MALDONADO v. PANETTA

Filing 42

ORDER granting 30 Motion for Summary Judgment. Signed by Judge Sarah Evans Barker on 12/6/2013. (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

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LYNNETTE A. MALDONADO,
Plaintiff,
vs.
CHUCK HAGEL Secretary, Department of
Defense,
Defendant.

No. 1:11-cv-01669-SEB-TAB

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on Defendant’s Motion for Summary Judgment [Docket
No. 30], filed on June 5, 2013. Plaintiff, Lynnette Maldonado, has brought this claim against
Defendant Chuck Hagel, Secretary, Department of Defense, alleging that her failure to be
selected for a supervisory position by her employer, the Defense Finance and Accounting
Service (“DFAS” or “the Agency”), was because of her age, in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. For the reasons detailed
below, we GRANT Defendant’s Motion for Summary Judgment.
Factual Background
The Position
The Defense Finance and Accounting Service (“DFAS”) is an agency of the Department
of Defense responsible for the accounting and finance activities of the armed services. Keith
Decl. ¶ 3. Within DFAS, the Resource Management Office manages the day-to-day financial and
resource support operations of the Agency and consists of five offices, one of which is the

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Support Services Office. Kingston Decl. ¶ 4. Bruce Keith was the director of the Support
Services Office in 2010–11. Keith Decl. ¶ 3. In early 2010, the Agency initiated plans to create a
new supervisory position in Support Services: Supervisory Program Analyst (“the Position”).
Kingston Decl. ¶ 7. Mr. Keith was designated as the Selecting Official for the Position since it
would ultimately fall under his direct supervision.1 Keith Decl. ¶ 9.
The employee hired into the Position would be responsible for providing leadership and
supervision to the Agency Program Management Office including advancing DSAF goals for
establishing metrics as well as measuring the success of DFAS programs. Def.’s Br. 4. This
person would also be required to supervise and manage several employees and to prepare and
present briefings and presentations to management. Pl.’s Dep. 83:4–20.
Ms. Maldonado
At the time she was interviewed for the Position, Ms. Maldonado’s age was over forty
and she had completed twenty-nine years of federal service, eighteen of which were in program
management. Pl.’s Resp. 3. She had acquired her Master’s Degree in Management, Pl.’s Resp.
11, and was a Management Analyst Team Lead with DFAS. Compl. ¶ 8. Ms. Maldonado had
been supervised by Mr. Keith for more than two and a half years, following his selection of her
as a Program Management Analyst. Keith Decl. ¶ 29; Keith Dep. 16:7–21. Ms. Maldonado had

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Defendant states that “Mr. Keith was the most knowledgeable about the necessary qualities for the prospective
selectee since he had the best knowledge of the agency programs, the experience and leadership qualities the
selectee would need to possess in order to perform the new position’s duties effectively, and the vision for
advancing the agency programs to the next level.” Def.’s Br. 7 (citing Keith Decl. 9; Pl.’s Dep. 158:24–25; 159:1–
3). Ms. Maldonado disagrees with this assessment, stating that she “actually served in the actual position of
Supervisory Program Management Analyst for three (3) months and reported to Elaine Kingston.” Pl.’s Resp. 2. It is
unclear whether Ms. Maldonado is suggesting that it was she, and not Mr. Keith, who was most knowledgeable
about the position due to her brief post in the position. Defendant does not deny that Ms. Maldonado served in the
position for three months. Ms. Maldonado’s conflicting view creates no material factual dispute. Regardless of who
actually possessed superior knowledge about the job qualifications, it is undisputed that Mr. Keith had been
designated the Selecting Official to fill the Position. Keith Decl. ¶ 9.

