UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 04-2021



LINWOOD Q. HAM, SR.; BENJAMIN PORTER; ANDRE
PROCTOR,

                                             Plaintiffs - Appellants,

           versus


WASHINGTON SUBURBAN SANITARY COMMISSION,

                                               Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (CA-03-
1036-RWT)


Argued:   September 22, 2005             Decided:    December 21, 2005


Before TRAXLER and GREGORY, Circuit Judges, and R. Bryan HARWELL,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed in part, reversed in part, and remanded by unpublished
opinion. Judge Gregory wrote the opinion, in which Judge Harwell
joined. Judge Traxler wrote a separate opinion concurring in the
judgment.


ARGUED: Donald Melvin Temple, Washington, D.C., for Appellants.
Elizabeth Torphy-Donzella, SHAWE & ROSENTHAL, L.L.P., Baltimore,
Maryland, for Appellee. ON BRIEF: Bruce S. Harrison, Darryl G.
McCallum, SHAWE & ROSENTHAL, L.L.P., Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
GREGORY, Circuit Judge:

     Benjamin   Porter,   Andre   Proctor,    and   Linwood   Ham,   Sr.

(collectively “Appellants”), African-American employees of the

Washington Suburban Sanitary Commission (“WSSC”), appeal from the

United States District Court for the District of Maryland’s grant

of summary judgment in favor of WSSC.     Appellants allege that WSSC

denied them promotions on the basis of race, in violation of Title

VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and

42 U.S.C. § 1981. Because we believe Appellants Porter and Proctor

have produced sufficient evidence from which a jury could conclude

that WSSC’s proffered reasons for failing to promote them were

pretext for discrimination, we reverse the district court’s grant

of summary judgment as to them.        We hold, however, that summary

judgment was appropriate with respect to Appellant Ham.



                                  I.

     Following is a recitation of facts as construed in the light

most favorable to Appellants, the nonmovants for summary judgment.1

WSSC provides water and sewer services to 1.6 million residents in

Montgomery County and Prince George’s County, Maryland and employs




     1
      On a motion for summary judgment “[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences are to
be drawn in his favor.” Anderson v. Liberty Lobby Inc., 

, 255 (1986).

                                  3
approximately 1,500 people.       J.A. 1747.     As of December 2003,

minorities comprised over 51% of the WSSC workforce.       

July 2000, WSSC underwent a major reorganization in which

its Operations Bureau and its Electrical and Mechanical (“E&M”)

Section   merged   into   one   body   called   the   Production   Team.

Previously, the Operations Bureau was responsible for operating the

water and waste water equipment at WSSC plants, while the E&M

Section inspected, repaired, and maintained the equipment at plants

and pumping stations.      The Production Team thus combined two

individual workgroups into a single organization to be led by a

Lead Electrical/Mechanical Technician (“Lead Tech”) at each of the

WSSC facilities.   This, and other reorganizational efforts at WSSC

resulted in the elimination of more than 600 jobs between 1997 and

2003.

     The restructuring and concomitant retirements culminated in

seven Lead Tech openings at WSSC’s plants, four of which are

relevant here.2    Between July and October 2000, WSSC internally


     2
      Between 2000 and 2002, Lead Tech positions became available
at the Anacostia, Parkway, Patuxent, Piscataway, Potomac, Seneca,
and Western Branch facilities. Appellants do not challenge their
nonselection at Anacostia or Patuxent. They allege, however, that
they were prejudiced with regard to selection at Anacostia because
they believe the Anacostia job posting was tailored to the
abilities of the person selected. Appellants could not compete for
the Patuxent Lead Tech position as the hiring official at Patuxent
did not post a job opening and simply promoted the person then
serving as Acting Lead Tech to Lead Tech.       This practice was
permitted under WSSC policy.     Finally, we decline to entertain
Appellants’ challenges to the promotion decision at Parkway. The
district court granted summary judgment with respect to the Parkway

                                   4
publicized available Lead Tech positions at its various facilities.

