IN THE UNITED STATES DISTRICT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KIMBERLY BARNES-STAPLES, )

)

Plaintiff, )

)

v. ) Case No. 20 CV 3627 

)

EMILY W. MURPHY, Administrator, ) Judge Virginia M. Kendall

General Services Administration )

)

Defendant. )

PLAINTIFF’S RESPONSE IN OPPOSITION TO

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 

Dated: November 24, 2021 Respectfully submitted,

KIMBERLY BARNES-STAPLES

/s/ Ruth I. Major

One of Her Attorneys

Ruth I. Major (ARDC No. 6205049)

The Law Offices of Ruth I. Major, P.C.

70 West Madison Street, Suite 2020

Chicago, Illinois 60602

Phone: (312) 893-7544

rmajor@major-law.com

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Plaintiff Kimberly Barnes-Staples (“Staples”), through counsel, for her Response in 

Opposition to Defendant’s Motion for Summary Judgment, states as follows: 

INTRODUCTION

Although racism may have changed how it rears its ugly head throughout the years, it is 

pervasive and present, and continues to deeply target people of color—including Ms. Kimberly 

Barnes-Staples in her efforts to break through the GSA glass ceiling. Defendant attempts to hide 

its discriminatory acts behind misstatements of the law, lies, inconsistencies, and by ignoring all 

evidence relied upon by Plaintiff. Defendant also attempts to frame its entire argument on the 

answers given during the promotion interviews but fails to acknowledge that because of its failure 

to follow the Guidelines, the entire process was tainted. Unfortunately for Defendant, summary 

judgment cannot be granted on Defendant’s filtered version of the case. Under federal law, a jury 

may infer discriminatory animus from circumstantial evidence such as the Defendant failing to 

follow its own guidelines for promotions and Defendant’s repeated lies concerning the decisionmaking process. Moreover, where such circumstantial evidence exists, the jury may also consider 

Plaintiff’s superior qualifications as compared to the candidate selected as further evidence of 

discrimination. As more fully explained below, Staples has presented evidence to support her claim 

using such evidence. In light of the evidence from which a jury can infer discrimination, it is clear 

that Defendant’s motion for summary judgment should be denied. 

FACTS

I. General Background

Staples has an impressive academic background, including a Bachelor of Science from 

Northwestern University and a Master of Business Administration (“MBA”) from the Stephen M. 

Ross School of Business at the University of Michigan—currently ranked the number thirteen best 

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graduate business school in the country according to U.S. News and World Report. 

https://www.usnews.com/best-graduate-schools/top-business-schools/mba-rankings. (SOAF ¶ 1).

Staples also worked with the General Services Administration (“GSA”) for 29 years, and was 

working in the Public Building Service, Great Lakes Region 5 (“Region 5”) as a GS-14 employee.

(SOAF ¶¶ 4, 7). Her GSA experience includes 10 years as a Lease Contracting Officer, 2 years as 

Judiciary Regional Account Manager, 6 years as Judiciary Client Delivery Team Manager, and 10 

years as Portfolio Information and Valuation Branch Manager. (SOAF ¶ 4). Staples also possesses 

a GS-1170 unlimited Real Property Leasing Warrant (“1170 warrant”), the highest-level warrant, 

earned through the completion of certain classes and based on experience directly handling leasing 

matters. (SOAF ¶ 10). The holder of the warrant has authority to lease property on behalf of GSA 

for any amount, as there is no limitation. (Id.). In contrast, a GS-1102 warrant (“1102 warrant”), 

is a limited warrant with caps on the authority of the holder. (SOAF ¶ 11). 

There are currently 12 positions in Region 5 that are at level GS-15 or above. (SOAF ¶ 14). 

Of the 12 individuals holding the positions, only one is Black, and none are Black women. (Id.).

Further, although John Cooke, a Black man, was hired as a Senior Executive Service (“SES”) for 

Region 5 in 2015, Cooke has not promoted a single Black person since he obtained the position. 

