                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 07-1513


ROBERT M. MOORE,

                Plaintiff – Appellant,

           v.

MICHAEL B. MUKASEY, Attorney General,

                Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:06-cv-00602-GBL-BRP)


Argued:   September 24, 2008             Decided:    December 30, 2008


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.         Judge Gregory wrote
a dissenting opinion.


ARGUED: Janice F. Willis, Fairfax, Virginia, for Appellant.
Lauren Anne Wetzler, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Chuck Rosenberg,
United States Attorney, Ralph Andrew Price, Jr., Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Robert M. Moore, an African-American male, alleges that his

former     employer,      the     United        States        Drug       Enforcement

Administration (the “DEA”), denied him a promotion because of

his race and gender in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.

Moore now appeals the district court’s order granting summary

judgment      to    the   United     States          Attorney        General     (the

“Government”).       For the reasons set forth below, we affirm the

district court’s judgment.



                                         I.

     The   following      facts    are       presented   in     the      light   most

favorable to Moore.       See Howard v. Winter, 446 F.3d 559, 562 n.2

(4th Cir. 2006).       Moore was employed by the DEA from 1985 until

he retired in 2004.       At all times relevant to this appeal, Moore

was a GS-13 Information Technology Specialist.

     Deborah Roberts, a white female – and the DEA employee who

received   the     challenged   promotion       at   issue    in   this    appeal   –

became a GS-13 Information Technology Specialist with the DEA in

1998.    Prior to accepting that position, Roberts was employed as

a   Programmer      Analyst/Senior       Consultant      with        a    government

contractor from 1990-1998.



                                         2
       In January 2003, one of Roberts’ and Moore’s supervisors,

Dennis McCrary, a white male, temporarily promoted Roberts to

Acting Unit Chief of the DEA’s Enterprise and Field Systems Unit

(the “SISE”).      At the time, Roberts was a GS-13 employee in SISE

and the temporary promotion, which was only scheduled to last

120 days, elevated her to the GS-14 pay scale.                   The permanent

SISE    Unit     Chief   position     was   vacant    because     McCrary   had

reassigned the Unit Chief, Kenneth Tyskowski, a white male, to

another    section.       In   explaining     why    he   gave    Roberts   the

temporary promotion, McCrary stated that “she had some of the

more visible and difficult projects in that organization and she

was doing them very well.”          J.A. 326-27.

       McCrary terminated Roberts’ promotion in May 2003 to comply

with    federal     regulations      requiring     that   temporary    details

lasting longer than 120 days be subject to a merit promotion

program.       The salary increase associated with Roberts’ temporary

promotion also ended in May 2003, and she was returned to GS-13

pay.    However, McCrary allowed Roberts to continue performing

the duties of Acting Unit Chief until November 2003.                    During

this time period, Moore told McCrary that it would be unfair if

he did not allow other employees to serve as Acting Unit Chief.

McCrary replied that “[l]ife isn’t fair.”                 J.A. 788.    McCrary

later explained that he allowed Roberts to continue serving in

an acting capacity “to maintain continuity and reduce turmoil”

                                        3
in the unit.           J.A. 392.        While serving as Acting Unit Chief,

Roberts supervised employees who would ultimately compete with

her   for   the    permanent      Unit     Chief    position,    and    she    had   the

opportunity       to    attend    and    participate     in    certain    management

meetings.

      In August 2003, the DEA sought applicants to fill the SISE

Unit Chief position on a permanent basis.                        One of the DEA’s

Human Resources Specialists advertised the vacancy, reviewed all

of    the   applications,         and    compiled    a   “best    qualified      list”

(“BQL”) for the vacancy.                The BQL listed all of the applicants

who possessed at least the minimum qualifications necessary for

the permanent position.             In this case, the BQL listed Roberts,

Moore, and five other individuals: Patrick Duffy (white male),

Terry    Ford     (African-American         male),    Evelyn     Kelley       (African-

American female), Dorretha Tumlin (African-American female), and

Mark Kirksey (African-American male).