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also served as the “acting” supervisor of Support Services from September 27, 2009 through
January 2, 2010, (a period of about three months), Keith Decl. ¶ 19, and reported to Ms.
Kingston during that time. Pl.’s Resp. 2.
In August, Ms. Maldonado applied for the Position hoping to fill it on a permanent basis.
Ms. Maldonado had learned of this opening directly from Mr. Keith, as well as through an email
notification. Def.’s Br. 8. She was one of four candidates who were interviewed for the job.
Def.’s Br. 10.
Ms. Hutton
Ms. Hutton was one of the four candidates selected for interview, Def.’s Br. 10, and
ultimately became the one selected to fill the position. Def.’s Br. 19. She was twenty-nine years
old when she was interviewed, with seven years of prior professional experience, Pl.’s Resp. 4,
along with a Bachelor’s Degree in Accounting. Pl.’s Resp. 11. She had previously been
supervised by Mr. Roy Higgins, the Accounting HPO Director. Def.’s Br. 18–19. Mr. Keith did
not know Ms. Hutton prior to her interview for the Position. Def.’s Br. 12.
The Selection Procedure
The Recruitment and Placement Office, DFAS Human Resources, oversees the selection
process for all recruitments and placements within DFAS. Mullins Decl. ¶ 4. Beginning with the
first step when approval is obtained to fill the vacancy, each subsequent stage of the process is
conducted in a collaborative manner involving either Mr. Keith or Ms. Kingston and DFAS
Human Resources staff member(s). Def.’s Br. 4–5.

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At the time relative to this case, Elaine Kingston was Director of Research Management.
She, together with Mr. Keith, secured the appropriate approval to fill the vacancy and then
submitted the official announcement to begin the recruitment process to fill the Position. Keith
Decl. ¶ 7. The Vacancy Announcement for the Position ran from August 13–23, 2010, and was
open to all current federal employees as well as other eligible individuals. Keith Decl. ¶ 8;
Kingston Decl. ¶ 7; Exhibit A to Mullins Decl.
DFAS Human Resources supervises the two steps established for filling
professional/analytical vacancies including the Position at issue here. Both of these stages must
follow prescribed procedures. First, the selecting official chooses whether to use a “rating and
ranking panel”; that choice is discretionary. Stafford Decl. ¶ 9. Here, a panel was employed.
Def.’s Br. 9. After this decision is made, the selecting official interviews each candidate who has
advanced past the first step. Again, the selecting official is authorized to decide whether to
conduct these interviews individually or whether to enlist an interview panel. Mullins Decl. ¶ 9;
Kingston Decl. ¶ 17. Here, the selecting official, Mr. Keith, chose to interview the candidates
individually, without a panel. This decision was approved by Ms. Stafford, who was the Human
Resource Liaison who worked between Human Resources and the Enterprise Management
Services. Def.’s Br. 5, 10.
The selection process fully complied with the procedures developed by Mr. Keith and
approved by Ms. Stafford. Included in the materials prepared to inform the hiring decision were
the panel member recommendations, draft proposed resume grading criteria outlining the
qualifications needed for the position, interview questions, and proposed questions for the
prospective selectee’s prior supervisors, if references were to be contacted following the
interviews. Def.’s Br. 7–8.
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The first stage of the selection process involved the receipt and ranking by the panel of a
certificate of eligible candidates and their resumes. The rankings were required to comport with
pre-established selection criteria. The scoring criteria established for the Position was based on a
total of 100 possible points, broken out into subcategories: a maximum of 55 points could be
assigned for Experience; 20 for Education; 10 for Certifications; and 15 for “Other.” Stafford
Decl. ¶ 11. The determination by the panel that a candidate qualified for an interview also meant
that he or she was qualified for final hiring into the Position. Mullins Decl. ¶ 10.
Here, Human Resources reviewed the applications submitted from which it created a list
of the names of all candidates who met minimum qualifications who were then referred to the
rating and ranking panel. Pl.’s Dep. 98:7–18. Mr. Keith, Susan Gillison, and Barbet Lamberg all
served as that panel. Keith Decl. ¶ 10; Exhibit D attached to Mullin’s Decl. The panel evaluated
each resume based on the grading criteria, Keith Decl. ¶ 10, and assigned scores to applicants’
resumes based on experience and education, as detailed above.
Next, each applicant who advanced past the first stage was required to respond to
identical questions put to everyone in the same order. Mullins Decl. ¶ 9. Their answers were
scored and tallied separately from the scoring performed by the rating and ranking panel.
Stafford Decl. ¶ 16. The selecting official scored each candidate during his/her interview,
without regard to whether the interviews were conducted by the selecting official individually or
with a panel. Stafford Decl. ¶ 15. Because each candidate who had succeeded in being referred
by the panel as part of stage one of the process was deemed qualified to actually fill the Position,
the in-person interview served to identify those who would be the best fit for that spot. Mullins
Decl. ¶ 10; Stafford Decl. ¶ 16. Through the interview process, the selecting official was able to

