          United States Court of Appeals
                      For the First Circuit

No. 13-1741

                         SANDRA L. HICKS,

                      Plaintiff, Appellant,

                                v.


                JEH CHARLES JOHNSON,* SECRETARY,
         UNITED STATES DEPARTMENT OF HOMELAND SECURITY,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Richard G. Stearns,    U.S. District Judge]



                              Before

                        Lynch, Chief Judge,
                 Stahl and Lipez, Circuit Judges.


     Richard B. Reiling for appellant.
     Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.



                          June 20, 2014




     *
      Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Jeh
Charles Johnson has been substituted for Janet Napolitano as
Secretary of the Department of Homeland Security.
           LIPEZ,   Circuit   Judge.      Sandra   Hicks      brought     this

employment discrimination action against the Secretary of Homeland

Security, claiming that the Secretary failed to promote her to the

position of Housing Manager in the United States Coast Guard

Housing Office at Air Station Cape Cod on account of her race and

gender.   The district court granted the Secretary's motion for

summary judgment, finding that Hicks failed to generate a genuine

issue of material fact on the Secretary's non-discriminatory reason

for   choosing   another   candidate.     Prior    to    granting    summary

judgment, the court also denied Hicks's motion to reopen discovery.

           In response to Hicks's appeal, we conclude that the

district court did not abuse its discretion in denying Hicks's

motion to reopen discovery.      We also agree that Hicks failed to

generate a genuine issue of material fact on the issue of pretext.

We therefore affirm.

                                  I.

           Hicks,   an   African-American   woman,      has   been   a   civil

service government employee for over twenty years.            A majority of

her service has been in the United States Coast Guard Housing

Office at Air Station Cape Cod, located on the Otis Air Force Base.

The Housing Office staff consists of one Housing Manager and

approximately six subordinates.        Before the events at issue here

took place in 2009, Hicks had served nine years in the Housing

Office in two roles--six years as Housing Management Assistant and


                                  -2-
three as Off-Base Housing Management Specialist.           The General

Schedule ("GS") levels of those positions were GS-07 and GS-09

respectively.1

            In   late   2009,   Hicks's   supervisor,   Evelyn   Norton,

announced her retirement from the Housing Manager position.         The

official job posting for Norton's replacement listed, among others,

the following required qualification:        "one year of specialized

experience equivalent to at least the GS-09 level or Ph.D or

equivalent doctoral degree or 3 full years of progressively higher

level graduate education leading to such a degree."         A list was

compiled of the candidates eligible for merit promotion to the

position.     The top two candidates were Hicks and Terry Krout, a

white man who was serving in the same office as a "housing

inspector."      Krout was a retired Chief Warrant Officer in the



     1
            The General Schedule (GS) classification and
            pay system covers the majority of civilian
            white-collar Federal employees (about 1.5
            million worldwide) in professional, technical,
            administrative, and clerical positions. . . .
            Each agency classifies its GS positions and
            appoints and pays its GS employees filling
            those positions following statutory and [U.S.
            Office of Personnel Management] guidelines.

          The General Schedule has 15 grades--GS-1
          (lowest)    to   GS-15   (highest).    Agencies
          establish (classify) the grade of each job
          based    on    the   level    of    difficulty,
          responsibility, and qualifications required.
U.S. Office of Personnel Management, General Schedule Overview,
available at http://www.opm.gov/policy-data-oversight/pay
-leave/pay-systems/general-schedule/ (last visited June 16, 2014).

                                   -3-
United States Coast Guard who had entered civil service in 2002.

When the Housing Manager position became available in 2009, Krout

had been serving as a GS-09 Housing Specialist for approximately

one-and-a-half years.           His primary responsibility in that position

was inspecting 330 on-base housing units.

               A panel consisting of Coast Guard Commander Paul Rendon,

Area Housing Officer Kevin Sullivan, and Director of Morale,

Wellbeing, and Recreation Bruce Blackman was charged with making a

recommendation to Commander John Newby,2 who would ultimately make

the    promotion     decision.3      The   panel   interviewed     the   top   two

candidates--Hicks and Krout. During the interviews, the candidates

were       asked   the   same   twenty   questions,4   and   the   interviewers

independently scored the interviewees' answers to each question on


       2
       Both Paul Rendon and John Newby hold the rank of commander
in the United States Coast Guard. Commander Rendon served as the
Public Works Officer on base and reported to Commander Newby who
was the Executive Officer.
       3
       It is undisputed that Commander Rendon, on behalf of the
panel, "selected" a candidate to be promoted and Commander Newby
"approved" that selection.
       4
       One of the questions asked, which is indicative of the type
that comprised the interviews, was as follows:
     We work as a team in this office. What is your definition
     of the word 'team' and in conjunction with this what do
     you consider to be your greatest personal strength? On
     the flip side what work skill or personal quality do you
     feel requires further development?
Hicks characterized this question as asking for a "strength" and a
"weakness."    In her deposition she took issue with Commander
Rendon's tone of voice in asking it and with the subject matter,
suggesting that it alluded to an "inference to my race as being
weak." As noted, this question was asked of both candidates.