      Next,     one    of   the   DEA’s    Unit     Chiefs,   Ruth     Torres    (white

female) convened an interview/evaluation panel (the “Panel”) to

interview the seven candidates and make a hiring recommendation

to McCrary.       Torres selected three other DEA Unit Chiefs — one

white male, one African-American female, and one Asian-American

male – to serve on the Panel with her.                        The Panel developed

interview questions and asked each of the seven candidates the



                                            4
same    questions.        After     every       interview,    each    Panel      member

independently rated the candidates’ responses to the questions.

       After completing the interviews, the Panel ranked all seven

candidates.      The Panel unanimously agreed that Roberts was one

of the top two candidates; specifically, two panelists ranked

Roberts first and two panelists ranked her second.                         The Panel

concluded       that     Roberts     had        in-depth     working       knowledge,

experience,      and    managerial    potential,        which   she    demonstrated

through her resume, interview, and work experience.                        J.A. 229-

30, 377-79.        The Panel also concluded that Roberts demonstrated

her    ability     to   manage     multiple       complex    tasks    in   a     highly

efficient    and    effective      manner.        Id.      Ultimately,     the    Panel

recommended three candidates to McCrary: Roberts, Tumlin, and

Kirksey.     The Panel did not rank Moore as one of the top three

candidates, and it did not recommend him to McCrary for the

promotion.

       Upon receiving the Panel’s recommendation, McCrary ranked

the three candidates in order of his preference: (1) Roberts,

(2) Tumlin, and (3) Kirksey.               McCrary then forwarded this list

to his supervisor who allowed him to promote Roberts to SISE

Unit Chief.      Roberts was promoted in November 2003.

       After exhausting his administrative remedies, Moore filed

this   action    alleging    that    he     was    intentionally      discriminated

against and denied a promotion to the SISE Unit Chief position

                                            5
because of his race and gender.                   In response, the Government

moved for summary judgment, arguing that Moore was not denied a

promotion or otherwise discriminated against because of his race

or gender.      The district court entered summary judgment in favor

of    the    Government   on    the     grounds    that     (1)    the      DEA   offered

legitimate, non-discriminatory reasons for not promoting Moore,

and (2) Moore failed to establish that the DEA’s stated reasons

were pretext for race or gender discrimination.                          Moore timely

appealed.



                                          II.

       “We    review   the     district    court’s     order       granting       summary

judgment de novo, viewing the facts in the light most favorable

to,    and   drawing   all     reasonable       inferences        in   favor      of,   the

nonmoving party.”         Garofolo v. Donald B. Heslep Assocs., Inc.,

405 F.3d 194, 198 (4th Cir. 2005).                 At the same time, however,

such    inferences     must     “fall     within    the     range      of    reasonable

probability and not be so tenuous as to amount to speculation or

conjecture.”       Thompson      Everett,       Inc.   v.   Nat’l      Cable      Adver.,

L.P., 57 F.3d 1317, 1323 (4th Cir. 1995).

       Summary judgment “should be rendered if the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.”

                                           6
Fed.   R.    Civ.       P.   56(c).        The        relevant    inquiry       in    a    summary

judgment analysis is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided        that    one     party     must       prevail     as    a    matter       of    law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

Indeed,      there       must      be      “sufficient           evidence       favoring         the

nonmoving party for a jury to return a verdict for that party.

If the evidence is merely colorable, or is not significantly

probative,” summary judgment should be granted.                                Id. at 249-50

(citations omitted).



                                              III.

                                                 A.

       In    general,        a   Title      VII       plaintiff        may    defeat       summary

judgment      through        one      of   two    avenues        of     proof.         First,      a

plaintiff        may     establish         through        direct        or     circumstantial

evidence that race or gender was a “motivating factor” in the

adverse employment action.                    Hill v. Lockheed Martin Logistics

Mgmt.,      Inc.,      354     F.3d    277,      284    (4th     Cir.       2004)    (en       banc).