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evaluate each candidate’s presentation style as well as his or her facility in responding to
questions. Def.’s Br. 6.
The four candidates receiving the highest scores from the rating and ranking panel were
offered interviews. Keith Decl. ¶ 12. These four included Monica Hutton, who ultimately was
selected to fill the Position; Ms. Maldonado as well as two other individuals were also finalists.
Keith Decl. ¶ 12. Having advanced to the interview stage, each candidate was considered
qualified to hold the position, each candidate, therefore, began the interview process on equal
footing. Keith Decl. ¶ 16; Stafford Decl. ¶ 16; Mullins Decl. ¶ 10.
Prior to these interviews, Mr. Keith had been familiar with Ms. Maldonado and one other
candidate who also was not selected for the Position. He did not have any acquaintance with Ms.
Hutton or another interviewee. Keith Decl. ¶ 16.
Interviews
Mr. Keith, with Ms. Stafford’s approval, elected to conduct the interviews individually,
rather than with the assistance of a panel. Keith Decl. ¶ 12. Keith Dep. 31:9–21. Seven standard
interview questions were formulated and approved for use in interviewing the top four
candidates. Keith Decl. ¶ 12. Each question was assigned a certain number of points, the
maximum number of points for all seven questions totaling 100. Keith Decl. ¶ 15. Mr. Keith took
handwritten notes during each interview and immediately after each interview allocated the
number of points for each question as to each candidate. Keith Decl. ¶ 15.
Even though Mr. Keith was acquainted with Ms. Maldonado prior to her interview, he
informed her that in terms of vying for the Position she should not rely on that knowledge or

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experience with her; she would have to convince him in her interview that she was the best
person for the position. Keith Decl. ¶ 17.
During her September 29, 2010 interview, Mr. Keith took notes of Ms. Maldonado’s
responses, utilizing the approved interview question sheet. Keith Decl. ¶ 15; Exhibit D attached
to Keith’s Decl. Mr. Keith thought that Ms. Maldonado had performed well on questions 2 and 3,
scoring her answers at a level exceeding eighty percent of the maximum possible points on each.
Keith Decl. ¶ 18. However, he gave her lower scores on the remaining five questions. Keith
Decl. ¶ 18. Specifically, in response to question 5, Ms. Maldonado was unable to provide any
examples of performance metrics or processes she would employ in evaluating the organizational
health of an agency program. Pl.’s Dep. 123:17–25; 124:8–25; 125:1–2. Additionally, she
omitted from her responses any examples of process improvements she had previously
implemented when she served as the “acting” supervisor for Support Services between late
September 2010 and early January 2010. Keith Decl. ¶ 19. DFAS senior leaders place a high
priority on metrics or accountability measurements to evaluate the effectiveness of organizations
or programs. Keith Decl. ¶ 18. Ms. Maldonado apparently left Mr. Keith with the impression that
she was resistant to the idea of establishing metrics, when she stated during her interview that
“agency programs did not always produce widgets.” Keith Decl. ¶ 18. Thus, Ms. Maldonado was
awarded a score of only 79 out of a possible 100 points for her interview. Keith Decl. ¶ 19.
In contrast, Mr. Keith interviewed Ms. Hutton, who ultimately was hired for the position,
according to Mr. Keith provided clear, thorough, compelling responses to his questions. He
viewed her to possess the type of communication skills, program planning and management
experience, leadership skills, and ability to implement performance metrics and process
improvements that were necessary to implement the vision he had established for the Agency
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Program Management Office. Keith Decl. ¶ 20. Mr. Keith further stated that Ms. Hutton clearly
explained her program management experience and the way(s) in which it improved her
leadership abilities, including her success with a team of accountants whom she guided to a place
where they were able to successfully reduce delinquent Accounts Receivables by $2 billion for
the Air Force; this was credited with being the third best process improvement within the
Department of Defense. Keith Decl. ¶ 20.
Mr. Keith viewed the quality of Ms. Hutton’s answers with respect to metrics to be far
superior to Ms. Maldonado’s. Keith Decl. ¶ 21. Ms. Hutton had indicated that if put in the
Position for which she was vying she would confer with the Support Services Director to
determine which programs had the highest potential for metric development and then attempt to
customize the metrics based on the different programs. Keith Decl. ¶ 21. She also planned to
perform an evaluation of the effectiveness of the current metrics, analyze the available resources,
and assess personnel skills in order to establish an appropriate baseline for training. She also
planned to develop measurements to evaluate the effectiveness of her staff’s interactions with
customers through site visits, teleconferences and/or working groups. Keith Decl. ¶ 21. Mr. Keith
assessed Ms. Hutton’s ability during the interview to communicate her vision as “exceptionally
well.” Keith Decl. ¶ 21. Mr. Keith’s interviews were concluded on Thursday, September 30,
2010, and he determined at that point that Ms. Hutton was the best candidate to lead the Program
Analysts. Keith Decl. ¶ 23. Ms. Hutton had achieved a total score of 87 out of a possible 100
points, which result was a full 8 points higher than Ms. Maldonado’s. Def.’s Br. 17.

