                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-2386


ANNE COLLINS,

                      Plaintiff – Appellant,

     v.

BALTIMORE CITY BOARD OF SCHOOL COMMISSIONERS,

                      Defendant – Appellee.


Appeal from the United States District Court for the District of
Maryland, at Baltimore.     Marvin J. Garbis, Senior District
Judge. (1:09-cv-02020-MJG)


Argued:   January 31, 2013                    Decided:   June 10, 2013


Before WILKINSON, SHEDD, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion
in which Judge Wilkinson joined.    Judge Diaz wrote a separate
opinion concurring in part and dissenting in part.


ARGUED: John B. Stolarz, Baltimore, Maryland, for Appellant.
Leslie Robert Stellman, PESSIN & KATZ, PA, Towson, Maryland, for
Appellee.   ON BRIEF: Tammy L. Turner, CITY BOARD OF SCHOOL
COMMISSIONERS, Baltimore, Maryland, for Appellee.



Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:

     Anne Collins appeals the district court’s order granting

summary judgment in favor of the Baltimore City Board of School

Commissioners (“School Board”) on her claims for race and age

discrimination.      For the following reasons, we affirm.

                                         I.

     We    view    the     evidence     in       the   light   most     favorable   to

Collins, the non-moving party.                   Laber v. Harvey, 438 F.3d 404,

415 (4th Cir.       2006) (en banc). 1             Collins, an African American

who was over 60-years old at all relevant times, worked as a

teacher and administrator in the Baltimore City Public School

System    from    1966    until   she   retired        just    before    the   2006-07

academic year.           During her final year of employment, Collins

worked as the Foreign Language Department Head at Patterson High

School.    Collins also served as Director of Patterson’s Twilight




     1
       Collins argues that the doctrine of collateral estoppel
required the district court to accept the facts found by a
Hearing Examiner who took evidence in a grievance that Collins
filed after her retirement.      The district court found that
collateral estoppel did not apply, and we agree.        Even if
Maryland law requires courts to give preclusive effect to an
administrative agency’s decision, Neifert v. Dep’t of Env’t, 910
A.2d 1100, 1112 (Md. 2006), the facts that Collins contends have
preclusive effect are contained in a Hearing Examiner’s
recommendation that the School Board eventually rejected.
Therefore, the facts do not represent an administrative agency’s
decision, and they have no preclusive effect.



                                             2
Program, an evening program offered at several schools in the

district.

      After the 2005-06 school year concluded, Collins wrote to

Patterson’s principal, Laura D’Anna, in response to an inquiry

about teaching summer school.              Collins informed D’Anna that she

did not wish to teach summer school, and she also expressed her

opinion     that     she   was     overworked       and   underappreciated    at

Patterson and that she needed “to take this chance to have a new

beginning.”        J.A. 274.      Though Collins did not intend for the

letter to be a transfer request, D’Anna interpreted it that way

and informed Human Services Specialist David Bonn that Collins

wished to be transferred.            She also told Bonn that Collins had

taught French in the past, which led Bonn to assume that Collins

was   certified      to    teach     the       subject.     Accordingly,     Bonn

transferred Collins to a French teaching position at Forest Park

High School, which paid approximately $3000 per year less than

the   Department       Head      position      Collins    held   at   Patterson.

Although     Bonn    understood      that       Collins    had   requested    the

transfer, he checked the “demotion” box on the School Board’s

Human Resources Change Form because Collins’s new position paid

less than her old one.             Further, he did not check the box to

indicate that the transfer was “voluntary” because Collins had

not completed the paperwork required for Bonn to classify the

transfer as “voluntary.”

                                           3
       The School Board did not replace Collins as Department Head

at Patterson because Patterson phased out that position at the

time of Collins’s transfer.                    Tiffany Clark, an African American

in   her         30s,    replaced     Collins       as   Director      of    the    Twilight

Program.