(Id.). Of the 11 promotions made to the GS-15 level or above in Region 5 since 2010, no Black 

women, including Staples, has been promoted in any of these instances. (SOAF ¶ 12).

Since 2010 Staples has applied for six positions at the GS-15 level in Region 5, yet has 

been denied the promotion in each instance. (SOAF ¶ 12). Defendant continues to shift the rules 

from position to position, with the rules never seeming to be in Staples’ favor. For example, in 

July 2018, Staples applied for the GS-15 position of Facilities Management and Service Program 

Director, where she was denied an interview purportedly because she lacked the necessary 

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technical experience. (Id.). The selected candidate was not a Black woman. (Id.). However, in the 

Real Estate position at issue, for which Staples had the technical experience, the panel members 

decided necessary technical experience was unimportant, as Azevedo testified that out of the 

candidates, Staples had the most experience handling physical leasing matters, which was one of 

the requirements for the position, yet she was not chosen for the position. (SOAF ¶ 27). In another 

example, the hiring panel members communicated to each other about how two candidates were 

well qualified because of their experience. (Id.).

II. The Real Estate Position 

In March 2019, Staples applied for the GS-15 position of Real Estate Director which 

included responsibilities for supervising lease contracting officers and serving as a principal 

advisor for lease administration matters (announcement number 1905024LBMP), where she was 

deemed qualified by Human Resources and was permitted to interview for the position. (SOAF ¶

13). The interview process consisted of two levels: the first interview by a three-member panel 

and, if deemed a top candidate, a second interview by a different three-member panel. (SOAF ¶

22). The sole purpose of the first panel is to determine who should move to the second-level 

interviews. (SOAF ¶ 23). Thus, the ratings given to candidates in the first panel is merely a way 

of providing evidence of the decision-making process and should not be considered by the second 

panel. (Id.) Therefore, the first panel’s process is not addressed in this brief.

The process to be followed by the second panel is set forth in the “Uniform Guideline on 

Employee Selection Procedures (“Guideline”),” a 36-page document enacted in 1978 by 

Defendant, created by experts in Human Resources to help managers identify “the best candidate 

for a job while treating all candidates fairly and equally” in the hiring and promoting of 

employees”. (SOAF ¶ 15). In other words, this is a guide created by Defendant to prevent 

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discriminatory practices, such as those before the Court today. (Id.). This Guideline, and training 

on the Guideline, is provided to all managers by Defendant. (SOAF ¶ 16). 

One requirement of the Guideline is that “the interview panel should meet to review the 

job description and job analysis, develop the interview questions that will be used to assess jobrelated competencies, and establish the criteria or rating scale for evaluating answers to the 

questions.” (SOAF ¶ 17). This ensures that the interviews are “promoting the use of consistent 

procedures, impartiality, and objectivity.” (Id.). However, both John Cooke and Allison Azevedo, 

both members of the second panel, testified that they did not determine the criteria or rating scale 

for evaluating answers to questions in advanced of the interviews. (SOAF ¶ 25). Another 

requirement of the Guideline is to “be mindful that the questions [asked] do not assess a 

competency that is expected to be learned on the job. (SOAF ¶ 19). For example, “do not ask 

candidates how they would handle a situation that is covered by a specific internal policy or 

procedures that will be introduced on the job. Be careful that the question doesn’t coach the 

candidates.” (Id.). However, the interviewees were given questions that specifically tailored to the 

Real Estate Division, during their interviews. (SOAF ¶ 33). Wittstock, a White female, was

selected for the promotion. (SOAF ¶ 28). One of the questions all candidates were asked related 

to a specific responsibility that Wittstock handled and for which she had superior information. 