                                         -4-
a 1-3 scale (with 3 being the highest).5   The scores for all of the

questions were then added up to produce total interview scores for

each candidate. The result was a split decision. Commander Rendon

scored the interview for Krout by a margin of 54-48.       Sullivan

scored the interview for Hicks by a margin of 50-49.       Blackman

scored the interview for Krout by a margin of 45-44.   Tallying all

these scores, Krout had 148 and Hicks 142.   On that basis the panel

recommended Krout for promotion.      Commander Newby adopted that

recommendation.

          Commander Rendon met with Hicks in person to communicate

the promotion decision and discuss the reasoning behind it.   Hicks

was understandably disappointed, and she was offended by Commander

Rendon's suggestion that she should have practiced her interview

skills beforehand.   After exhausting her administrative remedies,

Hicks commenced this action on August 25, 2011, alleging that she

was discriminated against on the basis of race and gender.

          After proceeding pro se through the discovery period,

Hicks retained Attorney Richard Reiling, who entered an appearance

on January 31, 2013, on the eve of the deadline for responding to

the Secretary's motion for summary judgment.    Hicks also moved on

that same date to reopen discovery pursuant to Rule 56(d) or, in

the alternative, to extend the summary judgment opposition deadline


     5
       Despite being asked the same questions, Hicks's interview
lasted one hour and forty minutes while Krout's lasted only forty
minutes.

                                -5-
by 21 days.      On February 5, having heard oral argument from the

parties, the district court issued the following order: "The court

will not reopen discovery but, in order to give plaintiff's counsel

sufficient time to familiarize himself with the case and prepare a

response, will extend by 21 days the deadline to oppose defendant's

motion for summary judgment."

           After obtaining an additional extension, Hicks filed her

opposition to summary judgment on March 1.                 The district court

granted the defendant's motion for summary judgment in an order

dated May 10, 2013.        This appeal followed.

                                       II.

A. Standard of Review

           Our review of a denial of a Rule 56(d) motion recognizes

the "broad [and] . . . considerable discretion" of the district

court over such matters. Ayala-Gerena v. Bristol Myers-Squibb Co.,

95 F.3d 86, 91 (1st Cir. 1996).         We reverse denials of Rule 56(d)

motions "only upon a clear showing of manifest injustice, that is,

where the lower court's discovery order was plainly wrong and

resulted   in    substantial     prejudice      to   the   aggrieved     party."

Filiatrault v. Comverse Tech., Inc., 275 F.3d 131, 137-38 (1st Cir.

2001) (internal quotation mark omitted).

           Our    review    of   a   district   court's     grant   of   summary

judgment is de novo.        Johnson v. Univ. of P.R., 714 F.3d 48, 52

(1st Cir. 2013).    In conducting our "fresh look" at the record, we


                                       -6-
view the evidence in the light most favorable to the non-moving

party, Hicks, and draw all reasonable inferences in her favor.

Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir. 2013).         Summary

judgment is appropriate only if there is no genuine dispute as to

any material fact and the moving party is entitled to judgment as

a matter of law.    Fed. R. Civ. P. 56(a); Gerald, 707 F.3d at 16.

To determine whether a trial-worthy issue exists, we look to all of

the record materials on file, including the pleadings, depositions,

and affidavits.    Fed. R. Civ. P. 56(c)(1)(A); Johnson, 714 F.3d at

52. We may neither evaluate the credibility of witnesses nor weigh

the evidence.    See Sheehan v. N. Am. Mktg. Corp., 610 F.3d 144, 149

(1st Cir. 2010).

B. Denial of 56(d) Motion

          Rule     56(d)   allows,    in   certain   circumstances,   for

supplemental discovery after a motion for summary judgment has been

filed.   See Fed. R. Civ. P. 56(d).        We have previously cautioned

that Rule 56(d) relief is not to be granted as a matter of course.