In advertising the Lead Tech positions, each facility excerpted

WSSC’s single, published Lead Tech position description, which

indicated    that   a   Lead   Tech   performs      the   following   essential

functions:

     Directs and assigns subordinate Electrical/Mechanical
     Technicians, Electrical Mechanics, and helpers in the
     installation, repair, or modification of various types of
     equipment, systems, and devices;

     Oversees or takes the lead in the more difficult
     electrical or mechanical maintenance activities;

     Installs pumps, motors, pipes, valves, and electrical
     controls necessary to make a new pumping unit functional;

     Determines     nature     and    extent   of    repairs   and    work
     sequences;

     Repairs motor control switchboards and equipment up to
     5KV including synchronous motors and variable speed
     controls;

     Repairs substation equipment up to 69 KV including oil
     circuit breakers and transformers;

     Installs, maintains, repairs, and tests electrical
     systems, electric shop equipment and internal electrical
     power distribution facilities;

     Repairs pneumatic and hydraulic control systems on valves
     and bubbler systems;

     Installs a wide variety of other electrical or mechanical
     equipment.



Plant because of Appellants’ failure to file their charge with the
EEOC in a timely fashion. J.A. 1616. As Appellants do not here
contest the district court’s timeliness determination, we find that
they have waived their ability to challenge the district court’s
grant of summary judgment with regard to the Parkway Plant.

                                        5
J.A. 1762.    The position description made no mention of a need for

administrative      skills,    writing       abilities,    or    the      ability   to

advocate     the    Total     Productive      Operations        Initiative     (“TPO

Initiative”).3      It did, however, specify a minimum number of years

of   experience     in   electrical/mechanical       work       or   an   equivalent

combination of skills and experience.             

eight applications for the

Lead Tech positions at WSSC’s Piscataway, Potomac, Seneca, and

Western    Branch    facilities      through     WSSC’s     internal       promotion

program.     Ham applied at each of the four facilities, Porter at

two, and Proctor at two.

      At the time of the promotion decisions, Porter had been

employed at WSSC for twenty-two years.              During that time, Porter

worked as an Electrical/Mechanical Technician at the Piscataway and

Anacostia    facilities.        In   January     1998,    Porter’s        supervisor

selected Porter to serve as Acting Lead Tech at the Anacostia

Depot.     During his thirty-three month stint as Acting Lead Tech,

Porter successfully performed all the responsibilities of a Lead




      3
      In connection with the merger of the Operations Bureau and
E&M Section, WSSC instituted the TPO Initiative, which endeavored
to train “flexible workers” capable of performing tasks that fit
traditionally within both the E&M Section and the Operations
Bureau. Supp. J.A. 2444. Thus, WSSC maintained that the Lead Tech
“would be called upon to . . . promote the TPO Initiative and
‘flexible worker’ program and communicate this program to the staff
at the plants.” 

Tech and received the highest overall performance rating.4             Porter

was serving as Acting Lead Tech when he applied for the permanent

Lead Tech positions.

     At the time of the hiring decisions, Appellant Proctor was in

his twenty-forth year at WSSC, having spent all but four months at

the Piscataway Plant.       He began working at WSSC in November 1976 as

an   Electrical    Mechanic     Helper     and   was     later   promoted   to

Electrical/Mechanical Technician. For nine months in 2000, Proctor

served as Acting Lead Tech at the Piscataway Plant.               During that

time,    the   Piscataway    Plant’s   nonmanagement      personnel   elected

Proctor an E&M Subject Matter Expert, responsible for assessing

whether employees displayed mastery of particular skills and for

assisting with employee training.          J.A. 1236-39.

     When Ham applied for the Lead Tech positions, he had worked at

WSSC for nine years.          Before arriving at WSSC in 1991, Ham

performed electrical field work while in the U.S. Marine Corps and

worked for several electrical contractors.             At the time he applied

for the Lead Tech position, he was an Electrical Inspector in the

E&M Section.      In that capacity, he supervised contractors at

various plants and facilities, and therefore developed a working



     4
      From 1999-2000, Porter earned the highest overall rating of
“superior.”   J.A. 1173-74.   In 1997-1998, he received the next
highest overall rating of “commendable.”     

