Thierry v. EEOC, 10th Cir. Brief as appellee Oct. 6, 2004 No. 04-6175 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT MARK V. THIERRY, Plaintiff-Appellant, v. UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and CARI M. DOMINGUEZ, CHAIR, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Defendants-Appellees. ______________________________________________ On Appeal from the United States District Court for the Western District of Oklahoma Hon. Tim Leonard ______________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND CARI M. DOMINGUEZ, CHAIR ______________________________________________ ERIC S. DREIBAND DORI K. BERNSTEIN General Counsel Attorney VINCENT J. BLACKWOOD EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION Office of General Counsel CAROLYN L. WHEELER 1801 L Street, N.W., Room 7046 Assistant General Counsel Washington, D.C. 20507 (202) 663-4734 ORAL ARGUMENT IS NOT REQUESTED TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . ii JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . .2 Nature of the Case. . . . . . . . . . . . . . . . . . . . . .2 Course of Proceedings and Disposition in the Court Below. . .2 Statement of Facts. . . . . . . . . . . . . . . . . . . . . .2 District Court Decision . . . . . . . . . . . . . . . . . . 18 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . 21 STATEMENT OF THE STANDARD OF REVIEW. . . . . . . . . . . . . . . 21 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 MR. THIERRY DID NOT PRESENT EVIDENCE FROM WHICH A REASONABLE JURY COULD FIND THAT HE WAS NOT PROMOTED BECAUSE OF HIS RACE, OR BECAUSE HE PARTICIPATED IN AN INVESTIGATION OF A SEXUAL HARASSMENT COMPLAINT. . . . . . . . . . . . . . . . . . . . 22 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 CERTIFICATE OF COMPLIANCE WITH RULE 32(a). . . . . . . . . . . . 36 ADDENDA Docket Sheet Order and Judgment of the District Court CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page Cases Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . . . . . . . . . . . . . . . . . . . 25 Anderson v. Coors Brewing Co., 181 F.3d 1171 (10th Cir. 1999). . . . . . . . . . . . . . . . 28 Annett v. University of Kansas, 371 F.3d 1233 (10th Cir. 2004). . . . . . . . . . . . 23, 26, 27 Bullington v. United Air Lines, Inc., 186 F.3d 1301 (10th Cir. 1999), overruled on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) . . . . . . . . . . . . . . . . . . . 30, 34 Byers v. City of Albuquerque, 150 F.3d 1271 (10th Cir. 1998). . . . . . . . . . . . . . . . 21 Colon-Sanchez v. Marsh, 733 F.2d 78 (10th Cir.), cert. denied, 469 U.S. 855 (1984) . . . . . . . . . . . . . . . . . . . . . 19 EEOC v. Flasher Co., Inc., 986 F.2d 1312 (10th Cir. 1992). . . . . . . . . . . . . . . . 29 English v. Colorado Department of Corrections, 248 F.3d 1002 (10th Cir. 2001). . . . . . . . . . . . . . 23, 26 Fischbach v. District of Columbia Dep't of Corrections, 86 F.3d 1180 (D.C. Cir. 1996) . . . . . . . . . . . . . . . . 30 Jones v. Denver Post Corp., 203 F.3d 748 (10th Cir. 2000) . . . . . . . . . . . . 21, 23, 29 Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672 (7th Cir. 1997). . . . . . . . . . . . . . . . . 20 L & M Enterprises v. BEI Sensors & Systems Co., 231 F.3d 1284 (10th Cir. 2000). . . . . . . . . . . . . . . . 22 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . 23, 26 Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288 (1960) . . . . . . . . . . . . . . . . . . . . . 25 National Labor Relations Board v. Scrivener, 405 U.S. 117 (1972) . . . . . . . . . . . . . . . . . . . . . 24 Randle v. City of Aurora, 69 F.3d 441 (10th Cir. 1995). . . . . . . . . . . . . . . . . 19 Robinson v. Shell Oil, 519 U.S. 337 (1997) . . . . . . . . . . . . . . . . . . . 24, 25 Simms v. Oklahoma, 165 F.3d 1321 (10th Cir. 1999). . . . . . . . . . . . 27, 29, 32 Statutes 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . . .1 Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-16. . . . . . . . . . . . . . . . . . 1, 2, 22 Page Rules and Regulations Fed. R. App. P. 4(a)(1)(B) . . . . . . . . . . . . . . . . . . 1, 2 Fed. R. App. P. 32(a). . . . . . . . . . . . . . . . . . . . . . 36 Fed. R. Civ. P. 56(c). . . . . . . . . . . . . . . . . . . . . . 21 29 C.F.R. § 1614.101(b). . . . . . . . . . . . . . . . . . . . . 22 10th Cir. R. 28.1(B) . . . . . . . . . . . . . . . . . . . . . . .1 10th Cir. R. 30.1. . . . . . . . . . . . . . . . . . . . . . . . .1 Administrative Guidance EEOC Compliance Manual, Section 8: Retaliation, No. 915.003 (May 20, 1998). . . . . . 26 There are no prior or related appeals. See 10th Cir. R. 28(C)(1). JURISDICTIONAL STATEMENT Mark V. Thierry, an employee of the Equal Employment Opportunity Commission (EEOC or Commission), sued the EEOC and Cari M. Dominguez, Chair of the EEOC<1>, in federal district court for the Western District of Oklahoma, pursuant to Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-16. Doc. 1 (Complaint) at p. 1.<2> The district court had jurisdiction over Mr. Thierry's Title VII claims pursuant to 28 U.S.C. §§ 1331, 1343 and 42 U.S.C. § 2000e-16(c), (d). Final judgment was entered on March 25, 2004. Doc. 54 (Judgment). Mr. Thierry timely filed a notice of appeal on May 24, 2004. Doc. 55 (NOA). See Fed. R. App. P. 4(a)(1)(B). This Court has appellate jurisdiction under 28 U.S.C. § 1291. STATEMENT OF THE ISSUE Did Mr. Thierry present evidence from which a reasonable jury could find that he was not promoted because of his race, or because he participated in an investigation of a sexual harassment complaint? See Doc. 53 (SJ Order) at p. 9. STATEMENT OF THE CASE Nature of the Case In this Title VII action, brought under 42 U.S.C. § 2000e-16(c), Mr. Thierry, an EEOC employee, claims he was not promoted because of his race, or because he participated in an investigation of a sexual harassment complaint. Doc. 1 at pp. 3-5. Mr. Thierry appeals from an order granting summary judgment in favor of the EEOC. Doc. 53 (SJ Order). Course of Proceedings and Disposition in the Court Below Mr. Thierry filed this suit against the EEOC on January 15, 2003. Doc. 1. On March 25, 2004, the district court granted the EEOC's motion for summary judgment, Doc. 53 (SJ Order), and entered final judgment against Mr. Thierry. Doc. 54 (Judgment). Mr. Thierry timely filed a notice of appeal on May 24, 2004. Doc. 55 (NOA). See Fed. R. App. P. 4(a)(1)(B). Statement of Facts Mr. Thierry was hired as an investigator, grade 11, in the EEOC's Oklahoma Area Office (OkAO), in August 1999. Doc. 35, Exh. D-8 (Thierry resume) at 1. Joyce Powers has served as Area Director of the OkAO since January 1999. Doc. 35, Attachment # 15, Exh. G (Powers Testimony) at p. 127. As a satellite of the Dallas District Office (DDO), the OkAO's operations are overseen by the Director of the DDO. See Doc. 35, Attachment # 12, Exh. E (Bailey Decl.) at pp. 1-2 ¶ 