                                                                           FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   February 11, 2013
                                      PUBLISH                     Elisabeth A. Shumaker
                                                                      Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT



 LAURA CONROY,

             Plaintiff-Appellant,
 v.                                                         No. 11-4091
 THOMAS VILSACK, Secretary of
 Agriculture, United States Department of
 Agriculture,

             Defendant-Appellee.


                    Appeal from the United States District Court
                              for the District of Utah
                          (D.C. No. 2:06-CV-00867-CW)


April Hollingsworth of Hollingsworth Law Office, LLC (Erik Strindberg of Strindberg &
Scholnick, LLC, with her on the briefs), Salt Lake City, Utah, for Plaintiff-Appellant.

Benjamin M. Shultz, United States Department of Justice, Civil Division, Washington,
D.C. (Tony West, Assistant Attorney General, Washington D.C.; David B. Barlow,
United States Attorney, Salt Lake City, Utah; Marleigh D. Dover, United States
Department of Justice, Civil Division, Washington, D.C., with him on the brief), for
Defendant-Appellee.


Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.


HOLMES, Circuit Judge.


      Laura Conroy filed this Title VII lawsuit against her employer, the United States
Forest Service, after it (among other things) filled an open position with a male employee,

instead of her. The district court excluded the testimony of Ms. Conroy’s two experts and

granted summary judgment to the Forest Service. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

                                              I

       The Forest Service, an agency within the Department of Agriculture, manages the

national forests. It is divided into nine geographical regions, and since 1991, Ms. Conroy

has been employed with Region 4 (also known as the Intermountain Region) in Ogden,

Utah. She began as a GS-9 “Computer Programmer Analyst” and, by 1995, had

progressed to a GS-12 “Computer Specialist.” As part of her job description, she served

as a programming and technical expert for certain database systems and as the regional

coordinator for a Forest Service database known as “INFRA.”

       INFRA was originally designed in the mid-1990s to help keep track of Forest

Service infrastructure like roads, bridges, buildings, and dams. It was later expanded to

include other forms of data, including financial data. Agency personnel use INFRA to

establish land management policies and to make fiscal, contracting, and permitting

decisions.

       In spring 2001, Region 4 management advertised an opening for a new position

called “INFRA Program Manager.” At the time, two other regions had filled a similar

position. One region had filled the job in the “administrative” series, which did not

require a college degree, while the other region had filled it in the “professional” series,

                                             -2-
which required either a college degree or equivalent professional experience. Region 4

advertised the position in both series—a so-called “interchangeable” listing. The

advertisement noted, among other things, that “[c]omprehensive knowledge and skills in

ORACLE, SQL, and PC spreadsheet and database software” were required. Aplt. App.

at 850 (INFRA Program Manager Job Description, filed Feb. 9, 2009).

          Ms. Conroy did not have a college degree. She applied for the INFRA Program

Manager position in the administrative series. She was found to be qualified, and her

name, along with that of one other qualified applicant, was passed on to Larry Larson, the

head of the group where the new position would be located. Mr. Larson, however,

decided to readvertise the position. He would later explain that his reason for doing so

was to broaden the pool of applicants.

          A revised announcement was issued in fall 2001. Among other things, it modified

the job requirement noted above, replacing the words “[c]omprehensive knowledge and

skills in” with simply “[k]nowledge of.” Id. at 846 (Position Description Correction

Notice, filed Feb. 9, 2009). The new advertisement drew interest from a greater number

of applicants, and four were certified as sufficiently qualified for the position. Ms.

Conroy was certified under the administrative announcement, and three others were

certified under the professional announcement. Among the latter three candidates was

Daniel Hager, who had not applied when the position was originally advertised in the

spring.

          The candidates’ applications were submitted to a peer advisory panel consisting of

                                              -3-
five individuals: (1) Jack McDonald, who had drafted the vacancy announcement;

(2) Terry Padilla, (3) Mary Jean Brackmann, and (4) Cary Williams, each of whom was

from a different department of the Forest Service; and (5) Tamara Hanan, who served as

management’s representative on the panel. The panel’s task was to evaluate the

candidates using criteria known as “Knowledge, Skills, and Abilities,” or “KSAs,” and

then to make recommendations to a selecting official, who would make the ultimate

hiring decision.1



       1
              The five KSAs used by the panel for evaluating candidates in the
professional series were as follows:

       1. “Professional knowledge and experience” in a wide range of sciences, “applicable
       to [a] broad range of business and resource practices,” in order to understand,
       evaluate, and make recommendations on various agency projects.

       2. “Professional knowledge of natural resources and their management sufficient to
       be conversant with other specialist[s] in related fields . . . .”

       3. “Knowledge and demonstrated experience in distributed database systems in order
       to provide guidance and management direction to Forests and other Resource program
       areas in database management and operation.”

       4. “Ability to provide leadership and guidance as the Regional INFRA Program
       Manager in the resolution of problems in planning, organizing, and coordinating the
       implementation of the INFRA corporate database.”

       5. “Skill in written and oral communications sufficient to conduct workshops, training
       sessions, [and] management briefings,” among other things.

Aplt. App. at 669 (Fall 2001 Vacancy Announcement, filed July 30, 2008). For the
purpose of evaluating candidates in the administrative series, the term “Professional
knowledge” in the first two KSAs was replaced with the term “Working knowledge.” See
id. at 663.

                                            -4-
       After evaluating the four candidates, the panel recommended Mr. Hager for the

position. The selecting official, Chris Pyron, followed the recommendation and hired Mr.

Hager. Shortly thereafter, in March 2002, Ms. Conroy filed a formal grievance with the

agency, alleging age and sex discrimination.

       In 2003, Mr. Hager left the INFRA Program Manager position, and the position

was readvertised in February 2004. An intervening change in Forest Service policy

prohibited interchangeable listings, so the position was advertised solely in the

professional series. See id. at 676 (Memo, dated June 20, 2002) (“Effective immediately

no new positions may be announced as interchangeable positions.”). Although Ms.

Conroy applied again, she was deemed not qualified, and management ultimately selected

Andrea Gehrke. Ms. Conroy filed a second formal grievance, alleging that the decision to

advertise the position solely in the professional series was made in order to retaliate

against her for filing the first grievance in 2002.

       After exhausting administrative remedies, Ms. Conroy filed suit in federal district

court pursuant to Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17. She

asserted various individual and class claims arising out of the agency’s 2001 and 2004

hiring decisions. The district court dismissed the class claims, and discovery commenced

on the individual sex discrimination and retaliation claims. The Forest Service later

moved for summary judgment.

       The district court granted the Forest Service’s motion in March 2011. As a

threshold matter, the court excluded the testimony of Ms. Conroy’s two experts, Dr.

                                              -5-
Nancy Dodd and Paul Katz. The court found that Dr. Dodd was not qualified to testify on

“sex stereotyping” because it was beyond the reasonable confines of her expertise, and

that Mr. Katz was uninformed and had failed to adequately explain his conclusions

regarding the propriety of the agency’s 2004 vacancy announcement.

       Turning to the merits, the district court construed Ms. Conroy’s complaint as

raising four claims: (1) a sex discrimination claim arising out of her non-selection in fall

2001; (2) a sex discrimination claim premised on the agency’s decision to readvertise the

position in spring 2001; (3) a sex discrimination claim pertaining to the agency’s 2004

decision not to list the position in the administrative series; and (4) a retaliation claim

pertaining to that same 2004 decision. As to her first claim, the court found that Ms.

Conroy failed to show that the agency’s nondiscriminatory reasons for hiring Mr. Hager

were pretextual. The court addressed and rejected the second claim in a footnote, holding

that the agency was not required to justify every intermediate step in its hiring process. In

a brief paragraph, the court rejected Ms. Conroy’s third sex discrimination claim, finding

that she failed to show pretext. As to her fourth claim for retaliation, the court concluded

that she failed to prove causation and, in the alternative, pretext.

       Ms. Conroy timely appealed.

                                               II

       As a threshold matter, we must address Ms. Conroy’s contention that the district

court erred in excluding the testimony of her experts, Dr. Dodd and Mr. Katz. Federal

Rule of Evidence 702 assigns to district courts a gatekeeping function with respect to the

                                              -6-
admissibility of expert opinions. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147

(1999); Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 969 (10th Cir. 2001).

