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THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KIMBERLY BARNES-STAPLES, 

Plaintiff, 

v.

EMILY W. MURPHY, Administrator,

General Services Administration, 

Defendant.

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No. 20 C 3627 

Judge Virginia M. Kendall

MEMORANDUM OPINION & ORDER

The General Services Administration (“GSA”) manages the functioning of agencies within 

the federal government. In March 2019, it posted a vacancy announcement for a Real Estate 

Director. Plaintiff Kimberly Barnes-Staples, a Black woman, applied for the job, but the position 

ultimately went to a white applicant. Barnes sued Defendant Emily Murphy, administrator of the 

GSA, alleging race and sex discrimination as well as retaliation for filing an Equal Employment 

Opportunity Commission complaint. (Dkt. 1 at 7–9). The GSA moved for summary judgment. 

(Dkt. 68). For the following reasons, the motion is granted. (Id.) 

BACKGROUND

In March 2019, the GSA posted a vacancy announcement for a Real Estate Director at the 

GS-15 pay grade. (Dkt. 70 ¶ 4). Barnes, who holds a Bachelor of Science from Northwestern 

University and a Master of Business Administration from the University of Michigan, decided to 

apply. Barnes already had extensive experience with the GSA: ten years as a Lease Contracting 

Officer, two years as a Judiciary Regional Account Manager, six years as a Judiciary Client 

Delivery Team Manager, and ten years as a Portfolio Information Valuation Branch Manager, a 

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GS-14 position she currently holds. (Dkt. 72 ¶¶ 4, 7). She also has a GS-1170 unlimited Real 

Property Leasing Warrant (“1170 warrant”), the highest-level warrant, which allows the holder to 

lease property on behalf of the GSA. (Id. ¶ 11). 

The GSA received numerous applications. The human resources department screened the 

candidates’ initial written materials and created a list of five qualified candidates who should be 

given a first-round interview: Barnes, Matt Poisson, Russell Riberto, Joseph Skach, and Sherry 

Wittstock. (Dkt. 70 ¶ 5). The selection process from there involved two formal interviews. (Id.

¶ 6). The first was conducted pursuant to the “Uniform Guideline on Employee Selection 

Procedures,” (Dkt. 80-1), referred to as the “Guidelines,” and the second under the 2016 Gelber 

directive. (Dkt. 80-2). 

The Guidelines establish two forms of interviews for filling a vacancy: the initial 

“screening interview” and a “selection interview.” (Dkt. 82 ¶ 22). A screening interview may be 

necessary, but is not always, when an agency receives applications from “numerous candidates in 

the highest quality category and the number referred for selection consideration must be more 

manageable.” (Id.) A “selection interview” is conducted to “provide the selecting official or hiring 

manager with more specific information about each candidate’s job-related competencies upon 

which the selection decision will be made.” (Id.) Selection interviews require that the interview 

panel meet to review the job description, (Dkt. 73 ¶ 17); that interviews promote the use of 

consistent procedures, impartiality, and objectivity, (Id.); that interviewers be mindful of their 

questions, (Id. ¶ 19); that the panel members give a consensus rating and the final rating reflects

the “consensus judgment of the panel,” (Id. ¶ 20); and that the interview be based on “the job 

analysis process to ensure competency-based selection procedures result in merit-based hiring 

decisions.” (Id. ¶ 21).

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The Gelber directive was created in April 2016 by then-Public Building Services (“PBS”)

Deputy Commissioner Michael Gelber for the hiring of higher-level positions, including the GS15 positions. (Dkt. 82 ¶¶ 22–23). Under the directive, the Assistant Commissioner of the business 

line associated with the Division participates in the final interview panel. (Id.) After the final 

interview, the “hiring” Assistant Commissioner or the Regional Commissioner notifies “the 

Deputy Commissioner and Chief of Staff when a selection has been made and provide[s] a brief 

description of the selectee.” (Id.) The Commissioner’s Office then reviews the selection and holds 

discussions with the commissioners as needed. (Id.) Once the Commissioner’s Office approves the 

selection, the applicant is given a tentative job offer. (Id.)

