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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 11, 2003 Decided August 1, 2003

No. 02-5075

LAYNE C. LATHRAM,

APPELLANT

v.

JOHN W. SNOW,

SECRETARY OF THE DEPARTMENT OF THE TREASURY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 00cv02442)

Robert C. Seldon argued the cause and filed the briefs for

appellant.

Brian J. Sonfield, Assistant U.S. Attorney, argued the

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

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

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

Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,

Circuit Judges.

Opinion for the Court filed by GARLAND, Circuit Judge.

GARLAND, Circuit Judge: At issue on this appeal are plaintiff Layne Lathram’s allegations of employment discrimination by the United States Customs Service, formerly an

agency of the Department of the Treasury. Lathram challenges the district court’s grant of summary judgment against

her on three claims. Although we affirm the judgment with

respect to one of those claims, we conclude that the district

court erred in granting summary judgment against Lathram

on the other two. Accordingly, we affirm in part, reverse in

part, and remand the case for further proceedings consistent

with this opinion.

I

On June 10, 1996, Lathram was hired by the Customs

Service as a Public Affairs Specialist at the GS–13 grade

level. Her duties included writing press releases, organizing

public affairs programs, and publicizing Customs’ interdiction

of illegal drugs. When Lathram resigned from Customs in

October 2000, she was still a GS–13. Shortly before resigning, Lathram sued the Secretary of the Treasury under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,

contending that Customs had discriminated against her on

the basis of her sex and retaliated against her for complaining

of that discrimination.1

This appeal concerns three claims, contained in four counts

of Lathram’s amended complaint. Count II alleged that

Customs discriminated against Lathram when it promoted

1 All of the conduct charged in Lathram’s amended complaint

took place before many of Customs’ responsibilities were transferred to the Department of Homeland Security under the Homeland Security Act of 2002, Pub. L. No. 107–296, § 411 et seq., 116

Stat. 2135, 2178.
3

one of her male co-workers, Patrick Jones, from grade GS–13

to GS–14 and paid him a higher salary. Count IV alleged

that Customs discriminated against Lathram by treating her

less favorably than Dean Boyd, a male from outside the

government, whom the agency hired directly into a GS–15

position with a higher salary than Lathram’s. Finally,

Counts V and VI alleged that Customs violated Title VII

when it selected James Michie over Lathram for the GS–

14/15 position of Director of the Press Operations Section of

the Office of Public Affairs. Count V charged that the

agency’s choice of Michie constituted discrimination on the

basis of sex, and Count VI charged that that decision (along

with the contemporaneous reassignment of some of Lathram’s duties) was intended as illegal retaliation for Lathram’s complaints about the other alleged acts of discrimination.

After discovery, the defendant moved for summary judgment against Lathram on all counts, and Lathram moved for

partial summary judgment in her favor. In a series of

orders, the district court disposed of all of the issues in the

case. The court granted the defendant’s motion for summary

judgment and denied Lathram’s motion on all of the counts at

issue on this appeal.2

II

We review the district court’s grant of summary judgment

de novo. Waterhouse v. District of Columbia, 298 F.3d 989,

991 (D.C. Cir. 2002). Summary judgment is appropriate only

if ‘‘there is no genuine issue as to any material fact and TTT

the moving party is entitled to a judgment as a matter of

law.’’ FED. R. CIV. P. 56(c); see Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). A dispute about a material

fact ‘‘is ‘genuine’ TTT if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party,’’

Anderson, 477 U.S. at 248, and a moving party is ‘‘entitled to

2 One portion of Count VI was voluntarily dismissed by the

plaintiff, and it is not at issue in this appeal. The other two counts

in the amended complaint, Counts I and III, were transferred to

the Court of Federal Claims. Neither party appeals the transfer.
4

a judgment as a matter of law’’ if the nonmoving party ‘‘fails

to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party

will bear the burden of proof at trial,’’ Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). We must view the evidence

in the light most favorable to Lathram, draw all reasonable

inferences in her favor, and eschew making credibility determinations or weighing the evidence. See Reeves v. Sanderson

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

Title VII prohibits federal agencies from discriminating in

employment on the basis of sex, 42 U.S.C. § 2000e–16, and

from retaliating against employees for the assertion of their

rights under Title VII, see Forman v. Small, 271 F.3d 285,

297 (D.C. Cir. 2001); Ethnic Employees of the Library of

Cong. v. Boorstin, 751 F.2d 1405, 1415 & n.13 (D.C. Cir.