2. During the summer of 2000, allegations of misconduct, inappropriate behavior, or lack of professionalism by various OkAO personnel prompted several internal investigations. In mid- June, Cara Davis, a student intern, alleged that investigator Rubye Phillips raised her blouse and exposed her breasts to Ms. Davis when they were alone in an office hallway during the workday. Doc. 33, Attachment # 8 (Final Decision) at p. 1. There were no witnesses. Id. OkAO Director Powers and Thelma Taylor, then-Director of the DDO, immediately investigated Ms. Davis's allegation. Id. at p. 2. Several OkAO employees, including Mr. Thierry, provided written statements to Ms. Powers during this initial investigation. See, e.g., Doc. 33, Attachment # 15, Exh. F-9 (Davis Decl.), Exh. F-10 at 2 (Dillard Decl.); Attachment # 16, Exh. F-15 at 2 (Bose Aff.), Exh. F-16 (Thierry Statement). In his statement, dated June 22, 2000, Mr. Thierry alleged that on June 8, 2000, Ms. Phillips and two other OkAO female employees entered his office and ate some of his lunch while he was on the phone. Id. During the incident, Mr. Thierry recounted, one of the other employees (not Ms. Phillips) behaved in a sexually suggestive manner. Id. On July 5, 2000, Ms. Powers issued Ms. Phillips a Notice of Proposed Removal (NPR) for "[c]onduct unbecoming of a federal employee." See Doc. 33, Attachment # 15, Exh. F-3 (Proposal to Remove) at p. 1. Mr. Thierry's statement was among those included as "part of [the] documentation for [the] requested removal of Ms. Phillips." Doc. 35, Attachment # 16, Exh. H-1 (Thierry Dep., 7/30/02) at p. 32. In response, Ms. Phillips charged Ms. Powers with a "pattern of harassment and abuse culminating" in the NPR. Doc. 33, Attachment # 15, Exh. F-7 (Phillips Memo) at p. 1. Ms. Phillips described a series of disciplinary actions by Ms. Powers, dating from March 1999 through the issuance of the NPR. Id. at pp. 1-3. On each prior occasion, Ms. Phillips successfully grieved Ms. Powers's action through the EEOC employees' union and the discipline was rescinded. Id.; see also Doc. 33, Attachment # 16, Exh. F-19; Attachment # 19, Exh. F-20; Attachment # 20, Exh. F-21 (exhibits documenting Phillips's grievances). On July 17, 2000, the president of the union sent a lengthy letter to DDO Director Taylor, refuting each of the statements used to support the NPR, and charging Ms. Powers with discrimination and reprisal against Ms. Phillips. See Doc. 33, Attachment # 15, Exh. F-4 (union letter). Several OkAO employees provided written statements in support of Ms. Phillips. See Doc. 33, Attachment # 16, Exh. F-11 (Ziegler Statement), Exh. F-12 (Berry Aff.), Exh. F-14 (Thomas Statement); Doc. 38, Attachment # 20, Exh. 24 (Hultz Letter). Ms. Phillips and her supporters disputed the misconduct alleged in the statements used to support the NPR, and countered with allegations of inappropriate behavior by some employees who provided those statements. See, e.g., Doc. 33, Attachment # 15, Exh. F-4 (Phillips Letter); Attachment # 16, Exh. F-12 (Berry Aff.), Exh. F-14 (Thomas Statement); Doc. 38, Attachment # 20, Exh. 24 (Hultz Letter); see also Doc. 33, Attachment # 9 (Summary of Investigation) at pp. 2-6. During this same period, in June and July of 2000, the Tulsa Branch of the National Association for the Advancement of Colored People (NAACP) wrote to officials in EEOC headquarters to complain about the manner in which Ms. Powers and Mr. Thierry had handled third-party charges of discrimination filed by the NAACP on behalf of several aggrieved individuals. See Doc. 35, Attachment # 4, Exh. C-3 (NAACP Letters) at pp. 2-5, 8-10. NAACP representatives "complained that they were treated in an unprofessional and disrespectful manner by Ms. Powers and Mr. Thierry," and "were considering publishing a public announcement." Doc. 35, Attachment # 4, Exh. C-1 (Hickey Decl.) at p. 1 ¶ 6. In August 2000, Ida Castro, then-Chair of the EEOC, assigned Betty Hickey, Acting Director of the Office of Equal Opportunity, to "investigate several reports of unprofessional conduct" by OkAO employees. Id. at p. 1 ¶ 4. In particular, Ms. Hickey was directed to investigate the NAACP's complaints, and "to look into allegations of a heavy-handed management style that [Ms.] Powers employed with some of the OkAO staff members." Doc. 35, Attachment # 4, Exh. C (Hickey Decl.) at p. 2 ¶ 4. Ms. Hickey's investigation raised "serious concerns" about Ms. Powers's "confrontational" approach in managing "the staff she inherited as compared with staff she hired after becoming Area Director," and revealed that Ms. Powers had "clear favorites in the office." Doc. 35, Attachment # 4, Exh. C-1 (Hickey Decl.) at pp. 1-2, ¶ 7. According to Ms. Hickey, "Mr. Thierry was an example of one of Ms. Powers's favored employees." Id. When Ms. Hickey spoke with Ms. Powers "about her management style and the perception of favoritism in the office" and "recounted several different complaints of NAACP representatives and of the staff," Ms. Powers "appeared defensive [and] hostile." Id. at pp. 2-3 ¶ 14. Ms. Powers responded "that she would continue to run the office as she saw fit and did not see the need to make any adjustments." Id. She refused to be held responsible "for low office moral [sic] [or] a soured relationship with the NAACP," and "was more concerned simply about the staff exceeding productivity goals." Id. In August 2000, upon the retirement of DDO Director Taylor, Ms. Castro appointed Chester Bailey, Director of the Milwaukee District Office, to serve as Acting Director of the DDO, with oversight of the OkAO. Doc. 35, Attachment # 12, Exh. E (Bailey Decl.) at p. 1 ¶¶ 1-2. Pursuant to Ms. Castro's request, see Doc. 35, Attachment # 4, Exh. C (Hickey Decl.) at p. 3 ¶ 9, Ms. Hickey briefed Mr. Bailey on the results of her investigation. Doc. 35, Attachment # 4, Exh. C-1 (Hickey Decl.) at p. 2 ¶ 13. She advised Mr. Bailey of Ms. Powers's "confrontational management style toward some of the senior investigators," and the "clear favoritism . . . bestowed upon the employees she hired after becoming the Area Director, particularly [Mr.] Thierry." Doc. 35, Attachment # 12, Exh. E (Bailey Decl.) at 2 ¶ 3. Mr. Bailey agreed with Ms. Hickey's suggestion "that Ms. Powers could benefit from being mentored by another successful area director in a similarly sized office." Id. Ms. Castro likewise "wanted Mr. Bailey to take necessary action in managing OkAO and to provide Ms. Powers with the recommended additional training and a mentor-coach." Doc. 35, Attachment # 4, Exh. C (Hickey Decl.) at p. 3 ¶ 9. Unfortunately, Mr. Bailey and Ms. Powers did not collaborate successfully during his tenure as Acting Director of the DDO, and the adversarial nature of their relationship is well documented. See, e.g., Doc. 35, Attachment #13, Exh. E-2 (Bailey Memo, 5/3/01), Exh. E-3 (Powers Memo, 5/18/01), Exh. E-4 (Bailey Memo, 6/1/01); Doc. 38, Attachment # 8, Exh. 8b (Bailey Memo, 5/17/01). According to Mr. Bailey, Ms. Powers "resisted" his "efforts to control and correct her supervision management style." Doc. 35, Attachment # 12, Exh. E (Bailey Decl.) at 3 ¶ 7. At one point, Ms. Powers "contacted the harassment counselor and the office of the [EEOC] chairwoman" to complain that Mr. Bailey "was harassing me and retaliating against me to such an extent" that "it became intolerable." Doc. 35, Attachment # 15, Exh. G (Powers Test.) at p. 116-17. Shortly after his appointment as Acting Director, Mr. Bailey traveled to the OkAO in August 2000 to meet with employees in an effort to resolve the problems identified by Ms. Hickey. Doc. 35, Attachment # 12, Exh. E (Bailey Decl.) at p. 2 ¶ 4. Levi Morrow, president of the local union, accompanied him. Id. During the meeting, OkAO staff "voiced strong concerns they had with regard to the rift that had developed in the office between senior investigators and recently hired investigators." Id. According to Mr. Morrow, "a number of OkAO employees" complained about the "division" between senior investigators and those hired by Ms. Powers, and identified Mr. Thierry as "the beneficiary of work-related favoritism by Ms. Powers." Doc. 35, Attachment # 19, Exh. K (Morrow Decl.) at pp. 1-2 ¶ 3. Mr. Thierry, who was present at the OkAO employee meeting in August 2000, confirmed that a coworker specifically alleged that he was the recipient of "preferential treatment" or "favoritism" by Ms. Powers. Doc. 35, Attachment # 16, Exh. H-1 (Thierry Dep., 7/30/02) at pp. 20-21. Mr. Thierry identified three other employees – Tandi Dillard, Sherri Beasley, and Donna Smith – who also "were considered favorites" of Ms. Powers. Id. at pp. 22-23. Mr. Thierry further acknowledged the "division" in the office, which he attributed to "animosity" or "problems . . . between . . . the senior investigators and Ms. Powers." Id. at 23-24. Mr. Bailey assigned Nancy Sienko, an investigator from his home office in Milwaukee, to conduct an independent investigation of the allegations against Ms. Phillips to determine whether her proposed termination, which the union had contested, was justified. Doc. 35, Attachment # 12, Exh. E (Bailey Decl.) at p. 3 ¶ 5. During the week of August 21, 2000, Ms. Sienko visited the OkAO and interviewed twelve employees, including Mr. Thierry. See Doc. 35, Attachment # 12, Exh. E-1 (Investigative Report) at p. 1. In her investigative report, Ms. Sienko identified several "ancillary issues . . . uncovered during this investigation" that she felt "compelled to address." Id. at p. 5. First among these issues was an "alleged pattern of retaliatory and hostile work environment that many employees feel Ms. Powers has subjected them to." Id. Ms. Sienko named five OkAO employees who "each recount[ed] various adverse actions taken against them by Ms. Powers which they viewed to be retaliatory, either because . . . they filed their own complaints and grievances or because they had supported Ms. Phillips." Id. In Ms. Sienko's view, "Ms. Powers' dictatorial management style contributed, in large part, to these employees' perception of a retaliatory and hostile work environment." Id. at p. 6. Ms. Sienko also observed "the obvious division of staff in the office . . . with Ms. Powers and the new Investigators on one side, and the senior office staff and Investigators on the other side," and described the conflicting impressions of senior and junior staff in the "clearly split" office. Id. On September 11, 2000, the EEOC entered a settlement agreement with the union and Ms. Phillips to resolve the contested NPR. Doc. 33, Attachment # 15, Exh. F-6 (Settlement Agreement). Under the agreement, Ms. Phillips accepted a suspension of fourteen calendar days in lieu of the proposed discharge, and the EEOC agreed to take no further action on the NPR. Id. at p. 1 ¶¶ 1-2. By entering the agreement, Ms. Phillips made "no admission of guilt" with respect to any of the allegations contained in the NPR. Id. at p. 2 ¶ 9. Mr. Bailey signed the agreement on behalf of the EEOC, and Mr. Morrow signed on behalf of the union. Id. at p. 2. Meanwhile, on August 31, 2000, Cara Davis filed a formal administrative complaint of sexual harassment based on the alleged "flashing" incident. Doc. 33, Attachment # 10, Exh. A-1 (Davis EEOC Complaint). Patricia St. Clair, an attorney-advisor in the EEOC's Office of Equal Opportunity, investigated Ms. Davis's complaint. Doc. 35, Attachment # 2, Exh. A (St. Clair Decl.) at p. 3 ¶ 7. Ms. Powers gave Ms. St. Clair a copy of Mr. Thierry's June 22, 2000 statement, provided during the initial investigation, and Ms. St. Clair interviewed him by telephone in March 2001. Id. According to Ms. St. Clair, Mr. Thierry explained that he initially declined to provide a statement to Ms. Powers "because he did not believe the incident" in his office on June 8 "amounted to sexual harassment," but "Ms. Powers ordered him to do so." Doc. 35, Attachment # 2, Exh. A-2 (St. Clair notes). Mr. Thierry told Ms. St. Clair he "believed that management had their own agenda, and ordered him to provide a statement against his will, to further their own agenda." Id. During the interview, Mr. Thierry "also volunteered some information about a rumor alleging that he had inappropriately attended a ball game with Ms. Powers," and "characterized this rumor as one concerning an ‘inappropriate relationship' between him and Ms. Powers." Doc. 35, Attachment # 2, Exh. A (St. Clair Decl.) at p. 3 ¶ 8. Ms. St. Clair "did not consider this information relevant to [her] investigation of the Cara Davis complaint, and did not use it in [her] investigation." Id. The Summary of Investigation does not mention either the incident recounted in Mr. Thierry's June 22, 2000 statement, or rumors of an "inappropriate relationship" between him and Ms. Powers. See Doc. 33, Attachment # 9 (Summary of Investigation). In March 2001, the EEOC posted two Supervisory Investigator vacancies in the OkAO. See Doc. 35, Attachment # 5, Exh. D (Nichols Decl.) at pp. 1-2 ¶ 2. One posting sought internal applicants for a grade 13 Supervisory Investigator and was circulated agency-wide. Id. The second vacancy, a grade 12 Supervisory Investigator in the Charge Receipt Technical Information Unit (CRTIU), was posted only in the Dallas District Office and the OkAO.