Whether the district court “actually performed its gatekeeper role” and whether it applied

the correct legal standard in doing so are questions we review de novo. Frederick v. Swift

Transp. Co., 616 F.3d 1074, 1082 (10th Cir. 2010). “[T]he manner in which the district

court performs this gatekeeping role” is reviewed for an abuse of discretion. United

States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc) (emphasis added). The

proponent of expert testimony bears the burden of showing that the testimony is

admissible. Id.

       A two-part test applies to determine admissibility. First, the district court must

determine “whether the expert is qualified ‘by knowledge, skill, experience, training, or

education’ to render an opinion.” Id. (quoting Fed. R. Evid. 702). Second, the court

“must satisfy itself that the proposed expert testimony is both reliable and relevant, in that

it will assist the trier of fact, before permitting a jury to assess such testimony.” United

States v. Rodriguez-Felix, 450 F.3d 1117, 1122 (10th Cir. 2006); see also 103 Investors I,

L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006) (applying “a two-step

analysis”); Ralston, 275 F.3d at 969 (noting that “the district court had to undergo a two-

step analysis” in determining the admissibility of an expert’s opinion); cf. N. Am.

Specialty Ins. v. Britt Paulk Ins. Agency, Inc., 579 F.3d 1106, 1112 (10th Cir. 2009)

(focusing on the admissibility test’s second part and recognizing this part itself has two

distinct components—reliability, and relevancy, that is, the evidence “must be helpful to

                                              -7-
the jury”).

       We hold that the district court did not abuse its discretion in excluding the expert

testimony of Dr. Dodd and Mr. Katz.

                                              A

       The district court excluded the testimony of Dr. Dodd at the first step of the two-

part test, finding her to be unqualified. Dr. Dodd holds a Ph.D. in business and had

worked in the areas of human-resource management and organizational behavior for

twenty-five years. She also had previously testified as an expert in cases involving age

discrimination, sexual harassment, and wrongful termination. In this case, Dr. Dodd

would have testified regarding sex stereotyping in the workplace, explaining how it

manifested itself in Region 4’s selection of Mr. Hager over Ms. Conroy.

       The district court found, however, that Dr. Dodd had never researched or written

about sex stereotyping; that she became familiar with the topic only after being retained

for this case; and that she could not recall articles or relevant cases supporting the

application of sex-stereotyping research to disparate-treatment claims.2 Due to this lack

of specialization, the court correctly looked to whether sex stereotyping was “within the

reasonable confines” of Dr. Dodd’s expertise. Ralston, 275 F.3d at 970 (quoting

Compton v. Subaru of Am., Inc., 82 F.3d 1513, 1520 (10th Cir. 1996)) (internal quotation


       2
                These points were arguments that the Forest Service advanced before the
district court, and because Ms. Conroy did not contest or seek to rebut them, the district
court “consider[ed] them conceded.” Aplt. App. at 293 (Mem. Decision & Order, filed
Mar. 7, 2011).

                                             -8-
marks omitted). Ms. Conroy failed to articulate any meaningful argument in support of

that proposition, only asserting in conclusory fashion that sex stereotyping was “clearly”

within the reasonable confines of Dr. Dodd’s experience and expertise. Aplt. App.

at 294. The district court would not “connect the proverbial dots” for Ms. Conroy and

found that she had failed to carry her burden to show that Dr. Dodd was qualified to opine

on sex stereotyping. Id.

       The district court did not abuse its discretion in excluding Dr. Dodd’s testimony.

To qualify as an expert, Dr. Dodd had to possess skill, experience, or knowledge in the

“particular field” of sex stereotyping, Lifewise Master Funding v. Telebank, 374 F.3d

917, 928 (10th Cir. 2004) (quoting Graham v. Wyeth Labs., 906 F.2d 1399, 1408 (10th

Cir. 1990)) (internal quotation marks omitted), or sex stereotyping had to fall “within the

reasonable confines” of her expertise, Ralston, 275 F.3d at 970 (quoting Compton, 82

F.3d at 1520) (internal quotation marks omitted). Neither showing was made.

       Dr. Dodd concededly had no particular expertise in sex stereotyping. Her general

expertise was in business and human-resource management, and her more specific

expertise was in age discrimination, sexual harassment, and wrongful termination.

Though it is certainly possible that sex stereotyping is sufficiently related to these areas so

as to be within their “reasonable confines,” it was up to Ms. Conroy to establish that

connection, and she failed to do so. Further, in light of the fact that Dr. Dodd had never

researched, written about, or opined on this topic before, it was hardly “arbitrary,

capricious, whimsical, or manifestly unreasonable” for the district court to find her

                                             -9-
unqualified. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1163–64

(10th Cir. 2000) (quoting Copier v. Smith & Wesson Corp., 138 F.3d 833, 838 (10th Cir.

1998)) (internal quotation marks omitted); see Milne v. USA Cycling, Inc., 575 F.3d 1120,

1133–34 (10th Cir. 2009) (holding that it was not an abuse of discretion to exclude expert

testimony on standard of care in mountain-bike races because the purported expert,

though experienced in “organizing and supervising paved road bike races,” had minimal

mountain-biking experience and “had never published any articles about bicycle racing of

any sort, let alone mountain bike racing”); Ralston, 275 F.3d at 969–70 (discerning no

abuse of discretion in the court’s decision to exclude an orthopaedic surgeon’s testimony

concerning adequacy of warning on orthopaedic device, despite surgeon’s familiarity

with “general orthopaedic and surgical principles and concepts,” because surgeon had no

particular experience with the device at issue or with medical warnings and had not

published in the area).

                                             B

       The district court excluded the testimony of Mr. Katz at the second step of the two-

step analysis, finding his opinion to be unreliable. Mr. Katz is a personnel consultant and

has extensive experience in human-resource management. His experience includes a

thirteen-year stint as Assistant Director of the U.S. Office of Personnel Management,

where he was responsible for position classification and qualification standards for some

two million federal civilian employees. In this case, Mr. Katz would have testified that

the Forest Service’s 2004 vacancy announcement for the INFRA Program Manager

                                           -10-
position improperly required applicants to have a college degree. In his opinion, this

requirement was “purposefully designed to deny Ms. Conroy the position.” Aplt. App.

at 977 (Katz Expert Report, filed Feb. 9, 2009).

       The district court, however, excluded Mr. Katz’s testimony. It found that his

report “demonstrate[d] a lack of knowledge” regarding the agency’s 2004 decision to

advertise the position solely in the professional series, and that Mr. Katz “fail[ed] to

provide a meaningful analysis of how he came to conclude what he did while showing

that his testimony reliably applied the facts of this case.” Id. at 295.

       The district court did not abuse its discretion. The proponent of expert testimony

is required to show, among other things, that the expert’s opinion is “based on facts

which satisfy Rule 702’s reliability requirements.” Nacchio, 555 F.3d at 1241 (emphasis

added) (quoting Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003)) (internal

quotation marks omitted); see id. (“Reliability questions may concern the expert’s data,

method, or his application of the method to the data.”). In that regard, Mr. Katz’s report

came up woefully short. Mr. Katz mistakenly believed that the 2001 vacancy

announcement had been advertised solely in the administrative series, and he erroneously

thought that the position had never been filled in 2001. See Aplt. App. at 976–77. More

specifically, he was unaware that the position had been advertised in both the professional

and administrative series, and that it had ultimately been filled in the professional series.

Also, Mr. Katz’s report contained no discussion of the intervening change in Forest

Service policy that prohibited interchangeable listings, suggesting that he was unaware of

                                             -11-
this fact, too. Finally, we note that Mr. Katz’s understanding that the position “require[d]

a baccalaureate degree,” id. at 977, was not entirely accurate. The position required

either a college degree or equivalent professional experience. In sum, oblivious to these

key facts, Mr. Katz’s opinion on the propriety of the 2004 listing could not possibly have

“rest[ed] on a reliable foundation.” Nacchio, 555 F.3d at 1246 (quoting Mascenti v.

Becker, 237 F.3d 1223, 1231 (10th Cir. 2001)) (internal quotation marks omitted). The

district court was right to exclude his testimony.

