                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            July 16, 2015
                             FOR THE TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                         _________________________________                  Clerk of Court
AMY BANDI,

      Plaintiff - Appellant,

v.                                                        No. 14-6224
                                                   (D.C. No. 5:13-CV-01173-C)
CAROLYN W. COLVIN, Acting                                 (W.D. Okla.)
Commissioner of the United States Social
Security Administration,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      Amy Bandi sued the Social Security Administration (“SSA”), alleging the SSA

violated Title VII of the Civil Rights Act of 1964. She asserted the SSA

discriminated against her on the basis of race and sex when it failed to promote her to

an open position and promoted an African-American man instead. The district court




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
granted summary judgment in favor of the SSA, and Ms. Bandi appeals. Exercising

our jurisdiction under 28 U.S.C. § 1291, we affirm.

                                 I. BACKGROUND

       We will present a brief background of the case here and discuss additional

facts in the analysis section.

       Ms. Bandi, a Caucasian female, is employed as a Title II SSA Claims

Representative (“CR”) in the Oklahoma City SSA office. In the fall of 2012, she

applied for promotion to a Title II Technical Expert (“TE”) position.

       Ms. Bandi submitted an application for the TE position, which is referred to by

its form name—“SSA-45.” The parties also refer to the SSA-45 as the employee’s

“resume.” She also submitted an Occupational Questionnaire. Human Resources

(“HR”) used the questionnaires to compile a best-qualified list (“BQL”). Ms. Bandi

and Stephen Gaines were both placed on the BQL.

       Michael Griffin, an African-American male, is the District Manager of

Ms. Bandi’s office and made the promotion decision. He could select any of the

candidates on the BQL list. He selected Mr. Gaines, an African-American.

       Mr. Griffin provided additional information about his decision-making process

in his declaration. He stated that he spoke with Leah Jackson, the first-line

supervisor for Ms. Bandi and Mr. Gaines, and asked for her recommendation.

Ms. Jackson gave both Mr. Gaines and Ms. Bandi favorable recommendations.

Because of this, Mr. Griffin explained that he based his selection primarily on the

candidates’ SSA-45s.

                                             -2-
      He said that Ms. Bandi’s SSA-45 contained two misspellings, including the

title of the position sought, and that Mr. Gaines’s SSA-45 did not contain any

misspelled words. Mr. Griffin stated that: “No spelling errors demonstrated to me an

attention to detail and diligence in reviewing work product before submitting it

on-line.” Aplt. App. at 54.

      He also said Ms. Bandi’s SSA-45 had strange formatting with extra blank

pages and several pages with the same page number; Mr. Gaines’s SSA-45 did not

exhibit these formatting irregularities. “Overall, the strange formatting

communicated to me that [Ms. Bandi] did not invest adequate time and effort in

organizing her resume.” Id. at 55.

      Mr. Griffin further noted that: (1) Ms. Bandi listed awards she had received

but failed to describe how she earned them, whereas Mr. Gaines described what he

did to earn his awards; (2) Ms. Bandi focused on her past contributions to her SSA

work, while Mr. Gaines focused on his present contributions; (3) Mr. Gaines’s

SSA-45 highlighted activities in providing training and technical guidance to

coworkers more than Ms. Bandi’s did; and (4) Mr. Gaines described his efforts to

resolve complex and difficult issues while Ms. Bandi did not.

      Mr. Griffin concluded his declaration by stating that he selected Mr. Gaines

for promotion “[b]ased on his superior SSA-45.” Id. at 56.

      In district court, Ms. Bandi alleged the SSA discriminated against her on the

basis of sex and race in violation of Title VII when it failed to select her for



                                              -3-
promotion. The SSA successfully moved for summary judgment. Ms. Bandi now

appeals.1

                                   II. DISCUSSION

                                  A. Standard of Review

      We review de novo the district court’s decision granting summary judgment in

favor of the SSA. Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir.

2014). We apply the same standard as the district court and view the facts in the

light most favorable to Ms. Bandi as the non-moving party. Id.

      Summary judgment is appropriate if the SSA shows “there is no genuine

dispute as to any material fact and [it] is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A fact is material if, under the governing law, it could have

an effect on the outcome of the lawsuit. A dispute over a material fact is genuine if a

rational jury could find in favor of the nonmoving party on the evidence presented.”