Ayala-Gerena, 95 F.3d at 92.     As we have explained:

          To benefit from the protections of Rule
          56[(d)], a litigant ordinarily must furnish
          the nisi prius court with a timely statement
          -- if not by affidavit, then in some other
          authoritative manner -- that (i) explains his
          or her current inability to adduce the facts
          essential to filing an opposition, (ii)
          provides a plausible basis for believing that
          the sought-after facts can be assembled within
          a reasonable time, and (iii) indicates how
          those facts would influence the outcome of the
          pending summary judgment motion.

                                     -7-
Velez v. Awning Windows, Inc., 375 F.3d 35, 40 (1st Cir 2004).   In

addition, the movant must "set forth good cause to explain [her]

failure to have conducted the desired discovery at an earlier

date."   Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142

F.3d 26, 44 (1st Cir. 1998).

          Even upon submission of the required materials, the

district court is entitled to refuse a Rule 56(d) motion if it

concludes that the party opposing summary judgment is unlikely to

garner useful evidence from supplemental discovery. See FDIC v.

Kooyomjian, 220 F.3d 10, 15 (1st Cir. 2000); Greebel v. FTP

Software, Inc., 194 F.3d 185, 202 n.15 (1st Cir. 1999).

          Hicks's decision to seek supplemental discovery shortly

after retaining counsel is understandable.   As a pro se litigant,

she likely had little understanding of the discovery process and

had not conducted any depositions.   The Secretary had already made

affidavits from Commander Rendon, Commander Newby, Blackman, and

Sullivan part of the record at the time of her motion, as well as

a significant amount of documentary evidence.     Specifically, in

addition to requesting an opportunity to conduct depositions of

those individuals, Hicks sought to depose Krout, who was awarded

the position over her, and Norton, her former supervisor.   Neither

of those individuals were involved in the decision-making process

on the promotion at issue. Hicks did not specify the evidence that

she expected to obtain from any of this additional discovery.


                               -8-
           Hicks's request to reopen discovery came late in the

process.    She also sought vague information from deponents, some

of whom were not even relevant to her case.   Furthermore, it is far

from clear that the requested depositions of the decisionmakers

would yield any useful information beyond what was in their

affidavits.    The district court, while sympathetic to Hicks's

situation, acted within the bounds of its discretion in concluding

that the additional discovery sought would not alter the summary

judgment landscape and that simply granting an extension to the

opposition deadline was sufficient to account for the fact that

Hicks had been proceeding pro se.

C.   Summary Judgment

           Where, as here, a claim of discrimination under Title VII

rests on circumstantial evidence, we apply the burden-shifting

analysis of McDonnell Douglas v. Green, 411 U.S. 792 (1973), to

help "sharpen the inquiry into the elusive factual question" of the

employer's motivation. Tex. Dep't of Cmty. Affairs v. Burdine, 450

U.S. 248, 256 n.8 (1981); see also Johnson, 714 F.3d at 53-54.

Under that framework, if the plaintiff establishes a prima facie

case of discrimination, an inference of discrimination arises, and

the burden of production shifts to the defendant to produce

evidence that the challenged employment action was taken for a

legitimate, non-discriminatory reason. Johnson, 714 F.3d at 53-54.

If the employer supplies such evidence, the plaintiff is left with


                                -9-
the burden to prove "by a preponderance of the evidence that the

employer's proffered reason is pretextual and that the actual

reason for the adverse employment action is discriminatory."               Id.

at 54; see also Pearson v. Mass. Bay Transp. Auth., 723 F.3d 36, 40

(1st Cir. 2013).

               Here, the Secretary concedes that Hicks has established

a prima facie case of race and gender discrimination.6                      The

Secretary contends, however, that the decision to promote Krout

rather than Hicks was motivated by a non-discriminatory reason:

their       performance in the interviews.       Specifically, the Secretary

maintains       that   the   undisputed   fact    that   two   of   the   three

interviewers scored Krout higher was the dispositive factor in the

promotion       decision.       According    to    Commander    Rendon,    the

recommending panel based its selection solely on the interview

scoring.

               The district court found that Hicks failed to generate a

genuine issue of material fact as to whether that proffered reason

was pretextual.         On appeal, Hicks points to four strains of



        6
       As the district court noted, "a generous reading of the
entire charge includes a claim of gender discrimination." However,
the court focused its analysis on the race issue. The briefs on
appeal take the same approach, prompting us to focus only on the
race discrimination issue. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived.").    The claim of gender discrimination also
appears weak in light of the undisputed fact that three of the
previous four housing managers had been women.