1985). Where, as here, the plaintiff has no direct evidence

that the adverse employment actions of which she complains

were caused by prohibited discrimination, we analyze the

claim under the framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802–05 (1973). Under that framework,

‘‘the plaintiff must [first] establish a prima facie case of

discrimination.’’ Reeves, 530 U.S. at 142. To establish a

prima facie case of discriminatory non-promotion, the plaintiff

must show that: ‘‘(1) he is a member of a protected class; (2)

he applied for and was qualified for an available position; (3)

despite his qualifications he was rejected; and (4) either

someone not of his protected class filled the position or the

position remained vacant and the employer continued to seek

applicants.’’ Cones v. Shalala, 199 F.3d 512, 516 (D.C. Cir.

2000) (citations omitted).

Once the plaintiff establishes a prima facie case, the burden

shifts to the defendant to ‘‘ ‘produc[e] evidence that the

plaintiff was rejected TTT for a legitimate, nondiscriminatory

reason.’ ’’ Reeves, 530 U.S. at 142 (citation omitted; alteration in original). If the defendant satisfies that burden, ‘‘the

McDonnell Douglas framework—with its presumptions and

burdens—disappear[s], and the sole remaining issue [is] discrimination vel non.’’ Id. at 142–43 (citations and internal

quotation marks omitted). At this point, to survive summary
5

judgment the plaintiff must show that a reasonable jury could

conclude from all of the evidence that the adverse employment decision was made for a discriminatory reason. See

Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir.

1998) (en banc).

One way to do that is by showing that the nondiscriminatory explanation the defendant proffered for its decision was

false. As the Supreme Court has explained, ‘‘[p]roof that the

defendant’s explanation is unworthy of credence is simply one

form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.’’ Reeves,

530 U.S. at 147. In ‘‘appropriate circumstances, the trier of

fact can reasonably infer from the falsity of the explanation

that the employer is dissembling to cover up a discriminatory

purpose.’’ Id. Thus, ‘‘a plaintiff’s prima facie case, combined

with sufficient evidence to find that the employer’s asserted

justification is false, may permit the trier of fact to conclude

that the employer unlawfully discriminated.’’ Id. at 148; see

Aka, 156 F.3d at 1290 (holding that ‘‘a plaintiff’s discrediting

of an employer’s stated reason for its employment decision is

entitled to considerable weight’’).3

In the following sections, we apply this framework to

Lathram’s three claims.

A

Count II of Lathram’s amended complaint alleged that

Customs discriminated against her on the basis of her sex

when, in November 1996, it promoted fellow employee Patrick

Jones from a GS–13 position to the position of Public Affairs

Specialist at the GS–14 grade level, and thereafter paid him a

higher salary. The district court granted summary judgment

for the defendant, holding that Lathram had failed to timely

exhaust her administrative remedies, and that her claim failed

3 The McDonnell Douglas framework, with some differences in

the phrasing of the prima facie case, applies to Lathram’s claim of

unlawful retaliation as well. See Morgan v. Federal Home Loan

Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 2003); Holbrook v.

Reno, 196 F.3d 255, 263 (D.C. Cir. 1999).
6

to establish a prima facie case of discriminatory nonpromotion. Because we affirm on the second ground, we

need not reach the first.