       When Collins arrived at Forest Park to begin the 2006-07

academic year, two problems arose.                        First, Collins was upset

that       she    was     assigned    to   a    teaching      position       instead    of   a

Department            Head    position.         Second,       Bonn’s    assumption         that

Collins was certified to teach French was incorrect, and Forest

Park       had     no     available      positions       in    subjects       Collins      was

certified to teach.               Both Bonn and the Forest Park principal,

Loretta Breese, encouraged Collins to file a grievance, and they

agreed to allow her to teach French at Forest Park during the

pendency         of     the   grievance.        Collins    declined      this      offer   and

retired.           She    then   filed     a    grievance      with    the   School     Board

seeking reinstatement to her previous position at Patterson, but

the School Board did not reinstate her. 2

       Collins then filed suit in federal district court, alleging

race and age discrimination under Title VII of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et. seq., and the

       2
       The grievance did not allege race or age discrimination
but  merely   claimed  that  the  action  was  “arbitrary  and
capricious.” J.A. 627.



                                                4
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621

et. seq., respectively.             After discovery, the School Board moved

for summary judgment.             The district court granted the motion and

entered judgment in favor of the School Board.                        Collins appeals

that judgment.

                                            II.

                                             A.

       We review the district court’s grant of summary judgment de

novo.        Nader    v.   Blair,     549    F.3d    953,    958    (4th      Cir.    2008).

Summary judgment is appropriate where, viewing the evidence in

the light favorable to the non-moving party, there is no genuine

issue of material fact and the movant is entitled to judgment as

a matter of law.           Id.

                                             B.

       As    did     the   district    court,       we    analyze     Collins’s       claims

under    the       framework     developed    in     McDonnell      Douglas      Corp.      v.

Green,       411    U.S.    792    (1973)     (analyzing         race       discrimination

claim); see also Hill v. Lockheed Martin Logistics Mgmt., Inc.,

354 F.3d 277, 285 (4th Cir. 2004) (applying McDonnell Douglas

framework to age discrimination claim).                      Under this framework,

Collins bears the initial burden of establishing a prima facie

case    by    producing      evidence       that    (1)    she   is     a    member    of   a




                                             5
protected class, (2) she suffered an adverse employment action, 3

(3) she was performing satisfactorily at the time of her adverse

employment          action,    and   (4)     the       adverse   employment   action

occurred “under circumstances which give rise to an inference of

unlawful discrimination.”              Miles v. Dell, Inc., 429 F.3d 480,

484-87 (4th Cir. 2005) (quoting Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981)).                      If Collins establishes a

prima facie case, the burden shifts to the School Board to set

forth a legitimate, non-discriminatory reason for the adverse

employment action.             Price v. Thompson, 380 F.3d 209, 212 (4th

Cir.       2004).      Then,   to    avoid   summary       judgment,   Collins     must

produce evidence that the School Board’s stated reason for the

adverse action is pretextual.                    Id.     However, “[t]he ultimate

burden of persuading the trier of fact that the [School Board]

intentionally         discriminated     against         [Collins]   remains   at   all

times with [Collins].”               Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 143 (2000), quoting Burdine, 450 U.S. at

253.




       3
        Collins   argues   that   the  transfer   constituted   a
constructive discharge.    We need not address that contention
because, for our analysis, we will assume that the transfer,
along with the accompanying pay decrease and failure to be
reappointed as Director of the Twilight Program, was an adverse
employment action within the meaning of Title VII and the ADEA.



                                             6
       In analyzing the School Board’s motion, the district court

began by assuming that Collins established a prima facie case of

age and race discrimination.                   The court then found that the

School Board offered a legitimate, non-discriminatory reason for

the    adverse     action:      it     transferred             Collins    because       D’Anna

interpreted      Collins’s          letter    as        a    request     for    a    transfer.

Finally, the district court concluded that Collins failed to

produce       evidence       that    the      School         Board’s     explanation         was

pretextual and thus granted summary judgment in favor of the

School Board.

       On appeal, Collins contends that the district court erred

by    concluding      that    she     failed       to       produce    evidence      that    the

School Board’s explanation for transferring her was pretextual.

Collins also contends that the district court improperly applied

a “pretext-plus” standard by requiring that she produce evidence

that    the    School    Board’s       stated      reason        for    the     transfer      was

pretextual      and     evidence       that    discrimination             was    the    actual

reason for the transfer.                   As explained below, none of these

contentions requires reversal.                Accordingly, we affirm.