Smothers, 740 F.3d at 538 (internal quotation marks omitted).

                         B. The McDonnell-Douglas Framework

      We employ the same McDonnell-Douglas framework the district court used to

analyze Ms. Bandi’s race-discrimination claim. This burden-shifting test first

articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), involves

three steps. First, the plaintiff must establish a prima facie case of discrimination.


      1
        The district court granted summary judgment on Ms. Bandi’s claim for sex
discrimination after Ms. Bandi admitted in her response to summary judgment that
gender was not a factor in her non-selection. Ms. Bandi does not raise any issue
regarding her sex-discrimination claim on appeal.
                                              -4-
If she is successful, the burden shifts to the defendant employer to articulate a

legitimate, non-discriminatory reason for its employment action. If the employer

does so, then the burden shifts back to the plaintiff to show that the employer’s

reason is pretextual. Smothers, 740 F.3d at 538-39.

                                        C. Analysis

1. Legitimate, Non-Discriminatory Reason

      The SSA admitted that Ms. Bandi can establish a prima facie case of race

discrimination2 but offered a legitimate, non-discriminatory reason for its

employment decision. The SSA stated that Mr. Griffin based his selection primarily

on the candidates’ SSA-45s and that Mr. Gaines’s SSA-45 conveyed a more

favorable impression regarding his ability to perform the TE position.

      In its decision, the district court concluded that the SSA “ha[d] clearly

articulated a legitimate, non-discriminatory reason for [Ms. Bandi’s] non-selection.”

Id. at 408. Ms. Bandi does not challenge this conclusion on appeal; instead, she

focuses her appellate arguments on the pretext issue. She has therefore forfeited any

challenge to the district court’s determination that the SSA articulated a legitimate,

non-discriminatory reason for her non-selection. See Bronson v. Swensen, 500 F.3d

      2
        The district court noted in its decision that Title VII race discrimination
claims are not “‘limited to those individuals who are members of historically or
socially disfavored groups,’” and that courts, including this one, have permitted
so-called “‘reverse discrimination’” claims to proceed. Aplt. App. at 405-06 (quoting
Notari v. Denver Water Dep’t, 971 F.2d 585, 588 (10th Cir. 1992)). To establish a
prima facie case involving reverse discrimination, the plaintiff “must, in lieu of
showing that [s]he belongs to a protected group, establish background circumstances
that support an inference that the defendant is one of those unusual employers who
discriminates against the majority.” Notari, 917 F.2d at 589.
                                             -5-
1099, 1104 (10th Cir. 2007) (“[T]he omission of an issue in an opening brief

generally forfeits appellate consideration of that issue.”).

2. Pretext

      The district court concluded that Ms. Bandi had “failed to produce evidence of

pretext upon which a jury could infer discriminatory motive—i.e., [Ms. Bandi] . . .

failed to demonstrate that Defendant’s assertion that Gaines’ resume created a more

favorable impression than Plaintiff’s resume is unworthy of belief.” Aplt. App.

at 410 (internal quotation marks omitted). On appeal, Ms. Bandi contends the district

court failed to consider all of her evidence.

      Ms. Bandi bears the burden of proving pretext. She may “establish pretext by

showing such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them unworthy of credence and hence

infer that the employer did not act for the asserted non-discriminatory reasons.”

Santana v. City & Cnty. of Denver, 488 F.3d 860, 864 (10th Cir. 2007) (internal

quotation marks omitted).

      Courts “must proceed with caution when considering the relative merits of

individual employees.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308

(10th Cir. 2005). “We will draw an inference of pretext where the facts assure us that

the plaintiff is better qualified than the other candidates for the position.” Santana,

488 F.3d at 865 (internal quotation marks omitted). But “[w]e have cautioned that

pretext cannot be shown simply by identifying minor differences between plaintiff’s

                                                -6-
qualifications and those of successful applicants, but only by demonstrating an

overwhelming merit disparity.” Id. (internal quotation marks omitted). The parties

agree this standard applies in this case.

   a. Evidence about the merits of the candidates

      Ms. Bandi first contends that the district court ignored evidence “favoring

[her] as, overwhelmingly, the more meritorious candidate.” Aplt. Br. at 26. She

asserts Mr. Griffin suppressed her receiving an award for preventing fraud and she

was therefore unable to claim it on her SSA-45. She contends this fact suggests that

Mr. Griffin’s belief that Mr. Gaines “was more meritorious—based on his SSA-45—

is not only unworthy of belief, but is based upon evidence [Mr.] Griffin

manipulated.” Id. at 27. She also discusses the differences in qualifications between

herself and Mr. Gaines and asserts that she “was significantly more qualified.”

