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No pretext in male candidate’s promotion

Panel interviews of four candidates – even split by gender – to fill a U.S. Marshals Service leadership position provided no basis to find that the proffered reasons for selecting a male candidate were a pretext for gender discrimination.


Plaintiff Theresa Russell has been an employee of the U.S. Marshals Service since 2000. In 2016, the Marshals Service announced a vacancy for Chief of the Business Integration Center, one of three centers supporting the Marshals Service’s Judicial Security Division. At the time of the announcement, T. Bearden was serving as Acting Chief.

A three-member panel interviewed four candidates for the position, including Russell and Bearden. Two candidates were women, and two were men. The panel’s task was to recommend the best qualified candidate from those interviewed. During the interviews, the panelists asked the candidates the same core set of questions in order to provide an objective basis for comparison.

Two of the three panelists recommended Bearden; the third did not recommend any candidate. The Assistant Director of the Judicial Security Division adopted the panel’s recommendation and announced the selection of Bearden to fill the Chief position.

Russell brought this action alleging that her non-selection was the result of gender discrimination in violation of Title VII.

Nondiscriminatory reason

Russell has established a prima facie case of gender discrimination, but the Defendants have provided a legitimate, nondiscriminatory justification for selecting a man for Russell’s desired position.

Because the Defendants’ burden is production only, Russell’s contention that the proffered justification is insufficiently specific fails. The Defendants have produced ample evidence that the panelists recommended Bearden over Russell on the basis of his interview answers and job experience – widely recognized as valid, non-discriminatory bases for any adverse employment decision. Specifically, panelists said Bearden demonstrated a “more analytical acumen” and “far greater understanding of the subject matter.” He also was found to have been an effective Acting Chief and had a “leaderships skill set” and “the ability to get people to respond that weren’t direct reports.”

Russell cites no 4th Circuit cases imposing a requirement that the Defendants’ subjective assessments must be grounded in a clear and specific basis; nor does she cite any evidence that the Marshals Service failed to adequately support its subjective assessments.

The burden shifts back to Russell to prove that its proffered justification is pretextual.

Pretext not shown

First, Russell alleges that the Defendants’ explanation for not selecting her has varied over time, evincing pretext. Although the panelists didn’t always give the same examples of how Bearden was more qualified, the reasoning that he was chosen because of his interview responses and experience has remained consistent throughout.

Russell’s positive performance evaluation signed by one of the panelists does not cast doubt on his later assessment that Bearden was better qualified for the role of Center Chief. A performance evaluation is different from a promotion decision: The former addresses how an employee functions in her current position, whereas the latter forecasts how she will function in a different position.

Russell has also failed to demonstrate that her qualifications are substantially superior to Bearden’s for purposes of showing pretext. They both served in GS-14 positions for six years prior to the chief selection at issue. Each had experience the other did not. Bearden had experience relevant to the Center Chief position, namely serving as Acting Chief for five months. While Russell held a position in the same job series as the Center Chief, her experience is not so substantially superior as to make the Defendants’ justification pretextual. Russell’s disagreement with the panelists’ assessment of the nature of her current job, the accuracy of her resume, and the strength of her leadership skills does not raise a genuine dispute of material fact.

Finally, Russell fails to provide evidence that establishes a general pattern of gender discrimination by the Defendants. The other circumstances she points to are distinct from her own situation, not appropriate comparators to show a pattern of discrimination. Russell has not established that the number of female candidates selected was disproportionate compared to the number of qualified female candidates; nor does she provide an adequate sample size. Rather, she selectively relies on only three certain selection decisions that lack probative value.

Because Russell has not established that the Defendants’ legitimate, nondiscriminatory justification for Bearden’s selection is pretextual, her Title VII clam fails as a matter of law.

Defendants’ motion for summary judgment granted.

Russell v. Sessions, Case No. 1:18cv163, Aug. 29, 2018. EDVA at Alexandria (Ellis). VLW No. 018-3-358, 23 pp.