggests that Dr. Batres did not select Ms. Figueroa because she was the most qua lified candidate, but because he had pre-selected her for the pos ition. Indeed, among other thi ngs, it is undisputed that Dr. Batres communicated with Ms. Figueroa about the vacancy, that there we re internal deliberations about the possibility of reassigning Ms . Figueroa to the position without competition, that Ms. Figueroa was given a copy of the newly revised position description befo re it was officially released, that Mr. Davis and Mr. McNamara helpe d Ms. Figueroa tailor her resum e for the position, and that Mr. Davis and Mr. McNamara were two of three members on the int erview panel that gave her a near perfect score. The OIG ultim ately concluded that all of t his was violative of federal personnel practices. While it is ultimately up to the jury to decide the weight of this evidence, this evidence quite clearly cal ls into question the veracity of Dr. Batres’s qualif ications-based rationale. 7

7 Defendant also argues that, w ith regard to the first two vacan cy announcements for the Regional Manager position, Ms. Vasser must show that she was th e most qualified person for the job because those announcements resulted in no selections. Def .’s Mot. at 15. While the Court finds that to be a highly questio nable statement of the law giv en that the exact same position was later re-advertised a nd filled, even if the Secretary were corr ect, the argument would fail. Indeed, the evidence suggests th at during Mr. Plummer’s time as the Deputy Regional Manager, his supervisor, Mr. Walker, beli eved his performance in that po sition was highly inadequate. Indeed, in June 2010, shortly before Mr. Walker retired, Mr. Pl ummer wrote a letter to Dr. Batres in which he outlined several complaints about his treatment by Mr. Walker. See Pl.’s Opp’n, Ex. 14, ECF No. 72-3. Mr. Walker appare ntly thought that having Mr . Plummer serve as the Deputy Regional Manager was not “work ing out” and that perhaps Mr. Plummer should go “back to23 “Typically, successful rebuttal of an employer’s stated reason counts as evidence of the invidious motive that is a requi red element of a disparate treatment or retaliation claim.” Allen v.
Johnson , 795 F.3d 34, 40 (D.C. Cir. 2015) (citing George v. Leavitt , 407 F.3d 405, 413 (D.C. Cir. 2005). Indeed, the discredit ing of an employer’s explanat ion is entitled “considerable evidentiary significance” because “a lie is evidence of conscio usness of guilt.” Aka v. Washington Hosp. Ctr, 156 F.3d 1284, 1292–93 (D.C. Cir. 1998). Thus, “it is often re asonable to think that an employer who lies or obviously bluffs about or shifts its rationale for challenged action is culpable of the charge d discrimination or retaliation .” Allen , 795 F.3d at 40. But rebutting the employer’s state d reasons is not always suffi cient to survive summary judgment. The D.C. Circuit has acknowledged that “in some inst ances, . . . the fact that there are material questions as to whether the employer has given the rea l explanation will not suffice to support an inference of discrimination.” Aka v. Washington Hosp. Ctr, 156 F.3d 1284, 1291 (D.C. Cir. 1998); see also Desmond v. Mukasey , 530 F.3d 944, 963 (D.C. Cir. 2008) (“there will be instances where . . . the plai ntiff has . . . set forth suff icient evidence to reject the defendant’s explanation, [yet] no rational f actfinder could conclude that the action was discriminatory.” (quoting Reeves v. Sanderson Plumbing Prod., Inc. , 530 U.S. 133, 148 (2000))). It explained that “[s]ometimes an employer may offer a meritocratic or other wise high-sounding explanation for a decision intending to c over up an unsavory reason-but one that is not ille gal under the antidiscrimination laws.” Carpenter v. Fed. Nat. Mortg. Ass’n , 165 F.3d 69 (D.C. Cir. 1999).

being a team leader.” Pl. ’s Opp’n, Ex. 14 at VA004993. Based on this, a reasonable juror could quite easily conclude that Mr . Plummer would not have been cons idered to be a strong candidate for the Regional Manager position given that the former Regiona l Manager believed Mr. Plummer’s performance in the D eputy position was so poor. More over, the nature of many of Mr. Plummer’s complaints was th at Mr. Walker was not giving him sufficient support and feedback, which in and of itself suggests that Mr. Plummer may not have been ready for the lead role as Regional Manager if he n eeds so much guidance as Deputy