                                     -10-
evidence that she contends were sufficient to create a genuine

issue of material fact on the question of pretext.

                  1.   Differences in Qualifications

                  Hicks   focuses   primarily      on   the   alleged   differences

between her qualifications and Krout's.                 See Burdine, 450 U.S. at

259.        The Secretary responds with evidence that the interviewers

saw Hicks and Krout as essentially equally qualified, and therefore

based       the     promotion    decision    exclusively      on   their   relative

performance in the interviews.

                  Hicks begins with a technical argument that Krout did not

qualify for the position.             Therefore, even interviewing him, let

alone       promoting     him,   indicated    a    questionable    motive.     This

argument cites the language of the job posting, which stated that

"[a]pplicants must have one-year of specialized experience" at the

GS-09       level.7       The    posting    went   on   to    define    "specialized

experience" as "experience in the field of housing management that

required application of a variety [of] general business principles

and practices concerning the purchase, lease, rental, and overall

utilization of housing facilities."

                  Hicks contends that because Krout served only as a

housing inspector in his prior position, he lacked the requisite


        7
       It is undisputed that although Hicks and Krout had different
responsibilities in their prior positions, they had the same formal
job title and GS level--Housing Specialist, GS-09. Accordingly,
they both met the part of the experience requirement calling for at
least one year of service at a GS-09 level.

                                           -11-
leasing experience to fulfill the requirement.           It is undisputed

that as a housing inspector Krout was responsible for inspecting

more than 330 on-base units at Otis Air Force Base; he was not

responsible for the leasing or purchasing of those, or any other,

housing units.

          Hicks's    argument   is    premised    on   an    overly      narrow

interpretation of the "specialized experience" requirement.               That

requirement is not stated so precisely that experience with the

"overall utilization of housing facilities" would be disqualifying

if it did not happen to include direct experience with leasing.

The requirement gives discretion to decisionmakers to evaluate

whether a candidate's previous "experience in the field of housing

management" was relevant.     Indeed, if Hicks's narrow reading were

correct, she would not have been qualified for the position because

she lacked direct experience purchasing housing facilities.8

          Hicks     further   contends   that     even      if   Krout    were

technically   qualified   for   the   position,    his      experience     and

qualifications were so inferior to hers as to permit a reasonable

jury to infer discrimination in the decision to interview him and,

ultimately, to promote him over her.9      She asserts that given this


     8
       Hicks avers that her specific responsibilities included
inspecting housing units; obtaining and administering leases for
Coast Card service members; and locating new properties for the
Coast Guard to lease as additional housing.
     9
       Hicks appears to use her superior qualifications argument in
two ways. She asserts that her qualifications were so superior to

                                 -12-
disparity, the interviewers' contention that they viewed the two

candidates as equally qualified for the promotion could not be

credited by a reasonable fact-finder.         We disagree.

            The Supreme Court has acknowledged that "qualifications

evidence may suffice, at least in some circumstances, to show

pretext."    Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006)

(emphasis added).     We have nonetheless cautioned that "subjective

evidence of competing qualifications seldom provides a principled

way for a factfinder to determine whether a given employment

decision,   even    if   wrong-headed,    was    anything     more   than   'a

garden-variety     mistake   in   corporate     judgment.'"      Rathbun    v.

Autozone, Inc., 361 F.3d 62, 74 (1st Cir. 2004) (quoting Freeman v.

Package Mach. Co., 865 F.2d 1331, 1341 (1st Cir. 1988)); see also

Burdine, 450 U.S. at 259 ("The fact that a court may think that the

employer misjudged the qualifications of the applicants does not in

itself expose him to Title VII liability, although this may be




Krout's that he should not even have been interviewed. She also
asserts that her slightly weaker performance in the interview
should not have affected the promotion decision because her
qualifications were so superior to his. For our purposes, it is
not material whether the decisionmaker considered their relative
qualifications before, after, or throughout the interview. Having
established that both candidates were technically eligible for the
promotion, the decisionmaker was free to consider their relative
qualifications at any stage in the decision process. Accordingly,
we will focus the remainder of our analysis on the merits of
Hicks's argument about the disparity in their qualifications
without parsing out the decision to interview from the decision to
promote.

                                   -13-
probative of whether the employer’s reasons are pretexts for

discrimination.").

             It is true that Hicks had more years of experience in the

housing office (nine years) than did Krout (one-and-a-half years).

Her    particular      experience        in     the     management        of    housing

unquestionably surpassed his.             However, Krout had more years of

total government service (31 years) than Hicks (20 years).