                                              1.

       We first address Collins’s race discrimination claim.                                 With

regard    to    that     claim,       we   conclude           that     Collins      failed    to




                                              7
establish a prima facie case, and, for that reason, we affirm

the district court’s entry of summary judgment. 4

     As explained above, to establish the fourth element of her

prima facie case, Collins must show that her transfer occurred

“under circumstances which give rise to an inference of unlawful

discrimination.”             Burdine,   450       U.S.     at     253.      Usually,        a

plaintiff       does    so   by    showing       that   she      was   replaced      by    an

individual outside her protected class, Miles, 429 F.3d at 486,

which    is    what    Collins     attempts       here.         Specifically,     Collins

contends       that    she   was   replaced       as    Department       Head   by   Kelly

Flores,    a    Caucasian.         However,      the    record     evidence     does      not

support that contention.              The evidence Collins cites for her

contention is testimony from another teacher, Erika Edwards, who

stated    that    it    “seemed”     that    Flores       had    replaced   Collins       as

Department Head because Flores began working out of the office

Collins had occupied and became “kind of the go-to” teacher when

other teachers had questions.               J.A. 769.         However, Flores denied

that she took on the responsibilities of a Department Head, and

D’Anna testified that Patterson did not fill the position after

Collins transferred.           This record is insufficient to support an


     4
       We      may affirm for any reason appearing on the record, even
if that        reason was not the basis of the district court’s
opinion.        Republican Party of N.C. v. Martin, 980 F.2d 943, 952
(4th Cir.      1992).



                                             8
inference      that       Flores    replaced       Collins         as   Department       Head.

Therefore, Collins failed to establish the fourth element of her

prima facie case of race discrimination.                        Accordingly, we affirm

the    district     court’s        entry    of    summary      judgment       on   the    race

discrimination claim.

                                             2.

       We next turn to Collins’s age discrimination claim.                                  On

this       claim,   she     has      established         a     prima     facie     case     of

discrimination by producing evidence to establish all elements

of her prima facie case, including that she was replaced as

Director      of    the    Twilight        Program    by       a    person    outside      the

protected class.            However, we agree with the district court’s

conclusion that Collins produced no evidence that the School

Board’s explanation for its action was pretextual.                            Accordingly,

we affirm.

       Collins asserts that a number of factors support her claim

of pretext, but we discuss only one. 5                             Collins contends the

School      Board’s   explanation          that    she       requested    a   transfer      is

inconsistent        with     the     Human        Resources         Change     Form      which

indicated the transfer was a demotion and did not indicate that




       5
        Collins’s other claims here either address her race
discrimination claim or are otherwise irrelevant to her age
discrimination claim.



                                              9
the transfer was voluntary.                 However, the administrative record

of the transfer does not support an inference of pretext.

       D’Anna       has    consistently        asserted          that   she    interpreted

Collins’s letter as a transfer request, an interpretation that

we consider a reasonable one under the circumstances.                                  Thus,

even if the School Board mistakenly interpreted the letter as

such       a   request,    this     mistake    is     not    evidence     of   pretext      or

discrimination.           Price, 380 F.3d at 215 n.1 (“[M]ere mistakes of

fact are not evidence of unlawful discrimination.”); see also

Jordan v. Summers, 205 F.3d 337, 344 (7th Cir. 2000) (“Pretext

is a lie, not merely a mistake.”).                        The Human Resources Change

Form       which    Bonn        completed     is     not     inconsistent       with      this

explanation.             Bonn    believed     that        Collins   had   requested       the

transfer, but Bonn still marked the “demotion” box on the Human

Resource Change Form because of the pay decrease. 6                            Further, he

did not mark the “voluntary transfer” box because he lacked the

requisite paperwork.              There is no testimony that either of these

boxes was marked as it was because anyone associated with the

school         thought    the    transfer     was    not     voluntary.        Given      this

uncontradicted explanation, the form is not inconsistent with

the    School      Board’s       explanation        for    the    transfer     and   is    not


       6
       We note that a demotion is not itself proof that the
transfer is not voluntary.



                                              10
evidence of pretext.       See Hearn v. R.R. Donnelley & Sons Co.,

739 F.2d 304, 308 (7th Cir. 1984) (no inference of pretext where

defendant       gave   uncontradicted    explanation   of    potentially

“‘suspicious     circumstances’”   surrounding   personnel   documents).