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Selection of Ms. Hutton
In his capacity as selecting official, Mr. Keith signed the Resumix Referral List recording
his selection of Ms. Hutton for the Position. Keith Decl. ¶ 22; Exhibit K attached to Mullins
Decl. Before submitting the Referral List to Ms. Kingston, Mr. Keith contacted Ms. Hutton’s
past supervisor and reference, Roy Higgins, the Accounting HPO Director, to elicit his
response(s) to the approved questions. Keith Decl. ¶ 23. Mr. Keith again recorded in his notes the
information gleaned from his conversation with Mr. Higgins, (Keith Decl. ¶ 23; Exhibit E
attached to Keith Decl.), who stated that in his opinion, Ms. Hutton had the ability to see the big
picture, was an “excellent” performer under pressure, and always delivered first-class work
products. Keith Decl. ¶ 24. Mr. Higgins also informed Mr. Keith that Ms. Hutton had briefed
senior DFAS leadership on multiple occasions and that he would “absolutely” hire her back
again if the opportunity arose. Keith Decl. ¶ 24.
Mr. Keith next contacted Ms. Kingston to explain his decision for recommending Ms.
Hutton as the best candidate for the position. Keith Decl. ¶ 27. Ms. Kingston agreed with Mr.
Keith’s assessment, affirming the importance of strong leadership skills and an ability to achieve
successful results in the Position. Kingston Decl. ¶ 18. Ms. Kingston also thought Ms. Hutton
was an excellent choice.
Having completed the final stage of the hiring process, Mr. Keith provided the Resumix
Referral List to Ms. Stafford, setting the stage for the selection of Ms. Hutton to fill the position.
Keith Decl. ¶ 26.

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Mr. Keith’s Prior Hiring Practices
In the course of performing his duties with DFAS, Mr. Keith had previously selected for
hiring Susan Richards, who was in her 30s; Jennifer Dick, who was in her 20s; and Maryann
Pachmeyer, who was in her 50s, each of whom served in 120-day temporary assignments as his
Executive Assistants. Pl.’s Resp. 5; Def.’s Reply Br. 4.
Ms. Maldonado in leveling her charge of discrimination cites her experience when she
had occasion to enter a meeting with Mr. Keith and Ms. Richards, she alleges that “they would
engage in giggling and nonverbal conduct which made [her] uncomfortable.” Pl.’s Resp. 5.
When Ms. Maldonado was not selected for the Position, she believed it was a decision
based on her age. This lawsuit ensued.
Legal Analysis
I.