<3> Id. Because only a small number of applications were received in response to the initial postings, Mr. Bailey directed the personnel specialist "to reannounce these two vacancies more broadly and to seek applications from throughout the Federal service." Id. at p. 2 ¶ 4. According to the personnel specialist, "only two applications [were] received for the grade 12 position, including one from Mr. Thierry." Id. On April 5, 2000, Mr. Thierry resubmitted his applications for both reannounced supervisory openings in the OkAO. Doc. 35, Attachment # 11, Exh. D-13 (Thierry Letter). Mr. Thierry was among seven applicants listed as qualified for the grade 13 position, and among six qualified applicants listed for the grade 12 opening. Doc. 35, Attachment # 8, Exh. D-7 (Applicant Listings). As Acting District Director, Mr. Bailey had final authority to select the successful candidate to fill both vacancies. See Doc. 35, Attachment # 12, Exh. E (Bailey Decl.) at pp. 4-5 ¶¶ 8-10. Mr. Bailey was "particularly leery" of relying solely on the hiring recommendations of Ms. Powers, "in light of the ongoing problems with her management and the perception by her staff of her favoritism toward Mark Thierry." Id. at pp. 4-5, ¶ 10. Consequently, Mr. Bailey assigned two DDO Enforcement Managers, Janet Elizondo and Alma Anderson, along with Ms. Powers, to review the applications and jointly make hiring recommendations for each position.<4> Id. Each member of the three-person advisory panel received copies of applications submitted by qualified candidates for each position. See Doc. 35, Attachment # 19, Exh. I (Anderson Decl.) at p. 1 ¶ 4; Exh. J (Elizondo Decl.) at p. 1 ¶ 2; Doc. 38, Attachment # 14, Exh. 16 (Elizondo Decl.) at p. 1 ¶ 4; Attachment # 15, Exh. 17 (Powers Decl.) at p. 1 ¶ 3. In late April 2001, the three panelists met by teleconference to discuss the applicants and try to reach consensus on hiring recommendations. Doc. 35, Attachment # 19, Exh. I (Anderson Decl.) at p. 1 ¶ 4; Exh. J (Elizondo Decl.) at p. 2 ¶ 4; Doc. 38, Attachment # 15, Exh. 17 at pp. 2-3 ¶ 4 (Powers Decl.). At the outset of their discussion, each panelist identified the candidates she thought were best qualified for each position, and explained why. Id. Ms. Powers initially recommended Mr. Thierry for the grade 13 Supervisory Investigator job, and Jim Habas, another OkAO investigator, for the grade 12 CRTIU Supervisor position. Doc. 38, Attachment # 15, Exh. 17 (Powers Decl.) at pp. 2-3 ¶ 4. She believed "all of the candidates" listed were "equally qualified for the position[s]," Doc. 35, Attachment # 15, Exh. G (Powers Testimony) at p. 124, but felt Mr. Thierry and Mr. Habas, as internal applicants, "had earned those slots" as a "reward" for having done "everything that the agency had ever asked them to do . . . in an outstanding manner." Id. at p. 128. Neither Ms. Anderson nor Ms. Elizondo recommended Mr. Thierry for either vacancy. Doc. 35, Attachment # 19, Exh. I (Anderson Decl.) at p. 2 ¶ 6; Exh. J (Elizondo Decl.) at p. 2-3 ¶ 5; Doc. 38, Attachment # 14, Exh. 16 (Elizondo Decl.) at p. 4 ¶ 11; Attachment # 15, Exh. 17 (Powers Decl.) at pp. 2-3 ¶ 4. Ms. Elizondo had heard about an incident in which Mr. Thierry became "unprofessional in his conduct, lost control and made threatening comments" to a coworker, and therefore had concerns "about whether Mr. Thierry had the interpersonal skills necessary to be a supervisor and to handle difficult situations in a professional manner using sound judgement." Doc. 38, Attachment # 14, Exh. 16 (Elizondo Decl.) at p. 3 ¶ 8. Ms. Anderson "did not think [Mr. Thierry's] application showed the leadership skills and experience" of the candidates she preferred. Doc. 35, Attachment # 19, Exh. I (Anderson Decl.) at p. 2 ¶ 6. Ms. Elizondo favored an applicant from the Department of Housing and Urban Development (HUD) for the grade 13 position. Doc. 35, Attachment # 19, Exh. J (Elizondo Decl.) at pp. 2-3 ¶ 5. After discussing various candidates for that job, Ms. Anderson said "she could go along with" Ms. Elizondo's first choice, but Ms. Powers did not agree.<5> Doc. 35, Exh. J (Elizondo Decl.) at pp. 2-3 ¶ 5. When it appeared her colleagues would jointly recommend the applicant from HUD for the grade 13 position, Ms. Powers told them she would prefer Donald Stevens to the HUD candidate. Doc. 35, Attachment # 15 (Powers Testimony) at p. 114. According to Ms. Powers, "if it couldn't be Mark [Mr. Thierry], then I'd rather have Don Stephens [sic]." Id. at 124; see also Doc. 35, Attachment # 19, Exh. J (Elizondo Decl.) at pp. 2-3 ¶ 5 ("When it appeared that we were not going to be able to reach a consensus for this position, Ms. Powers then asked how about Donald Stevens."). Major Stevens was an attorney in the Judge Advocate General's Corps, with extensive investigative experience and significant management responsibility. See Doc. 35, Attachment # 9 (Stevens application). Both Ms. Anderson and Ms. Elizondo agreed to "go along with the recommendation of Donald Stevens for the [grade] 13 Supervisor position." Doc. 35, Attachment # 19, Exh. J (Elizondo Decl.) at pp. 2-3 ¶ 5; see also Exh. I (Anderson Decl.) at p. 1 ¶ 4. Turning to the grade 12 supervisor vacancy, Ms. Anderson and Ms. Elizondo "briefly discussed [their] preferred candidates, which did not include Mr. Thierry," and Ms. Powers again recommended Mr. Thierry. Doc. 35, Attachment # 19, Exh. J (Elizondo Decl.) at pp. 3 ¶ 6. Ms. Anderson and Ms. Elizondo "both agreed we could go along with Jim Habas, another internal candidate from OkAO," id., whom Ms. Powers had initially recommended for the grade 12 job. See Doc. 38, Attachment # 15, Exh. 17 (Powers Decl.) at p. 2 ¶ 2 ("I personally recommended [Mr. Thierry] for the position of Supervisory Investigator and Jim Habas for the position of Investigator CRTIU Supervisor."). In a teleconference with Mr. Bailey, the three panelists advised that they had reached a consensus to recommend Mr. Stevens for the grade 13 position, but "were divided over the grade 12 position, with Ms. Elizondo and Ms. Anderson favoring Mr. Habas and Ms. Powers favoring Mr. Thierry." Doc. 35, Attachment # 12, Exh. E (Bailey Decl.) at pp. 4-5 ¶ 10. Mr. Bailey based his "decision to select Maj. Stevens for the grade 13 position . . . solely upon the joint, verbal recommendation which [he] received from the three panelists." Id. Given the lack of a consensus recommendation for the grade 12 position, Mr. Bailey asked the panel to forward the application materials to him. Id. Upon reviewing the applications, Mr. Bailey "did not see much difference between Mr. Thierry and Maj. Stevens, or between Mr. Thierry and Mr. Habas in terms of qualifications." Id. He therefore followed the panel's consensus recommendation of Mr. Stevens for the grade 13 position, and the panel majority's recommendation of Mr. Habas for the grade 12 slot. Id. Mr. Bailey further explained that in choosing Mr. Habas over Mr. Thierry for the grade 12 position, he considered "Ms. Powers' management style," and wanted "to pick someone who did not have the stigma of being on one side or the other" in the divided OkAO. Id. While "Mr. Habas had not been identified with either side," Mr. Bailey "had heard from a number of sources that Mr. Thierry was one of Ms. Powers' favorites." Id. Mr. Bailey also "considered reports that Mr. Thierry had been in an altercation with a coworker," and "did not want to create further problems in that office by selecting another supervisor who also . . . might have had problems in the area of interpersonal skills." Id. This last consideration, however, "was not a major factor in [his] deliberations." Id. In early May 2001, Mr. Stevens accepted the job of Supervisory Investigator, grade 13, and Mr. Habas was promoted to grade 12 CRTIU Supervisor. Id. Mr. Thierry filed an EEO complaint on July 24, 2001, claiming he was not promoted to either position because of his race (African- American), his sex, or in reprisal for his participation in the internal investigation of Cara Davis's harassment complaint. See Doc. 35, Attachment # 18, Exh. H-2 (EEO Complaint, attached as exh. 12 to Thierry Dep., 12/11/03). Mr. Thierry subsequently sued the EEOC in federal court, asserting claims of race discrimination and retaliation under Title VII.