Accordingly, we conclude that Collins failed to produce evidence

of pretext. 7


     7
       The dissent misconstrues our opinion in a number of ways.
For instance, the dissent asserts that we “proclaim the School
Board’s rationale ‘uncontradicted’.” We do not; we merely point
out that the School Board’s explanation of its administrative
record is uncontradicted, which is true.     Further, we do not
“credit[] the School Board’s side in this dispute.” We have not
weighed   the  School   Board’s  explanation  against  Collins’s
allegations and decided which is more credible.       Under our
analysis, which is appropriate whenever there is a question of
possible pretext, we take the explanation offered by the
employer and examine it in light of any contrary evidence in the
record. That process does not “credit,” but instead tests, the
School Board’s rationale.

     The dissent uses what it sees as inconsistencies by the
School Board to help create an inference of age (but not race)
discrimination. Even if we were to find those “inconsistencies”
in the record, they would be insufficient to create such an
inference.   The ultimate burden of persuasion rests with the
plaintiff, Reeves, 530 U.S. at 143, and such inconsistency
without more is not enough.   Id. at 148 (“Certainly there will
be instances where, although the plaintiff has established a
prima facie case and set forth sufficient evidence to reject the
defendant’s explanation, no rational factfinder could conclude
that the action was discriminatory.); see also Price, 380 F.3d
at 217 n.5 (“although Reeves will allow a plaintiff to survive
summary judgment without presenting independent evidence of
discrimination . . ., it will permit this only where the other
evidence of discrimination . . . ensure[s] that the employer is
held liable for unlawful discrimination and not merely for
inconsistent statements.”); Millbrook v. IBP, Inc., 280 F.3d
1169, 1183 (7th Cir. 2002) (explaining that, even if the
plaintiff had produced evidence of pretext, that evidence alone
(Continued)
                                    11
                              III.

     For the foregoing reasons, we affirm the district court’s

entry of summary judgment in favor of the School Board.

                                                          AFFIRMED




would not entitle the plaintiff to a jury determination because
“[t]here is absolutely no other evidence of intentional
discrimination—not one racist comment, nor any harassment.”);
Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 94 (2d
Cir. 2001) (assuming that the plaintiff had produced evidence of
pretext but still affirming summary judgment for the defendant
because the evidence of pretext alone was “not enough to permit
a jury to find that the real reason [plaintiff] was fired was
his age” in light of evidence to the contrary).



                               12
DIAZ, Circuit Judge, concurring in part and dissenting in part:

     I agree with my colleagues that the district court properly

granted summary judgment to the Baltimore City School Board on

Collins’s Title VII race discrimination claim because Collins

failed to establish a prima facie case.                     But given the multiple

flaws      and         inconsistencies             in      the     School        Board’s

nondiscriminatory         rationale,      I    cannot      agree   that   Collins    has

failed to offer adequate evidence of pretext with regard to her

separate Age Discrimination in Employment Act (“ADEA”) claim, 29

U.S.C. § 621 et seq.

     It    is    simply    not    our   place       to    deem   the   School    Board’s

explanation--that it believed Collins requested reassignment--

“reasonable”      or    genuine,    for       Collins     has    produced   sufficient

evidence to discredit that justification and create a triable

issue as to pretext.             See Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 147-48 (2000).                      Accordingly, I respectfully

dissent from the majority’s adjudication of the ADEA claim (Part

II.B.2).



                                              I.

     The Baltimore City School Board hired Collins in 1966 as a

foreign language teacher at Patterson High School.                              In 1973,

Collins was promoted to Foreign Language Department Head.                             In

2002, Collins was appointed as director of the evening “Twilight
School”     program       for     older       students           seeking       a     high     school

diploma.          Both        positions        entailed           additional          supervisory

responsibilities for which Collins received a stipend.