(SOAF ¶ 33). Another component of the Guideline is that after the interview, the panel members 

are to give a consensus rating and then the final ratings should “represent the consensus judgment 

of the panel”. (SOAF ¶ 20). “If all agree, the ratings should be declared final.” (Id.). However, 

while Cooke and Robert Green maintain that the panel unanimously decided on Wittstock, 

Azevedo, who was on the second panel for the interview process, claimed that she never indicated 

that Wittstock was her choice, and was not even informed of Wittstock being chosen for the 

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position until the decision had already been made. (SOAF ¶ 28). Lastly, the Guideline requires the 

interview be based on “the job analysis process to ensure competency-based selection procedures 

result in merit-based hiring decisions.” (SOAF ¶ 21). However, despite education and requisite 

leasing warrants being a competency of the position, the interview panel did not afford any 

consideration to the disparate qualifications between Staples and Wittstock. (SOAF ¶ 27; ECF 70, 

No. 25).

Defendant also provided false information concerning the decision-making process. For 

example, Defendant states that Green was the ultimate decisionmaker in its brief. (SOAF ¶ 29).

However, Azevedo and Cooke testified that Green and the Regional Commissioner were the final 

decisionmakers. (Id.). Further, Cooke testified that Azevedo was on the panel because Cooke 

received a memorandum from the Commissioner that he wanted the assistant commissioner’s 

involvement in the selection of regional GS-15s and that the assistant commissioner must concur 

with the decision. (SOAF ¶ 30). However, Azevedo testified that “she did not feel that that was 

[her] decision to make” as assistant commissioner. (Id.). In another example, Defendant claimed 

that Wittstock was chosen for this position because her responses expressed plans that were 

superior to that of the other candidates, yet panel members admitted that Wittstock’s answers were 

simply restating plans that had already been implemented by other employees at GSA. (SOAF ¶¶

32, 34, 36). In another claim, Defendant stated that Staples was not as qualified as Wittstock 

because Staples was no longer working in the Real Estate Division. (ECF 69, p. 9, 11, 13).

However, Azevedo testified that GSA hires people into positions based on their experience outside 

the GSA that is relevant to the position. (SOAF ¶ 27). 

Although she was not currently working in the Real Estate Division, Staples had 16 years 

of previous experience in real estate. (SOAF ¶ 4). Further, Staples’ MBA provided her with 

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extensive education on management principles and she had experience managing for both the GSA 

and her prior employers. (SOAF ¶¶ 1, 4-8). However, the position was denied to Staples, and was 

instead awarded to Sheryl Wittstock. (SOAF ¶ 28). Although she was currently working in the 

Real Estate Division, Wittstock lacked the substantive experience that Staples had including

lacking a 1170 warrant, lacking any experience in drafting leases, lacking any degree related to 

business management, or accounting as she studied art history at Northern Illinois University and 

does not possess a graduate degree, and lacking the experience and technical knowledge of a lease 

contracting officer—she simply had no knowledge of how to negotiate a lease or of real estate law. 

(SOAF ¶¶ 2, 11; ECF 70, Response to No. 56). 

ARGUMENT

I. Standard of Review

“All facts and inferences in the light most favorable to the nonmoving party.” Love v. JP 

Cullen & Sons, Inc., 779 F.3d 697, 701 (7th Cir. 2015). An employer’s “post hoc explanations, 

delay, exaggeration, and unusual conduct is more than enough to create a question of fact 

concerning the legitimacy of its explanations” requiring the denial of summary judgment. Indiana 

Univ.-Purdue Univ. Indianapolis Athletics Dep't, 510 F.3d 681, 693 (7th Cir. 2007).

II. Defendant’s Brief Reveals Its Fundamental Misunderstanding of the Applicable 

Law 

Defendant misunderstands the current law of the Seventh Circuit. The Millbrook standard

that Defendant relies on applies narrowly to only those circumstances where the plaintiff relies 

exclusively on evidence of applicants’ qualifications. Millbrook v. IBP, Inc., 280 F.3d 1169, 1180 

(7th Cir. 2002), see also Joll v. Valparaiso Comm. Sch., 953 F.3d 923, 934 (7th Cir. 2020) (“we 

have tried to make clear that the Millbrook rule applies only where the ‘the plaintiff relies 

exclusively on evidence of the applicants’ comparative qualifications’.”). The qualifications of 