. See Pl.’s Opp’n, Ex. 14.24 Under those circumstances, “[i]f the plaintiff explodes the pho ny reason with evidence that simply supports an unsavory but lawfu l alternative reason (or, more technically, offers evidence from which a jury might find suc h to be the true reason), the p laintiff cannot get to the jury.” Id. Indeed, “there is no point in sen ding the case to the jury” whe n “the plaintiff calls the employer’s explanation into question, but does so in a way that conclusive ly demonstrates that the real explanation for the employer’s be havior is not discrimination, but some other motivation.” Aka , 156 F.3d at 1291. In this case, the Secretary ar gues that he is entitled to summa ry judgment because, notwithstanding the evidence demo nstrating the falsity of Dr. B atres’s purported rationale, the evidence at best supports a showi ng that Dr. Bat res hired Ms. F igueroa out of favoritism, rather than discriminatory or retaliato ry intent. While it is true th at this Court must require that a discrimination and retaliation cas e have a discriminatory or re taliatory aspect, the Court “must also take care not to condone a de fense that would immunize rac ial discrimination by giving it a different name.” Harris v. Hays , 452 F.3d 714, 721 (8th Cir. 2006) (Gibson, J., concurring). An “employer could prefer X over Y because X is his friend, but he might choose to hire a friend of his own race in order to avoi d hiring a person of a different r ace.” Id. at 722 (Gibson, J., concurring); see also Foster v. Dalton , 71 F.3d 52, 57 (1st Cir. 1995) (noting that, in a case with evidence of favoritism, the fact s could “support an inference o f discriminatory intent,” but could “equally support a finding of und iluted favoritism, unmixed with racial animus”). That is precisely what Ms. Vasser argu es here. According to Ms. Vasser , “Dr. Batres was not merely assisting a friend,” but instead us ing Ms. Figueroa as “a conve nient foil to block Ms. Vasser’s ability to compete i n [a] way that would notdraw suspicion.” Pl.’s Opp’n at 41.25 Such a theory is not unheard of in this Circuit. For example, in Weathersby v. Sec. of
Interior , 242 F. Supp. 2d 20 (D.D.C. 2003), the plaintiff applied for adirector position that was later canceled without any candidate having been selected. Id. at 21. The position was then readvertised and plaintiff applie d again, but ultimately someone else was selected. Id. In that case, the successful candidate signe d a written affidavit attesting that “the fix was in from the beginning.” Id. at 22. According to the affiant , the selecting official had “t old [the affiant] that she had pre-selected him for th e position” and “if [the affiant ] did not apply, she would have to interview a Black man [whom] sh e [did] not want to interview, b ut had to be interviewed because he had filed several discrimination complaints.” Id. (third and fourth alterations in original). Based on that record, the court denied summary judg ment noting that this declaration constituted “direct evidence of a discriminatory and retaliator y motive.” Id. While the evidence supporting Ms. Vasser’s claim is not the kin d of direct evidence that the plaintiff in Weathersby relied on, the Court is satisfie d that Ms. Vasser has shown eno ugh to satisfy her burden on summary j udgment. To start, Plaintiff’s evidence does not “conclusively demonstrate[], that the real e xplanation for the employer’s beh avior is not di scrimination, but some other motivation.” Aka , 156 F.3d at 1291. To be sure, there is evid ence that Ms. Figueroa received favorable treatment. B ut Plaintiff’s evidence does no t necessarily suggest that Ms. Figueroa was selected purely out of favoritism or that the deci sion was entirely untainted by any aspect of racial or retaliatory animus. Indeed, Dr. Batres has never conceded that he acted exclusively out of favoritism. And Ms. Vasser’s theory is not at odds with the fact that RCS personnel gave Ms. Figueroa favor able treatment—indeed Ms. Vass er’s theory embraces that fact. Furthermore, even though the O IG Report concluded that f avoritism was at work in Ms. Figueroa’s selection, it did notdraw any conclusion with respe ct to any other pot ential racial or26 retaliatory motives. 8 Thus, the Court is satisfied tha t the evidence that Ms. Figue roa received favorable treatment does not in and of itself entitle the Secre tary to summary judgment. In any event, Ms. Vasser has come forward with additional evide nce from which a reasonable jury could conclude tha t the VA’s actions were based upon a prohibited motive. With respect to her retaliation claim , Ms. Vasser argues that the ev idence shows that the VA was “obsess[ed] with [her] EEOC case” during the time that it was c onsidering transferring Ms. Figueroa into the Regional Manager position. Pl.’s Opp’n at 40 . She supports this argument by pointing to an interview of an RCS employee taken during the OI G investigation. In that interview, the employee explaine d that there were some discussi ons within the VA in which they were considering the idea of rea ssigning Ms. Figueroa from one position to a different position at a lower grade without competition. Interview Tr. at 30:8–33:1, ECF No. 86-4. But, according to him, some people were concerned a bout the legitimacy of taking that action and whether it might be susceptible to challenge. See Interview Tr. at 32:1–5. Indee d, they believed that reassigni ng Ms. Figueroa without competition might very well be subject to scrutiny because they were aware that at least one person w ho had “applied for other regio nal manager positions but who had not been selected” (presumab ly Ms. Vasser) had filed some complaints . . . probably EEO complaints.” Interview Tr . at 31:14–22. While the testimony d oes not go so far as to support Ms. Vasser’s claim that the VA was “obsessed” with her EEO comp laints, it does at least suggest that members of RCS may have had her complaints on their mind w hile they were discussing how to move Ms. Figueroa into the position. When viewed in the light most favorable to Ms. Vasser, the Court is persuaded t hat a reasonable jury could con clude that RCS was not just