                                             III

       We turn now to Ms. Conroy’s challenge to the district court’s entry of summary

judgment in favor of the Forest Service. “We review a district court’s grant of summary

judgment de novo, applying the same standard as the district court.” Helm v. Kansas, 656

F.3d 1277, 1284 (10th Cir. 2011). “[S]ummary judgment is appropriate if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Morris v. City of Colo. Springs, 666 F.3d 654, 660 (10th

Cir. 2012) (quoting Fed. R. Civ. P. 56(a)) (internal quotation marks omitted). In

reviewing a grant of summary judgment, “we consider the evidence in the light most

favorable to the non-moving party.” EEOC v. C.R. England, Inc., 644 F.3d 1028, 1037

(10th Cir. 2011) (quoting Duvall v. Ga.-Pac. Consumer Prods., L.P., 607 F.3d 1255, 1259

(10th Cir. 2010)) (internal quotation marks omitted).

       In this appeal, Ms. Conroy focuses on three Title VII claims: two for sex

discrimination pertaining to the 2001 application process and one for retaliation

                                            -12-
pertaining to the 2004 application process. Although the district court construed Ms.

Conroy’s complaint as raising a fourth claim of sex discrimination pertaining to the 2004

application process, Ms. Conroy has not briefed any arguments pertaining to that claim,

so we consider it abandoned. See Tran v. Trustees of State Colleges in Colo., 355 F.3d

1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening brief are deemed

abandoned or waived.” (quoting Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d

1199, 1205 (10th Cir. 1997)) (internal quotation marks omitted)).

       A plaintiff may prove a violation of Title VII either by direct evidence of

discrimination or retaliation, or by following the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Khalik v. United Air

Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). Indisputably, Ms. Conroy does not rely on

direct evidence of discrimination or retaliation, so McDonnell Douglas applies. See

Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1195 (10th Cir. 2011).

              Under that rubric, the plaintiff must first establish a prima facie case of
              discrimination or retaliation. Then, the defendant may come forward
              with a legitimate, non-discriminatory or non-retaliatory rationale for the
              adverse employment action. If the defendant does so, the plaintiff must
              show that the defendant’s proffered rationale is pretextual. This
              framework applies to both discrimination and retaliation claims.

Id. (citations omitted). We address Ms. Conroy’s first two claims for discrimination in

this Part. We address her third claim for retaliation in Part IV, infra.

       Ms. Conroy contends that the district court erred in granting summary judgment to

the Forest Service on her 2001 discrimination claims. She primarily contends that she


                                             -13-
suffered sex discrimination when Mr. Hager, a male, was ultimately selected for the

INFRA Program Manager position, even though she was the more qualified candidate.

She also articulates a second discrimination claim, asserting that the agency’s decision in

spring 2001 to relax the qualification standards and readvertise the job—after she had

already applied for it and been found qualified—constituted a separate act of sex

discrimination.

       As noted, to succeed on her discrimination claims, Ms. Conroy must first establish

a prima facie case. See, e.g., Barlow v. C.R. England, Inc., 703 F.3d 497, at 505 (10th

Cir. 2012) (“If the plaintiff does not establish a prima facie case, his entire case fails.”).

As we recently stated in Barlow, “‘The critical prima facie inquiry in all cases is whether

the plaintiff has demonstrated that the adverse employment action occurred under

circumstances which give rise to an inference of unlawful discrimination.’ . . . [T]he

plaintiff’s articulation of his prima facie case may vary depending on the nature of the

claim.” Id. (quoting Plotke v. White, 405 F.3d 1092, 1100 (10th Cir. 2005)). We need

not determine the precise formulation of the elements of Ms. Conroy’s prima facie case

for her two discrimination claims. The government does not contest that Ms. Conroy has

satisfied her prima facie case for the claims; accordingly, we have no occasion to pursue

the matter further and instead focus on the other elements of the McDonnell Douglas

framework.

                                               A

       We begin with Ms. Conroy’s primary discrimination claim regarding the 2001

                                              -14-
selection of Mr. Hager. As noted, the Forest Service does not dispute that Ms. Conroy

has made out her prima facie case, so the burden shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its selection of Mr. Hager instead of Ms. Conroy.

Before the district court, the Forest Service offered such a reason. It argued that, although

Ms. Conroy had significant technical expertise as Region 4’s INFRA Coordinator,

technical skills were less critical to the INFRA Program Manager position than others,

and “most of the technical work was being handled by the Washington Office.” Aplt.

App. at 74 (Def.’s Mem. in Supp. of Def.’s Mot. for Summ. J., filed July 30, 2008).

According to the agency, the most important qualifications were “leadership and program

management, as well as the knowledge and experience necessary to be able to coordinate

and communicate successfully with officials from the many different disciplines of the

Forest Service.” Id. In these key areas, the agency argued, Mr. Hager had the edge over

Ms. Conroy. See id. at 76 (“Mr. Hager’s strong program management experience at all

levels of the Forest Service made him a superior candidate overall.”).

       The district court found this explanation to be both legitimate and

nondiscriminatory, and Ms. Conroy does not challenge that conclusion on appeal.

Instead, her arguments focus exclusively on pretext, the third piece of the McDonnell

Douglas framework. Accordingly, we turn our attention there.

       “[P]retext can be shown in a variety of ways,” and “there is no one specific mode

of evidence required to establish the discriminatory inference.” Trujillo v. PacifiCorp,

524 F.3d 1149, 1158 (10th Cir. 2008). Generally, “a plaintiff can establish pretext by

                                            -15-
showing the defendant’s proffered non-discriminatory explanations for its actions are so

incoherent, weak, inconsistent, or contradictory that a rational factfinder could conclude

[they are] unworthy of belief.” C.R. England, 644 F.3d at 1038–39 (alteration in original)

(quoting Johnson v. Weld Cnty., 594 F.3d 1202, 1211 (10th Cir. 2010)) (internal

quotation marks omitted).

       Ms. Conroy marshals four different forms of evidence in an effort to demonstrate a

triable dispute over pretext. She asserts (1) that she was overwhelmingly more qualified

than Mr. Hager, (2) that the agency’s explanation for choosing Mr. Hager was

inconsistent and contradictory, (3) that the selection process exhibited procedural

irregularities, and (4) that the agency relied on subjective factors in the selection process.

We address each of these arguments in turn. As we explain below, we conclude that Ms.

Conroy has not demonstrated pretext for intentional discrimination. In particular, we see

nothing in the decisionmaking process that would allow a reasonable jury to conclude that

the process was used to discriminate against her on the basis of sex.

                                               1

       Ms. Conroy first contends that she was more qualified than Mr. Hager such that

the Forest Service’s failure to select her evinces pretext. It is true that “[w]e 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 v. City & Cnty. of Denver, 488 F.3d 860, 865

(10th Cir. 2007) (quoting Jones v. Barnhart, 349 F.3d 1260, 1267 (10th Cir. 2003)).

However, we will not draw that inference based upon “minor differences between

                                             -16-
plaintiff’s qualifications and those of successful applicants”; rather, there must be “an

overwhelming merit disparity.” Id. (quoting Bullington v. United Air Lines, Inc., 186

F.3d 1301, 1319 (10th Cir. 1999), overruled on other grounds by Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101 (2002)) (internal quotation marks omitted). Ms. Conroy

has failed to make that showing.

       At the outset, in assessing the sufficiency of Ms. Conroy’s arguments, it is helpful

to underscore the salient considerations underlying the agency’s hiring decision.

Specifically, the Forest Service considered leadership and program management

experience to be the most important qualifications for the position. See Aplt. App. at 506

(Dep. of Mr. Pyron, Apr. 10, 2008). Ms. Conroy has made no argument that she was

overwhelmingly more qualified than Mr. Hager in this regard, nor does the record support

that proposition. While Ms. Conroy had worked as Region 4’s INFRA Program

Coordinator, Mr. Hager also had leadership and project management experience of his

own. At the time that he applied for the vacancy, Mr. Hager was managing Region 4’s

INFRA Travel Routes and Deferred Maintenance program and was the regional

representative to the INFRA Travel Routes User Board. He had served on selection

panels to fill regional and forest-level staff positions and had chaired an interdisciplinary

team of Forest Service personnel. His application also highlighted his prior management

experience in budgeting, data collection, and engineering projects. We need not decide

whether Ms. Conroy was as qualified, or less so, than Mr. Hager with respect to

leadership and management experience. It suffices for us to say that Ms. Conroy has

                                             -17-
failed to demonstrate “an overwhelming merit disparity” between her and Mr. Hager in

this very key area. Santana, 488 F.3d at 865 (quoting Bullington, 186 F.3d at 1319)

(internal quotation marks omitted).