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candidates are relevant when a plaintiff relies on other circumstantial evidence to support the 

claim, such as shifting explanations for the failure to promote and false explanations for the 

decision (i.e., pretext) as here. David v. Caterpillar Inc., 324 F.3d 851, 862 (7th Cir. 2003)

(“Nothing in Millbrook forecloses a comparison of qualifications in a case, such as this, where the 

employer offers conflicting explanations for its employment decision.”). Here, Staples does not 

solely provide evidence that she is more qualified that Wittstock; she also provides evidence 

showing Defendant’s lies, inconsistencies, and selective procedures that further supports 

Defendant’s reasoning being discriminatory. Thus, the Millbrook standard would be inapplicable 

in this case.

III. Staples Has an Abundance of Circumstantial Evidence Establishing the Process was 

Discriminatory in Violation of Title VII in Addition to the Qualifications of the 

Candidates

A. Defendant’s Failure to Follow Its Guideline

Where the hiring process “departed” from the process contemplated by the employer’s 

guidelines, the Seventh Circuit held such conduct can constitute “evidence of pretext.” Rudin v. 

Lincoln Land Comm. College, 420 F.3d 712, 727 (7th Cir. 2005); also see Joll, 953 F.3d at 931; 

Coleman v. Donahoe, 667 F.3d 835, 858 (7th Cir. 2012). The Court in Rudin found that because 

the defendant did not follow its own internal procedures with respect to the hiring process, this 

pointed to a discriminatory motivation and was an issue for the jury. Id. Similarly, Defendant failed 

to follow its own promotion guideline here, and its failure to do so serves as circumstantial 

evidence of discrimination. As the second panel admitted to not considering the first panel’s 

results, this brief will focus solely on the actions of the second panel. (SOAF ¶ 23). (Purpose of 

the first panel is to determine who should move on to the second panel and the rankings made are 

solely to provide evidence of the decision-making process).

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The Guideline was created by Defendant to prevent discriminatory practices. However, all 

three members of the second panel admitted to not adhering to the Guideline and had no 

explanation for failing to do so, which is evidently why there have been no Black women promoted 

to a GS-15 level since 2010 and there is only one of twelve positions that is held by a Black man 

at the GS-15 level or above. (SOAF ¶ 14). John Cooke, the highest ranking official for the Public 

Building Service (“PBS”) side of GSA, claimed diversity was important to him and that he 

supposedly made a constant effort to make sure that there was diversity in the workplace. (ECF 

70, Response to 49). Similarly, Azevedo stated that this process is followed because it is very 

successful. (SOAF ¶ 15). However, actions speak louder than words as the panel members

repeatedly failed to follow the hiring Guideline that was specifically created to avoid the very issue 

that arises here. 

More specifically, the Guideline identifies procedures that should be followed in the 

interview process to prevent discrimination such as: (1) no questions specifically tailored to 

specific work that the employee could learn on the job; (2) candidates should be treated fairly and 

equitably, including being evaluated by experience and against the same pre-determined criteria; 

(3) a rating scale to score interviewees’ answers should be developed prior to the interview; and 

(4) there should be a unanimous consensus judgment of the panel as to the selectee. Defendants 

failed to follow each and every one of these procedures, despite claiming the importance of 

diversity. First, the Guideline emphasizes the importance of not asking specifically tailored 

questions to candidates, which could give one candidate an advantage over another. (SOAF ¶ 19).

More specifically, the Guideline states that questions that assess a competency that is expected to 

be learned on the job should not be asked, such as asking how a candidate would handle a situation 

that is covered by a specific internal policy or procedure. (Id.). The Guideline also cautions against

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asking questions that coach the candidate. (Id.). The telling twist in this case is the fact that 

Defendant asked interview questions focused on a specific issue in the division—something 

clearly prohibited by the Guideline. This question made Wittstock’s selection over Staples a 

foregone conclusion, as Wittstock had the advantage of currently working in the Real Estate 

Division on the specific issue, while Staples did not, as admitted by Cooke and Azevedo. (SOAF 

¶¶ 32, 33). 