The first interview panel consisted of three interviewers: Billy James, Kelley Juarez, and 

Jennifer Enyart. (Dkt. 70 ¶ 6). The members structured the interview for the five candidates by 

asking each person six questions aimed at assessing competency in leadership, customer service, 

problem solving, influencing and negotiating, and technical/result. (Id. ¶ 7). Each candidate had 

the same length of time to answer the question, and each person was asked the exact same questions 

by the exact same interviewer. (Id.) Each answer was graded on a scale from 1 to 5, with 5 being 

the highest rating. (Id. ¶ 8). The panel members also took notes during the interviews. (Id.) Once 

each interview concluded, they would discuss the candidates’ answers, decide on a consensus 

rating for each question, and tally the scores for an overall total consensus score for each candidate. 

(Id.) Wittstock, the eventual choice, scored the highest with a 3.9; Barnes earned a score of 3.15, 

the third-ranking candidate. (Id. ¶ 9). The panel determined that Wittstock “excelled in the 

questions pertaining to Leadership I, Leadership II, Customer Service, Problem Solving, and 

Influencing.” (Dkt. 69 at 3). 

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Although the members were inclined to ask only two candidates to return, Wittstock and 

Riberto, they decided to invite four back for a second-round interview because the fourth-ranking 

candidate, Poisson, was the acting director for the previous year-and-a-half and had been deputy 

director of the division for ten years before assuming the interim acting-director position. (Dkt. 70 

¶¶ 9, 10, 16–17; Dkt. 82 ¶ 23). Of the four candidates, Barnes was the only one who was not 

currently working in the real estate division at the time; indeed, she had not worked in the division 

for ten years. (Dkt. 70 ¶ 18). The other three held leadership positions within the real estate 

division. (Id. ¶ 16). 

The second interview panel had three new members: John Cooke, Jr., Region 5 PBS 

Regional Commissioner, Robert Green, Region 5 PBS Chief of Staff, and Allison Azevedo, Acting 

Deputy Commissioner, Officer of the PBS Commissioner, Central Office. (Dkt. 70 ¶ 12). Before 

even receiving the names of the final candidates, Green created three interview questions to ask: 

the first pertained to “the vision the candidate had for the real estate division”; the second 

“evaluated the candidate’s decision-making and problem-solving process when confronted with a 

hypothetical scenario; and the third gauged the individual’s talent management. (Dkt. 69 at 4; see 

also Dkt. 70 ¶ 13). Like with the first interview, each candidate was allotted the same amount of 

time for each question, posed by the same panel member in the same order, with every member 

taking notes for later reference. (Dkt. 70 ¶¶ 14–15). 

The panel was most impressed by Wittstock’s responses and candidacy. (Id. ¶¶ 15, 19–24). 

Green concluded that she had a strong vision and deep experience with the division. Cooke 

concurred; he also made notes during the interview conveying his strong approval, like “Strong 

example of implementation,” “Quick win for new LCO,” “Touched on all points,” “Real time 

example of problem solving in [Real Estate Division] today.” (Id. ¶ 24). Barnes did not fare as 

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well. Azevedo described, “Her responses were not as comprehensive in her interview when 

compared to the other candidates.” (Id. ¶ 28). Cooke’s notes reflect a similar sentiment: “Answers 

in the weeds on specific examples,” “Had to prompt answer on key measures,” and “Lacked depth 

on the benefit of the tools.” (Id. ¶ 26). 

In the end, Green selected Wittstock, and Cooke forwarded the selection to the Deputy 

Commissioner for approval, which was promptly given with Azevedo’s concurrence. (Id. ¶¶ 12–

15, 19–28; Dkt. 82 ¶¶ 19–28). Wittstock was then offered the Director position. (Id.) 

Barnes filed a complaint with the Equal Employment Opportunity Commission, claiming

that she was discriminated against based on race, sex, and age. (Dkt. 70 ¶ 33–35). The EEOC 

dismissed her claim after 180 days had passed. (Id. ¶ 37). Barnes promptly sued Emily Murphy as 

administrator of the GSA, alleging the same discrimination claims and retaliation based on the 

filing of her EEOC complaint. (Dkt. 1). The GSA moved for summary judgment. (Dkt. 68). 

LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). The Court construes all facts and draws all reasonable inferences in favor of the nonmoving 

party. Lewis v. Indiana Wesleyan Univ., 36 F.4th 755, 759 (7th Cir. 2022). “A genuine issue of 

material fact exists only if ‘there is sufficient evidence’” for a jury to return a verdict for the 

nonmoving party. Birch|Rea Partners, Inc. v. Regent Bank, 27 F.4th 1245, 1249 (7th Cir. 2022) 

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). 