Summary Judgment Standard of Review
Summary judgment is appropriate when the record shows 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning
material facts are genuine where the evidence is such that a reasonable jury could return a verdict
for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
deciding whether genuine issues of material fact exist, the court construes all facts in a light most
favorable to the non-moving party and draws all reasonable inferences in favor of the nonmoving party. See id. at 255. However, neither the “mere existence of some alleged factual
dispute between the parties,” id., 477 U.S. at 247, nor the existence of “some metaphysical doubt

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as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), will defeat a motion for summary judgment. Michas v. Health Cost Controls of Ill., Inc.,
209 F.3d 687, 692 (7th Cir. 2000).
The moving party “bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The party seeking
summary judgment on a claim on which the non-moving party bears the burden of proof at trial
may discharge its burden by showing an absence of evidence to support the non-moving party's
case. Id. at 325.
Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for
resolving factual disputes. Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
Therefore, after drawing all reasonable inferences from the facts in favor of the non-movant, if
genuine doubts remain and a reasonable fact-finder could find for the party opposing the motion,
summary judgment is inappropriate. See Shields Enterprises, Inc. v. First Chicago Corp., 975
F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989).
But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to
establish his or her case, summary judgment is not only appropriate, but mandated. See Celotex,
477 U.S. at 322; Ziliak v. AstraZeneca LP, 324 F.3d 518, 520 (7th Cir. 2003). Further, a failure
to prove one essential element “necessarily renders all other facts immaterial.” Celotex, 477 U.S.
at 323.
A plaintiff’s self-serving statements, which are speculative or which lack a foundation of
personal knowledge, and which are unsupported by specific concrete facts reflected in the
record, cannot preclude summary judgment. Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th

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Cir. 2001); Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999); Slowiak v. Land O’Lakes, Inc.,
987 F.2d 1293, 1295 (7th Cir. 1993).
The summary judgment standard is applied rigorously in employment discrimination
cases, because intent and credibility are such critical issues and direct evidence is rarely
available. Seener v. Northcentral Technical Coll., 113 F.3d 750, 757 (7th Cir. 1997); Wohl v.
Spectrum Mfg., Inc., 94 F.3d 353, 354 (7th Cir. 1996). To that end, we carefully review
affidavits and depositions for circumstantial evidence which, if believed, would demonstrate
discrimination. However, the Seventh Circuit has also made clear that employment
discrimination cases are not governed by a separate set of rules, and thus remain amenable to
disposition by summary judgment so long as there is no genuine dispute as to the material facts.
Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir. 1997).
II.

Discussion
An ADEA plaintiff may defeat a motion for summary judgment by showing a genuine