1998-1999 evaluation is not included in the record. Although these
evaluations were overwhelmingly positive, supervisors suggested
Porter’s written expression could use improvement.

                                       7
knowledge of the various WSSC facilities.                    J.A. 404.      Ham was

consistently praised for his technical skill, but simultaneously

critiqued for his allegedly “abrasive” communication style.

       WSSC did not select any of the Appellants for the Lead Tech

positions, instead filling each position (including the Anacostia

and Patuxent positions) with Caucasian candidates.                    WSSC selected

Randy Clark for the Lead Tech position at the Piscataway Plant.

Clark had been with WSSC for nearly twenty years.                    Chris Barnhill,

who had six years of experience at WSSC, was selected for the Lead

Tech position at Western Branch.             WSSC selected Carl Huddleson as

the Lead Tech for the Seneca facility.               Huddleson had twenty-seven

years of experience in the electrical field and fifteen years of

experience with WSSC.        He had spent twelve of those years at the

Seneca facility.     Finally, Dan Moler was selected as Lead Tech for

the Potomac facility after each of the remaining candidates,

including    Appellants,      withdrew        from    consideration        for    that

position.

       Although WSSC published a single job description for the Lead

Tech   positions    and    required     the    facilities       to    interview   the

individual     ultimately    selected        for     promotion,      the   selection

processes at the various facilities were otherwise nonuniform.

WSSC   allowed     “[e]ach   of   the    plants       [to]   develop[]      its   own

evaluation     criteria,     questions,       and     ranking    system     for   the

candidates.”     J.A. 791.    The interviews at each facility varied in


                                         8
length and content.      At some facilities, the interview questions

did not relate to the principal requirements of the job.                   For

instance, at Piscataway, Porter and Proctor were asked about their

personal lives.   J.A. 1026, 1307.         In some instances, there was a

lack of uniformity with regard to the questions asked within a

particular facility.     Although the Western Branch interview panel

produced a list of purported interview questions, Ham could not

recall being asked all of the questions listed on the roster, and

remembered being asked questions not included on the roster.              J.A.

511.

       Most troubling, however, is the fact that at some plants a

particular   attribute    was   considered     an    asset,    at   others,   a

liability.   For instance, Ham’s service as an electrical inspector

contributed to his nonselection at Western Branch: “as a longtime

inspector,   he   had    been   away   from    the   daily    operation   and

maintenance issues for a plant for a number of years.”              J.A. 786.

Whereas, when Clark was selected at Piscataway, a member of the

interview panel noted that “as an Electrical Inspector, Mr. Clark

had more experience than Mr. Proctor in preparing detailed written

project reports on a regular basis.”        

while

Porter and Proctor’s lengthy tenure at WSSC was given minimal

consideration, the Parkway selectee’s years of experience in the

industry influenced his promotion at Parkway.              This subjective,

somewhat arbitrary, and nonuniform selection process led Porter to


                                       9
conclude that the “interviewing process appeared to be a formality

only and that a preselection already existed.”                J.A. 737.

     In September 2001, Appellants filed complaints with the Equal

Employment Opportunity Commission (“EEOC”) alleging race-based

discrimination in WSSC’s promotion scheme.                  After investigating

Appellants’ complaints, the EEOC made a finding of discrimination,

concluding that “[w]ithout fail, whenever one of the small class of

Black applicants had superior credentials as posted by the job

vacancy announcement, Respondent’s decision-makers offered ever-

changing subjective criteria to justify each of their non-selection

for the promotions.”       J.A. 303, 305, 307.             Thereafter, the EEOC

invited    the   parties   to    join   in    a   conciliation      effort,   which

ultimately proved unsuccessful.