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DISCUSSION

I. Race Discrimination 

Title VII makes it unlawful for an employer to “refuse to hire ... any individual ... because 

of such individual’s race.” 42 U.S.C. § 2000e-2. A plaintiff can prove race discrimination either 

directly or indirectly. McKinney v. Office of Sheriff of Whitely Cnty., 866 F.3d 803, 807 (7th Cir. 

2017). The direct method requires a plaintiff to show “that the employer’s discriminatory animus 

motivated an adverse employment action.” Coleman v. Donahoe, 667 F.3d 835, 845 (7th Cir. 

2012). The indirect method permits “a plaintiff to prove discrimination by using the burdenshifting approach articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” 

McKinney, 866 F.3d at 807; see also Ferrill v. Oak Creek-Franklin Joint Sch. Dist., 860 F.3d 494, 

499–500 (7th Cir. 2017) (“The McDonnell Douglas framework is just ‘a formal way of analyzing 

a discrimination case when a certain kind of circumstantial evidence—evidence that similarly 

situated employees not in the plaintiff’s protected class were treated better—would permit a jury 

to infer discriminatory intent.’” (quoting Smith v. Chi. Transit Auth., 806 F.3d 900, 905 (7th Cir. 

2015))). Barnes brings her claim via the latter method. 

Under the three-step McDonnell Douglasframework, a plaintiff must first establish a prima 

facie case of race discrimination: that is, “(1) she is a member of a protected class, (2) she was 

meeting the defendant’s legitimate expectations, (3) she suffered an adverse employment action, 

and (4) similarly situated employees who were not members of her protected class were treated 

more favorably.” Carson v. Lake County, 865 F.3d 526, 533 (7th Cir. 2017). If successful, the 

burden then moves to the defendant to put forth “a legitimate, nondiscriminatory reason for the 

adverse employment action, at which point the burden shifts back to the plaintiff to submit 

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evidence that the employer’s explanation is pretextual.” McDaniel v. Progress Rail Locomotive, 

Inc., 940 F.3d 360, 368 (7th Cir. 2019). 

The GSA believes that “this motion can be decided entirely” by skipping the first step, the 

prima facie case of discrimination, because it offered a legitimate nondiscriminatory reason: 

Wittstock, who was ultimately selected, performed better in the interview by showing a “superior 

understanding of the challenges facing the real estate division at the time and a plan to meet those 

challenges.” (Dkt. 69 at 9); Formella v. Brennan, 817 F.3d 503, 514 (7th Cir. 2016) (“Better

performance in an interview is unquestionably a legitimate, nondiscriminatory basis to hire one 

candidate over another.”). Barnes does not dispute that this reason is legitimate; she argues simply

that it was contrived. (Dkt. 72 at 7–15). The narrow question is whether Barnes presented sufficient 

evidence to demonstrate that the government’s reason for hiring a different candidate was

pretextual. Ultimately, she has not. 

Pretext is a “lie,” that is, a “‘phony reason’ for the employment action,” Ferrill, 860 F.3d 

at 500 (quoting Smith, 806 F.3d at 905), and it “requires more than showing that the decision was 

mistaken, ill considered or foolish,” Formella, 817 F.3d at 513–14 (quoting Ballance v. City of 

Springfield, 424 F.3d 614, 617 (7th Cir. 2015)). “[S]o long as the employer honestly believes those 

reasons, pretext has not been shown.” Id. (quoting Ballance, 424 F.3d at 617). Barnes submits that

the following evidence shows the GSA offered a “lie” for hiring Wittstock: (1) purported 

departures from mandatory guidelines for interviewing; (2) alleged shifting justifications for the 

decision-making process; and (3) a great disparity between the qualifications of the selected 

candidate and Barnes. Each example falls short. 

Guidelines. Barnes states without qualification that a departure “from the process 

contemplated by the employer’s guidelines ... can constitute ‘evidence of pretext.’” (Dkt. 72 at 7). 

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It is true that the Seventh Circuit suggested as much in Rudin v. Lincoln Land Community College. 