       Turning to Ms. Conroy’s specific arguments, Ms. Conroy focuses on two points:

technical skills and communication skills. Regarding the first, she asserts that Mr. Hager

lacked even the minimum qualifications required by the position. She further argues that

her own technical skills were vastly superior to Mr. Hager’s. Regarding communication

skills, she contends that Mr. Hager was lacking in this area, too.

       We reject the contention that Mr. Hager lacked the minimum technical

qualifications for the position. Ms. Conroy apparently conceded in the district court that

Mr. Hager was qualified. See Aplt. App. at 125 (Pl.’s Mem. in Opp. to Def.’s Mot. for

Summ. J., filed Feb. 9, 2009) (“Hager did not qualify for the position until after the

technical requirements pertaining to the management of the INFRA database were

negated . . . . [T]he Agency’s conduct in changing the requirements of the INFRA

Program Manager position so that Hager could qualify is significant evidence of pretext.”

(emphases added)). Arguably, then, Ms. Conroy’s contention is waived.

       In any event, the record does not support her position. The fall 2001 advertisement

required, among other things, “knowledge of ORACLE, SQL, and PC and spreadsheet

database software.” Aplt. App. at 846. Mr. Hager’s application highlighted his skills and

experience with these software systems, or with applications that depended upon them

(including INFRA, an ORACLE- and SQL-based system). See id. at 684 (Hager Appl.

                                            -18-
Package, filed July 30, 2008). Moreover, a Forest Service human-resources specialist

certified Mr. Hager as qualified for the position, see id. at 760 (Certification of

Candidates, dated Nov. 9, 2001)—a certification that the selecting official, Mr. Pyron,

was entitled to rely upon, see C.R. England, 644 F.3d at 1044 (“[W]e examine the facts as

they appear to the person making the decision . . . .” (quoting Zamora v. Elite Logistics,

Inc., 478 F.3d 1160, 1166 (10th Cir. 2007) (en banc) (internal quotation marks omitted)).3

       This leaves Ms. Conroy’s argument that her technical skills were vastly superior to

Mr. Hager’s. The Forest Service has conceded that Ms. Conroy was more qualified than

Mr. Hager in this regard. Whether there was “an overwhelming merit disparity” between

the two candidates is unclear. Santana, 488 F.3d at 865 (quoting Bullington, 186 F.3d at

1319) (internal quotation marks omitted). Fortunately, we need not resolve the issue.

Even granting Ms. Conroy’s contention, she still fails to demonstrate that she was

overwhelmingly more qualified than Mr. Hager on the whole, taking into account all of

the factors that the agency found relevant.

       In this regard, we reject Ms. Conroy’s argument that she was overwhelmingly

more qualified than Mr. Hager in the area of communication skills. Ms. Conroy



       3
               In this case, Ms. Conroy does not articulate a cat’s paw theory of liability.
For example, she does not contend that the human-resources specialist certified Mr.
Hager as qualified out of a desire to discriminate against Ms. Conroy on the basis of sex.
Cf. Crowe, 649 F.3d at 1194 (“[W]here an employee performs an act motivated by
discriminatory animus intending to cause an adverse employment decision, the employer
will be liable if that act is a proximate cause of the eventual adverse employment
decision.”).

                                              -19-
highlights her “experience in conducting workshops, training sessions and management

briefings.” Aplt. Opening Br. at 35 (quoting Aplt. App. at 436 (Conroy Appl. for Fed.

Employment, Dec. 3, 2001)) (internal quotation marks omitted). But Mr. Hager’s

application noted similar experiences. See Aplt. App. at 685 (highlighting experience

with giving presentations, conducting training sessions, participating in question-and-

answer sessions at public meetings, and interacting with numerous professionals from

different backgrounds).

       Thus, we conclude that Ms. Conroy’s arguments concerning alleged merit

disparities fail to raise a “genuine doubt about [the Forest Service’s] motivation” in

selecting Mr. Hager. Santana, 488 F.3d at 866 (quoting EEOC v. Horizon/CMS

Healthcare Corp., 220 F.3d 1184, 1200 (10th Cir. 2000)) (internal quotation marks

omitted).

                                             2

       Ms. Conroy next argues that inconsistencies and contradictions in the agency’s

proffered explanations for choosing Mr. Hager support a determination of pretext. As we

have recognized, a plaintiff can show pretext by demonstrating that the employer’s

explanation for its decision “was so implausible, incoherent, or internally contradictory”

that the decision must have been made on some other basis. Rivera v. City & Cnty. of

Denver, 365 F.3d 912, 925 (10th Cir. 2004). The focus is on the employer’s justification

for its decision—for example, did the employer offer inconsistent reasons for its decision,

or is the employer’s explanation so implausible that a jury could find it unworthy of

                                            -20-
credence? See Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1309–10 (10th Cir.

2005). In assaying the employer’s explanation, “we examine the facts as they appear to

the person making the decision.” C.R. England, 644 F.3d at 1044 (quoting Zamora, 478

F.3d at 1166) (internal quotation marks omitted). We conclude that Ms. Conroy has

failed to demonstrate that Mr. Pyron’s reasons for selecting Mr. Hager were pretextual.

       Mr. Pyron testified that he was looking for a candidate with strong management

capabilities and that the “technical aspects” of the job were less important. Aplt. App. at

506. He stated that the selection panel recommended Mr. Hager for the position and that

its endorsement of Mr. Hager was “strong.” Id. at 507. Before making his decision, Mr.

Pyron contacted Ms. Conroy’s supervisor, Elizabeth Close, who concurred in the panel’s

recommendation and agreed that Mr. Hager was the better candidate. Based on all this

information, Mr. Pyron selected Mr. Hager. See id.

       Ms. Conroy attempts to impugn the justification for Mr. Pyron’s decision by

arguing that the panel did not unanimously recommend Mr. Hager. We question whether

panel unanimity was even required; Ms. Conroy does not argue that agency procedures

required unanimity. At bottom, what matters is whether Mr. Pyron’s explanation—that

Mr. Hager “was a strong recommendation from the panel,” id.—is unworthy of belief.

Ms. Conroy points to nothing to undermine that explanation. Indeed, in their testimony,

all panel members agreed that Mr. Hager was the preferred candidate. See id. at 363

(Dep. of Mr. Padilla, Mar. 4, 2008) (noting that Mr. Hager “was probably number one

because he had a broader breadth of experience”); id. at 537 (Dep. of Ms. Hanan, Apr. 23,

                                            -21-
2008) (noting that the panel was “unanimous in their evaluation and ranking that Mr.

Hager was the number one candidate”); id. at 570 (Dep. of Mr. McDonald, Apr. 3, 2008)

(noting that “the panel” considered Mr. Hager the top candidate); id. at 592 (Dep. of Ms.

Brackmann, Apr. 3, 2008) (noting that “our panel” ranked Mr. Hager higher than Ms.

Conroy); id. at 717 (Aff. of Cary Williams, dated Aug. 22, 2002) (noting that “overall”

the panel “felt that Mr. Hager was the top choice”).

       Ms. Conroy also points to discrepancies in the panel members’ use of the KSAs to

evaluate the candidates. According to their testimony, two panel members recalled that

the KSAs pertaining to leadership were given more weight; one panel member recalled

that all five KSAs were equally weighted; and one panel member could not recall any

specific weighting. We think these discrepancies are minor and are insufficient to

demonstrate pretext.

       In the first place, we are inclined to discount the persuasiveness of such evidence.

Notably, the panel members were not the ultimate decisionmakers. See Lucas v. Dover

Corp., Norris Div., 857 F.2d 1397, 1402 (10th Cir. 1988) (holding that subordinates’ use

of inconsistent criteria did not show that the ultimate decisionmaker’s decision was

pretextual).