     Ham, Porter, and Proctor were not the only ones to complain of

disparate treatment at WSSC.            Several African-American employees

attested to the fact that WSSC had a discriminatory environment in

which they were subjected to more stringent standards than their

Caucasian counterparts.         For instance, Galen Ellerbe, an African-

American employee, also filed a discrimination complaint with the

EEOC.     In a signed declaration, Ellerbe indicated that “[a]t the

time [he] started working for WSSC in 1992, [he] sensed hostility

toward    minorities   who      were    ambitious    and    eager    to   advance,

especially African Americans. Though unspoken, there was a general

feeling that we should wait our turn, stay the course, and keep


                                         10
quiet.”      J.A. 289.       Likewise, Alton Walls, an African-American man

who worked at WSSC from 1973 until 2000, indicated that “it is

[his] feeling that minority employees at WSSC must perform above

and beyond their non-Black counterparts in order to advance.”                    

December 2002, WSSC granted retroactive promotions to

Appellants.         They were each promoted to Lead Tech, effective

December 2000, and their pay and personnel files were adjusted

accordingly.       In its letters of promotion, WSSC made the following

comments: “The retroactive nature of this promotion is designed to

make       you   whole   .    .    .   .   This   promotion   and   adjustment   of

compensation        is   unconditional        and   without   prejudice   to   your

continuing to pursue pending allegations of discrimination before

the U.S. Equal Opportunity Commission as well as other additional

relief you may seek.”             J.A. 768-776.     Although Proctor declined to

accept his retroactive promotion to Lead Tech at the Laurel,

Maryland facility, he received a corresponding increase in pay and

grade.5

       On April 9, 2003, Appellants filed a joint complaint in the

district court asserting violations of Title VII and 42 U.S.C.

§ 1981.          Thereafter, WSSC filed separate motions for summary


       5
      WSSC’s grant of retroactive promotions does not undermine the
viability of Appellants’ claims as they request additional forms of
relief, including an order requiring WSSC to institute programs
that eradicate the effects of past and present unlawful employment
actions. J.A. 15.

                                             11
judgment as to each Appellant.                Finding that Appellants had not

adduced evidence from which a reasonable jury could find pretext,

J.A. 1617, the district court granted WSSC’s motions for summary

judgment.    Appellants timely appealed.



                                          II.

        We review the district court’s grant of summary judgment de

novo,    viewing   all   facts      and   the    reasonable    inferences    drawn

therefrom in the light most favorable to the Appellants. 

.     Summary judgment may only be granted where “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 judgment as a matter of law.”                    Fed. R. Civ. P.

56(c).

     As    Appellants      intend    to    prove     racial   discrimination    in

violation     of   Title     VII    or     Section     1981    by   reference   to

circumstantial evidence, they may avail themselves of the familiar

burden-shifting framework announced in McDonnell Douglas Corp. v.

Green, 

(1973).         See Love-Lane v. Martin, 

,

786 (4th Cir. 2000) (McDonnell Douglas may be applied to claims

arising under Section 1981 as well as Title VII).                       Under the

McDonnell     Douglas      analysis,      a     plaintiff     seeking   to   prove

discrimination in absence of direct evidence, must first establish


                                          12
a prima facie case of discrimination.           McDonnell 

.   In the failure to promote context, a plaintiff must show

that: (1) he is a member of a protected class, (2) he applied for

a position, (3) he was qualified for that position, and (4) he was

rejected from that position under circumstances giving rise to an

inference    of   discrimination.       Id.;     Anderson   v.   Westinghouse

Savannah River Co., 

, 268 (4th Cir. 2005).               After a

plaintiff establishes his prima facie case, the defendant responds

by   advancing    a     legitimate,   nondiscriminatory     reason   for   the

employment decision.        McDonnell 

.

      Once the defendant articulates a legitimate, nondiscriminatory

reason    for     its     promotion    decision,     the    presumption     of

discrimination established by the prima facie case is rebutted, and

the plaintiff must prove that the defendant’s proffered reason is

mere pretext for discrimination.            Texas Dep’t of Cmty. Affairs v.