Id. at 28. As the following discussion indicates, Ms. Bandi has failed to show she is

the “overwhelmingly meritorious candidate” and thus has not shown pretext.

      i. The Fraud Prevention Award

      Ms. Bandi’s evidence about her fraud prevention award does not create a

material factual dispute on pretext for two reasons. First, the evidence does not show

that Mr. Griffin suppressed the award. Second, the absence of an award on her

SSA-45 did not affect Mr. Griffin’s promotion decision because he did not rely on




                                            -7-
Mr. Gaines’s receipt of an anti-fraud award3 and Ms. Bandi’s lack of an award as a

reason for his decision.

      In August 2012, Mr. Griffin received an email regarding Ms. Bandi’s help on a

fraud case that resulted in a $73,064.30 judgment in favor of the SSA. Mr. Griffin

forwarded the email to the other managers in the office and stated “FYI – I’ll submit

an anti-fraud award next week and I’ll read the email in the next staff meeting.”

Aplt. App. at 307. Ms. Bandi stated in her affidavit that she did not learn of the

nomination until November 2012 or later, after a supervisor mentioned it to her. As a

result, she was not able to include it on her SSA-45.

      When asked about the anti-fraud award in his deposition, Mr. Griffin testified

he does not recall what he did about it, but if he said in the email he was going to

submit the award to the regional office and announce it at a staff meeting, then he

would have done so. He also explained that the regional office issues the award and

he does not follow up on the awards. Aplt. App. at 232-37.

      Although Mr. Griffin may not have submitted the award nomination to the

regional office or announced it at a staff meeting, the evidence does not show

Mr. Griffin suppressed the award. He emailed the other managers in the office

informing them of his intention to nominate Ms. Bandi for the award.

      More importantly, the receipt or non-receipt of an anti-fraud award did not

affect Mr. Griffin’s selection decision. In his declaration, the only mention of awards


      3
        Mr. Gaines’s SSA-45 reflects that he received an anti-fraud award in March
2012 after he helped the SSA obtain a $53,000 judgment in its favor.
                                             -8-
and the differences between the two candidates is that Ms. Bandi only listed the

amount of money she received for each of her awards and failed to explain what she

did to earn them, while Mr. Gaines described exactly what he did to earn his awards.

Because the anti-fraud award was not part of Mr. Griffin’s stated legitimate reason

for his selection decision, any factual dispute regarding Mr. Griffin’s conduct in

submitting or following up on the award nomination is not material to pretext.

       ii. Qualifications

       Ms. Bandi argues the district court failed to address “evidence favoring [her]

as, overwhelmingly, the more meritorious candidate.” Aplt. Br. at 26. She asserts

that she: completed a temporary TE detail of 120 days, while Mr. Gaines started a

temporary TE detail but quit after 30 days; she had “twice the experience” as

Mr. Gaines; and she had served as his mentor in years past. Id. at 27-28.

       The differences Ms. Bandi has identified do not demonstrate an

“overwhelming merit disparity.” Although Ms. Bandi has worked at the SSA longer

than Mr. Gaines, “[m]ere seniority does not support a finding that she was qualified

for a different job,” Durham v. Xerox Corp., 18 F.3d 836, 840 (10th Cir. 1994).

Similarly, the temporary TE details were not materially different. Both candidates

gained experience through their temporary assignments, and the difference between

30 days and 120 days does not make Ms. Bandi “overwhelmingly” more qualified.

Finally, although Ms. Bandi mentored Mr. Gaines, he also has served as a mentor for

new CR employees. Because both candidates had mentoring experience, we see no

significant disparity in that area either.