Second,      a    plaintiff        may     proceed       under     the       “burden-shifting

framework” adopted by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973).                       See Hill, 354 F.3d at 285,

298.



                                                  7
     On appeal, Moore confines his argument to the McDonnell

Douglas burden-shifting framework.              Under McDonnell Douglas, the

plaintiff    bears     the   initial     burden       of    establishing,        by     a

preponderance of the evidence, a prima facie case of unlawful

discrimination.        Id. at 285.            If the plaintiff carries this

initial    burden,    then   “the   burden       shifts     to   the    employer       to

articulate    a    legitimate,      nondiscriminatory            reason    for        the

adverse employment action.”             Id.     “This burden, however, is a

burden of production, not persuasion.”                     Holland v. Washington

Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007).                        “Assuming the

employer meets this burden of production, ‘the McDonnell Douglas

framework-with       its   presumptions       and   burdens-disappear[s],             and

the sole remaining issue [is] discrimination vel non.’”                          Hill,

354 F.3d at 285 (quoting Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 142-43 (2000)).                 In other words, the burden

shifts back to the plaintiff to prove by a preponderance of the

evidence    that   the     employer’s    stated       reasons    for     taking       the

employment    action       were   not    its     true      reasons,     but   rather

“pretext” for unlawful discrimination.               Hill, 354 F.3d at 285.

     Even under the McDonnell Douglas framework, however, the

plaintiff bears the ultimate burden of demonstrating that the

employer’s actions were discriminatory.                    See St. Mary’s Honor

Ctr. v. Hicks, 509 U.S. 502, 507-08, 511-12 (1993).                           Indeed,

“[r]egardless of the type of evidence offered by a plaintiff as

                                         8
support for her discrimination claim (direct, circumstantial, or

evidence of pretext), . . . [t]he ultimate question in every

employment discrimination case involving a claim of disparate

treatment is whether the plaintiff was the victim of intentional

discrimination.”             Hill,    354       F.3d    at    286    (internal       quotation

marks omitted).

                                                B.

       Applying these principles to this case, Moore can establish

a    prima    facie    case    of     discriminatory           failure    to    promote      by

establishing: (1) he is a member of a protected group, (2) he

applied for the position in question, (3) he was qualified for

the position, and (4) the DEA rejected his application under

circumstances         giving        rise        to     an     inference        of     unlawful

discrimination.             Anderson v. Westinghouse Savannah River Co.,

406    F.3d    248,    268     (4th    Cir.          2005).     For     purposes       of   our

analysis,      we     will    assume,       without         deciding,    that       Moore   has

established a prima facie case of discrimination.

       Under McDonnell Douglas, the burden then shifts to the DEA

to    articulate        a     legitimate,            nondiscriminatory          reason      for

selecting      Roberts       instead       of    Moore.         In    this     regard,      the

Government states that Roberts was a better qualified candidate.

It supports this assertion by noting, inter alia, (1) Roberts

was highly recommended to McCrary by the Panel; (2) Roberts had

in-depth       working         knowledge,             experience,        and        managerial

                                                 9
potential, which she demonstrated through her resume, interview,

and work experience; and (3) Moore was not among the top three

candidates recommended by the Panel.

       As a threshold matter, Moore contends that summary judgment

should not have been granted because the Government failed to

rebut his prima facie case.                Moore argues that the Government’s

articulated reason for not promoting him – namely, that Roberts

was better qualified – is not a legitimate, nondiscriminatory

reason because it is not credible.                      In Moore’s view, Roberts

gained her experience and qualifications in an unlawful manner

and,       therefore,      she    was     not    actually       a    better      qualified

candidate. 1       Consequently, Moore argues, there is no need to

proceed to the pretext stage of the McDonnell-Douglas analysis.