420 F.3d 712, 727 (7th Cir. 2005) (“This court has held in the past that an employer’s failure to 

follow its own internal employment procedures can constitute evidence of pretext.”). But this 

broad proclamation ignores later clarification. The Seventh Circuit more recently emphasized 

instead that different procedures for each candidate, as opposed to uniform departures from the 

same procedures for all candidates, is significant evidence of pretext. In Coleman v. Donahoe, it 

stressed that evidence an “employer selectively enforced a company policy against one” member 

of a protected class speaks to the pretext analysis—not necessarily a blanket change in rules 

governing all employees. 667 F.3d 835, 858 (7th Cir. 2012). The Court, in Joll v. Valparasio 

Community Schools, repeated the more nuanced rule, “A jury could find that the interviewers’ 

questions, at least when they were asked only of [the plaintiff] and not of a similarly situated [] 

applicant, reflected such stereotyping.” 953 F.3d 923, 931 (7th Cir. 2020). This formulation makes 

sense too; otherwise, courts might be entangled in administering thousands of company policies 

unrelated to the core question of whether discrimination is afoot. With this clarification in mind, 

Barnes’s accusations of across-the-board departures—focused on deviations to the entire interview 

process for all applicants in the second-level interviews—do not suggest discriminatory intent

because every applicant was asked the same questions, in the same order, by the same interviewer, 

all with the intention of reducing any bias. Each candidate was also given the same amount of time 

to formulate a response.

More fundamentally, even if Rudin’s language remains unchanged by later caselaw, the 

GSA did not alter its prescribed interview process for hiring the Director position. The Guidelines 

provide for two types of interviews, screening interviews and selection interviews. (Dkt. 80-1 at 

5–8). Prior to interviewing, a rating scale or scoring system “must be developed to evaluate 

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candidate responses to the interview questions.” (Id. at 8). The document also sets out the 

appropriate interview format, conduct, assessment goals, and rating errors. (Id. at 9–13). And the

GSA followed the guidance by first conducting screening interviews through the human resources 

department, (Dkt. 70 ¶ 5), followed by selection interviews during the first-level interviews, (id.

¶¶ 6–9). 

Barnes does not dispute these facts. She insists, however, that the second panel should have 

also adhered to the Guidelines. But nowhere in the record does it state that the GSA must do so. 

In fact, the Gelber Directive, published three years before, specifically instructs that “[t]his 

document provides guidance and procedures for hiring senior level positions across PBS to ensure 

the Office of the Commissioner, Assistant Commissioners (AC) and Regional Commissioners 

(RC) provide input at strategic points in the recruitment process associated with these positions.” 

(Dkt. 80-2 at 1). This directive applies to “Regional Division Directors (regardless of GS level).” 

(Id.) The GSA, having already scrupulously followed the Guidelines to whittle the field of 

candidates down, continued to comport with established policies by following the specific 

directive for the Director position.1 Barnes’s argument simply ignores this later directive and

suffers a fatal flaw. 

Assuming though the GSA did violate guidelines, and that a violation of policies applied 

equally can be evidence of discrimination, the alleged infractions do not constitute the “blatant or 

systemic deviations from essential rules or concealment of facts” necessary to prove pretext.

Gibbons v. JP Morgan Chase & Co., No. 04-cv-5368, 2007 WL 118226, at *4 (N.D. Ill. 2007). 

Rather, Barnes alleges only minor aberrations: “no questions specifically tailored to specific work 

1 To the extent that there are any contradictions between the Gerber Directive and the Guidelines, which is dubious, 

this Court is not positioned to resolve those discrepancies, particularly through the vehicle of this Title VII 

discrimination claim.

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that the employee could learn on the job”; candidates should be evaluated “by experience and 

against the same pre-determined criteria”; the panel should create a rating scale to score the 

answers prior to the interview; and there should be a unanimous judgment on the selectee. (Dkt. 

72 at 8). But asking job-related questions is only natural for interviewers, even if they stray 

occasionally into ones an employee might learn on the job. The record does not indicate that the 

candidates’ experience was ignored, as Barnes was the only person not currently working in the 

division. (Dkt. 70 ¶ 18). The failure to develop a specific scoring system was inconsequential given 

the fact that the candidates were already evaluated twice, once by a detailed framework. And the 

panel did, in essence, arrive at a unanimous judgment, with each providing some form of assent. 

(Id. ¶¶ 12–15, 19–28; Dkt. 82 ¶¶ 19–28). 