issue as to whether the employer discriminated against her on the basis of her age. This can be
accomplished using either the direct or indirect methods of proof. Jordan v. City of Gary, Inc.,
396 F.3d 825, 831-32 (7th Cir. 2005). We find that the evidence Ms. Maldonado has presented
fails under both methods.
Ms. Maldonado presents insufficient evidence to defeat a motion for summary judgment
under the direct method. Proving discrimination via direct evidence “essentially requires an
admission by the decision-maker that his actions were based on the prohibited animus.” Radue v.
Kimberly-Clark Corp., 219 F.3d 612, 616 (7th Cir. 2000). No such evidence exists in Ms.
Maldonado’s case. A plaintiff may also prevail under the direct method if she can construct “a
‘convincing mosaic’ of circumstantial evidence that ‘allows a jury to infer intentional
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discrimination by the decision-maker.’” Rhodes v. Ill. Dept. of Transp., 359 F.3d 498, 504 (7th
Cir. 2004) (quoting Troupe v. May Dept. Stores Co., 20 F.3d 734, 737 (7th Cir. 1994)). Courts in
this circuit typically point to the following three categories of circumstantial evidence on which a
plaintiff may rely in the employment discrimination context to make such a showing:
(1) suspicious timing, ambiguous oral or written statements, or behavior toward or
comments directed at other employees in the protected group; (2) evidence, whether or
not rigorously statistical, that similarly situated employees outside the protected class
received systematically better treatment; and (3) evidence that the employee was
qualified for the job in question but was passed over in favor of a person outside the
protected class and the employer’s reason is a pretext for discrimination.
Sun v. Bd. of Trustees of Univ. of Ill., 473 F.3d 799, 812 (7th Cir. 2007) (citation omitted).
Ms. Maldonado points to the following two pieces of circumstantial evidence in support
of her claim: (1) that Mr. Keith previously “circumvented the Defendant’s hiring procedures for
the benefit of younger females when he hired Susan Richards, who is in her 30’s, and then
Jennifer Dick, who is in her 20’s, as his Executive Assistants”; and (2) that “when [Ms.]
Maldonado would enter a meeting with Keith and Richards, they would engage in giggling and
nonverbal conduct which made Maldonado uncomfortable.” Pl.’s Resp. 9.
This evidence fails to raise an inference of intentional discrimination. The fact that Mr.
Keith hired two substantially younger individuals to serve in temporary assignments as his
Executive Assistant raises no suspicion when one considers that Mr. Keith also had hired
Maryann Pachmeyer, an employee in her 50’s, to serve in the same 120-day temporary
assignment. Def.’s Reply Br. 4. Furthermore, there is no evidence that the Defendant’s hiring
process was ever “circumvented” in Ms. Maldonado’s case. Mr. Keith’s actions throughout the
hiring process were conducted according to pre-established procedures and under the supervision
of DFAS Human Resources. As the selecting official, Mr. Keith was entitled to, and did choose
to use a “rating and ranking panel.” Stafford Decl. ¶ 9. He also had the discretion to conduct
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individual as opposed to panel interviews, (Mullins Decl. ¶ 9; Kingston Decl. ¶ 17), a decision
that was conveyed to and approved by Ms. Stafford, the Human Resource Liaison between
Human Resources and the Enterprise Management Services. Def.’s Br. 5, 10.
Ms. Maldonado’s recollection that Mr. Keith and Ms. Richards would “engage in
giggling and nonverbal conduct,” raises no inference of intentional discrimination. Furthermore,
Ms. Maldonado fails to acknowledge that it was Mr. Keith who selected her for a promotion in
2008. See Blasdel v. Northwestern Univ., 687 F.3d 813, 820 (7th Cir. 2012) (courts may consider
on summary judgment the fact that the same person hired and later fired the employee in
determining whether sufficient evidence of discrimination has been shown.)
Even viewing the facts in a light most favorable to Ms. Maldonado, as we are required to
do at this stage in the litigation, it is clear that she has failed to meet her burden under the direct
method of proof.
Ms. Maldonado’s attempt to prove discrimination indirectly within the McDonnell
Douglas burden-shifting framework also falls short.2 See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–04 (1973). Under this method of proof, a plaintiff must begin by establishing
a prima facie case of discrimination, which requires a showing that: (1) she is a member of a
protected class; (2) her performance met her employer’s legitimate job expectations; (3) she
suffered an adverse employment action; and (4) the circumstances surrounding the adverse
action indicate that it is more likely than not that her age was the reason for it, which may be
demonstrated by showing that her employer treated similarly situated employees outside of the
protected class more favorably. See Elkhatib v. Dunkin Donuts, Inc., 493 F.3d 827, 830 (7th Cir.
2007). If a plaintiff succeeds in establishing a prima facie case of discrimination, the burden

2

This approach applies to claims brought under the ADEA. Barricks v. Eli Lilly and Co., 481 F.3d 556, 559 (7th
Cir. 2007) (citing Raymond v. Ameritech Corp., 442 F.3d 600, 610 (7th Cir. 2006)).