      In   June     2006,       Collins       and    Principal          Laura       D’Anna       had    a

conversation        in        which     Collins           expressed       interest          in     the

assistant     principal          position           at     Patterson.               After     D’Anna

explained that she lacked the authority to hire Collins for that

position,    Collins          supposedly       conveyed           her   desire       for     a     “new

beginning.”        J.A. 345.          Collins later wrote a letter to human

resources     expressing          her        dissatisfaction            with        the     school’s

criticism and under-appreciation of her performance.                                      The letter

concluded    that        “I    have     to    take        this    chance       to    have     a    new

beginning.         I     can     only     hope       that        this    September          will       be

different and that my worth will be realized.”                             J.A. 274.

      D’Anna claims that she misinterpreted Collins’s suggestion

for   a    “new     beginning,”          both        in    the     conversation             and     the

subsequent letter, as a formal request for reassignment to a

different school.             As a result, D’Anna informed Human Resources

Specialist David Bonn that Collins had requested a transfer.

Bonn prepared a Human Resources Change Form to authorize the

reassignment,       which       he    admitted           constituted       a       demotion,       and

designated        the     transfer       as      an       administrative,             involuntary

reassignment to Forest Park High School.                                Neither Collins nor

the School Board submitted a “Transfer Request Form,” which the

                                                14
Collective           Bargaining           Agreement       required          for      voluntary

transfers, and which directed teachers to “list their choices of

new assignment in order of priority.”                      J.A. 354.

       Collins received a notification of reassignment on August

19, 2006, which ordered her to report for work at Forest Park

four    days     later.         The        reassignment       resulted        in     a     $3,000

reduction       in    salary    because       Collins       would     not    serve        as   the

Foreign Language Department Head or Twilight Director at Forest

Park.     D’Anna appointed Tiffany Clark, a substantially younger

employee, to replace Collins as Twilight Director at Patterson.



                                              II.

                                               A.

       Plaintiffs asserting ADEA claims may, just as with Title

VII    claims,       establish       liability        through       direct        evidence     of

discrimination          or     through       the     circumstantial          proof        scheme

delineated in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973).     See Laber v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006)

(en    banc).         Because       the    majority       concedes    that        Collins      has

satisfied       the     prerequisites         for     a     prima     facie        case    under

McDonnell       Douglas       for    her     ADEA    claim,     the    question           becomes

whether    a    jury     could       find     that    the    School     Board’s           alleged

nondiscriminatory            rationale      for     its    adverse    employment          action



                                               15
was pretext for discrimination.        See McDonnell Douglas, 411 U.S.

at 804-05.

     My colleagues here improperly penalize Collins because at

the summary judgment stage she had nothing to show in the way of

discriminatory    animus    except         the    falsity    of      the

nondiscriminatory explanation offered by her employer.            Yet in

Reeves, the Supreme Court explained that a plaintiff can create

a triable issue of discrimination simply by discrediting the

employer’s nondiscriminatory rationale:

     Proof that the defendant’s explanation is unworthy of
     credence is simply one form of circumstantial evidence
     that is probative of intentional discrimination, and
     it   may  be   quite   persuasive.     In  appropriate
     circumstances, the trier of fact can reasonably infer
     from the falsity of the explanation that the employer
     is dissembling to cover up a discriminatory purpose.
     Such an inference is consistent with the general
     principle of evidence law that the factfinder is
     entitled to consider a party’s dishonesty about a
     material fact as affirmative evidence of guilt.
     Moreover, once the employer’s justification has been
     eliminated, discrimination may well be the most likely
     alternative explanation, especially since the employer
     is in the best position to put forth the actual reason
     for its decision. Thus, a plaintiff’s prima facie
     case, combined with sufficient evidence to find that
     the employer’s asserted justification is false, may
     permit the trier of fact to conclude that the employer
     unlawfully discriminated.

Reeves, 530 U.S. at 147-48 (internal quotations and citations

omitted).

     Reeves did qualify its holding with the following proviso:

“This is not to say that such a showing will always be adequate


                                  16
to sustain a jury’s finding of liability.                         Certainly there will

be instances where, although the plaintiff has established a

prima facie case and set forth sufficient evidence to reject the

defendant’s explanation, no rational factfinder could conclude

that the action was discriminatory.”                          Id. at 148.            Yet the

majority mistakenly cites this exception as the rule, omitting

the    representative       “instances”       that       the    Court    highlighted        as

sufficient to take the case away from a jury.

