     United States Court of Appeals
               FOR THE DISTRICT OF COLUMBIA CIRCUIT

                           –————
No. 02–5075                             September Term, 2003
                                                   00cv02442
                 Filed On: September 3, 2003


                      LAYNE C. LATHRAM,
                          APPELLANT

                                v.

JOHN W. SNOW, SECRETARY OF THE DEPARTMENT             OF   TREASURY,
                       APPELLEE

                         –————
  BEFORE: GINSBURG, Chief Judge, and EDWARDS and
GARLAND, Circuit Judges.

                           ORDER
   It is, ORDERED, on the court’s own motion, that the
opinion filed August 1, 2003, be amended as follows:
   Page 4, Line 27, delete ‘‘not of his protected class’’. Insert
in lieu thereof: ‘‘ TTT’’. Line 27 should now read:
      someone TTT filled the position or the
   Page 4, Line 30, delete the period after the parenthetical.
Insert in lieu thereof: ‘‘; see Stella v. Mineta, 284 F.3d 135,
139 (D.C. Cir. 2002) (modifying fourth element).’’ Line 30
should now read:
      2000) (citations omitted); see Stella v. Mineta, 284 F.3d
      135, 139 (D.C. Cir. 2002) (modifying fourth element).

                         Per Curiam
                                           FOR THE COURT:
                                           Mark J. Langer, Clerk
                                     BY:
                                           Michael C. McGrail
                                           Deputy Clerk
  Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.




       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, Assis-
tant 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 plain-
tiff Layne Lathram’s allegations of employment discrimina-
tion by the United States Customs Service, formerly an
agency of the Department of the Treasury. Lathram chal-
lenges 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 resign-
ing, 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 trans-
ferred to the Department of Homeland Security under the Home-
land 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 La-
thram’s duties) was intended as illegal retaliation for La-
thram’s complaints about the other alleged acts of discrimina-
tion.
   After discovery, the defendant moved for summary judg-
ment 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 deter-
minations 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 . . . filled the position or the position remained vacant
and the employer continued to seek applicants." Cones v. Sha-
lala, 199 F.3d 512, 516 (D.C. Cir. 2000) (citations ommitted);
see Stella v. Mineta, 284 F.3d 135, 139 (D.C. Cir. 2002) (modifying
fourth element ).
   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; altera-
tion 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] dis-
crimination 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 employ-
ment 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 nondiscriminato-
ry 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 intention-
al 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 non-
promotion. 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 discrimi-
natory non-promotion is that the plaintiff ‘‘applied for and
was denied an available position for which he/she was quali-
fied.’’ 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 discrimina-
tion. 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 there-
fore 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 La-
thram 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 Pub-
lic 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, name-
ly, 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 Plain-
tiff’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 govern-
ment’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 posi-
tion. 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 minor-
ity employees from advancing to higher level positions could sim-
ply’’ structure the positions in a way that made the employees
‘‘technically’’ unqualified. 199 F.3d at 518. In this case, for exam-
ple, 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 asser-
tion that Lathram was unqualified because it says she was.
Once again, Customs’ flawed attack on Lathram’s qualifica-
tions 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 rela-
     tions. 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). Subse-
quently, 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 circum-
stances 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 legiti-
mately infer that the employer consciously selected a less-
qualified candidate—something that employers do not usually
do, unless some other strong consideration, such as discrimi-
nation, 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 con-
clude 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 quali-
fied 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 testi-
mony the jury credited, much or all of Boyd’s subsequent
portfolio was work that Lathram had previously been per-
forming. 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 pre-
textual, 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 Cus-
toms 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 com-
plaints 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 restruc-
turing instituted by Assistant Commissioner Murphy. Mur-
phy 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 ‘‘per-
fect’’ 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 deci-
sion 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 La-
thram. That concession is inescapable. Without the prefer-
ence 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 discrimi-
natory about veteran’s preferences per se. That concession is
well made in light of the Supreme Court’s decision in Person-
nel Administrator v. Feeney, which noted that such prefer-
ences 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 appli-
cation 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 com-
pete 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 Mur-
phy 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 nondis-
criminatory 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 em-
ployed 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 inconsis-
tent 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. Fair-
child 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 com-
petitions 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 prefer-
ence, 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 La-
thram 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 discrimi-
nation claim was erroneous. And because the court’s accep-
tance 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 opin-
ion.
                                                   So ordered.
  7   The government’s brief also seeks to explain Customs’ deci-
sion 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 be-
cause 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’’).