In     pressing     this        claim,    however,      Moore       misapprehends       the

Government’s burden.             As noted above, the Government’s burden at

this       stage   of     the     McDonnell      Douglas      analysis      is    one   of

production,        not     persuasion;      it   “can    involve       no     credibility

assessment.”             St.    Mary’s,    509   U.S.    at     509.        Rather,     the

Government need only articulate “reasons for its actions which,

if believed by the trier of fact, would support a finding that

       1
       Moore alleges that Roberts gained her experience and
qualifications for the Unit Chief position in an unlawful manner
because McCrary elevated her to the Acting Unit Chief position
and allowed her to stay in that position longer than 120 days in
violation of federal law.       Without this experience, Moore
contends, Roberts would not have been better qualified.


                                            10
unlawful    discrimination             was    not     the    cause    of   the   employment

action.”       Id. at 507.        Applying this standard, we conclude that

the    Government      satisfied        its        burden.      If   Roberts     was   better

qualified than Moore, then promoting her on that basis would be

legitimate and non-discriminatory.

       Because the Government satisfied its burden under McDonnell

Douglas,    the    burden        now    shifts        to     Moore   to    establish    by    a

preponderance         of   the    evidence           that     the    Government’s      stated

reasons were pretext for unlawful discrimination.                              “A plaintiff

alleging a failure to promote can prove pretext by showing that

he was better qualified, or by amassing circumstantial evidence

that    otherwise      undermines            the    credibility       of   the   employer’s

stated reasons.”           Heiko v. Colombo Savings Bank, F.S.B., 434

F.3d 249, 259 (4th Cir. 2006).                       Moore offers several arguments

which,    in    his    view,      establish          that     the    Government’s      stated

reasons were pretext.              Mindful of our obligation to draw all

reasonable,       non-speculative             inferences        in   Moore’s     favor,      we

conclude, for the reasons set forth below, that Moore has not

carried his burden.

       First, Moore contends the Government’s stated reasons were

pretext because he was better qualified than Roberts.                                   Moore




                                               11
argues that he had a superior educational background, 2 had been

employed by the federal government for a longer period of time,

and had experience supervising enlisted reserve members as a

Leading Petty Officer of a Naval Reserve Unit.                      However, Moore

undercuts this argument by stating that Roberts’ applicable work

experience       –   and,    in    particular,       her    experience    serving    as

Acting    Unit   Chief –          “made   Roberts      as   qualified    as   Moore.”

Appellant’s Br. at 20 (emphasis added); id. at 13 (stating that

Roberts’ experience placed her “on a level playing field with

Moore”).     Under our case law, a Title VII plaintiff cannot rely

on his qualifications to establish pretext if he asserts that

his   qualifications        are    similar     or    only   slightly     superior    to

those of the person ultimately selected for promotion.                             See,

e.g., Heiko, 434 F.3d at 261 (“When a plaintiff asserts job

qualifications that are similar or only slightly superior to

those of the person eventually selected, the promotion decision

remains    vested      in     the     sound         business    judgment      of    the

employer.”).


      2
       Moore earned an Associate’s Degree in Computer Science
from the University of the District of Columbia and a Bachelor’s
Degree in Business Management from the University of Maryland.
Moore also served as Leading Petty Officer of a Naval Reserve
Unit from 1984-1995 where he supervised 15 other reserve
members.   Roberts earned a high school diploma in 1974 and had
66   hours    towards   an   Associate’s   Degree   in  Business
Administration at Charles County Community College.



                                          12
       Further,    Moore       cannot       rely     on    his     qualifications       to

establish pretext because he has not presented evidence that

would allow a reasonable jury to conclude that he was better

qualified than Roberts.                  The undisputed facts establish that

both   Moore     and    Roberts     were    at     least   minimally       qualified   to

serve as SISE Unit Chief.                It is also undisputed that the Panel

– which was composed of a diverse group of four current DEA Unit

Chiefs    –    interviewed         all    seven     candidates       and    unanimously

concluded that Roberts was one of the top two candidates and

recommended her for the promotion.                    Moreover, the Panel rated

Roberts, but not Moore, “highly in the key areas of project

management, potential for leadership and overall understanding

of [applicable] . . . business processes.”                         J.A. 229.      It is

also undisputed that the Panel did not rank Moore as one of the

top three candidates for the promotion.                     Even construed in the

light most favorable to Moore, our case law makes plain that

Moore’s       self-assessment        of     his     superior       aptitude    for     the

position fails to rebut the Government’s legitimate explanation.