Furthermore, the vast majority of Krout's government service was as

a Chief Warrant Officer in the United States Coast Guard.                            That

position required him to manage the contracting office of the ship

or    base   where   he   was   serving,        supervise     as   many    as    twelve

subordinates and oversee budgets as large as $15 million.                       As part

of this role he evaluated and awarded supply contracts.

             Weighing the value of this management experience against

Hicks's housing management experience required the interview panel

to make a judgment that it was entitled to make.                   Hicks's own view

that   her   qualifications       were    superior      to    Krout's     has    little

probative     value.      As    the   district        court   aptly   put      it,   "no

reasonable jury could conclude that Hicks’s qualifications so

outweighed those of Krout – hers were superior in some respects,

but Krout’s were superior in others – that it was more likely than

not, discriminatory animus provided the job clincher."                         Hicks v.

Napolitano, No. 11–11517–RSG, 2013 WL 1992204, at *4 (D. Mass. May

10, 2013).     If the interviewers erred in judging the candidates'


                                         -14-
relative qualifications, as Hicks argues, there is nothing to

suggest    that    the   error   was   anything   but     a   permissible

"garden-variety mistake in corporate judgment."         Freeman, 865 F.2d

at 1341.

             2.   Reliance on Subjective Interview Questions

             Hicks argues that the panel’s reliance on "subjective"

interview questions -- clearly the tie-breaker in this case --

provided a "ready mechanism for discrimination" and is therefore

evidence of pretext.     This argument is misguided.      It is true that

the subjectivity necessarily introduced by the interview process

can mask discrimination.     Cf. Keyes v. Secretary of the Navy, 853

F.2d 1016, 1026 n.12 (1st Cir. 1988) (noting that "[e]valuating an

applicant at an interview is a highly subjective exercise").          We

have nonetheless declined, for good reason, to invalidate reliance

on interviews in hiring decisions.       See, e.g., Velazquez-Ortiz v.

Vilsack, 657 F.3d 64, 76 (1st Cir. 2011) (affirming an award of

summary judgment to the employer when the promotion decision was

based, in large part, on the assessment that one candidate "did

exceptionally well during the interview" (internal quotation marks

omitted)).

             Here, the Coast Guard took pains to standardize the

interview process, as well as record and quantify the candidates'

performance on a uniform scale.        The same twenty questions were

asked of both candidates, and, as the district court remarked, they


                                  -15-
were "so broadly worded as to provide an interviewee with ample

running room to tout her qualifications and experience."        In

essence, the Coast Guard made the subjective part of the promotion

process as objective as possible, taking much of the ultimate

discretion away from the interviewers.   We are not suggesting that

such measures are required to immunize an interview process against

charges of discrimination. However, on this record, these measures

do preclude any reasonable inference that the interview process was

evidence of pretext.

          3.   Lack of African Americans in Supervisory Positions

          Hicks attempts to show pretext by pointing to the lack of

African-American workers and managers at Air Station Cape Cod. See

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54

(1st Cir. 2000) (holding that evidence of discriminatory animus may

also serve to prove pretext).   Such historical evidence may inform

the jury's evaluation of the decisionmakers' actions.        Here,

however, the historical evidence is so limited that it does not

permit a reasonable inference of discrimination.      There is no

evidence that any other African American ever applied for the

position sought by Hicks.   The housing office at the base did not

employ a large staff -- seven total employees. The fact that Hicks

was the only African American in the group, without more, does not

establish a genuine issue of material fact as to discriminatory

animus within the office.   Furthermore, there is no evidence as to


                                -16-
the number of African Americans working on the base in general or

their opportunities for advancement.          This meager record simply

does not permit any reasonable conclusion about a disparity between

the opportunities for African Americans and whites at the Air

Station Cape Cod, let alone the housing office.

          4.   Alleged Comments about Race

          In   an   attempt   to   show     pretext   with   evidence   of

discriminatory animus, Hicks cites a statement attributed to her

former supervisor, departing Housing Manager Norton, describing

Hicks as an "angry black woman."          However, it is undisputed that

Norton took no part in the promotion decision.         Accordingly, this

evidence does nothing to establish a genuine issue of material fact

as to whether the promotion decision was motivated by anything

other than Krout's documented scoring edge in the interviews.

                                   III.

          The district court's denial of the Rule 56(d) motion to

reopen discovery was not an abuse of discretion.        The Secretary is

entitled to summary judgment.

          Affirmed.




                                   -17-
