dissenting:

I agree with the majority opinion that Dominguez has alleged sufficient facts to survive summary judgment on her hostile work environment claim, but conclude that the district court properly granted summary judgment on her failure to promote claim. Even if we accept for purposes of summary judgment that a trier of fact could find that Stacey was biased against women, Dominguez has not rebutted the Nevada Department of Transportation’s (“NDOT”) legitimate, nondiscriminatory reason for hiring Phillip Andrews and not promoting Dominguez. The record amply supports NDOT’s assertion that Andrews was the best-qualified job applicant. Accordingly, I dissent.

Dominguez, a woman, joined the Contract Compliance Section of the Construction Division of NDOT in June 1994. In November 1999, an opening in the Contract Compliance Section was announced for a Program Officer III. Stacey with Mark Elicegui conducted joint interviews of the six applicants, including Dominguez, whose applications were forwarded to them by the State Personnel Board. Stacey and Elicegui individually rated Andrews as the top applicant and Julia Mason, a woman, as the second-ranking candidate. Andrews was ultimately offered the position.

*1043 Dominguez brought suit, alleging that Stacey’s discriminatory views toward women motivated the decision to hire Andrews rather than Dominguez. The district court analyzed Dominguez’s claim under the burden shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973). Under this framework, once a plaintiff has made out a pri-ma facie case of discrimination, the “burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir.1991) (internal citation and quotation omitted). If the employer meets this burden, the presumption of unlawful discrimination “simply drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993).

The plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. The plaintiff may carry this burden “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Lindahl, 930 F.2d at 1437 .

NDOT’s proffered nondiscriminatory reason for hiring Andrews and not Dominguez for the position was that “Andrews’ qualifications for the position were vastly superior to [Dominguez’s] qualifications.” NDOT noted that Andrews holds a bachelor’s degree in Labor Relations and Human Resources, and previously attended law school for two-and-a-half years. He worked, often in a supervisory capacity, in many positions over the years in the labor relations field, and, at one point, held a position in the Wyoming Department of Employment as a Labor Compliance Officer.

On the other hand, Dominguez’s only completed course-work after high school is a course in Secretarial Skills from a vocational school and a course in Business Communications from a community college. Although she has worked in the Contract Compliance Division for over ten years, her position is a Program Assistant IV, a Grade 29 non-professional position in the clerical, administrative and support services class. Although her work experience qualified her to apply for the Program Officer III position, her qualifications were not comparable to Andrews’s education and training.

Dominguez concedes that Andrews “was very qualified, and he may be more qualified than me,” but argues that Andrews was hired because he was a man. She alleges that Stacey, one of the two men who interviewed her, stated in early 1999 that “[w]hen I fill the position for the Program Officer III, I am going to hire a guy and he is going to do all the contract investigations and stay on top of all the contract field work that I haven’t been doing for the past six years.” She claims that Stacey’s alleged discriminatory comment provides direct evidence that, even if Andrews was well qualified, that Stacey applied a discriminatory motive to the hiring process.

Although the district court framed its analysis on a single-motive pretext framework, the majority properly recasts Dominguez’s claim under a mixed-motive framework. To succeed on a mixed-motive theory, the plaintiff is required to demonstrate “that it is more likely than not that a protected characteristic played a motivating part in the employment decision.” Sischo-Nownejad v. Merced Comty. Coll. Dist., 934 F.2d 1104 , 1110 (9th Cir.1991) (internal quotations omitted). The burden *1044 then shifts to the defendant to show that absent discriminatory animus, the same decision would have been reached anyway. Id.

Under a mixed-motive analysis, a plaintiff is required to show that an illicit motive played a causal role in a hiring decision even if other legitimate motives also existed. Here, as the district court found, Dominguez has not disputed Andrews’s qualifications, or denied that Andrews was the best-qualified candidate. Instead, she merely reiterated that Stacey is biased against women. That is not enough. Where, as here, the justification offered by a defendant is that the best-qualified applicant was selected for a job, and the record contains substantial and specific evidence supporting that contention, an alleged illicit motive on behalf of one of the decision-makers cannot be said to have played a motivating role in the employment decision.

This position is supported in our case law, which requires that a plaintiff produce evidence demonstrating that gender played a causal role in an employment decision. Sischo-Nownejad, 934 F.2d at 1110; see also DeHorney v. Bank of Am., 879 F.2d 459 , 468 (9th Cir.1989) (noting that there was no nexus shown between a racially discriminatory remark and an adverse hiring decision).

Of course, there are instances where a plaintiffs evidence of discriminatory intent raises material questions as to the sufficiency or exclusivity of an employer’s alleged nondiscriminatory reasons. This was true in the cases alleging discriminatory terminations cited by the majority, Costa v. Desert Palace, Inc. 299 F.3d 838 (9th Cir.2002), aff'd, 539 U.S. 90 , 123 S.Ct. 2148 , 156 L.Ed.2d 84 (2003), and Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1072 (9th Cir.2004). Where, however, a plaintiff asserts a failure to promote claim and the person hired is objectively the most clearly qualified candidate, other factors such as an alleged discriminatory intent, do not come into play. Here, because Andrews was clearly the most qualified candidate, Stacey’s alleged bias was not a “motivating factor.” Accordingly, although Dominguez’s failure to promote claim is properly considered in a mixed-motive framework, because Stacey’s alleged bias was not a factor in the Department’s decision to hire Andrews, there was no unlawful practice, and hence no liability that could be limited by an affirmative defense.

In conclusion, Dominguez has produced no evidence that demonstrates that NDOT’s contention that it chose to hire an applicant who was better qualified than herself was unworthy of credence. Where the clearly best-qualified applicant is hired for a position, the existence of a discriminatory motive on the part of a decision-maker does not in and of itself, even on summary judgment, establish that it played a motivating role in the decision not to promote a third party. As the district court’s grant of summary judgment on this issue was proper, I would affirm that portion of the judgment.