8 And even if the Report did conclu de that Dr. Batres acted enti rely based on cronyism, the jury is not bound by OIG’s conc lusions or its interpretatio n of the facts.27 concerned by the potential scru tiny, but that the EEO complaint s were in fact a motivation to place Ms. Figueroa in the Regional Manager position. Ms. Vasser’s race discrimination claim also survives summary ju dgment. As noted above, Ms. Vasser has thoroughly dis credited Dr. Batres’s state d rationale for hiring Ms. Figueroa and has also demonstrated that significant procedural irregularities abounded in the selection process. Ultimately, t hat highly dubious process res ulted in the selection of a nonAfrican-American candidate for the Regional Manager position. On motions for summary judgment, the Court is to consider whether a reasonable jury co uld infer discrimination “from ‘all the evidence, which incl udes not only the p rima facie case but also the evidenc e the plaintiff offers to attack the employer’s p roffered explanation for its a ctions and [any] other evidence.’”
Morris , 825 F.3d at 668 (quoting Gaujacq , 601 F.3d at 577) (alteration in Morris )). This requires the exercise of “ a contextual judgment.” Allen , 795 F.3d at 40. Typically, however, the courts “do not routinely require plaintiffs to submit evidence over and above rebutting the employer’s stated explanation in or der to avoid summary judgmen t.” Hamilton , 666 F.3d at 1351 (internal quotations omitted). In this case, the Court is satisfied that the significant evidence showing that Dr. Batres’ s stated rationale (which the Secretary has adopted in this action) is a lie combined with Ms. Vasser’s prima facie evidence that she was twice deemed qualified for the exact position, y et the position was awarded to someone outside of Ms. Vasser’s protected class, is enough to ge t her case to the jury. Indeed , the Court finds that under such circumstances, the jury is th e more appropriate body to determi ne whether all of the smoke in this case amounts to a fire.28 V. CONCLUSION For the forgoing reasons, the Court DENIES Defendant’s Motion for Summary Judgment (ECF No. 66) and GRANTS Defendant’s Consent Motions for Leave to File Under Seal (ECF Nos. 67 & 77). An order consistent with this Memoran dum Opinion is separately and contemporaneously issued.

Dated: November 22, 2017 RUDOLPH CONTRERAS United States District Judge