See, e.g., Anderson, 406 F.3d at 269 (holding that a Title VII

plaintiff “cannot establish her own criteria for judging her

qualifications         for   the   promotion”        but   “must     compete   for     the

promotion       based    on    the       qualifications          established    by     her

employer”).



                                            13
     Next, Moore contends that McCrary’s decision to use the

Panel establishes pretext.          In particular, Moore alleges that

the Panel was not a lawful part of the promotion process, but

rather a “sham” designed to exclude Moore from competition and

to conceal McCrary’s unlawfully discriminatory animus.               Beyond

his assertions, however, Moore offers no evidence that would

allow us to conclude that McCrary’s use of the Panel was either

unlawful or pretext for illegal discrimination. 3           Instead, the

evidence establishes that the Panel was part of the DEA’s normal

promotion process.   See J.A. 133-35, 544-52.

     Finally,    Moore     argues     that      the   Government’s     non-

discriminatory   reasons    for     promoting     Roberts   were    pretext

because McCrary unlawfully preselected her for the promotion.

In particular, Moore alleges that McCrary promoted Roberts to

Acting Unit Chief and allowed her to serve in that capacity for

longer than 120 days in violation of federal law so that she

could gain the experience necessary to compete with Moore and,

ultimately, outperform him during the Panel’s interviews.                In

response, the Government argues that McCrary did not violate

federal law because Roberts’ temporary promotion, as well as her

salary increase, did not last longer than 120 days.                According


     3
       In this regard, we note that one of the three candidates
recommended by the Panel shared the same race and gender as
Moore, and another one of the three shared the same race.


                                     14
to the Government, McCrary merely allowed Roberts to continue to

perform     the    duties    of   Acting    Unit    Chief    beyond    120    days    to

maintain continuity and reduce turmoil in the unit.

      We    conclude      that    Moore’s    argument    regarding     preselection

does not establish that the Government’s stated reasons were

pretext     for     unlawful      discrimination.           Indeed,    rather     than

undermining the credibility of the Government’s stated reasons

for   not   promoting       Moore,    his    argument    actually      supports      the

Government’s assertion that McCrary promoted Roberts because she

was better qualified than him due, in part, to the experience

she gained during her temporary promotion.

      Importantly, there is no evidence that McCrary preselected

Roberts on the basis of race or gender.                     Consequently, even if

McCrary preselected Roberts by promoting her in violation of

governing regulations – a question we do not decide – this type

of preselection would be insufficient in this case to establish

pretext.          See,    e.g.,    Anderson,      406   F.3d   at     271    (“[W]hile

preselection        may     establish      that    an   employee      was     unfairly

treated, it does not by itself prove racial discrimination.”)

(internal quotation marks omitted); Kennedy v. Landon, 598 F.2d

337, 341 (4th Cir. 1979) (“Although the pre-selection of Hardy

may have violated the rules and regulations of the Department of




                                            15
Corrections, it does not evidence the type of discrimination

that is prohibited by Title VII.”). 4



                                     IV.

     As     established     above,         the   Government     articulated

legitimate, non-discriminatory reasons for not promoting Moore.

In turn, Moore did not present sufficient evidence to establish

that the Government’s stated reasons were pretext for race or

gender    discrimination.    Consequently,       we   affirm   the   district

court’s decision to enter summary judgment.

                                                                     AFFIRMED




     4
       Accord Mackey v. Shalala, 360 F.3d 463, 468-69 (4th Cir.
2004). Relatedly, and as noted above, Moore states that he
informed McCrary that there were concerns about not rotating
different DEA employees into the Acting Unit Chief position.
According to Moore, he told McCrary “[i]t would be unfair if no
one else was given the opportunity to serve in that capacity”
and Moore purportedly responded: “Life isn’t fair.”    J.A. 788.
We conclude that this exchange is insufficient to establish that
the Government’s articulated explanations were pretext for
unlawful discrimination because, inter alia, this evidence does
not allow anything other than speculation about McCrary’s
motives.