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then shifts to defendant to articulate a nondiscriminatory reason for the actions it took against the
plaintiff. If defendant can offer a legitimate, nondiscriminatory reason for the employment
decision, the burden reverts back to plaintiff to show that there is a genuine dispute of material
fact that the proffered reason for the employment action is pretextual. Nese v. Julian Nordic
Constr. Co., 405 F.3d 638, 641 (7th Cir. 2005).
The parties do not dispute, and we agree, that Ms. Maldonado, whose age is higher than
forty years, is a member of a protected class, that she was meeting legitimate job expectations,
and that she suffered an adverse employment action. Nor do the parties dispute that Ms. Hutton,
who is 29 years old and thus outside of the protected class, was treated more favorably, in that
she was hired into the position denied to Ms. Maldonado.
DFAS claims that it had a legitimate, nondiscriminatory reason for not selecting Ms.
Maldonado: Ms. Maldonado did not score as well as did Ms. Hutton during her interview,
underscoring their conclusion that Ms. Hutton was the best candidate for the position. Def.’s Br.
2.
The burden therefore shifts to Ms. Maldonado to show that DFAS’s proffered reason is
pretextual, which means “a dishonest explanation, a lie rather than an oddity or an error.”
Kulumani v. Blue Cross Blue Shield Ass’n, 224 F.3d 681, 685 (7th Cir. 2000) (citing Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 147–48 (2000)). It is not within our purview
to determine whether DFAS’s decision not to select Ms. Maldonado was a correct and prudent
decision; as long as the evidence makes clear that DFAS honestly believed at the time that the
selection for the position was made that Ms. Maldonado was not the best candidate for the
position and that Ms. Hutton was, Ms. Maldonado cannot succeed in sustaining her burden to

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establish pretext. However, if DFAS’s explanation rings false, we may infer that the employer is
attempting to cover up a discriminatory purpose. See Reeves, 530 U.S. at 147.
In her attempt to demonstrate pretext, Ms. Maldonado argues (1) that she was more
qualified than Ms. Hutton for the position, and (2) that Mr. Keith interviewed the candidates
individually, and thus, his opinion that Ms. Hutton was more qualified is “subjective.” Pl.’s
Resp. 11–12. We view both of these arguments as unavailing.
In arguing that she was more qualified than Ms. Hutton, Ms. Maldonado faces a high
hurdle. “[W]here an employer's proffered non-discriminatory reason for its employment decision
is that it selected the most qualified candidate, evidence of the applicants’ competing
qualifications does not constitute evidence of pretext ‘unless those differences are so favorable to
the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the
plaintiff was clearly better qualified for the position at issue.’” Millbrook v. IBP, Inc., 280 F.3d
1169, 1180 (7th Cir. 2002) (quoting Deines v. Texas Dept. of Protective and Regulatory Servs.,
164 F.3d 277 (5th Cir. 1999)). “In other words, in effect, the plaintiff's credentials would have to
be so superior to the credentials of the person selected for the job that no reasonable person, in
the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff
for the job in question.” Id. (internal quotation marks and citations omitted).
Ms. Maldonado alleges that no reasonable person could find that Hutton was more
qualified than she was. To establish this conclusion, she cites three reasons. First, she “served in
the actual position of Supervisory Program Management Analyst for three (3) months and
reported to Bruce Keith’s boss, Elaine Kingston.” Second, Ms. Hutton was 29 years old while
she on the other hand “had completed twenty-nine years of federal service, 18 of which were