       So, for example, it may well be appropriate for a district

court to grant summary judgment to an employer, even when the

plaintiff      has     provided   evidence         of    pretext,       (1)    where     “the

record    conclusively         reveal[s]          some    other,       nondiscriminatory

reason for the employer’s decision,” or (2) “if the plaintiff

create[s] only a weak issue of fact as to whether the employer’s

reason was untrue and there [is] abundant and uncontroverted

independent      evidence      that    no    discrimination            ha[s]    occurred.”

530    U.S.     at   148.      Neither       circumstance          though      applies      to

Collins’s claim.

       The majority also cites two circuit cases, apparently for

the principle that there must be some affirmative evidence of

unlawful animus to create a triable issue of discrimination.

But to the extent either Millbrook v. IBP, Inc., 280 F.3d 1169,

1183    (7th    Cir.    2002),    or    Slattery         v.    Swiss    Reinsurance      Am.

Corp.,    248    F.3d    87,     94    (2d   Cir.        2001),    stand       for   such    a

                                             17
proposition, they are wrong and we should not follow suit.                                     The

singular legacy of Reeves was the demise of the “pretext-plus”

proof regime that the majority now resurrects and applies.

       The holding in Reeves reflects a practical reality.                                      An

employer       is    not     likely   to      leave         behind     direct       evidence    of

intentional         discrimination,          in    which       case    the     only    available

proof    of    unlawful        animus      will        be     the   lie      that    covers    it.

Diamond v. Colonial Life & Accident Ins., 416 F.3d 310, 318 (4th

Cir. 2005) (“The pretext framework advances that interest by

compensating for the fact that direct evidence of intentional

discrimination          is    hard      to    come          by.”     (internal        quotations

omitted)).          This is why “the factfinder is entitled to consider

a   party’s         dishonesty     about      a        material       fact     as    affirmative

evidence       of     guilt.”         Reeves,           530    U.S.       at   147     (internal

quotations omitted).

       Of course, liability ultimately requires the trier of fact

to not only find an employer’s justification to be false, and

thus pretextual, but also find the explanation to be pretext for

discrimination.            See Price v. Thompson, 380 F.3d 209, 217 n.5

(4th    Cir.    2004).        At   summary         judgment,         however,       Reeves    only

requires the plaintiff to prove the former for the jury to have

a “legally sufficient basis” to find the latter at trial.                                      See

Reeves, 530 U.S. at 147-48.



                                                  18
                                            B.

       Collins has sufficiently discredited the nondiscriminatory

explanation, accepted by the majority, that the School Board

mistakenly      believed     that     she    requested        a   transfer.        As     an

initial matter, the School Board’s straight-faced assertion that

it actually believed an employee would want to suffer an adverse

employment action is “inherently suspect.”                        Barnes v. GenCorp

Inc., 896 F.2d 1457, 1469 (6th Cir. 1990).

       Further discrediting this assertion is the School Board’s

failure to ensure that such a significant action, predicated

upon an ambiguously expressed request for a “new beginning,” was

what Collins truly desired--a step that the School Board at oral

argument acknowledged a reasonable employer would have pursued.

Instead,    after    D’Anna      informed        Bonn   that      Collins      wished     to

transfer, Bonn immediately initiated the reassignment process,

without anyone within the Baltimore City school system checking

with Collins to confirm her supposed request.                           In particular,

D’Anna never followed up to ensure that Collins’s desire for a

“new    beginning”--which        could      have     just    as   easily       connoted    a

figurative       “fresh     start”     at    Patterson         the     next     year--was

actually a request for reassignment.

       Collins     denies     that     she       ever       requested      a    transfer,

explicitly or implicitly, and points to the fact that the School

Board   never     asked    her   to   file       a   “Transfer       Request     Form”    as

                                            19
required by the Collective Bargaining Agreement.                                   Among other

things,    the      form    would       have    allowed          Collins    to    “list    [her]

choices of new assignment in order of priority.”                            J.A. 354.