                                             -9-
      We also note both Ms. Bandi and Mr. Gaines were placed on the BQL list,

which meant they were both qualified for promotion to the TE position. And

Ms. Bandi admitted in response to the SSA’s motion for summary judgment that

Mr. Griffin was free to select anyone from the BQL. She also described Mr. Gaines

as “a great CR” in an email to Ms. Jackson and Mr. Griffin after she learned of the

promotion decision. Aplt. App. at 83. The record does not demonstrate the

“overwhelming” disparity in qualifications that our case law requires to infer pretext

from the SSA’s reason to select Mr. Gaines instead of Ms. Bandi.

   b. Evidence about the decision-making process

      Ms. Bandi also asserts a jury could infer pretext because Mr. Griffin (i) gave

conflicting testimony on what he relied on to make the decision, (ii) declined to

follow Ms. Jackson’s recommendation that he speak with a prior supervisor,

(iii) failed to complete written candidate evaluation forms or rank the candidates as

he normally would, and (iv) failed to follow the SSA’s Merit Promotion Plan

procedures. But for the reasons addressed below, none of these issues, individually

or collectively, demonstrate that the SSA’s stated reason for selecting Mr. Gaines is

pretextual. That is, none of this evidence shows that Mr. Griffin’s legitimate, non-

discriminatory reason for his decision—that Mr. Gaines’s SSA-45 gave him a more

favorable impression than Ms. Bandi’s did—is unworthy of belief.




                                            - 10 -
      i. Conflicting Testimony

      Ms. Bandi contends Mr. Griffin gave conflicting testimony about whether he

relied only on the SSA-45 or whether he relied on the SSA-45 and discussions with

Ms. Jackson, the first-line supervisor, as the basis for his decision.

      In his declaration, Mr. Griffin stated he reviewed the SSA-45s and spoke with

Ms. Jackson. He noted that Ms. Jackson gave both candidates a favorable

recommendation and, therefore, he relied primarily on the SSA-45s. Id. at 53. In his

deposition, he testified that he considered Ms. Jackson’s feedback and the SSA-45s.

See id. at 227-28. In response to interrogatories, he explained that he obtained

feedback from the candidates’ supervisor and then paid particular attention to the

quality and thoroughness of each person’s SSA-45. See id. at 294. These responses

consistently indicate Mr. Griffin considered Ms. Jackson’s feedback but that he relied

primarily on the SSA-45s. We do not see a conflict in Mr. Griffin’s testimony that

would give rise to an inference of pretext.

      ii. Prior supervisor

      Ms. Bandi also contends Mr. Griffin’s failure to consult with the candidates’

prior supervisor suggests that his decision was pretextual. She notes Ms. Jackson’s

deposition testimony that she recommended to Mr. Griffin that he speak to the

candidates’ prior supervisors because she was new to supervising them. But

Mr. Griffin was not required to contact the prior supervisors, and he chose not do so.

His decision to rely on the feedback he received from Ms. Jackson—who was the



                                              - 11 -
candidates’ current supervisor and gave them both favorable recommendations—does

not show the SSA’s reason for its employment decision is unworthy of belief.

      iii. Evaluation forms and rankings

      Ms. Bandi further asserts Mr. Griffin failed to complete candidate evaluation

forms or rank the candidates as he normally would, but she has not introduced

evidence showing that would be Mr. Griffin’s normal procedure. Ms. Jackson

testified that a manager might request candidate evaluation forms from her as a

supervisor and that she has filled out such forms, but they are not required. No

evidence shows Mr. Griffin would normally fill out a candidate evaluation form as

the selecting official for a position. Ms. Jackson further testified that a reference

check may be either written or oral and that she provided an oral reference for the

candidates in this instance.

      The SSA also submitted evidence showing that HR rates the candidates when

it creates the BQL, but the BQL does not contain the rating information, and the

selecting official is prohibited from obtaining the applicants’ scores or ratings during

the merit promotion process. When asked if he rated the candidates, Mr. Griffin

testified that he “didn’t assign a numeric, but [he] did consider their knowledge,

skills, and abilities.” Id. at 207. Ms. Bandi’s evidence does not demonstrate that

Mr. Griffin deviated from his normal procedure during the selection process or that

the SSA’s stated reason for its employment decision is pretextual.