<6> See Doc. 1(Complaint) at pp. 4-5. District Court Decision On cross-motions for summary judgment, the district court determined that Mr. Thierry had established prima facie claims of discrimination and retaliation, and that the EEOC, through Mr. Bailey's declaration, had articulated non-discriminatory reasons for the challenged decisions. See Doc. 53 (SJ Order) at pp. 6-7 (quoting Bailey Decl., Doc. 35, Attachment # 12, Exh. E at pp. 4-5 ¶ 10). The court next considered and rejected Mr. Thierry's efforts to discredit Mr. Bailey's explanation of his hiring decisions. Id. at 7-9. The court was not persuaded by Mr. Thierry's assertion that the "use of a panel to make selection recommendations was a procedural irregularity" that called Mr. Bailey's motives into question. Id. at 7. Because this "‘alleged procedural irregularity disadvantaged all potential applicants,'" the court concluded, such evidence did not suggest Mr. Bailey's reasons were pretextual, or that he was motivated by illegal discrimination or retaliation. Id. at 7 (quoting Randle v. City of Aurora, 69 F.3d 441, 545 n.20 (10th Cir. 1995)). Nor was the court swayed by Mr. Thierry's argument that he had more EEO experience than either Mr. Stevens or Mr. Habas, and was therefore better qualified than the successful candidates. Id. at 7-8. The EEOC was entitled to exercise its discretion in choosing among qualified applicants, the court recognized, "‘so long as the decision is not based on unlawful criteria.'" Id. at 8 (quoting Colon-Sanchez v. Marsh, 733 F.2d 78, 82 (10th Cir.), cert. denied, 469 U.S. 855 (1984)). Since the positions were supervisory, the court further observed, "it was appropriate for the selecting officials to consider the extent and nature of the candidates' supervisory experience and to weigh that more heavily than any prior EEO experience." Id. While Mr. Thierry denied the allegations that he was favored by Ms. Powers, or that he had "instigated the altercation with a co-worker," the court found no "dispute that Mr. Bailey's decision on the promotions was based on these factors." Id. Mr. Thierry argued that these were not genuine or legitimate reasons for rejecting him because Mr. Bailey "learned of the alleged favoritism" through the sexual harassment investigation and relied on hearsay reports of an altercation, but the court found these arguments "without merit." Id. First, the court observed, "Bailey heard firsthand from numerous employees that Powers gave preferential treatment to the new investigators and that [Mr. Thierry] was perceived to be one of her favorites." Id. Even if these allegations "were untrue," the court decided, the record reflects that Bailey inherited an office that was in turmoil, rife with rumors, allegations, and counter-allegations. That Bailey took this situation into account when making decisions regarding the supervisory positions at issue here is neither evidence of discriminatory intent, nor of retaliation. Id. at 8-9. Having found "no evidence that the failure to promote [Mr. Thierry] was due to race discrimination or retaliation for protected activity," the court entered judgment in favor of the EEOC. Id. at p. 9. SUMMARY OF ARGUMENT The district court properly granted summary judgment for the EEOC. The sworn statements of the managers who took part in selecting candidates to fill two supervisory vacancies in the OkAO demonstrate that these decisions were made without regard to Mr. Thierry's race or his participation in a sexual harassment investigation. Because Mr. Thierry has not produced evidence that the EEOC's legitimate explanation is a pretext for decisions that were motivated by race or retaliation, summary judgment should be affirmed. STATEMENT OF THE STANDARD OF REVIEW This Court reviews summary judgment de novo, applying the same legal standard as the district court. Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In applying this standard, the Court must "view the evidence in a light most favorable to the party opposing summary judgment, but that party must identify sufficient evidence which would require submission of the case to a jury." Jones v. Denver Post Corp., 203 F.3d 748, 751 (10th Cir. 2000) (internal quotations omitted). "Unsupported conclusory allegations . . . do not create a genuine issue of fact." L & M Enterprises v. BEI Sensors & Systems Co., 231 F.3d 1284, 1287 (10th Cir. 2000). ARGUMENT MR. THIERRY DID NOT PRESENT EVIDENCE FROM WHICH A REASONABLE JURY COULD FIND THAT HE WAS NOT PROMOTED BECAUSE OF HIS RACE, OR BECAUSE HE PARTICIPATED IN AN INVESTIGATION OF A SEXUAL HARASSMENT COMPLAINT. Title VII provides that "[a]ll personnel actions affecting employees or applicants for employment" in federal agencies "shall be made free from any discrimination based on race." 42 U.S.C. § 2000e-16(a). The EEOC construes this prohibition against unlawful discrimination in federal employment to afford protection from "retaliation for opposing any practice made unlawful by Title VII . . . or for participating in any stage of administrative or judicial proceedings under [that] statute[]." 