Alleged Inconsistencies. Barnes also boldly, but inaccurately, claims that the GSA offered 

“lies, shifting justifications, and inconsistencies” for its decision-making process. (Dkt. 72 at 11);

see also id. (“Defendant’s seemingly endless list of lies about the hiring process serves as evidence 

from which a jury can infer discrimination.”); Joll, 953 F.3d at 933 (noting that “inconsistent 

explanations, especially from the same decisionmakers about similar decisions near the same time” 

can suggest discrimination). Specifically, she points to Azevedo allegedly lying about not 

recommending Wittstock for the promotion when Cooke testified that all three came to “a 

unanimous consensus” and accuses the GSA of mislabeling Green as the “ultimate 

decisionmaker.” (Dkt. 72 at 11–12). But the GSA’s explanation is consistent with the evidence 

presented at summary judgment: Green selected Wittstock, and Cooke forwarded the selection to 

the Deputy Commissioner for approval, which was promptly given with Azevedo’s concurrence. 

(Dkt. 70 ¶¶ 12–15, 19–28; Dkt. 82 ¶¶ 19–28). Admittedly, the decisionmakers may have used 

various ways to describe the process, and the government’s often-repeated “consensus” portrayal 

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requires some nuance. For example, Azevedo noted in her deposition that she did not recommend

a candidate—but she did give her consent after the fact, signaling consensus. And Green was not 

the “ultimate decisionmaker”—only to the extent, though, that other managers needed to sign off 

on the selection. These truncated explanations, however, do not approach “lies.” They represent 

only different phrasings for a consistent story—supported by the record—that the panel members 

agreed and approved, in one fashion or another, Wittstock’s selection as the new Director. 

Qualifications. All the evidence that remains now relates to relative employee 

qualifications. “[W]here an employer’s proffered non-discriminatory reason for its employment 

decision is that it selected the most qualified candidate,” and the employee can point to nothing 

else, “evidence of the applicants’ competing qualifications does not constitute evidence of pretext 

‘unless those differences are so favorable to the plaintiff that there can be no dispute among 

reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the 

position at issue.’” Millbrook v. IBP, Inc., 280 F.3d 1169, 1180 (7th Cir. 2002) (quoting Deines v. 

Texas Dep’t of Protective & Regul. Servs., 164 F.3d 277, 279 (5th Cir. 1999)); see also Robertson 

v. Dep’t of Health Servs., 949 F.3d 371, 381 (7th Cir. 2020) (“[T]he plaintiff’s qualifications alone 

do not establish evidence of pretext”); Riley v. Elkhart Cmty. Schs., 829 F.3d 886, 894 (7th Cir. 

2016) (“[W]e have set a high evidentiary bar for pretext. Evidence of [] qualifications “only would 

serve as evidence of pretext if the differences between [the candidates] were ‘so favorable to the 

plaintiff that there can be no dispute among reasonable persons of impartial judgment that the 

plaintiff was clearly better qualified for the position at issue.” (cleaned up)). Barnes simply cannot 

establish that she was indisputably more qualified than Wittstock, who already was employed in a 

leadership role in the Real Estate Division, had experience managing contracting officers, and

performed better in the interviews using the objective framework. (Dkt. 70 ¶ 5). Barnes did have 

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an advanced degree, unlike Wittstock, but that difference in education matters little. The GSA was 

well within its rights to select someone with more recent and relevant experience. 

In short, Barnes has not shown the GSA’s nondiscriminatory reason for hiring a different 

candidate was pretextual, that is, a “lie.” Ferrill, 860 F.3d at 500 (quoting Smith, 806 F.3d at 905). 

Thus, her race-discrimination claim falters, and summary judgment for the GSA is appropriate. 

II. Remaining Claims 

Barnes appears to concede that her remaining claims fail. (See generally Dkt. 72). She 

never presented her retaliation claim to the EEOC in the first instance, thereby neglecting to 

properly exhaust it, see 42 U.S.C. § 2000e-5, and abandons her sex-discrimination claim altogether

in her opposition brief, (see generally Dkt. 71). 

CONCLUSION

For these reasons, Defendant’s Motion for Summary Judgment is granted. (Dkt. 68). 

 

 

 ____________________________________ 

 Virginia M. Kendall 

 United States District Judge

Date: September 28, 2022 

 

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