                                     16
GREGORY, Circuit Judge, dissenting:

     The   majority’s    opinion      invites      us   to     overlook        the

Government’s incredible deviation from its own regulations and

procedures and the Appellant’s evidence that this deviation was

racially   motivated.      Because        I   believe   that     Mr.     Moore’s

preselection theory of pretext has significantly more merit than

the majority accords it, I must respectfully dissent.



                                     I.

     The Government has a minimal burden to rebut a Title VII

plaintiff’s prima facie case under the McDonnell Douglas burden-

shifting scheme. 1   Thus, I will assume here that the Government’s

explanation   that   Roberts   was   better     qualified      suffices       as   a

legitimate,   nondiscriminatory      reason.        But,     even      once    the

McDonnell Douglas presumption has dropped from the case, we must


     1
       The majority’s opinion assumes without deciding that Moore
has established his prima facie case.     In fact, Moore’s prima
facie burden is easily met because (1) he is a member of a
protected class; (2) he applied for the SISE Unit Chief
position; (3) he was qualified for that position, as evidenced
by his placement on the BQL; and (4) he was rejected from that
position under circumstances giving rise to an inference of
discrimination.    See Anderson v. Westinghouse Savannah River
Co., 406 F.3d 248, 268 (4th Cir. 2005).    This last element can
be satisfied by demonstrating that the position was filled by a
similarly qualified applicant outside the protected class, Hill
v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th
Cir. 2004) (en banc), and, in this case, the position was filled
by Roberts, a Caucasian woman.



                                     17
still deal with Moore’s contention that the only reason that

Roberts was more qualified than other applicants was that she

was allowed to remain in the Acting Chief position for months

beyond the 120 days specified in the federal regulations.                             The

majority     dismisses        this    theory      of   pretext,      suggesting      that

Moore’s “argument actually supports the Government’s assertion

that McCrary promoted Roberts because she was better qualified

than him due, in part, to the experience she gained during her

temporary    promotion,”         supra.        The     majority,      it   seems,    sees

nothing    wrong       with    the    fact    that     the    very    advantages     that

Roberts     had    in    the    bid    for     the     Unit   Chief    position      were

advantages that she had gained in apparent violation of federal

regulations.

        Office    of    Personnel     Management        regulations        specify   that

competitive procedures must be used for all details “for more

than 120 days to a higher grade position or to a position with

higher promotion potential.”                 5 C.F.R. § 335.103(c)(ii) (2008).

The DEA’s own personnel manual echoes this language.                          (See J.A.

854 (“Temporary assignments (details) to higher-graded positions

or to positions with promotion potential for more than 120 days

must be made under competitive promotion procedures.”).)                             The

Government suggests that it complied with these regulations by

terminating Roberts’ salary increase as Acting Chief after 120

days.     But the regulations are not concerned with the length of

                                             18
non-competitive details simply because of the pay increases that

accompany them.      The regulations make clear that competitive

procedures are needed to select longer-term detailees to both

higher-graded    positions    and    positions    with   “higher    promotion

potential.”     5 C.F.R. § 335.103(c)(ii) (2008).            Thus it is the

increase in pay and the increased opportunity for promotion that

prompted OPM to mandate that competitive procedures be used for

long-term details.     In other words, the regulations anticipate

and seek to avoid just the outcome that we find in this case --

a situation where a detailee who was not competitively selected

is allowed to stay past 120 days, albeit at her normal salary,

in a position that she is essentially being groomed to assume

permanently.

    While the Government has suggested that there was some need

to maintain continuity and to reduce turmoil while the unit was

going through a reorganization, these assertions, without more,

cannot justify leaving Roberts as Acting Chief for eleven months

-- almost three times the length allowed under the regulations.