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spent performing program management.” Third, she has a Master’s Degree in Management,
while Ms. Hutton has merely a Bachelor’s Degree in Accounting. Pl.’s Br. 11.
We hold that a reasonable person could find that Ms. Hutton was more qualified than Ms.
Maldonado, despite the candidates’ differences in education and experience. The candidates’
respective education and experience was fully considered during the initial step in the application
process, when the panel reviewed each applicant’s resumes. Stafford Decl. ¶¶ 8, 9; Kingston
Decl. ¶ 7. Each individual who had been referred by the panel in stage one was deemed qualified
to hold the Position, and in fact both Ms. Maldonado and Ms. Hutton were among the top four
candidates at the conclusion of the first stage. Thus, they were both determined to be qualified,
despite their differences in education and experience. After the first stage, the candidates began
the second stage on an equal footing. Keith Decl. ¶ 16. It was the in-person interview that
provided the critical basis for the decision as to which candidate was the best fit for the
organization. Mullins Decl. ¶ 10; Stafford Decl. ¶ 16. The interview explored measurements and
indicia of merit beyond merely education and experience, providing the selecting official with an
opportunity to evaluate each candidate’s presentation style and ability to respond to questions in
a logical, organized way. Def.’s Br. 6. Ms. Maldonado has presented no evidence to undermine
Mr. Keith’s conclusion that Ms. Hutton’s answers during the interview were better than Ms.
Maldonado’s or to challenge that fact that Ms. Hutton’s total interview score came in 8 points
higher than Ms. Maldonado’s, Def.’s Br. 17. Based on these facts, a reasonable person could
conclude that Ms. Hutton was better qualified for the position than Ms. Maldonado. In short,
there simply is nothing about Mr. Keith’s reliance upon these other measures of merit beyond
education and experience—such as oral presentation skills—to support an inference of a
discriminatory motive.

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Ms. Maldonado also contends that pretext is established by the fact that Mr. Keith
interviewed the candidates individually and that therefore his opinion about which candidate was
best qualified for the position was merely “subjective” and unworthy of credit. Pl.’s Resp. 11–12.
However, employers are not prohibited from relying on subjective criteria when promoting
employees. See Blise v. Antaramian, 409 F.3d 861, 868 (7th Cir. 2005) (affirming summary
judgment and noting that “[t]his court has … never held that a job interview must be scored
according to some sort of objective criteria”); Millbrook, 280 F.3d at 1176 (“[S]ubjective
evaluations of a job candidate are often critical to the decisionmaking process, and if anything,
are becoming more so in our increasingly service-oriented economy . . . .”) (quotation marks and
citation omitted).
Nothing about Mr. Keith’s decision to conduct the interviews individually directly
supports an inference of discriminatory motive or pretext. As the selecting official, Mr. Keith
was vested with the discretion to conduct interviews individually. Mullins Decl. ¶ 9; Kingston
Decl. ¶ 17. His decision to do so was known to and approved by Ms. Stafford, the Human
Resource Liaison between Human Resources and the Enterprise Management Services. Def.’s
Br. 5, 10. Mr. Keith’s interviews followed the defendant’s pre-established procedures for
conducting such interviews. The seven interview questions had been submitted to and approved
by Ms. Kingston for use with the top four candidates well before the identity of each of the
candidates was known. Keith Decl. ¶ 12. Mr. Keith recorded his impressions as well as the
candidates’ responses in his notes during each interview using the approved interview question
lists. He assigned the point tallies for each candidate also immediately after each interview.
Keith Decl. ¶ 15. Ms. Maldonado does not dispute that Mr. Keith’s notes accurately reflect her
responses to his questions, nor does she claim that the questions were inappropriate in any way.

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Maldonado Dep. 132:24–25; 133:1–25; 134:1–14. We simply cannot conclude on the basis of
these facts that an inference of pretext has been established. None of the evidence identified by
Ms. Maldonado, either alone or in combination, raises an inference of pretext.
Thus, Ms. Maldonado has failed to establish any genuine issue of fact relating to whether
her employer had discriminated against her on the basis of age. Her evidence fails under both the
direct and indirect methods of proof.
III.

Conclusion
For the reasons detailed above, Defendant’s Motion for Summary Judgment [Docket No.

30] is GRANTED. Final judgment will be entered accordingly.
IT IS SO ORDERED.
12/06/2013
Date: ___________________________

_______________________________
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

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Distribution:
Joel Samuel Paul
RAMEY & HAILEY
[e-mail]
Debra G. Richards
UNITED STATES ATTORNEY’S OFFICE
[e-mail]
Gerald A. Coraz
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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