29 C.F.R. § 1614.101(b). Mr. Thierry claims the EEOC did not promote him to either of two supervisory positions in May 2001 because of his race, or because of his participation in the investigation of Cara Davis's harassment complaint. He may prove intentional discrimination or retaliation either directly, by demonstrating that his race or protected participation more likely motivated the EEOC, or indirectly by showing that the EEOC's proffered explanation for its decision is unworthy of credence. See Jones v. Denver Post Corp., 203 F.3d at 752; United States Postal Service v. Aikins, 460 U.S. 711, 716 (1983). Absent direct evidence of an unlawful motive, this Court analyzes a claim of intentional discrimination or retaliation "under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Annett v. University of Kansas, 371 F.3d 1233, 1237 (10th Cir. 2004) (retaliation claim); see also English v. Colorado Department of Corrections, 248 F.3d 1002, 1007 (10th Cir. 2001) (race discrimination claim). Mr. Thierry maintains that the district court failed to consider "direct evidence of retaliation," and consequently erred in applying the McDonnell Douglas analysis. See Thierry Br. at pp. 7-9. In rejecting him for promotion, Mr. Thierry argues, Mr. Bailey relied on information obtained in connection with the Davis harassment investigation, and his proffered reasons are therefore direct evidence of retaliation. Id. at pp. 7-8. "If not for [Mr. Thierry's] participation as a witness in that investigation," he asserts, "Mr. Bailey would have never been informed of the negative rebuttal testimony given to Ms. Hickey." Id. at p. 7. In a similar vein, Mr. Thierry argues that the EEOC has "not articulated a legitimate, non-discriminatory reason for [his] non- selection" because Mr. Bailey, in explaining his hiring decisions, relied on information provided by Ms. Hickey and Ms. Sienko, whose investigations of the OkAO included Cara Davis's allegation of harassment. See id. at pp. 4-5. According to Mr. Thierry, "these admissions are direct evidence of retaliatory motive," because "Mr. Bailey's use of any information collected during a protected activity activates the participation in ‘any manner' clause of Title VII." Id. at p. 5. In advancing these arguments, Mr. Thierry entirely misconceives both the protection afforded by Title VII's prohibition against unlawful retaliation, and the nature of direct evidence. Congress included antiretaliation provisions in Title VII and other federal fair employment laws to ensure that individuals are not deterred by fear of reprisal from coming forward with information about unlawful practices. "[A] primary purpose of antiretaliation provisions," the Supreme Court has ruled, is to secure "unfettered access to statutory remedial mechanisms." Robinson v. Shell Oil, 519 U.S. 337, 346 (1997) (construing Title VII). In enacting these protections, "‘Congress has made it clear that it wishes all persons with information about [unlawful] practices to be completely free from coercion against reporting them . . . .'" National Labor Relations Board v. Scrivener, 405 U.S. 117, 121 (1972) (construing National Labor Relations Act) (cited in Robinson, 519 U.S. at 346). "Plainly, effective enforcement" of these laws "could . . . only be expected if employees felt free to approach officials with their grievances." Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 292 (1960) (construing Fair Labor Standards Act) (cited in Robinson, 519 U.S. at 346). Contrary to Mr. Thierry's argument, however, Title VII's antiretaliation provision does not prohibit an employer from basing employment decisions on information that comes to light during an investigation of a discrimination complaint. Nor does an employee's protected participation in such an investigation immunize him from decisions based on information obtained therein. To hold otherwise would frustrate, rather than enhance, the "prophylactic" objective of Title VII, aimed at inducing employers "to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible," the lingering effects of past discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18 (1975) (internal quotation omitted). A prohibition against using information obtained in an internal inquiry of alleged discrimination would effectively prevent an employer from acting to eliminate those unlawful practices disclosed in the course of its investigation. Mr. Bailey's reliance on information provided by Ms. Hickey (and others) concerning the staff divisions in the OkAO, Ms. Powers's management deficiencies, and the perception that Mr. Thierry received preferential treatment, does not demonstrate, directly or indirectly, that Mr. Bailey refused to promote him because he participated in the investigation of Cara Davis's harassment complaint. Direct evidence of a retaliatory motive is any written or verbal statement by a respondent official that s/he undertook the challenged action because the charging party engaged in protected activity. Such evidence also includes a written or oral statement by a respondent official that on its face demonstrates a bias toward the charging party based on his or her protected activity, along with evidence linking that bias to the adverse action. EEOC Compliance Manual, Section 8: Retaliation, No. 915.003 at p. 16. (May 20, 1998).<7> There is no such evidence in this case. Mr. Thierry has not pointed to any written or oral statement by Mr. Bailey, or by any other participant in the selection process, suggesting that his participation in the investigation of Ms. Davis's harassment complaint motivated the decision to deny his promotion. Nor is there evidence indicating that any of these officials harbored a bias against Mr. Thierry because of his protected participation conduct. Absent direct evidence of an unlawful motive, the district court properly analyzed Mr. Thierry's discrimination and retaliation claims using the McDonnell Douglas framework. See English, 248 F.3d at 1007 (race discrimination claim); Annett, 371 F.3d at 1237 (retaliation claim). To establish "a prima facie case of race discrimination for a failure to promote claim, the plaintiff must typically show that he or she (1) belongs to a minority group; (2) was qualified for the promotion; (3) was not promoted; and (4) that the position remained open or was filled with a non- minority." Simms v. Oklahoma, 165 F.3d 1321, 1328 (10th Cir. 1999). Mr. Thierry satisfied this initial burden with undisputed evidence that he is African-American; he was qualified for both promotions; he was not promoted; and the positions were filled by white candidates, Mr. Stevens and Mr. Habas. See Doc. 53 (SJ Order at 3-5). "To state a prima facie case of retaliation, [Mr. Thierry] must show that: (1) [he] engaged in protected activity; (2) the [EEOC] took an adverse employment action against [him]; and (3) there exists a causal connection between the protected activity and the adverse action." Annett, 371 F.3d at 1237. For purposes of the prima facie case, a causal connection may be established with "evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Id. at 1239-40 (internal quotation marks and citation omitted). The district court concluded Mr. Thierry met this standard. See Doc. 53 (SJ Order) at p. 6. Mr. Thierry engaged in protected activity by providing his written statement of June 22, 2000, in connection with the initial internal investigation of Cara Davis's harassment allegation, and by participating in interviews with various individuals assigned to investigate the circumstances of the alleged harassment. In early May 2001, roughly two months after his telephone interview with Ms. St. Clair in March 2001, he was denied promotion to either of two supervisory vacancies. The temporal proximity between his interview with Ms. St. Clair and the promotion denial is sufficient to complete his prima facie case of retaliation. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (assuming temporal proximity of two months and one week supports prima facie case of retaliation). In response to Mr. Thierry's prima facie evidence of discrimination and retaliation, the EEOC presented the declaration of Mr. Bailey, the official with hiring authority for the two OkAO supervisory positions. See Doc. 35, Attachment # 12, Exh. E (Bailey Decl.). Mr. Bailey explained that in selecting Mr. Stevens and Mr. Habas, he followed the consensus or majority recommendations of three managers – Ms. Anderson, Ms. Elizondo, and Ms. Powers – who had previously reviewed and discussed all qualified applicants. Id. at pp. 4-5 ¶ 10. Given the well- documented division among staff in the OkAO, and the noted deficiencies in Ms. Powers's management style, Mr. Bailey preferred "to pick someone who did not have the stigma of being on one side or the other in that Office." Id. This factor weighed in favor of selecting Mr. Habas, who "had not been identified with either side," over Mr. Thierry, who was perceived to be "one of Ms. Powers' favorites." Id. Reports of an altercation between Mr. Thierry and a coworker, indicating that he "might have had problems in the area of interpersonal skills," played a less significant role in Mr. Bailey's decision to deny him a supervisory position. Id. Mr. Bailey's proffered explanation shows that he did not consider Mr. Thierry's race, or his participation in the investigation of Cara Davis's harassment complaint, in making the challenged hiring decisions. The district court therefore correctly determined that the EEOC had "met its burden of articulating a non-discriminatory reason for the failure to promote [Mr. Thierry]." Doc. 53 (SJ Order) at pp. 6-7 (quoting Mr. Bailey's declaration). See Jones, 203 F.3d at 753 ("At this stage, defendant need only ‘explain its actions against the plaintiff in terms that are not facially prohibited by Title VII.'") (quoting EEOC v. Flasher Co, Inc., 986 F.2d 1312, 1317 (10th Cir. 1992)). To "defeat summary judgment," Mr. Thierry was thus required to present "sufficient evidence such that a reasonable jury could conclude that the [EEOC's] proffered nondiscriminatory reason" for the challenged hiring decisions "is pretextual, that is, ‘unworthy of belief.'" Simms, 165 F.3d at 1328 (citations omitted). Mr. Thierry asserts (without record citation) that he "submitted specific evidence that impeached the allegations of favoritism and violence," and faults the district court's conclusion "that no such evidence of pretext existed." Thierry Br. at 5-6. The district court's ruling was entirely consistent with this Court's precedent, however, because Mr. Thierry, at most, contested the accuracy – not the honesty – of Mr. Bailey's belief that he was perceived as a favorite of Ms. Powers and was involved in an altercation with a coworker. The "relevant issue" in deciding if the evidence raises a material fact dispute as to pretext is "whether the employer honestly believed the reasons it offered for not promoting plaintiff and not the correctness or desirability of those reasons." Bullington v. United Air Lines, 186 F.3d 1301, 1318 (10th Cir. 1999), overruled on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (citing Fischbach v. District of Columbia Dep't of Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996)). "[A]rguing about the accuracy of [Mr. Bailey's] assessment" of Mr. Thierry's suitability for promotion "is a distraction, because the question is not whether the employer's reasons for a decision are right but whether the employer's description of its reasons is honest." Id. (quoting Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997)). Far from "impeaching" Mr. Bailey's explanation, moreover, Mr. Thierry's own testimony corroborates, to a significant extent, several of the primary considerations cited by Mr. Bailey for his hiring decisions – the division in the OkAO arising from Ms. Powers's management style, and the perception that Mr. Thierry (but not Mr. Habas) received preferential treatment. Mr. Thierry testified that during Mr. Bailey's August 2000 meeting with OkAO employees, a coworker specifically alleged that he was the recipient of "preferential treatment" or "favoritism" by Ms. Powers. Doc. 35, Attachment # 16, Exh. H-1 (Thierry Dep., 7/30/02) at pp. 20-21. When asked to identify other employees who also "were considered favorites" of Ms. Powers, Mr. Thierry did not include Mr. Habas among the three other employees he named. Id. at pp. 22-23. Mr. Thierry further acknowledged the "division" in the office, which he attributed to "animosity" or "problems . . . between . . . the senior investigators and Ms. Powers." Id. at 23-24. Mr. Thierry further argues that Mr. Bailey's decision to use a three-member advisory panel to review applications and make hiring recommendations, instead of approving Ms. Powers's selections, is indicative of pretext. See Thierry Br. at p. 6. Mr. Bailey's legitimate, non- discriminatory explanation for his reluctance to rely solely on Ms. Powers's hiring recommendation – "the ongoing problems with her management and the perception by her staff of her favoritism towards Mark Thierry" – dispels any inference of pretext arising from his decision to depart from his usual practice. Doc. 35, Attachment # 12, Exh. E (Bailey Decl.) at pp.4-5 ¶ 10. Viewed in context, Mr. Bailey's reliance on a three-member advisory panel is not an instance of "disturbing procedural irregularities (e.g., falsifying or manipulating hiring criteria)" that would raise an inference of pretext. See Simms, 165 F.3d at 1328-29 (finding no inference of pretext arising from employer's departure from usual promotion practices). Finally, Mr. Thierry attempts to demonstrate pretext by insisting he was better qualified than Mr. Stevens or Mr. Habas. See Thierry Br. at p. 7. Mr. Thierry claims that the EEOC personnel specialist who posted the vacancies and certified the lists of qualified candidates "rated [his] supervisory experience equal to that of [Mr. Stevens] and superior to that of [Mr. Habas]." Id. at p. 3 ¶ X. There is no dispute, however, that pursuant to EEOC personnel policies, these ratings were not disclosed to the selecting officials. Stephen Nichols, the personnel specialist who handled the postings, testified that he "rated and ranked applicants under applicable crediting plans to assure that applicants met minimum qualifications for each position," but "[i]n accord w/ EEOC's procedures, [he] did not provide any rating or ranking numbers or information to selecting officials." Doc. 35, Attachment # 5, Exh. D (Nichols Decl.) at p. 2 ¶ 3. As evidenced by the applicant listings for each position, "[q]ualified applicants were presented to the selecting officials on lists in alphabetical order without rating and ranking information." Id.; see also Attachment # 8, Exh. D-7 (Applicant Listings).