Second, to prevent discrimination, the Guideline states that candidates must be treated 

fairly and equitably, and that the interview process must ensure competency-based selection 

procedures resulting in merit-based hiring decisions. Further, the Guideline states that questions 

should be designed to elicit information on candidates’ experience and level of proficiency, 

indicating the importance of such factors. (SOAF ¶ 18). Thus, although evidence of higher 

education is not the sole criteria for consideration, Defendant’s argument that education is not and 

should not be considered when filling GS-15 employees is belied by the undisputed evidence. The

importance of an MBA is evident by Defendant’s practice, as Cooke, Kelly Juarez, and Robert 

Green, all decisionmakers who have attained the GS-15 and above level, all have MBAs. (SOAF 

¶ 3). Moreover, Defendant even paid for Juarez’s MBA and recruited Green from his school’s 

MBA program. (Id.). PBS also consistently requires post-graduate education when hiring 

employees into lower-level positions.1 Thus, Defendant’s claim that education should not be 

considered at all for this high-level position is pretext for the GSA’s discrimination. Joll, 953 F.3d 

at 932, see also Rudin, 420 F.3d at 723. A jury could conclude that the higher a person goes in an 

1 See https://www.gsa.gov/node/86806/; https:// www.usajobs.gov/GetJob/ViewDetails/619382500.

for GSA job postings, all of which require post-graduate education for higher level.

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organization the more education required and the absence of such a requirement here was to ensure 

Wittstock was selected. 

Furthermore, the Guideline requires that the experience of the candidates be taken into 

consideration, yet the panel members disregarded Staples’ experience and proficiency and based

a majority of the selection solely on the answers given to each question. (SOAF ¶ 28). (“Wittstock 

had best answered and we felt that would be best suited to lead the division going forward”). The 

job description also addressed the work experience and knowledge of the candidates as a 

requirement. (SOAF ¶ 27). As to other positions, Defendant put great emphasis on the experience 

and job performance, as Azevedo explained in an email in October of 2018 as it concerned two 

White employees selected for a GS-15 position “based on their past performance, the significance 

of the work that they currently manage, and their ability to achieve outstanding results for the 

agency.” (Id.). The same factors were ignored when it concerned the position here where such 

factors would have weighed in favor of Staples. Only the interview mattered. (SOAF ¶ 23).

Third, the Guideline emphasizes the importance of developing a rating scale to score each 

candidate’s response prior to conducting the interviews. (SOAF ¶ 17). This ensures the responses 

are not scored subjectively. (Id.). The Guideline even provides examples of different types of rating 

scales. (Id.). However, the second panel did not discuss specific answers the panel was looking for 

as the best to worst answers to the questions and they did not set up a scoring system to be applied 

to the answers. (SOAF ¶¶ 25, 26). Cooke was unable to provide reasoning as to why the second 

panel members did not follow the Guideline to prevent discrimination, despite claiming how 

important this was to him. (Id.).

Fourth, the Guideline state that the panel’s selection must be based on a unanimous 

consensus. However, Azevedo stated under oath that “the panel did not specifically recommend

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the top candidate to be selected, claimed she never provided input into who she thought was the 

most qualified for the position and claimed she never stated she agreed with Wittstock being the 

chosen candidate. (SOAF ¶ 28). In fact, she claims she was not even aware that Wittstock had been 

chosen until the decision was communicated to her at a later point and that this was not a 

unanimous decision. (Id.). Thus, according to Azevedo, the Guideline was violated as a unanimous 

consensus was not achieved. 

Although Defendant may attempt to argue that its failure to follow the Guideline was not 

discriminatory because it was not a policy, the Seventh Circuit’s holdings do not find this to be 

true. See, e.g., Rudin, 420 F.3d at 723-725 finding that Defendant’s failure to follow its hiring 

guidelines provided sufficient circumstantial evidence of Defendant’s discrimination and should 

be a question for the jury.