Burdine, 

, 255-256 (1981); McDonnell 

.     This may be accomplished by showing that the proffered

reason is false because “in appropriate circumstances, the trier of

fact can reasonably infer from the falsity of the explanation that

the employer is dissembling to cover up a discriminatory purpose.”

Reeves v. Sanderson Plumbing Prods., Inc., 

, 147

(2000); see also St. Mary’s Honor Ctr. v. Hicks, 

, 511

(1993).     Indeed, “once the employer’s justification has been

eliminated, discrimination may well be the most likely alternative


                                       13
explanation, especially since the employer is in the best position

to put forth the actual reason for its decision.”   

.   Accordingly, “[a] prima facie case coupled with probative

evidence that the employer’s explanation is false would counsel

against granting the employer summary judgment unless the employer

presented other strong evidence from which no reasonable factfinder

could conclude that there was discrimination.”   Price v. Thompson,

, 214 (4th Cir. 2004) (internal quotation marks and

citations omitted).6




     6
      By applying the standard articulated in Reeves, this Court is
not improperly placing WSSC at risk for liability. See 

n.5 (“[A]lthough Reeves will allow a plaintiff to
survive summary judgment without presenting independent evidence of
discrimination . . . , it will permit this only where the other
evidence of discrimination is sufficiently strong to ensure that
the employer is held liable for unlawful discrimination and not
merely for inconsistent statements that arise from reading
applications hastily or from being nervous during depositions.”).
     Here, Appellants Porter and Proctor have made out a strong
prima facie case and adduced other evidence of discrimination. They
were long-time employees of WSSC, successfully serving in the
capacities for which they applied. Although the Caucasian Acting
Lead Tech at Patuxent was automatically promoted to Lead Tech
without considering any other applicants, Porter and Proctor were
denied this same benefit. They not only had to compete for the
positions that they were successfully carrying out, they were not
selected for those positions allegedly because another individual
was better qualified. They were denied promotion for a range of
reasons, many of which did not directly relate to the duties and
essential functions of a Lead Tech.      Other employees perceived
discrimination in the WSSC workplace.     Finally, although WSSC’s
workforce had a high number of minorities, no minority candidate
was selected for any of the seven available Lead Tech positions.

                                 14
                                    III.

      As WSSC concedes that each of the Appellants has made out a

prima facie case of racial discrimination, we proceed to examine

whether Appellants have presented sufficient evidence to discredit

each of WSSC’s proffered legitimate, nondiscriminatory reasons for

failing to promote them.          We review each of Appellants claims

seriatim, beginning with Porter.



                                       A.

      WSSC advanced a variety of reasons for Porter’s nonselection

for the Lead Tech positions at Western Branch and Piscataway.

Because many of these reasons bear little, if any, connection to

the skills required of a Lead Tech, as measured by WSSC’s position

description, a jury could reasonably conclude that they are not

worthy of credence and demonstrative of pretext.



                                       1.

      We begin by examining the selection decision at Western

Branch. In March 2004, Floyd Johnson, the decisionmaker at Western

Branch, elucidated his bases for failing to promote Porter to the

position of Lead Tech. Johnson claimed he selected Chris Barnhill,

a   Caucasian   male,   because   of    Barnhill’s   strong   communication

skills, involvement in the TPO Initiative, and familiarity with the

Western Branch facility.          J.A. 2429-30.      In deciding to hire


                                       15
Barnhill, Johnson acted in disregard of the unanimous advice of the

members of the interview panel, who all preferred Porter.      

, Group Leader and Plant Superintendent of the Western

Branch facility, asked three individuals to assist him in selecting

a Lead Tech for Western Branch.          Johnson, who is Caucasian,

recruited two African Americans, Carlin Penny and Clarence Pyles,

and one Caucasian, Brian Mapes, to help him evaluate candidates.