      More importantly, the School Board itself designated the

reassignment as an involuntary, administrative transfer.                                     The

School Board insists this was a clerical error, and that it did

not   check     the      “voluntary”         box     on    the     reassignment      paperwork

because it did not receive a “Transfer Request Form.”                                    Yet, no

one from the School Board (1) requested that Collins fill out

such a form to comply with its own internal policies, or (2)

inquired what schools Collins preferred for reassignment, when

she   wanted       to    start,        or   what     classes       she    wanted    to    teach.

Instead, by way of an involuntary administrative transfer, the

School    Board         unilaterally        removed        and     reassigned      Collins      to

Forest Park High School and notified Collins of her reassignment

just four days before she was to report for work.

      On this record, a reasonable jury could find that this was

not a voluntary transfer, thereby impugning the School Board’s

explanation that it actually believed that it was.                                 At the very

least,    the      notion    that       Collins’s         reassignment       was    a    genuine

response      to    an     employee’s         request        seems       questionable      as   a

factual     matter.              The    School       Board’s        unilateral       conduct--

including        its       own     designation             of      the     reassignment         as

“involuntary”--simply              does        not        square     with     a     supposedly

                                                20
voluntary transfer.          The rash mistake by D’Anna, the clerical

discrepancy on the reassignment form, the breach of the School

Board’s own reassignment policies, and the serial failures by

the School Board to follow up on any of the aforementioned signs

that    the    transfer    was   a   mistake,   together     belie    the   School

Board’s story that it transferred Collins because it actually

and mistakenly believed that is what she wanted.

       Further diminishing the credibility of the School Board is

its inability to offer a coherent explanation for this sequence

of errors.       Before the district court, the School Board never

admitted a mistake and instead claimed that Collins requested

the transfer.         Before us, the School Board admitted that it

would have been wrong to designate the transfer as voluntary,

and at one point suggested that the adverse employment action

was    an    involuntary   reassignment      designed   to   resolve    personal

friction between D’Anna and Collins and remove a malcontented

employee from the school.

       Taken together, this evidence may not inexorably lead a

jury    to    find   discriminatory     animus,   but   there    is    certainly

something amiss with the School Board’s shifting explanations

for reassigning Collins.             A jury could find that the School

Board was negligently but genuinely mistaken, but it could just

as easily “infer from the falsity of the explanation that the



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employer is dissembling to cover up a discriminatory purpose.”

Reeves, 530 U.S. at 147.

      My colleagues are correct that a genuine mistake is not

evidence of pretext.               See Price, 380 F.3d at 215 n.1.                          But

because the majority is plainly wrong to proclaim the School

Board’s rationale “uncontradicted,” Maj. Op. at 10, it is for a

jury, not the majority, to resolve whether a bona fide mistake

was   indeed     the    reason         for    the   reassignment.            It    is   worth

remembering that Collins’s burden at summary judgment “is one of

production,      not    persuasion;            it   can    involve      no    credibility

assessment.”        Reeves,        530       U.S.   at    142    (internal        quotations

omitted)).       By improperly crediting the School Board’s side in

this dispute, my colleagues have failed in their charge to “view

the facts and draw all reasonable inferences therefrom in the

light   most     favorable        to    [Collins],        as    the   nonmoving      party.”

Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144, 150 (4th Cir.

2012) (internal quotations omitted).

      This   case      is   not    about       whether     the    evidence        offered   by

Collins establishes liability, but rather whether the evidence

provides     a   legally     sufficient         basis     for    a    jury   to    find     for

Collins on her ADEA claim.                   Reeves merely provides Collins with

her day in court.           The trier of fact may still choose to believe

the School Board’s asserted rationale, or may even conclude that

the explanation was pretext for something other than unlawful

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discrimination.      But   because   Collins   has   provided    sufficient

evidence   that   the   School   Board’s   explanation   for    reassigning

Collins    was “unworthy of credence,” Reeves, 530 U.S. at 147,

she is entitled to a trial on her ADEA claim.             I respectfully

dissent from that portion of the majority’s decision holding

otherwise.




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