Lathram’s allegation that Customs violated Title VII by not

promoting her to the GS–14 position is defeated by her failure

to apply for that position. Lathram conceded that Customs

had advertised the opening, that she had known about it, and

that she neither applied nor expressed an interest in applying

for it. Lathram Dep., J.A. at 304. As this court said in

Stella v. Mineta, an element of a prima facie case of discriminatory non-promotion is that the plaintiff ‘‘applied for and

was denied an available position for which he/she was qualified.’’ 284 F.3d 135, 139 (D.C. Cir. 2002) (emphasis added);

see Cones, 199 F.3d at 516. Although there is an exception to

this requirement when such an application would have been

futile, see International Bhd. of Teamsters v. United States,

431 U.S. 324, 365–66 (1977), Lathram offered no evidence to

support the applicability of that exception and does not assert

it on appeal. Thus, because Lathram failed to establish a

prima facie case of discrimination with regard to the Jones

promotion, summary judgment against her was appropriate.

Lathram’s failure to apply for the GS–14 position also

effectively dooms her claim of discriminatory pay. Although

the government does not dispute that after the promotion it

paid Jones more than Lathram, it asserts a nondiscriminatory

explanation for the differential: each was paid according to

the statutory schedule applicable to his or her civil service

grade. This would not necessarily be a sufficient defense if

Lathram had raised a genuine issue as to whether Jones’

higher position was itself the result of unlawful discrimination. But, as just discussed, Lathram cannot make that claim

because she never applied for the position. Under these

circumstances, a reasonable jury could not conclude that the

pay differential was a result of discrimination, and we therefore affirm the grant of summary judgment on this count.

B

Count IV alleged that Customs violated Title VII when, in

January 1999, the agency appointed Dean Boyd to the posi-
7

tion of Public Affairs Specialist at the GS–15 grade level.

Customs filled the position on a Schedule A (noncompetitive)

basis, without advertising its availability or permitting Lathram to apply.4

 Boyd was not employed at Customs at the

time of his appointment, and had recently been laid off from a

position as an editor of a privately published newsletter.

Customs hired him to do public affairs work relating to the

agency’s drug interdiction programs. It is not disputed that,

after Boyd was appointed, many of Lathram’s responsibilities

regarding those programs were transferred to him. Lathram

maintains that all of Boyd’s duties had previously been hers,

while Dennis Murphy—the Assistant Commissioner for Public Affairs and Lathram’s supervisor—testified that only some

of Boyd’s duties had previously been performed by Lathram.

Lathram asserts that Customs discriminated against her by

transferring her duties to a less qualified man and assigning

him a grade two levels higher than hers for the same work.

The government counters with two related arguments: (1)

that Lathram failed to make out a prima facie case of sex

discrimination, because she was not qualified for the GS–15

position that was given to Boyd; and (2) that the agency had

a legitimate nondiscriminatory reason for hiring Boyd, namely, that he was more qualified than she was to do Customs’

anti-drug public affairs work.

The government’s prima facie case argument itself has two

parts. First, Customs argues that, as a GS–13 employee,

Lathram was not eligible to jump directly into a GS–15

position without first stopping at GS–14—apparently because

of a government-wide personnel regulation that the agency

does not cite. Customs, however, does not dispute Lathram’s

contention that this regulation was subject to an exception

that permitted such a jump if the employee had actually been

performing the duties of a GS–14. See Appellee’s Br. at 18.

The government contends that there was no evidence that

Lathram had been performing such work, but it is clearly

4 See generally 5 C.F.R. §§ 6.1, 6.2 (describing Schedule A

appointments). Boyd’s position was later converted to one in the

competitive civil service.
8

wrong about that. Lathram proffered her own testimony and

that of other employees that she had been doing GS–14 level

work before the Boyd promotion; the government’s brief

concedes that ‘‘[t]he evidence indicated that the official duties

of [Patrick Jones’] GS–14 position were similar to those of

[Lathram’s] GS–13 position,’’ Appellee’s Br. at 2 n.2;5

 and the

government’s witnesses agreed that duties that Lathram had

been performing as a GS–13 were transferred to Boyd after

he became a GS–15. Indeed, the district court found it

‘‘undisputed that after his hiring, Boyd assumed all of Plaintiff’s duties with regard to Customs’ anti-drug enforcement

program.’’ Lathram v. O’Neill, No. 00–2442, slip op. at 11

(D.D.C. Nov. 15, 2001) [hereinafter Mem. Op.]. These facts

not only rebut the government’s claim that Lathram failed to

demonstrate a prima facie case, but also provide grounds

upon which a reasonable jury could conclude that the government’s explanation for why it did not promote Lathram—that

she was unqualified—was a pretext for discrimination. See

Reeves, 530 U.S. at 148; Aka, 156 F.3d at 1294.6

The government further contends that the very fact that

Customs selected Boyd under its Schedule A noncompetitive

hiring authority proves that Lathram was not qualified for

the position. The government offers the following syllogism:

5 See also Defendant’s Response to Interrogatories, J.A. at 290

(declaring that, as a GS–14, Mr. Jones ‘‘handles tasks identical to

those of a GS–13 Public Affairs Specialist’’).

6 Our opinion in Cones casts an additional shadow on Customs’

argument that Lathram could not make out a prima facie case, even

though she was substantively qualified, because her lack of time as

a GS–14 rendered her technically unqualified for the GS–15 position. Addressing a similar claim in Cones, we warned that, if

accepted, this ‘‘theory of ‘qualification’ would open a potential

loophole in Title VII’’ because ‘‘[a]gencies seeking to prevent minority employees from advancing to higher level positions could simply’’ structure the positions in a way that made the employees

‘‘technically’’ unqualified. 199 F.3d at 518. In this case, for example, the government presented no evidence to justify its decision to

make Boyd’s position a GS–15, rather than a GS–14 for which

Lathram was technically qualified.
9

(1) an agency cannot utilize Schedule A to hire outside the

agency if it already has employees who are qualified for the

new position, see 5 C.F.R. pt. 6; (2) an agency that wishes to

rely on Schedule A must obtain approval from the Office of

Personnel Management (OPM), by demonstrating that it is

‘‘not practicable’’ to fill the position through the competitive

process, see id.; (3) Customs did utilize Schedule A; ergo, (4)

Lathram could not have been qualified. Appellee’s Br. at 17–

18. As should be apparent, there are problems with the

government’s ‘‘ergo.’’

The most obvious problem is that the government offered

no evidence that OPM actually approved Customs’ use of

Schedule A. But even if we were to assume that OPM did

approve, the government offered no evidence that OPM made

an independent determination that no internal candidate was

qualified, or that it did anything other than accept Customs’

own representations. This is not ergo; it is ipse dixit.

Customs’ argument amounts to nothing more than the assertion that Lathram was unqualified because it says she was.

Once again, Customs’ flawed attack on Lathram’s qualifications both fails to defeat her prima facie case and provides a

ground upon which a reasonable jury could conclude that the

government’s explanation was pretextual.

The government’s claim that Customs had a legitimate

nondiscriminatory reason for hiring Boyd for the GS–15

position—that he was more qualified than Lathram—fares no

better. In its initial decision, the district court concluded that

Lathram had raised a genuine issue of material fact on this

question:

The undisputed record shows that when he was hired,

Boyd had no experience in public affairs or public relations. Rather, Boyd was an unemployed former editor

and writer of a trade publication. In contrast, Plaintiff

had significant experience in drug interdiction work and

had served as Deputy Spokesman for the United States

State Department’s Bureau of African Affairs. Despite

Boyd’s dearth of experience, Defendant reassigned to

Boyd Plaintiff’s anti-drug enforcement program and cer-
10

tain other duties. Such undisputed facts may give rise

to an inference of discrimination.

Mem. Op. at 12 (emphasis added; citations omitted). Subsequently, however, and without explanation, the district court

reversed course and granted summary judgment for the

defendant. Lathram v. O’Neill, No. 00–2442 (D.D.C. Dec. 26,

2001) (order granting partial recons.).

In our view, the court’s first decision was correct. There

was in fact evidence from which a reasonable jury could

conclude that there was a wide and inexplicable gulf between

the qualifications of Boyd and Lathram, and in such circumstances the jury could infer discrimination from the agency’s

choice of Boyd over Lathram. See Aka, 156 F.3d at 1294 (‘‘If

a factfinder can conclude that a reasonable employer would

have found the plaintiff to be significantly better qualified for

the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a lessqualified candidate—something that employers do not usually

do, unless some other strong consideration, such as discrimination, enters into the picture.’’); id. at 1299–1300 (reversing

grant of summary judgment where there was ‘‘sufficient

evidence in the record so that a reasonable jury could conclude that [plaintiff] was markedly more qualified’’ than the

person who got the position).