Every minimally-qualified applicant who so desired was invited to

interview for the position.       A total of twelve candidates, seven

Caucasians and five African Americans, were interviewed.         J.A.

2428.       At the interviews, each candidate was asked to respond to

twenty-six questions.7      

reasonably conclude that Porter is superior to

Barnhill with respect to the essential, objective, articulated

qualifications of a Lead Tech, and hence reject Johnson’s asserted

justification for hiring Barnhill, i.e., that Barnhill was the most




        7
      There is some dispute as to whether every question was indeed
posed to every interviewee. Galen Ellerbe, who interviewed for the
position of Lead Tech at Western Branch, did not recall being asked
most of the questions listed on the question sheet and stated that
his interview only lasted thirty minutes. Ham also suggests that
the interviewers at Western Branch asked him questions that were
not pertinent to the job, including whether he would be willing to
go to a bar and socialize after work.        J.A. 506, 511.    This
question was certainly not included on the formal list of purported
interview questions.

                                   16
qualified.    The Lead Tech position description makes abundantly

clear that it is principally a technical job, requiring:

     [t]horough   knowledge   of   the   standard   practices,
     materials,     tools,     and     equipment     of    the
     electrical/mechanical trade; thorough knowledge of
     electrical mechanical construction and maintenance,
     including installation and/or modification of all sizes
     of electrical conduit, cables, wires, switches, automatic
     starting equipment, etc.; some knowledge of electrical
     repair practices and methods; skill in the use of tools
     and adjusting defects in electrical and mechanical
     systems and equipment; ability to work from drawings,
     schematics, and specifications; ability to plan and
     review the work of others; good physical condition.

J.A. 1762.   Nevertheless, Johnson failed to explain at all how the

selectee was as qualified as Porter on this measure.              Johnson

simply stated “we were impressed with Mr. Porter’s technical

knowledge,” J.A. 2429, and justified his decision to promote

Barnhill based on qualifications not shown to be of principal

importance to the job.

     The record provides ample evidence of Porter’s objective

superiority for the position of Lead Tech. There was a significant

twenty-year experiential gap between Barnhill and Porter.          Porter

had served as Acting Lead Tech at Anacostia for nearly three

years.8      In   that   capacity,    Porter   performed    all   of   the

responsibilities    of   a   Lead    Tech,   including,    reviewing   and


     8
      Johnson attempted to explain away the significance of
Porter’s experience as Acting Lead Tech at Anacostia by suggesting
that the position of Lead Tech at Western Branch is far more
demanding.     We are not persuaded as WSSC defined the
responsibilities of a Lead Tech across all facilities by reference
to a single position description.

                                     17
prioritizing       job    assignments,      conducting      group    meetings,    and

preparing performance evaluations.               J.A. 179.      According to his

supervisor, Alton Walls, “[i]n every sense of the word, Mr. Porter

was ‘in charge.’”         

elaborated:        “Mr. Porter had

exemplary performance during his tenure as Acting Lead Tech. There

were no major breakdowns.              Everything ran smoothly.        He knew the

equipment; he knew the maintenance needs.               He also knew the people

and their abilities.         He communicated well with his staff.”                

the time of his application for a permanent Lead Tech

position, Porter had twenty-two years of experience at WSSC and

had carried out his responsibility as Acting Lead Tech in an

“exemplary” fashion.         

contrast, when Barnhill applied as Lead Tech, he had only

worked      at     WSSC     for     six     years,      only    served       as    an

Electrical/Mechanical Technician for two years (as compared to

Porter’s    twenty-two      years),       and   did   not   possess    the   minimum

qualifications listed in the job description.                  As a consequence,

Barnhill was only permitted to compete for the position because his

supervisor, Alton Walls, agreed to recommend him for the position

of   Lead   Tech    so    that    he    might   circumvent     the    official    job

requirements.9      J.A. 181.