       Second, nothing about the panel’s evaluation process suggests that Mr. Pyron’s

reasons for selecting Mr. Hager were pretextual. Most of the KSAs emphasized the need

for leadership and management capabilities. See supra note 1. So did the job title itself:

“INFRA Program Manager.” And all panel members agreed that technical skills—Ms.

                                            -22-
Conroy’s strong suit—were not the paramount consideration in evaluating the candidates.

See Aplt. App. at 362 (noting the need to look at “breadth of experience” across the

KSAs); id. at 551 (Aff. of Ms. Hanan, dated Sep. 6, 2002) (“[T]he technical aspects of the

job were less important.”); id. at 580–81 (Aff. of Mr. McDonald, dated Sep. 7, 2002)

(highlighting Ms. Conroy’s technical skills but noting that the job “reflected a need for

more managerial skills than what she had been doing”); id. at 593 (“We were not so much

interested in [the third KSA] because we didn’t want a hands-on tekkie [sic].”); id. at 718

(“Mr. Hager was still a better choice based on his demonstrated managerial,

administrative, communication, and coordination skills. Technical INFRA Program skills

were certainly not the only things we were looking for.”).

       In light of this substantial agreement among the panel members, as well as the

consistency of their explanations with Mr. Pyron’s own, we reject Ms. Conroy’s

contention that a reasonable jury could find Mr. Pyron’s reasons for hiring Mr. Hager

pretextual.

                                             3

       Ms. Conroy’s third line of argument focuses on procedural irregularities. She

argues that the references listed in Mr. Hager’s application were contacted and were

utilized by Mr. Pyron in making his decision. By contrast, she says, none of her

references was contacted. Had the agency contacted one of her listed references, Tah

Yang, Ms. Conroy argues, it would have learned that she was “clearly more qualified for

the position than any other candidate, including Mr. Hager.” Aplt. Opening Br. at 40

                                            -23-
(quoting Aplt. App. at 773 (Aff. of Mr. Yang, dated Aug. 23, 2002)) (internal quotation

marks omitted). Ms. Conroy also draws our attention to the fact that Mr. Pyron contacted

her supervisor, Ms. Close, who—according to Ms. Conroy—“was not listed as [a]

reference.” Id.

       “This court recognizes that disturbing procedural irregularities, including

deviations from normal company procedure, provide support for a plaintiff’s assertion of

pretext.” Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1138 n.11 (10th Cir. 2003)

(quoting Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1219–20 (10th Cir. 2002))

(internal quotation marks omitted). However, “[f]or an inference of pretext to arise on the

basis of a procedural irregularity, . . . there must be some evidence that the irregularity

‘directly and uniquely disadvantaged a minority employee.’” Johnson, 594 F.3d at 1213

(quoting Randle v. City of Aurora, 69 F.3d 441, 454 n.20 (10th Cir. 1995)). We conclude

that there was nothing irregular or disturbing in the agency’s hiring process.

       Forest Service policy gave selecting officials discretion in choosing whether to

contact a candidate’s references. See Aplt. App. at 615 (Forest Serv. Handbook, dated

Dec. 20, 2000) (“The selecting official may choose to contact references provided by the

candidate and factor that information into the selection decision.” (emphasis added)).

Furthermore, there was no policy prohibiting the agency from contacting a candidate’s

supervisor. See id. at 999 (Dep. of Gloria Jean Banks, Apr. 25, 2008) (agreeing that the

selecting official may “seek job-related information about the applicants from any

source”). Ms. Conroy’s application listed four specific references: Mr. Yang, Milt

                                             -24-
Coffman, Dana Hoskins, and Susan Freeman. See id. at 437. In the application, she also

answered “YES” to the question, “May we contact your current supervisor?” Id. at 432.

       Panel member Ms. Brackmann was assigned to contact Ms. Conroy’s references.

She tried repeatedly to contact Mr. Yang but failed. She knew, however, that Mr. Yang

had a favorable view of Ms. Conroy, and she relayed this information to the rest of the

panel. See id. at 592 (“And so I went back to the panel and said, ‘I was unable to reach

Tah, but I will speak on his behalf if I may and say that he very much enjoys working

with Laura and thinks she’s doing a great job.’”). Ms. Brackmann next tried to contact

Mr. Coffman but lacked a current phone number for him because he had recently retired.

She decided not to contact the third listed reference, Ms. Hoskins. Ms. Brackmann knew

that Ms. Conroy and Ms. Hoskins were close friends, and she believed that any

recommendation from Ms. Hoskins would lack objectivity and would not be helpful.

Finally, Ms. Brackmann could not recall whether she had tried to contact or had spoken

with Ms. Freeman. See id. Ms. Conroy does not contest the accuracy of Ms.

Brackmann’s account of her efforts to check references.

       As earlier noted, after the panel made its recommendation to Mr. Pyron, Mr. Pyron

decided to contact Ms. Conroy’s supervisor, Ms. Close. Ms. Close told Mr. Pyron that

she agreed with the panel’s decision to recommend Mr. Hager. In her view, Mr. Hager

was the better candidate. See id. at 507.

       We perceive nothing irregular in the way that Ms. Brackmann and Mr. Pyron went

about contacting Ms. Conroy’s references and supervisor. The agency’s efforts were

                                            -25-
thorough, and we agree with the district court that nothing in Ms. Brackmann’s or Mr.

Pyron’s actions evinces a process “used to perpetuate a subjective evaluation in order to

achieve a discriminatory intent.” Id. at 304. We detect no “deviations from normal

company procedure” here. Doebele, 342 F.3d at 1138 n.11 (quoting Garrett, 305 F.3d

at 1220) (internal quotation marks omitted). Indeed, Ms. Conroy specifically authorized

the agency to contact Ms. Close. Nor do we find anything disturbing about the agency’s

actions. There is simply no basis for concluding that these actions “directly and uniquely

disadvantaged” Ms. Conroy. Johnson, 594 F.3d at 1213 (quoting Randle, 69 F.3d at 454

n.20) (internal quotation marks omitted).

       We therefore reject Ms. Conroy’s arguments and conclude that the particulars of

the agency’s hiring procedures do not support a claim of pretext.

                                              4

       Lastly, Ms. Conroy asserts that the use of “subjective criteria” in the Forest

Service’s hiring process raises a triable dispute as to pretext. Aplt. Opening Br. at 41.

She notes that the panel recommended Mr. Hager based on its “assessment that [he] had

superior leadership and managerial skills, greater knowledge of the Forest Service’s

business areas gained while serving on interdisciplinary teams and by working in Ranger

Districts and National Forests, and a well-written application.” Id. (quoting Aplt. App. at

65 (Def.’s Mem. in Supp. of Def.’s Mot. for Summ. J., filed July 30, 2008)) (internal

quotation marks omitted). According to Ms. Conroy, “[a]ll of these criteria are

subjective, with no definitions anywhere in the record or concrete examples of how Hager

                                            -26-
demonstrated such qualities more than Conroy.” Id.

       To support her argument, Ms. Conroy relies on our decision in Garrett. Garrett

held that the employer’s “subjective evaluation methods” were evidence of pretext. 305

F.3d at 1218. The facts of Garrett are striking. The plaintiff-employee, an African-

American, had received mainly positive evaluations for seventeen years. However, after

forming a pro-diversity group at work, he began receiving increasingly negative

evaluations. He was later transferred, was treated differently than his peers, and,

“[c]onvinced that he was being set up to fail in this new position,” eventually he resigned.

Id. at 1216. In concluding that the employer’s subjective evaluation criteria evinced

pretext, we emphasized two things. First, the evaluation process was “wholly subjective,”

and the employer had “presented no set of objective criteria by which employees [we]re

differentiated.” Id. at 1218. Second, the evaluation process was totally opaque, see

Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1200 (10th Cir. 2008) (discussing the

“opaqueness” of “the evaluation system” in Garrett); “nowhere in the record [wa]s it

shown how [employee] rankings were determined,” Garrett, 305 F.3d at 1218.