<8> Thus, under EEOC personnel policies, the credit ratings are used to determine whether applicants meet the minimum qualifications to be considered for a posted position, and are deliberately withheld from the selecting officials who will decide which qualified candidate is best for the job. Because the ratings are neither designed nor used to measure the comparative qualifications of eligible candidates, they are not evidence that Mr. Thierry was "better qualified" for either position than the successful candidates. More fundamentally, Mr. Thierry's assertion that he is "better qualified" is irrelevant to demonstrate pretext because Mr. Bailey did not rely on the comparative qualifications of the candidates to explain his hiring decisions. To the contrary, Mr. Bailey "did not see much difference between Mr. Thierry and Maj. Stevens, or between Mr. Thierry and Mr. Habas in terms of qualifications," and therefore based his selections on other considerations: the recommendations of the advisory panel, the divisions among OkAO staff, Ms. Powers's management style, her perceived favoritism of Mr. Thierry, and, to a lesser extent, reports of Mr. Thierry's altercation with a coworker. Doc. 35, Attachment # 12, Exh. E (Bailey Decl.) at pp. 4-5 ¶ 10. Because Mr. Bailey did not base his decision on a determination that Mr. Stevens and Mr. Habas were better qualified, in terms of skills or experience, than Mr. Thierry, the candidates' comparative qualifications are irrelevant to the pretext analysis. See Bullington, 186 F.3d at 1319 ("a comparative analysis of job applicants' qualifications may be relevant in proving pretext where . . . the employer claims lack of qualification as reason for an employment decision"). In sum, Mr. Thierry has provided insufficient evidence for a reasonable jury to conclude that the EEOC's proffered reasons for not promoting him are unworthy of belief, or that the EEOC's decision was more likely motivated by his race or his participation in a sexual harassment investigation. The district court therefore properly concluded that "[t]here is no evidence that the failure to promote [Mr. Thierry] was due to race discrimination or retaliation for protected activity," and granted summary judgment for the EEOC. Doc. 53 (SJ Order) at p. 9. CONCLUSION For the foregoing reasons, the EEOC urges this Court to affirm the judgment of the district court. Respectfully submitted, ____________________________ DORI K. BERNSTEIN Attorney ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 (202) 663-4734 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 8,032 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using WordPerfect 9 in 14-point Times New Roman font. ___________________________ Dori K. Bernstein Attorney for United States Equal Employment Opportunity Commission and Cari M. Dominguez, Chair, Equal Employment Opportunity Commission Dated: _____________________ ADDENDA Docket Sheet Order and Judgment of the District Court (See 10th Cir. R. 28.2(B)) CERTIFICATE OF SERVICE I hereby certify that two copies of this brief were mailed, first class, postage prepaid, on this 6th day of October, 2004, to the following: Mark V. Thierry 15722 Teesdale Road Edmond, Oklahoma 73013 H. Lee Schmidt Assistant United States Attorney Office of the United States Attorney 210 W. Park Avenue Suite 400 Oklahoma City, Oklahoma 73102 ____________________________ DORI K. BERNSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7046 Washington, D.C. 20507 (202) 663-4734 ********************************************* <> <1> Because Cari M. Dominguez was sued in her official capacity as Chair of the EEOC, this brief will refer solely to the EEOC as defendant-appellee. <2> Mr. Thierry is appearing pro se and has not submitted an appendix. See 10th Cir. R. 30.1. References to the record correspond to entries in the district court’s docket sheet (attached as an addendum to this brief), and identify the document number (“Doc. __”) and, where applicable, attachment number (“Attachment # __”), exhibit number (“Exh. __”), and page number (“p. __”). See 10th Cir. R. 28.1(B). <3> An opening for a grade 13 Supervisory Investigator in the DDO was also posted in March 2001, at the same time as the two OkAO vacancies. See Doc. 35, Attachment # 5, Exh. D (Nichols Decl.) at pp. 1-2 ¶ 2. Mr. Thierry applied for all three postings. Id. at 3 ¶ 6. The personnel manager inadvertently omitted Mr. Thierry’s application from those submitted for the grade 13 positions, but immediately corrected his mistake when Ms. Powers brought it to his attention. Id. Consequently, Mr. Thierry was listed among the candidates qualified and considered for the vacancy in Dallas, but was not selected. See Doc. 35, Attachment # 7, Exh. D-6 (Merit Promotion Certif.). Mr. Thierry has not challenged his non-selection for grade 13 Supervisory Investigator in Dallas. <4> Ms. Anderson had previously served as Director of the OkAO for approximately five years. Doc. 35, Attachment # 19, Exh. I (Anderson Decl.) at p. 1 ¶ 1. Ms. Elizondo replaced Mr. Bailey as Acting Director of the DDO in June 2001, and served in that capacity through December 31, 2003, when she was named Acting Deputy Director of the Dallas office. Doc. 35, Attachment # 19, Exh. J (Elizondo Decl.) at p. 1 ¶ 1; see also Doc. 38, Attachment # 9, Exh. 8c (EEOC memo, 6/5/01). <5> As Ms. Powers recalled the discussion, Ms. Anderson had preferred the HUD candidate for the grade 13 job, and Ms. Elizondo agreed to go along with that recommendation. See Doc. 35, Attachment # 15 (Powers Testimony) at p. 123; Doc. 38, Attachment # 15, Exh. 17 (Powers Decl.) at p.2-3 ¶ 4. Ms. Anderson could not recall which candidates she initially favored for each opening. Doc. 35, Attachment # 19, Exh. I (Anderson Decl.) at 2 ¶ 6. <6> Mr. Thierry also claimed “defamation of character,” Doc. 1 (Complaint) at p. 6, but, in response to the EEOC’s motion to dismiss, conceded that the district court lacked jurisdiction over this claim. See Doc. 38 (Response to M. to Dismiss) at p. 1; see also Doc. 53 (SJ Order) at p. 1 n.1 (Thierry “abandoned this [slander] claim as a separate claim for relief”). <7> The EEOC’s Compliance Manual guidance on retaliation is included in the record at Doc. 38, Attachment # 23, Exh. 29, and is also available on the agency’s website, www.EEOC.gov. <8> Mr. Thierry provides no record citation to any evidence of the rankings Mr. Nichols assigned each applicant, and counsel has been unable to locate any such evidence in the record.