Labor & Employment Law Daily Wrap Up, DISCRIMINATION—7th Cir.: Black female DOD supervisor, applicant for GS-13 position, failed to substantiate discrimination, (Jan 6, 2025)

By Jason Albright, J.D.

When asked to explain the basis for her belief that the hiring manager preferred to work with a male, she said it was “heartfelt.”

A Black female Department of Defense supervisor, having risen through the ranks after first joining the agency with a high school education in 1988, failed to show that she was discriminated against based on sex and race when her division chief selected a Black male candidate for a GS-13 supervisor position for which she applied, the Seventh Circuit affirmed. The chief concluded from applicant resumes and interviews that the other candidate’s skillset and strategic vision made him best suited for the job, and the fact that the chief relied on subjective assessments to reach his conclusion did not render the agency’s explanation illegitimate. The plaintiff’s admissions, moreover, including that the chief “probably thought [the other candidate] was more suitable for the job,” precluded a finding that his rationale for selecting the other candidate was pretextual (Cunningham v. Austin, No. 24-1133 (7th Cir. Jan. 3, 2025)).

Ascent through GS ranks. The plaintiff first joined the Department of Defense (DOD) in 1988, working as a part-time secretary in the Defense Finance Accounting Service (DFAS). Though she had only a high school diploma when she started, she ascended the General Schedule (GS) ranks through a dedicated career of public service. In 2012, DFAS promoted her to a GS-12 supervisor position leading its benefits team. She held the position for 10 years, until her eventual promotion to a (different) GS-13 position in 2022.

Manager’s promotion and new supervisor position. Five years into her tenure as supervisor of the benefits team, her manager was promoted to Director of the Human Resources Shared Services Center. That left his prior GS-14 role, Benefits Division Chief, vacant. Recognizing that DFAS lacked a path for GS-12 employees to advance into the GS-14 Division Chief role, he sought to both hire a new Division Chief and reorganize DFAS to enable internal promotion in the future.

After a desk-audit by the classification team, DFAS converted a vacant GS-12 position into a GS-13 supervisor position, which would oversee both the benefits and workers’ compensation teams. Because the new GS-13 supervisor position would report to the Benefits Division Chief, he delayed the hiring process for the new position until the incoming chief could participate.

Application and that of male team leader. The plaintiff applied for the GS-13 position, as did the team leader of DFAS’s customer-care call center, a Black male. Though he lacked the plaintiff’s supervisory responsibilities, such as issuing performance evaluations and disciplining employees, he, too, held a GS-12 position. He also had a long career in public service. Prior to joining DFAS, he served in the United States Air Force for 23 years. He also worked for a private corporation, training more than 1,000 employees and handling workers’ compensation matters, and for the City of Indianapolis, where he participated in HR program design. He held a Bachelor of Science degree and an MBA.

New chief and evaluation rubric. In April of 2018, DFAS hired a white man as the GS-14 Benefits Division Chief. In May, the new chief, along with the Supervisor of Talent Management and Integration, began reviewing resumes and interviewing for the GS-13 supervisor position. They crafted four categories on which to evaluate the candidates: (1) HR and Benefits Subject Matter Expertise (SME), (2) Supervisory/Leadership Skills, (3) Teamwork and Process Innovation, and (4) Customer Service. They also developed six standardized interview questions to ask each candidate, four of which were behavioral.

Top two candidates. The supervisor and team leader emerged as the top two candidates. Her subject matter expertise, in particular, garnered praise from the chief, who regarded her as the “Best SME.” Her resume and interview performance, however, left him unconvinced of her suitability for the job. Her resume included only five years of relevant experience and listed an incorrect phone number for her supervisor, giving the chief the impression that it was incomplete.

Her interview answers. The chief also felt “disappointed” in the supervisor’s answers to his standardized interview questions. When asked to describe how she would approach training the growing number of benefits team members, she responded that she would train each employee herself. The chief commented in his interview notes that her approach “doesn’t scale well.” He further described several of her interview answers as “tactical,” rather than “strategic,” meaning her responses reflected short-term thinking, according to the court.