       Title VII plaintiffs routinely rely on Garrett to support pretext arguments. We,

however, have read that decision narrowly, emphasizing its unique facts. See, e.g.,

Crowe, 649 F.3d at 1195 (noting that “Garrett presented strikingly different facts”

compared to the case at bar); Hinds, 523 F.3d at 1200 (“[T]he evaluations at issue here

differ in kind from those at issue in Garrett . . . .”). Our disinclination to extend Garrett’s

reach rests on the intuition that our role is “not to act as a super personnel department that

                                             -27-
second guesses employers’ business judgments.” Jones, 349 F.3d at 1267 (quoting

Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321,

1329 (10th Cir. 1999)) (internal quotation marks omitted).

       Indeed, some subjectivity is to be expected in every hiring decision. “Title VII

does not do away with traditional management rights. An employer has discretion to

choose among equally qualified candidates, provided that the decision is not based upon

unlawful criteria.” Bauer v. Bailar, 647 F.2d 1037, 1046 (10th Cir. 1981) (quoting Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981)) (internal quotation marks

omitted); see also Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 619 (6th Cir.

2003) (“[Differences of opinion among evaluators] is not evidence that either [evaluator]

based his or her evaluation on anything other than his or her honest assessment of the

[employee]. Rather, it simply indicates that the two individuals disagree as to subjective

factors, which one would expect might happen from time to time.”). Thus, we “typically”

will infer pretext from the employers’ use of subjective evaluation criteria in the hiring

process “only when the criteria on which the employers ultimately rely are entirely

subjective in nature.” Jones, 349 F.3d at 1267–68. And, in determining if this is so, we

will carefully evaluate whether “the opaqueness” of the employers’ hiring system makes

it “susceptible to unspoken discriminatory input,” Hinds, 523 F.3d at 1200.

       Nothing of the sort is present here. The candidates’ qualifications were assessed in

light of five KSAs. The KSAs were made known to the candidates, and the candidates

submitted narratives explaining why their skills and experience matched up with each

                                            -28-
KSA. See Aplt. App. at 434–37 (Conroy Appl., filed July 30, 2008); id. at 681–85 (Hager

Appl. Package, filed July 30, 2008). The record shows that the selection panel used the

KSAs and the candidates’ narratives in performing the evaluations. Unlike in Garrett,

“the evaluation system here was transparent and reflected that all listed employees were

evaluated according to the same criteria . . . and assessed in non-discriminatory terms.”

Hinds, 523 F.3d at 1200. Furthermore, we are not troubled by the fact that some panel

members attached differing weight to different KSAs. “Indeed, it is because we expect

individuals to disagree with respect to subjective factors that we frequently employ more

than one individual to evaluate subjective criteria, as the [Forest Service] did here.”

Sutherland, 344 F.3d at 619.

       In short, the agency’s evaluation methods were not “wholly subjective” and were

not at all opaque. Garrett, 305 F.3d at 1215. We conclude that Ms. Conroy has failed to

demonstrate pretext on this basis.

       In sum, none of the evidence that Ms. Conroy has advanced is sufficient to raise a

“genuine doubt about [the Forest Service’s] motivation” in selecting Mr. Hager. Santana,

488 F.3d at 866 (quoting Horizon/CMS Healthcare, 220 F.3d at 1200) (internal quotation

marks omitted). We therefore reject Ms. Conroy’s primary claim of sex discrimination.

                                              B

       We turn now to what is, at best, a secondary claim of sex discrimination pertaining

to the 2001 hiring process. In her opening brief, Ms. Conroy asserts that the Forest

Service’s decision to relax the qualification standards for the position and readvertise

                                            -29-
it—after she had already applied for it and been found qualified—constituted a separate

act of sex discrimination.

       It is far from clear whether Ms. Conroy advanced this argument as a separate claim

in her complaint.4 We will assume arguendo that she did because we can comfortably

reject the claim on the merits.

       As with Ms. Conroy’s primary discrimination claim, the burden-shifting

framework of McDonnell Douglas applies to this secondary claim. As noted, the parties

do not contest that Ms. Conroy has made out her prima facie case.5 Thus, the burden

       4
              A single numbered paragraph in Ms. Conroy’s complaint read as follows:

              Plaintiff is female, and experienced discrimination from Defendant
              because of her gender in 2001, when she was not considered for the
              INFRA Program Manger position, and when a male with less
              experience and knowledge related to the position than she had was
              selected for the job.

Aplt. App. at 23 (Compl., filed Dec. 29, 2006). In her opposition to the agency’s motion
for summary judgment, Ms. Conroy’s 2001 discrimination claim appeared to focus solely
on her ultimate non-selection. See id. at 121 (“As discussed below, Conroy can present
substantial evidence from which a reasonable juror could determine that her non-selection
was based on discrimination rather than Hager’s superior qualifications.”).

       Later in her opposition brief, however, Ms. Conroy did state that “the Agency did
not even offer a legitimate reason for reducing the qualifications and re-advertising the
position.” Id. at 124. In a footnote in its opinion, the district court addressed and rejected
Ms. Conroy’s argument: “The case law requires the Agency to offer a legitimate and non-
discriminatory reason for Ms. Conroy’s rejection. This is broader and more easily met
than requiring an individual analysis of every step taken throughout the process, such as
reducing the qualification[s] or re-advertising the position.” Id. at 297 n.35.
       5
              We assume without deciding that readvertising a job opening with different
(here, reduced) qualifications standards is the kind of adverse employment action that
                                                                             (continued...)

                                             -30-
shifts to the Forest Service to articulate a legitimate, nondiscriminatory reason for its

decision to lower the qualification standards and readvertise the INFRA Program

Manager position.

       The Forest Service has offered such a reason. It explained that the original pool of

quality applicants, which consisted of only two people (Ms. Conroy and one other), was

too small. Larry Larson, the head of the Region 4 group where the new position would be

located, wanted “as large and diverse an applicant pool as possible” and felt that “some of

the unnecessary qualifications for the position”—particularly, an overemphasis on

technical skills—“were arbitrarily restricting the applicant pool.” Aplt. App. at 349 (Aff.

of Mr. Larson, dated July 28, 2008). The vacancy announcement was revised to produce

a larger pool of qualified applicants. According to Mr. Larson and other Forest Service

personnel, this practice was common when a job posting initially draws too few qualified

applicants. See id.; id. at 996 (Dep. of Valerie Del Rio, Apr. 17, 2008); id. at 999 (Dep.

of Ms. Banks, Apr. 25, 2008).

       We find this explanation both legitimate and nondiscriminatory, so the burden




       5
       (...continued)
would permit a plaintiff to establish a prima facie of discrimination under Title VII. See
Bergene v. Salt River Project Agric. Improvement & Power Dist., 272 F.3d 1136,
1142–43 (9th Cir. 2001) (following application by female employee, supervisor
readvertised job position, changed job requirements to fit male employee’s strengths, then
hired male employee; the court noted the parties’ agreement that plaintiff had established
a prima facie case of discrimination).

                                             -31-
shifts to Ms. Conroy to show that the proffered reason is pretextual.6 See Jones, 349 F.3d

at 1266 (noting that, at the second stage of McDonnell Douglas, the employer need only

“explain its actions against the plaintiff in terms that are not facially prohibited by Title

VII” (quoting EEOC v. Flasher Co., 986 F.2d 1312, 1317 (10th Cir. 1992)) (internal

quotation marks omitted)). Ms. Conroy’s only argument on this front is that the agency’s

actions—relaxing the qualification standards and readvertising the position—are contrary



       6
               Ms. Conroy argues that the agency’s initial memorandum brief in support of
its motion for summary judgment did not provide any explanation for its relisting of the
position. She says that only after she highlighted this failure in her opposition brief did
the agency, in its reply brief, offer an explanation. She complains that this belated
justification deprived her of the opportunity to dispute it and that, as a result, the district
court should have found the agency’s burden under McDonnell Douglas unsatisfied.