      9
      Under WSSC policy, an individual initially deemed ineligible
for a particular position because of a lack of minimal
qualifications could submit a memorandum from his supervisor
attesting to his suitability for the position. J.A. 1751-52. As
each of the Appellants possessed the minimum qualifications

                                           18
     Lest anyone mistake Walls’s recommendation of Barnhill to mean

that he considered Barnhill to be as qualified as Porter, Walls

stated unequivocally that

     [his] recommendation for the Lead Tech position was
     Benjamin Porter.    Intimately familiar with both Mr.
     Barnhill’s     qualifications    and    Mr.     Porter’s
     qualifications, [Walls] chose Mr. Porter because of his
     years of experience and his performance in the Acting
     Lead Tech position at Anacostia. Mr. Barnhill simply did
     not have the leadership experience Mr. Porter had. In
     addition, Mr. Porter had worked at [sic] number of WSSC
     facilities over his 20-plus years of service; Mr.
     Barnhill had only had the opportunity to work at Western
     Branch.

that Johnson himself identified deficiencies in

Barnhill’s skills and experience calls into question whether he in

fact considered Barnhill the more objectively qualified candidate.

In Barnhill’s 1999-2000 evaluation, Johnson stated that in taking

on the responsibility of Lead Tech:

     Mr. Barnhill must learn a new job that requires new
     skills. He will need to balance the needs of being a
     supervisor and manager with the demands of the equipment.
     He will need to be directly involved in some field
     repairs but will also need to manage all maintenance
     efforts.    The new areas of personnel matters and
     administrative paperwork will need to be mastered to be
     an effective Lead E/M Technician.        This will be a
     challenge that should be successfully overcome with his
     demonstrated learning ability and determination.

J.A. 2440.    In promoting Barnhill to the Lead Tech position,

Johnson   inexplicably   showed   greater   confidence   in   Barnhill’s


delineated in the Lead Tech job description, they did not need to
avail themselves of this alternate qualification method.

                                   19
ability to learn quickly than in Porter’s three-year track record

as an Acting Lead Tech.

     Although an “employer has discretion to choose among equally

qualified candidates, provided the decision is not based upon

unlawful criteria . . .,” 

, on this record,

a jury could reasonably conclude that Porter was far more qualified

than Barnhill with regard to the skills WSSC professed to be

pertinent   to    the   job.    While       Barnhill      did    not   possess    the

articulated minimum qualifications for the position, Porter had two

decades of experience at WSSC and had performed the job of Acting

Lead Tech in a superior fashion.            A jury could logically conclude

that any reasonable employer would deem an individual who meets the

stated qualifications of the job to be more qualified than one who

does not.   Mohammed v. Callaway, 

, 400 (10th Cir. 1983)

(“The only reasonable inference to be drawn from this evidence is

that a candidate who meets the specific requirements in the job

announcement is better qualified than one who must resort to

alternative criteria.”).         Accordingly, we find that Johnson’s

decision to select Barnhill over Porter may be indicative of

pretext.

     We find further evidence of pretext in Johnson’s preoccupation

with subjective, tangential qualities such as written expression.

Courts   have    repeatedly    found   that    an    employer’s        decision    to

emphasize   qualities    not   pertinent      to    the    job    in   selecting    a


                                       20
candidate is probative of pretext.        See, e.g., Durley v. APAC,

Inc., 

, 656-57 (11th Cir. 2000) (summary judgment

against plaintiff not appropriate where plaintiff demonstrated that

employer emphasized qualities not relevant to the position over

pertinent qualities); Gallo v. Prudential Residential Servs., 

, 1226-27 (2d Cir. 1994) (failure to include external

communication skills in an advertisement for a job suggested that

employer’s failure to interview candidate based on her alleged lack

of experience with external communication created a genuine issue

of material fact regarding pretext); Gaworski v. ITT Commercial

Fin. Corp., 

, 1110 (8th Cir. 1994) (discharged employee

discredited employer’s statement that it retained another employee

because of his superior computer skills because, among other

things, the need for computer skills was not mentioned in the

retained employee’s job description); see also Colon-Sanchez v.