                                             - 12 -
      iv. Merit Promotion Plan

      Ms. Bandi additionally argues that Mr. Griffin failed to follow the Merit

Promotion Plan during the selection process by not ranking the candidates or

maintaining a record of how he made his decision. The SSA counters that the

selection process did comply with the Merit Promotion Plan procedures, Mr. Griffin

was not required to rank the candidates, and HR maintained a record sufficient to

allow reconstruction of the promotion decision. Any factual dispute as to whether

Mr. Griffin followed the merit procedures is not material.4

      Even assuming Mr. Griffin did not follow the Merit Promotion Plan

procedures, that does not demonstrate pretext. As we have explained: “The mere

fact that an employer failed to follow its own internal procedures does not

necessarily suggest that the employer was motivated by illegal or discriminatory

intent or that the substantive reasons given by the employer for its employment

decision were pretextual.” Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir.

1995). In Randle, we also noted that cases in which procedural irregularities

suggested illegal discrimination involved disregarded procedures that “directly and

uniquely disadvantaged a minority employee.” See id. at 454 n.20. That is not the

case here.

      4
         Ms. Bandi attempted to introduce testimony that Mr. Griffin did not follow
the procedures from Ralph De Juliis, another SSA employee and union steward. The
district court noted that this evidence was not material to its conclusion and agreed
with the SSA that it was inadmissible. We agree this evidence is not material and see
no abuse of discretion in the district court’s evidentiary ruling. See N. Am. Specialty
Ins. Co. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106, 1111 (10th Cir. 2009).

                                            - 13 -
   c. Statistical evidence and evidence about other complaints

      Ms. Bandi contends the district court erred by declining to consider statistical

evidence of disparate hiring or promotion practices and other complaints against

Mr. Griffin.

      i. Statistical evidence

      Ms. Bandi’s statistical evidence is a chart contained in her affidavit. She

asserts the chart reflects the race of Mr. Griffin’s hires from March 29, 2010 to

October 5, 2012. It shows that nine African-Americans were promoted or hired

during that time period while two Caucasians were promoted or hired. Ms. Bandi

offers no explanation in her affidavit as to how she obtained this information. The

SSA asserts that Ms. Bandi’s list is incomplete and inaccurate, and provided its own

evidence of seven Caucasian employees who were promoted or hired during that time

period. The SSA further notes that the previous District Manager, not Mr. Griffin,

hired one of the African-American women on Ms. Bandi’s list.

      Even if we consider Ms. Bandi’s evidence, it fails to eliminate non-

discriminatory explanations for the hiring statistics or to show that more-qualified

white applicants applied for those positions and were not selected. As we have

explained: “In order for statistical evidence to create an inference of discrimination,

the statistics must . . . eliminate nondiscriminatory explanations for the disparity. In

other words, a plaintiff’s statistical evidence must focus on eliminating

nondiscriminatory explanations for the disparate treatment by showing disparate

treatment between comparable individuals.” Turner v. Pub. Serv. Co. of Colo., 563

                                             - 14 -
F.3d 1136, 1147 (10th Cir. 2009) (brackets and internal quotation marks omitted).

Ms. Bandi has not done that.

       The chart identifies each hired person’s name and race, whether each was

promoted or newly hired, and the date of the employment action (sometimes only

giving a year and sometimes giving a specific date). Ms. Bandi offers no information

about who else applied for the positions and what their qualifications were as

compared to the persons who were hired or promoted. Her “statistical evidence does

not take into consideration nondiscriminatory explanations for the disparity—for

example, differences in various individuals’ job performance, experience, and

training.” Sanders v. SW Bell Tel. L.P., 544 F.3d 1101, 1110 (10th Cir. 2008).

“Because the statistics fail to account for these variables, they do not constitute

evidence of pretext.” Id.; see also Rea v. Martin Marietta Corp., 29 F.3d 1450, 1456

(10th Cir. 1994) (“Plaintiff’s statistical evidence compares only the ages of the

employees retained with the ages of those laid off . . . . Plaintiff’s statistical evidence

fails to eliminate nondiscriminatory explanations for disparate treatment—i.e., that

those laid off had lower performance evaluations and rankings than those retained—

and therefore does not permit an inference of pretext.”).

       ii. Other complaints

       Ms. Bandi also argues that she presented evidence of other employee

complaints that were filed against Mr. Griffin and that “[e]vidence of an employer’s

treatment of other employees is relevant to its discriminatory intent.” Aplt. Br. at 35.