With respect to Boyd, the district court was correct to note

that the ‘‘undisputed record shows that when he was hired,

Boyd had no experience in public affairs or public relations.’’

Mem. Op. at 12. He was an unemployed former journalist,

whose only relevant experience was as an editor of the Drug

Enforcement Report—a private newsletter with a circulation

of no more than 2000 subscribers—which another Public

Affairs Specialist described as unimportant in the world of

Customs public affairs. Mosher Dep., J.A. at 819.

Moreover, there is evidence from which a reasonable jury

could have found that Lathram was substantially more qualified than Boyd for the job. At the time Customs hired Boyd,

Lathram had already been working as a Public Affairs Spe-
11

cialist for three years. She specialized in and was responsible

for drug interdiction issues, and, depending upon whose testimony the jury credited, much or all of Boyd’s subsequent

portfolio was work that Lathram had previously been performing. Lathram’s former supervisor described her work as

‘‘excellent,’’ Anthony Dep., J.A. at 271, and she was given

high-profile assignments and commendations from superiors

for her public relations successes, Lathram Decl., J.A. at 568–

73.

In sum, because a reasonable jury could find that Lathram

was not only qualified for the job but substantially more

qualified than Boyd, and because such a jury could further

conclude that Customs’ assertions to the contrary were pretextual, the district court’s grant of summary judgment on

this count was in error and must be reversed.

C

Finally, Lathram’s amended complaint charged that Customs violated Title VII in July 2000, when it selected James

Michie over her for the position of Director of the Press

Operations Section in Customs’ Office of Public Relations. At

the time of his selection, Michie was working at a private

organization, the Substance Abuse Mental Health Association.

Count V of the amended complaint alleged that in selecting

Michie, Customs discriminated against Lathram on the basis

of her sex; Count VI charged that the agency’s failure to

select Lathram constituted illegal retaliation for her complaints about the other alleged acts of discrimination.

The position of Press Director was a new position, created

along with two other new directorships as part of a restructuring instituted by Assistant Commissioner Murphy. Murphy opened the position of Press Director to competition from

both inside and outside the government, and it was advertised

at the GS–14/15 level. A panel interviewed the applicants

and gave each a numerical score. Lathram received a ‘‘perfect’’ score of 100. After being granted a 5–point veteran’s

preference, Michie received a score of 101 and was given the

position.
12

The district court granted summary judgment for the

defendant on both counts, concluding that it was undisputed

that Michie was the more qualified applicant. The court

reached this conclusion because Michie’s score was higher

than Lathram’s. On appeal, Customs cites the difference in

scores as a legitimate, nondiscriminatory reason for its decision to favor Michie over Lathram. But both the district

court and the government have misconstrued Lathram’s

claim. The plaintiff does not dispute the fact that with the

veteran’s preference Michie received a higher numerical score

than she did; instead, she argues that she was the more

qualified applicant without the preference, and challenges the

decision that made the Press Director position one to which

the veteran’s preference applied in the first place.

At oral argument, the government conceded that, without

the veteran’s preference, Michie was less qualified than Lathram. That concession is inescapable. Without the preference he scored only 96, while Lathram received a score of

100. Moreover, for the key category of ‘‘[a]bility to manage

and direct Press Operations in carrying out a national and

international public information program,’’ Michie received

only a 3 (‘‘good’’), while Lathram received a perfect rating of

5 (‘‘excellent’’). Compare Michie Score, J.A. at 651, with

Lathram Score, J.A. at 650; see Evaluation Criteria, J.A. at

646.