B. Defendant’s Lies, Shifting Justifications, and Inconsistencies

When there are shifting justifications, inconsistencies, and conflicting assertions, the Court 

has found that there is evidence of discrimination and that the issue be submitted to a trier of fact.

Rudin, 420 F.3d at 723-24. While true that the Seventh Circuit will not step in as a 

“superpersonnel” department, Defendant again leaves out subsequent law, which acknowledges 

that when there are “inconsistent explanations, especially from the same decisionmakers about 

similar decisions near the same time,” this can serve as support for an inference of unlawful intent. 

Joll, 953 F.3d at 933. Thus, Defendant’s seemingly endless list of lies about the hiring process 

serves as evidence from which a jury can infer discrimination.

Azevedo lied about recommending Wittstock for the promotion, at least according to the 

other two panel members Green and Cooke. In Cooke’s deposition, Cooke testified that he, 

Azevedo and Green all came to a unanimous consensus that Wittstock was best suited for the 

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position and submitted this decision to Michael Gelber. (SOAF ¶ 28). Green and Cooke also 

provided this same testimony in their affidavits submitted to the GSA EEO as part of an 

investigation. (Id.). Yet Azevedo was adamant she did not select a candidate because that was not 

her decision to make. (Id.). But, as aforementioned, the entire reason Azevedo was on the second 

panel was because her involvement and concurrence with the selectee was deemed mandatory by 

the Commissioner. (SOAF ¶ 30). The record shows that Azevedo and Wittstock, both White 

women, had an extensive working relationship as Azevedo was Wittstock’s supervisor throughout 

her various positions with Defendant and has been giving Wittstock performance ratings for over 

six years. (SOAF ¶ 37). While Azevedo does her best to distance herself from the decision to 

promote Wittstock over Staples, the other two panel members of the panel, Cooke and Green, both 

repeatedly stated under oath that Azevedo had in fact made this recommendation. (SOAF ¶ 28).

The list of lies Defendant makes continues when it states that Green was the ultimate 

decisionmaker. (SOAF ¶ 29). This is inconsistent with the record. Azevedo and Cooke testified 

that Robert Green and the regional commissioner, Michael Gelber, were the final decisionmakers.

(Id.). However, Azevedo later testified that Gelber had the approval authority for this position, 

which Cooke also confirmed in his deposition. (Id.) (testifying that Mr. Gelber had to approve the 

decision the panel made). 

Defendant also lied about the importance of education at the GSA, as discussed in Section 

III(a). 

Another example of Defendant’s lies is Defendant’s argument that Staples was not as 

qualified as Wittstock because Staples was not currently employed in the Real Estate Division. 

Azevedo testified in her deposition that GSA hires people into positions based on their experience 

outside the GSA that is relevant to the position. (SOAF ¶ 27). There is ample evidence that shows 

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Staples’ experience is relevant to the Real Estate Director position including her education and her 

leasing warrant. Defendant seems to focus on work experience and technical knowledge depending 

on how that advances the candidate they are seeking to promote. In a prior promotion Staples 

applied she was told she was not qualified for the position because she lacked the necessary 

technical experience. (SOAF ¶ 12). However, when she applied for the position that is the subject 

of this lawsuit, where she had extensive experience and the highest-level leasing warrant,

Defendant did not consider these factors or being a subject matter expert in awarding this position, 

evident by Staples not receiving this position despite her impressive qualifications. At around the 

same time, Defendant again shifted its position, when it sent an email referencing the importance 

of subject matter expertise in connection with two other GS-15 positions. (SOAF ¶ 27).

Defendant also heavily relies on evidence that Wittstock was hired because she had higher 

answer ratings than Staples. However, the sole reason Wittstock received higher answer ratings 

was because the entire interview process was tainted by Defendant’s discriminatory practice and 

not following the Guideline, such as by asking her questions specifically tailored to her then current 

job responsibilities and not setting the ratings to the anticipated answers in advance of the 

interviews, as required under the Guideline, to eliminate subjectivity and favoritism. In Cooke’s 

deposition, he admits that Wittstock’s answers were not even answers or ideas that she had come 

up with on her own, as she was simply regurgitating an idea that the commissioner had already 

discussed with GSA. (SOAF ¶ 34). Similarly, Azevedo admitted that Wittstock’s answers were 

about systems that Dan Mathews had already implemented in 2019 and that she did not even 

answer the question asked. (SOAF ¶ 32) (“I don’t see anything specifically that she says where 

she points that out”).