Team leader. The team leader, on another hand, earned high marks for his resume and interview. His many years of education and experience in both the public and private sectors impressed the chief, who also felt that the team leader gave “strategic” responses to the standardized interview questions and demonstrated strong leadership skills.

Comparative rankings and choice. Ranked across the four identified categories, the supervisor received higher marks only for her subject matter expertise, because the team leader lacked extensive experience in federal benefits. The chief found that he matched the supervisor in the leadership category, however, and outperformed her in the process innovation and customer service categories. The chief thus chose the team leader for the position, believing him to be the better overall candidate.

Her impression of chief’s reasoning. Describing her impression of the chief’s reasoning, the supervisor stated in her deposition, “I felt like maybe he [the chief] wanted something different organization-wise or structure – or for the benefits division, and, you know, maybe he felt like he could take that or do that with someone other than myself.”

She also remarked that the chief “probably thought [the team leader] was more suitable for the job” because she was “direct” in her communication and didn’t engage in “daily chitchat” with coworkers.

“[H]eartfelt” belief. Firm in her belief that she was the more qualified applicant, the supervisor nevertheless departed the meeting with the chief convinced that he preferred to work with a male and had discriminated against her based on her sex. When asked during her deposition to explain the basis for this belief, she stated that it was “heartfelt.”

EEOC complaint. In August of 2018, the supervisor filed a complaint with the EEOC, alleging the chief failed to promote her because of her race, sex, and age. The EEOC found she had not demonstrated discrimination and informed her of her right to sue in federal court.

Lawsuit, and appeal. Upon receiving notice of her right to sue, she commenced this action. In her complaint, she renewed her allegations that DFAS had discriminated against her based on her sex, and her race in combination with her sex, in violation of Title VII, when it failed to promote her into the new GS-13 supervisor position. The district court granted summary judgment in favor of DFAS, reasoning that she had not proffered evidence of sex discrimination beyond her own heartfelt belief that the chief preferred to hire a man. This appeal followed.

Legitimate, nondiscriminatory rationale. Affirming, the Seventh Circuit observed that the chief concluded from applicant resumes and interviews that the other candidate’s skillset and strategic vision made him best suited for the job and the fact that the chief relied on subjective assessments to reach his conclusion did not render the agency’s explanation illegitimate.

Nor did DFAS’s decision to ask behavioral interview questions—rather than substantive ones—render its reliance on interview performance illegitimate. “Our court is not ‘a super-personnel department that reexamines an entity’s business decisions,’” the Seventh Circuit observed. “When hiring for the GS-13 position, DFAS encountered a common HR dilemma: whether to prioritize subject matter expertise or difficult-to-measure in-tangibles, such as skilled customer service, familiarity with process improvement, and passion for the position evinced by thorough interview preparation. DFAS chose the intangibles, and we will not second guess its decision.”

Pretext. The supervisor also offered no evidence that DFAS’s hiring rationale was pretextual according to the appeals court. The supervisor’s “own admissions,” the Seventh Circuit observed, “make it difficult for a reasonable factfinder to conclude that [the chief’s] rationale for selecting [the male applicant] was pretextual.” Specifically, when asked during her deposition why she thought the chief selected him, she replied that the chief “wanted something different organization-wise” and “maybe … felt like he could take that or do that with someone other than myself.” She also acknowledged that the chief “probably thought [the male applicant] was more suitable for the job.” In her own telling, then, the chief’s belief that the male applicant would better accomplish the organizational transformation the chief sought was not pretextual but true.

The case is No. 24-1133.

Judge: St. Eve, A.

Attorneys: Tae Sture (Sture Legal Services) for Gwendolyn D. Cunningham. Rachana N. Fischer, Office of the U.S. Attorney, for Lloyd J. Austin, III.

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