Lathram does not contend that there is anything discriminatory about veteran’s preferences per se. That concession is

well made in light of the Supreme Court’s decision in Personnel Administrator v. Feeney, which noted that such preferences have ‘‘traditionally been justified as a measure designed

to reward veterans for the sacrifice of military service, to ease

the transition from military to civilian life, to encourage

patriotic service, and to attract loyal and well-disciplined

people to civil service occupations,’’ and held that their application does not constitute sex discrimination in violation of

the Fourteenth Amendment. 442 U.S. 256, 265 (1979).

Rather, Lathram argues—and the government agrees—that

the Veterans Employment Opportunities Act of 1998 only
13

guarantees ‘‘preference eligible’’ veterans the right to compete when an agency accepts applications from outside of its

own workforce. See 5 U.S.C. §§ 3304(f), 3309(2); 5 C.F.R.

§ 335.106; see also Appellee’s Br. at 27. The uncontradicted

record evidence showed that Customs had a choice of how

broadly to open the applicant pool for the Press Director

position, and, in particular, that Assistant Commissioner Murphy was free to restrict the pool to those already inside the

competitive service. Burton Dep., J.A. at 762.

Lathram’s contention is that Murphy did not have a nondiscriminatory reason for going outside the agency to hire

Michie, and hence for creating a situation in which veteran’s

preferences would be relevant. First, she notes that she—

who scored a perfect 100 in the ratings—was already employed by the agency and more qualified for the position.

And she correctly points out that the government offered no

explanation for opening the competition as wide as it did.

Second, Lathram also rightly argues that, not only was

Murphy’s decision to go outside the agency unexplained, but

there was evidence from which a jury could find it inconsistent with the application process that Customs established for

the two other new directorships that were created at the

same time. Such an unexplained inconsistency can justify an

inference of discriminatory motive. See, e.g., Miller v. Fairchild Indus., Inc., 885 F.2d 498, 506 (9th Cir. 1989); cf. Cones,

199 F.3d at 519–20 (holding that a jury could have concluded

that the agency’s explanation for not promoting the African–

American plaintiff from GS–14 to GS–15, downsizing, was

inconsistent with its decision to promote three white GS–14s

to GS–15 and hence a pretext for discrimination). The competitions for both of the other directorships were restricted,

and the positions were awarded to males who did not have to

compete with outsiders who had veteran’s preferences. The

district court did not address this point at all, and while the

government contended at oral argument that the other two

directorships were merely exceptions to the norm of hiring

from outside the agency, it conceded that there was no
14

evidence in the record to support that contention.7

In sum, although there is no dispute that Michie scored

higher than Lathram with the benefit of his veteran’s preference, the government offers no explanation for why Customs

decided to structure the application process for the position in

a way that made Michie’s preference applicable, while Lathram offers evidence that the process for similar positions

was structured so that it would not have been. In these

circumstances, a reasonable jury could reject as pretextual

Customs’ explanation for awarding the position to Michie over

Lathram. Hence, summary judgment on Lathram’s discrimination claim was erroneous. And because the court’s acceptance of that same explanation was also the basis for its grant

of summary judgment on Lathram’s retaliation claim, that

decision was erroneous as well. See supra note 3.

III

Although the district court properly granted summary

judgment on Count II of the amended complaint, the grant of

summary judgment for the defendant on Counts IV, V, and

VI was in error. Accordingly, the judgment of the district

court is affirmed in part and reversed in part, and the case is

remanded for further proceedings consistent with this opinion.

So ordered.

7 The government’s brief also seeks to explain Customs’ decision to keep the hiring for the other two directorships inside the

agency on the ground that these were in-house candidates who were

already doing the work. But there was also evidence that there

was an in-house candidate who was already doing the work of the

Press Director—Lathram herself. Accordingly, the government’s

argument does not negate a genuine dispute as to whether the

Press Director position was in fact treated consistently with the

others. See Cones, 199 F.3d at 519–20 (‘‘[The agency] argues that

the three white GS–14s were not similarly situated to Cones because they had been serving in acting capacities in the positions to

which they were promoted. Perhaps so, but this explanation is

hardly conclusive at this stage of the litigation [because] a jury

could just as easily infer that the alleged differences TTT were

irrelevantTTTT’’).