Devon Shelley v. Pete Geren

Opinion by Judge WILKEN; Partial Concurrence and Partial Dissent by Judge BYBEE.

OPINION

Plaintiff-Appellant Devon Scott Shelley appeals the district court’s grant of summary judgment in favor of Defendant-Appellee Pete Geren, Secretary of the Army and the United States Army Corps of Engineers (collectively, the Corps). Shelley sued the Corps for violating the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., by failing to interview him and rejecting his applications for two promotions. We have jurisdiction pursuant to 28 U.S.C. § 1291 to consider Shelley’s appeal. We find that Shelley presented a prima facie case of age discrimination and evidence of pretext sufficient to create a material dispute as to whether age-related bias was the “but-for” cause of the Corps’ failure to interview and promote him. The district court’s grant of summary judgment in favor of the Corps is reversed.

BACKGROUND

In 2005, the Corps sought to fill a GS-14 Supervisory Procurement Analyst position in the Contracting Division at its Kansas City District. The position was also known as Chief of Contracting. The Corps pursued a two-step hiring process, in which it advertised an…

concurring in part and dissenting in part:

This should be a straightforward case. Plaintiff Devon Scott Shelley (“Shelley”) claims he became a victim of age discrimination when the Army Corps of Engineers (“the Corps”) denied him an opportunity to interview for a GS-14 position as Chief of the Contracting Division that ultimately went to a younger candidate. An unfiltered look at the facts reveals that of the six finalists the Corps interviewed, one candidate was older than Shelley, and two others were close to Shelley in age. The candidate the Corps ultimately hired, Vince Marsh, was already a GS-14 Supervisory Procurement Analyst, while Shelley was a GS-13 Assistant Chief.

On this record, there is no way Shelley can show that the Corps passed him over for an equally or less qualified candidate on account of his age. Rather, the record shows that 32 individuals applied for the position. A five-member selection committee, chaired by an army colonel and advised by an EEO officer, independently ranked the candidates on the basis of their resumes. Based on their individual evaluations of the candidates, the committee held a telephone conference and produced a list of the top six…

BACKGROUND

In 2005, the Corps sought to fill a GS-14 Supervisory Pro- curement Analyst position in the Contracting Division at its Kansas City District. The position was also known as Chief of Contracting. The Corps pursued a two-step hiring process, in which it advertised an opening for a 120-day temporary 146 SHELLEY v. GEREN position, and then announced a formal process to hire a per- manent Chief of Contracting.

An email announcement of the 120-day position was made on October 3, 2005, and courtesy copies were sent to Major Kelly Butler and Regional Contracting Chief Joseph Scanlan. The announcement explained that recruitment for the perma- nent position would begin in the near future. Applicants were instructed to email or fax their current resume/application, copies of their two most recent performance appraisals, proof that they had completed the educational requirements, and proof of eligibility for a Critical Acquisition Position.

Shelley applied for the 120-day position. At the time, he had been serving as Assistant Chief of the Contracting Divi- sion for the Walla Walla District, a GS-13 position, for over a year. In that position, Shelley…