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C. The Disparity in the Qualifications Between Staples and Wittstock is Also 

Evidence the Process was Discriminatory in Violation of Title VII

As the Millbrook standard is not applicable in this case, as explained in Section II, the 

qualification evidence that Staples was more qualified than Wittstock is admissible to further prove

that Defendant’s hiring process was discriminatory. Although an employer can make employment 

decisions based on subjective criteria, the use of such criteria can “cast a shadow on the 

employment decision” when presented in conjunction with other substantial evidence of pretext 

and thereby allow the jury to reasonably consider subjective reasons as pretext. Giacoletto v. Amax 

Zinc. Co., Inc., 954 F.2d 424, 427 (7th Cir. 1992); also see Christie v. Foremost Ins. Co., 785 F.2d 

584 (7th Cir. 1986) (finding pretext when employer relied on subjective judgment about the 

employee when the employee was objectively superior). “Beauty is in the eye of the beholder and 

the beholder in this case is the employer, but the question left for the judge or jury will not require 

second guessing of the personnel decisions, but rather, will require an evaluation of the credibility 

of the defendant’s testimony about the reasons for that decision. In short, the trier-of-fact will 

evaluate truthfulness, not beauty.” Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 681-82 (5th 

Cir. 2001). In this case, Defendant has no credibility left to rely on, as seen in the previous sections. 

Defendant is unable to provide answers as to why it repeatedly failed to follow the Guideline, 

which were designed to prevent this very situation. Further, the only consistency Defendant can 

present is its lies. At the end of the day, Defendant’s decision for hiring Wittstock was solely based 

on subjective evidence, while ignoring all objective evidence. Staples, has an MBA from one of 

the top business schools in the country, while Wittstock has a Bachelor of Arts in a completely

unrelated field with no background in business, management, or accounting. Despite this disparate 

difference in education, this was not even a factor that was considered in this hiring process, as 

discussed in Section III(a). Although Wittstock may have had experience in managing lease 

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contracting officers, Staples had actual leasing experience, which was a requirement for this 

position. (ECF 70, Response to No. 4). Thus, it is clear that “the subjective judgment was simply 

a mask for age discrimination.” Giacoletto, 954 F.2d at 427.

D. The Circumstantial Evidence Requires this Case to be Tried by a Jury 

In Joll, the Court found that when decision-makers discounted reliable evidence presented 

to them in favor of a single piece of isolated bad evidence, this could also lead a jury to find 

evidence of pretext. 953 F.3d at 931. In other words, the court found that when decision-makers 

cherry pick evidence they want to consider in favor of an individual, this can be used as evidence 

that the reason given by Defendant was merely pretext. In this case, it is very apparent that 

Defendant chose to cherry pick evidence that was favorable to Wittstock, while discounting any 

and all good evidence that supported Staples. 

Further, when there is shifting criteria that favor the applicants outside the protected class, 

“a jury can infer that the different stated reasons were not honest and were pretexts for [sex] 

discrimination” and “certainly support a jury’s inference that the real reasons for the decisions 

were based” on the discrimination. Joll, 953 F.3d at 932. When the jury’s disbelief is 

“accompanied by a suspicion of mendacity”, the jury can infer that the employer is trying to cover 

up a discriminatory action. Id. quoting Gehring v. Case Corp., 43 F.3d 340, 343 (7th Cir. 1994)

and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). As the evidence here is rampant 

with inconsistencies, lies, and fishiness, Defendant’s motion should be denied and this case 

submitted to a jury. 

CONCLUSION

For the foregoing reasons, this Court should deny Defendant’s motion for summary judgment 

in the Plaintiff’s favor. 

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