                                              - 15 -
The evidence shows eleven men and women claimed either sex or race discrimination

arising from Mr. Griffin’s employment decisions.

       To be relevant, evidence regarding other employees’ discrimination claims

must be reasonably tied to the plaintiff’s claim. The evidence must involve the same

type of discrimination during the same time period under similar circumstances.

See Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 856 (10th Cir. 2000).

Ms. Bandi’s evidence must therefore show that the other complaints against

Mr. Griffin alleged race discrimination by Caucasian applicants who were not

selected for positions that were filled by African-Americans during the same time

period under similar circumstances.

       From the evidence Ms. Bandi cites, only three of the complaints appear to be

based on race. One involved a woman who identified herself as black or Jamaican,

so she is not similarly situated to Ms. Bandi. The race of the remaining complainants

or of the persons selected is not clear from the cited pages. See Aplt. App. at 170-

87.5

       At his deposition, Mr. Griffin mentioned a man who filed a claim for race and

sex discrimination, but his testimony does not disclose that person’s race or the race

of the candidate who was selected for the position. See id. at 170-73. He mentioned

another man who filed a complaint based on race regarding a reassignment request


       5
         Ms. Bandi also cites to three other pages in the appendix, but two of those
pages do not provide any information about the discrimination complaints, see Aplt.
App. at 200, 205, and the other page simply lists the names of the complainants and
states that their complaints were based on gender or race, see id. at 358.
                                            - 16 -
for the Oklahoma City office, but the record does not reflect that person’s race or the

race of the person who was selected for reassignment instead of him. Id. at 176-77.

Mr. Griffin’s testimony about the remaining complainants shows the claims were for

sex or disability discrimination or does not disclose the nature of the claims. See id.

at 178-87.

      In her reply brief, Ms. Bandi cites to her affidavit in which she identifies at

least four of the complainants as Caucasian. See Aplt. Reply Br. 23 (citing Aplt.

App. at 263-64). But other than the first person mentioned at Mr. Griffin’s

deposition, no evidence shows whether these complainants filed claims based on sex

or race. Ms. Bandi never explains the circumstances of any of the discrimination

complaints or ties them to the circumstances in her case.

      Although Ms. Bandi argues generally that Mr. Griffin had “a pattern of

discrimination,” see Aplt. Br. at 35, she has not shown there were other complaints

involving circumstances that are reasonably related to her claim, see id. at 35-36. We

therefore see no basis to infer that the SSA’s stated reason for its employment

decision was pretextual.

                                 III. CONCLUSION

      Ms. Bandi concedes on appeal that Mr. Griffin might have believed that

Mr. Gaines’s SSA-45 “was better crafted,” id. at 21, but wants us to ignore the

deficiencies in her application. Mr. Gaines and Ms. Bandi were both on the list of

qualified applicants for the TE position. Mr. Griffin selected Mr. Gaines because his

SSA-45 was better than Ms. Bandi’s, and that is a legitimate, non-discriminatory

                                            - 17 -
reason for making an employment decision. Ms. Bandi failed to present evidence

that she was “overwhelmingly” the more qualified candidate or that Mr. Griffin’s

conclusion about the relative merits of the SSA-45s is unworthy of belief. We

therefore agree with the district court that summary judgment in favor of the SSA

was proper.

      Ms. Bandi objects to the way the SSA made its employment decision—by

relying primarily on how pre-qualified candidates presented themselves in their

SSA-45s. But our role is not to second guess the SSA’s selection process when it has

articulated a legitimate, non-discriminatory basis for its decision. As the district

court explained:

      The court’s duty is to look at the facts as they appear to the decision
      maker and to not act as a super personnel department, second guessing
      employers’ honestly held (even if erroneous) business judgments. Thus,
      the Court will not second guess the legitimacy of Defendant’s decision
      to rely primarily on the candidates’ resumes during the selection
      process.
Aplt. App. at 409 (internal quotation marks and citations omitted).

      Ms. Bandi’s evidence on summary judgment did not create a material dispute

of fact as to whether the SSA’s reason for its selection decision was pretextual.

Accordingly, we affirm the district court’s judgment.

                                            ENTERED FOR THE COURT,




                                            Scott M. Matheson, Jr.
                                            Circuit Judge


                                             - 18 -