Roberts’ extra time in the Acting Chief position undoubtedly

advantaged her unfairly in the promotion process.                  It was in

these months as Acting Chief that Roberts “demonstrated [the]

managerial    potential”    that    qualified    her   for   the   Unit   Chief

position.     (J.A. 229.)    Several members of the evaluation panel

that interviewed her were fellow unit chiefs, with whom she met

                                      19
routinely for management meetings.                    During her time as Acting

Chief, Roberts also had access to valuable leadership training

opportunities that Moore and other applicants did not have.

     McCrary was clearly aware that others had interest in being

rotated    into    the      Acting    Chief       position.    Moore   himself     had

informed McCrary that it was unfair not to allow others to serve

in that capacity, to which McCrary’s only response was, “Life

isn’t fair.”           (J.A. 651, 788.)            This kind of insensitive and

provocative       response        belies   the     Government’s   contention      that

Roberts was kept on as Acting in order to reduce turmoil in the

unit.

        Of course, preselection, however unfair it may be, does not

by itself suffice to prove racial discrimination.                      See Anderson

v. Westinghouse Savannah River Co., 406 F.3d 248, 271 (4th Cir.

2005).      But    I    disagree      with    the    majority’s   contention      that

“there is no evidence that McCrary preselected Roberts on the

basis of race or gender,” supra.                   Moore alleges in both his EEO

affidavit    and       in   his    deposition      testimony   that,   in   the   last

twenty years, no African-Americans have been promoted above the

GS-13 level in the DEA’s Systems Applications Section. 2                          (See

J.A. 792, 670.)             These statements remain uncontroverted on the


     2
       Moore himself was promoted to a GS-13 in 1989, and he was
never promoted again before his retirement in 2004.



                                             20
record before us.      Moreover, of the six intra-agency candidates

listed on the BQL for the Chief position, four of them -– Moore,

Terry Ford, Evelyn Kelley, and Dorretha Tumlin -– were African-

American. 3    Without the experience she gained as a result of

improperly    being   kept   on   as   Acting   Chief    beyond   the   120-day

limit, Roberts may well have not been qualified, or at least not

better qualified than others, for the permanent position.                Thus,

the evidence permits an inference that McCrary, as Moore himself

puts it, “knew there was a reasonable chance than an African-

American would be Unit Chief, unless he made Roberts equally

qualified by giving her the opportunity to gain experience, so

that he could select her.” 4       (Appellant’s Br. at 20.)

     Based on this evidence, a jury could very well find that

McCrary preselected Roberts for the Unit Chief position and that

her preselection was racially motivated.                As the Supreme Court

noted in St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511

(1993),




     3
       I will exclude Mark Kirksey from this analysis since he
applied from outside DEA and would not have factored into
McCrary’s calculus of the odds of an African-American applicant
being selected for the Unit Chief position at the time McCrary
decided to keep Roberts on as Acting beyond the 120-day limit.
     4
       It is worth noting that McCrary himself regarded Tumlin as
the next most qualified for the job, and that Roberts and Tumlin
tied for first in the rankings of the evaluation panel.



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     The factfinder’s disbelief of the reasons put forward
     by   the   defendant   (particularly  if   disbelief is
     accompanied by a suspicion of mendacity) may, together
     with the elements of the prima facie case, suffice to
     show intentional discrimination.     Thus, rejection of
     the defendant’s proffered reasons will permit the
     trier   of   fact   to   infer  the  ultimate   fact of
     intentional discrimination, and . . . no additional
     proof of discrimination is required.

(internal      citation      and    quotations     omitted)           (emphasis   in

original); accord Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 147 (2000); Anderson, 436 F.3d at 269 (4th Cir. 2005).



                                       II.

     There      is   sufficient     evidence    under       Moore’s    preselection

theory    to    establish    that    the     “legitimate,      nondiscriminatory

reason” that the Government proffered for promoting Roberts was

pretext   for    racial     discrimination,     and     I    would,    accordingly,

reverse the district court’s entry of summary judgment in favor

of the Government.        Thus, I dissent.




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