        We can hardly fault the Forest Service if it failed initially to perceive that Ms.
Conroy was raising a separate sex discrimination claim pertaining to the spring 2001
relisting, as opposed to a single claim pertaining to her ultimate non-selection in fall
2001. We ourselves had trouble discerning a separate claim. See supra note 4 and
accompanying text. In any event, the district court did not err in considering arguments
in the agency’s reply brief. “Whether a non-moving party has had an opportunity to
respond to a moving party’s reply brief at the summary judgment stage is a ‘supervision
of litigation’ question that we review for abuse of discretion.” Pippin v. Burlington Res.
Oil & Gas Co., 440 F.3d 1186, 1191–92 (10th Cir. 2006). Our case law makes clear that
a district court abuses its discretion only when it both denies a party leave to file a
surreply and relies on new materials or new arguments in the opposing party’s reply brief.
See id.; Doebele, 342 F.3d at 1139 n.13; Beaird v. Seagate Tech., Inc., 145 F.3d 1159,
1164–65 (10th Cir. 1998). Ms. Conroy never sought leave to file a surreply, though
nearly two years passed between the filing of the agency’s reply brief and the district
court’s decision. In the interim, Ms. Conroy “had plenty of opportunity to seek leave of
the court to file a surreply but never attempted to do so.” Pippin, 440 F.3d at 1192.
Accordingly, the district court did not abuse its discretion in considering and relying upon
the agency’s explanation for readvertising the position. And, thus, that explanation also is
a proper consideration for this court; because we find it sufficient, it operates to shift the
burden back to Ms. Conroy to show pretext.

                                             -32-
to Forest Service policy and practice. But this assertion is belied by the record. Agency

policy provides that when there is an insufficient number (namely, three or fewer) of

qualified applicants, a personnel specialist may either certify all applicants as qualified

and forward their names to the selecting official, or advise the selecting official of “viable

options.” Aplt. App. at 631 (Forest Serv. Handbook, dated July 20, 2000). The

uncontroverted testimony of agency officials establishes both that these “viable options”

included relisting a vacancy announcement with revised qualification standards and that it

was common practice for the agency to do just that. See id. at 349, 996, 999.

       Ms. Conroy objects that “there is no legitimate reason to lower the minimum

qualifications simply to get more applicants qualified, particularly when there are already

applicants who are ‘well-qualified’ under the original qualification standard.” Aplt.

Opening Br. at 32. As we understand it, Ms. Conroy’s argument is that changing a job

description to attract more or different candidates, when perfectly qualified candidates

have already applied for the position, is illegitimate per se under Title VII. We are aware

of no rule of law that supports that proposition.7 Of course, the door remains open to

plaintiffs like Ms. Conroy to show that an employer’s reasons for relisting a position are

pretextual and that the relisting was in fact used to discriminate. But on the record in this

case, Ms. Conroy has failed to make that showing.



       7
              And we reiterate that we are expressly leaving open the question whether
readvertising a job vacancy under a revised description, without more, can even constitute
an adverse employment action. See supra note 5.

                                             -33-
       We conclude that no reasonable jury could find the Forest Service’s explanation

for readvertising the position was unworthy of belief and pretextual. We therefore reject

Ms. Conroy’s secondary claim of sex discrimination.

       Based on the foregoing, the district court did not err in granting summary

judgment for the Forest Service on Ms. Conroy’s two claims of sex discrimination

pertaining to the 2001 hiring process.

                                             IV

       Ms. Conroy also has asserted a retaliation claim arising out of the 2004 hiring

process. After Mr. Hager left the INFRA Program Manager position in 2003, the Forest

Service announced the vacancy in February 2004. This time, however, it advertised the

position only in the professional series, rather than in both the professional and

administrative series, as it had done in 2001. Ms. Conroy applied for the newly vacant

position but was found unqualified because she lacked a college degree or equivalent

professional experience. She claims that the agency’s decision to advertise in the

professional series was designed to exclude her and was motivated by a desire to retaliate

against her for the discrimination complaint she filed with the agency after her non-

selection in 2001.

       Under McDonnell Douglas, Ms. Conroy must first make out a prima facie case of

retaliation. To do so, she “must show: ‘(1) that [s]he engaged in protected opposition to

discrimination, (2) that a reasonable employee would have found the challenged action

materially adverse, and (3) that a causal connection existed between the protected

                                            -34-
activity and the materially adverse action.’” Tabor v. Hilti, --- F.3d ---, No. 11-5131,

2013 WL 150225, *8 (10th Cir. Jan. 15, 2013) (quoting Argo v. Blue Cross and Blue

Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006)); see O’Neal v. Ferguson

Constr. Co., 237 F.3d 1248, 1252 (10th Cir. 2001). The Forest Service argues that Ms.

Conroy’s prima facie case fails under the third factor—causation. We agree.

       Under our precedent, the requisite causal connection may be shown by “evidence

of circumstances that justify an inference of retaliatory motive, such as protected conduct

closely followed by adverse action.” O’Neal, 237 F.3d at 1253 (quoting Burrus v. United

Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982)) (internal quotation marks

omitted). Where, however, “very close temporal proximity between the protected activity

and the retaliatory conduct” is lacking, “the plaintiff must offer additional evidence to

establish causation.” Id. As we explain below, we conclude that Ms. Conroy has failed

to establish the requisite temporal proximity, and her additional evidence of causation is

unpersuasive. She has failed, therefore, to make out a prima facie case of retaliation.

                                              A

       In addressing retaliation claims, our cases have never established a precise

temporal line for purposes of determining whether the requisite proximity is present to

establish—at the prima facie stage—the causation element. It appears clear that, if the

adverse action occurs in a brief period up to one and a half months after the protected

activity, temporal proximity alone will be sufficient to establish the requisite causal

inference; but it is equally patent that if the adverse action occurs three months out and

                                            -35-
beyond from the protected activity, then the action’s timing alone will not be sufficient to

establish the causation element. See Anderson v. Coors Brewing Co., 181 F.3d 1171,

1179 (10th Cir. 1999) (“[W]e have held that a one and one-half month period between

protected activity and adverse action may, by itself, establish causation. By contrast, we

have held that a three-month period, standing alone, is insufficient to establish causation.”

(citations omitted)). However, where along the temporal line beyond one and one-half

months but short of three months, the adverse action’s timing ceases to be sufficient,

standing alone, to establish the requisite causal inference is less than pellucid. See, e.g.,

Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (suggesting that “two

months and one week” was “probably too [long] . . . to establish causation by temporal

proximity alone” (emphasis added)).

       We need not concern ourselves with this causation question here, however,

because the agency action that disadvantaged Ms. Conroy is plainly beyond the three-

month mark. Ms. Conroy filed her discrimination complaint in March 2002. The Forest

Service announced the new vacancy—limiting it to the professional series—in February

2004, nearly two years later. By itself, that period of time is “too temporally remote to

support an inference of causation.” Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1182

(10th Cir. 2006).

       Ms. Conroy seeks to avoid this conclusion by arguing that the total amount of time

between her March 2002 agency discrimination complaint (that is, her protected activity)

and the February 2004 job posting is “meaningless” because “the Agency had no reason

                                             -36-
or opportunity to reclassify the position during those two years.” Aplt. Opening Br. at 44.

What matters, in her view, “is how quickly [the agency] acted once it did have a reason

and opportunity to reclassify the position.” Id. Ms. Conroy thus pinpoints the relevant

start and end dates as December 12, 2003—the day the agency learned of her intention to

apply for the newly vacant position—and January 27, 2004—the day that agency

personnel decided to classify the position solely in the professional series. The

intervening period amounts to forty-six days or, assuming a thirty-one-day month, one

month and fifteen days—a period of time that would barely be sufficient under our

precedent, standing alone, to raise the requisite inference of causation. See Anderson, 181

F.3d at 1179 (stating that a one-and-a-half-month period “by itself” establishes

causation).

       We are not persuaded, however, by Ms. Conroy’s argument. As the government

correctly notes, Ms. Conroy’s argument “ignores the rationale behind the temporal

proximity doctrine.” Aplee. Br. at 51. Underlying the law’s recognition that a sufficient

causal inference may arise from adverse action shortly following protected activity is the

notion that such action typically is the product of negative emotions such as anger or

resentment. See Wells v. Colo. Dep’t of Transp., 325 F.3d 1205, 1217 (10th Cir. 2003).

Yet, our ability to draw such a causal inference from an employer’s adverse action

diminishes over time because we may reasonably expect (as a matter of common sense)

that the embers of anger or resentment that may have been inflamed by the employee’s

protected activity—emotions that would underlie any retaliatory adverse action—would

                                            -37-
cool over time. See id. at 1217 (“[A]nger or resentment—the motivation for possible

retaliation—is an emotion that tends to diminish with time.”). Therefore, generally we

measure the temporal period as running from the date of the protected activity to the date

of the adverse action because this approach allows us to more accurately assess whether

an employer’s adverse action likely was motivated by the employer’s protected activity

(that is, whether the protected activity likely caused the adverse action).8

       Ms. Conroy’s proposed approach stands at odds with this temporal-proximity,

causation rationale. That is because she would have us ignore the time period shortly

following her protected activity—the precise period when we ordinarily would expect any

anger or resentment that her activity engendered in the Forest Service to be at its

apex—and instead focus on a period almost two years removed from her protected

activity merely because it was at that point that the Forest Service had its first opportunity

to retaliate against her by taking a very specific adverse action—readvertising the INFRA


       8
               To be sure, we have recognized an exception to this approach for “unique
circumstances,” such as when a plaintiff is absent from work during significant periods
between the protected activity and the adverse action, which may require adjustment of
the time-lapse calculation. See Wells, 325 F.3d at 1217. In such a circumstance, even if
the employer harbors anger or resentment due to the employee’s protected activity, the
employee is unlikely to be a ready target for the employer’s adverse action. See id.
(“Even if [the employer] had a desire to retaliate for the November complaints, it did not
make sense for him to do so until Plaintiff returned to work.”). Ms. Conroy cannot avail
herself of this exception, however. She has not alleged that she was absent from her job
at the Forest Service during any significant period during the relevant time frame—March
2002 to February 2004. Nor has she demonstrated that she was otherwise effectively
insulated in some comparable fashion from retaliation by the Forest Service during this
period.


                                             -38-
position solely in the professional series. Yet, Ms. Conroy has not explained why one

might reasonably expect the Forest Service’s purported retaliatory animus to have

continued to burn hot over such a lengthy period of time. As we stated in Wells, “When

retaliation for an act occurs well after the act, one wonders why the retaliator failed to act

sooner.” 325 F.3d at 1217. Nor has Ms. Conroy attempted to explain why the Forest

Service—even if it harbored retaliatory animus against her—would have viewed the

readvertising of the INFRA position in the professional series as the only possible or

acceptable means to act on its animus. In particular, the government points out, see

Aplee. Br. at 51, and Ms. Conroy does not dispute, that the Forest Service had multiple

opportunities to retaliate against Ms. Conroy in a variety of ways, such as demotion or

transfer, before February 2004 when it readvertised the INFRA position. And, under our

temporal-proximity, causation rationale, we reasonably would have expected the Forest

Service to do so if it in fact harbored retaliatory animus toward Ms. Conroy. But it did

not do so.

       In sum, Ms. Conroy’s temporal-proximity argument constitutes an unwarranted

conceptual departure from our precedent and is unpersuasive. Therefore, we reject her

effort to adjust the relevant time frame for the purpose of analyzing the causation issue; it

remains March 2002 to February 2004—the dates of Ms. Conroy’s protected activity and

the Forest Service’s adverse action, respectively. From that lengthy period of time, alone,

we cannot infer that Ms. Conroy’s protected activity was the cause of the Forest Service’s

asserted adverse action. Accordingly, Ms. Conroy must rely upon “additional evidence”

                                             -39-
in order to make out her prima facie case. O’Neal, 237 F.3d at 1253.

                                               B

       In examining Ms. Conroy’s additional evidence of causation, it bears mention at

the outset that the Forest Service had good reasons to limit the 2004 vacancy

announcement to the professional series. An intervening policy change prohibited the

interchangeable listing that the agency had utilized in 2001, and by 2004, the agency had

to make a choice: list the position in the administrative series or list it in the professional

series, but not both.

       Two individuals were responsible for making this decision. The first was Steve

Solem, the head of the group where the position would be located; and the second was

Donald Fullmer, the immediate supervisor for the position. Both had entered their

positions in 2002, and neither had been involved in Mr. Hager’s 2001 selection, although

both were aware of Ms. Conroy’s agency discrimination complaint regarding that

selection. Messrs. Solem and Fullmer testified that they ultimately opted for the

professional series because, in the prior two years, the “position had continued to develop

into a position requiring more analysis and interpretation of data for the benefit of

management,” Aplt. App. at 324 (Decl. of Mr. Solem, dated Mar. 29, 2007), and the users

of the data “were primarily professionals in various functional areas,” id. at 525 (Dep. of

Mr. Fullmer, Apr. 18, 2008).

       Ms. Conroy first attempts to draw a causal link between her discrimination

complaint and the 2004 readvertisement by pointing to purported “admi[ssions]” by

                                              -40-
certain agency personnel that the INFRA Program Manager position did not require a

college degree. Aplt. Opening Br. at 45. We fail to see how this is relevant since the

Forest Service never maintained that a college degree was required. Professional series

positions require either a college degree or an equivalent level of professional experience.

Ms. Conroy failed to qualify for the position in 2004 because she lacked both. See Aplt.

App. at 697–701 (Decl. of Ms. Del Rio, dated Mar. 30, 2007) (noting that Ms. Conroy

could have qualified in 2004 if she (1) had a college degree, (2) had an equivalent

combination of education and experience, or (3) had “four years of appropriate

experience,” but that she failed on all three grounds).

       Ms. Conroy’s second attempt fares no better. She contends that Mr. Fullmer “had

adopted a negative view of her and accused [her] of refusing to work with Hager after he

became INFRA Program Manager.” Aplt. Opening Br. at 45. As support, she points to

the testimony of Ms. Brackmann, who said that Mr. Fullmer told her about Ms. Conroy’s

strained working relationship with Mr. Hager. Apparently, Mr. Fullmer was aware that it

had not been a “pretty scene” when the newly installed Mr. Hager introduced himself to

Ms. Conroy; that Ms. Conroy refused to work with Mr. Hager; and that Ms. Conroy was

heard “screaming” over the telephone as she complained to a coworker about Mr. Hager’s

selection. Aplt. App. at 901–02. To the extent that this evidence established that Mr.

Fullmer had a “negative view” of Ms. Conroy, Aplt. Opening Br. at 45, it fails to show

causation. Mr. Fullmer’s view was evidently shaped by Ms. Conroy’s alleged conduct at

the office following her non-selection, not by her March 2002 discrimination complaint.

                                            -41-
Thus, again, Ms. Conroy fails to draw the requisite causal link between the protected

activity and the adverse action.

         In a last-ditch effort, Ms. Conroy points to evidence that post-dates all of these

events. She notes that Region 4’s INFRA Program Manager position became available

again in 2008 and that the Forest Service decided to combine the position with the

equivalent position in Region 2 and locate the new position in Denver. Ms. Conroy

believes this is further evidence of the agency’s retaliatory motive. Her only support for

this charge is her own declaration in the district court, which reads as follows: “One of

my colleagues in Denver, Bridget Roth, told me that the acting INFRA Program

Coordinator at that time in Region 2, Pam DeVore, told her that the reason that the

Agency was not advertising the combined INFRA Program Manager position in Utah was

due to my complaint against the Agency.” Id. at 804 (Decl. of Ms. Conroy, dated Feb. 9,

2009).

         For obvious reasons, we must discount the reliability of this double-hearsay

evidence. Cf. Jones v. Unisys Corp., 54 F.3d 624, 632 (10th Cir. 1995) (“This stray

[double-hearsay] remark by someone not in a decision-making position does not establish

intent to discriminate.”). Even if we were to credit it, the most that it might show is a

causal link between Ms. Conroy’s 2002 protected activity and the 2008 relisting.

However, our review of Ms. Conroy’s complaint shows that she most certainly has not

asserted a separate retaliation claim arising out of the 2008 relisting. We therefore find

Ms. Conroy’s evidence both untrustworthy and irrelevant to her 2004 retaliation claim,

                                              -42-
and we conclude that she has failed to establish causation on this ground.

       Absent causation, Ms. Conroy cannot establish a prima facie case of retaliation.

And absent a prima facie case, the Forest Service is entitled to summary judgment. We

thus conclude that the district court did not err in granting summary judgment to the

Forest Service on Ms. Conroy’s claim of retaliation pertaining to the 2004 hiring process.

                                            V

       We AFFIRM the judgment of the district court.




                                           -43-