Marsh, 

, 82 (10th Cir. 1984) (employer’s decision to

hire nonminority candidate because of his superior administrative

skills was not pretextual where the job description demonstrated

that   administrative   skills   were   pertinent   to   the   position).

Additionally, “the use of subjective criteria is relevant to a

claim of racial discrimination [though], standing alone, it does

not prove a violation of either Title VII or § 1981.”          Mallory v.

Booth, 

, 910 (4th Cir. 1989).




                                  21
     Johnson justified his hiring decision by grasping at a comment

in one of Porter’s evaluations, which suggested that Porter needed

to improve his written and oral communication skills.        Johnson

quoted the following language from Porter’s 1998-1999 evaluation:

“[I]f Ben is to be a more successful supervisor he would need to

improve his writing and communication skills.     I have not seen the

effort that is needed by Ben to make improvements in these areas,

as this is a must if he wants to be successful in the management

area.”   J.A. 2429.    Johnson stated “[t]hese skills were important

to [him], as [he] relied heavily on the Lead Tech to prepare

written reports and perform other administrative paperwork as part

of the job.”   

weight to this concern

as if to suggest that written communication skills are central to

the job of Lead Tech.      However, as Appellants note, the level of

written work required of a Lead Tech is so minimal that it was not

even referenced (or alluded to) in the job description. J.A. 1762.

A jury could reasonably conclude that if written communication

skills were indeed essential to the job, WSSC would have referenced

them in the position description. See, e.g., Courtney v. Biosound,

Inc., 

, 421 (7th Cir. 1994) (“The advertisement stated

that the ideal candidate must be research-oriented but said nothing

about communication skills.      Given Biosound’s claim that it had

placed a ‘high premium’ on finding an individual who could satisfy

its ‘unique communication needs,’ a reasonable juror could conclude


                                   22
that Biosound would have included this qualification in the job

listing had it honestly believed that it was of primary importance

for the position.”).10       Accordingly, WSSC’s own statement of the

essential functions of a Lead Tech, as memorialized in its written

job description, permits a reasonable inference that Johnson’s

stated concern for written communication skills is pretextual.11

      Moreover, as Appellants point out, even if a Lead Tech needs

to   be    an   effective   oral   and    written   communicator,   Porter’s

successful performance as Acting Lead Tech provides ample evidence

of his ability to perform all the tasks required of a Lead Tech.

While acting as Lead Tech, Porter’s 1999-2000 evaluation and the

statement of his supervisor, Alton Walls, reveal that he was

performing all of the duties of a Lead Tech for thirty-three months


      10
      Although a position description may not always encapsulate
all of an employer’s legitimate business concerns as “the business
world is a ‘dynamic’ one in which the relative importance of
various job qualifications may change over time,” Dennis v.
Columbia Colleton Med. Ctr., 

, 647 n.2 (4th Cir. 2002),
here the record shows that WSSC never attempted to adjust the job
description to incorporate the alleged concerns for writing,
administrative skills, or TPO Initiative involvement. Indeed, even
though WSSC revised its job description periodically and added
preferences to the Anacostia 2002 job posting, WSSC did not add any
mention of administrative skills, written expression, or TPO
Initiative involvement.      The only skills included in the
preferences section were technical in nature, reinforcing our
belief that the Lead Tech position was in essence a technical one.
      11
      For the same reasons, we find that Porter has created a
genuine issue of material fact as to whether Johnson favored
Barnhill based on Barnhill’s involvement in the TPO Initiative. As
WSSC never mentioned involvement in the TPO Initiative in the Lead
Tech job description, we find no pre-decisional evidence that it
was a critical aspect of a Lead Tech’s responsibilities.

                                         23
in   an     exemplary       fashion.      Walls    indicated    that       Porter   was

“performing all of the duties of a Lead Technician.                        He prepared

evaluations,         kept    time   records,      scheduled    the     workload     and

distributed the work among his employees effectively. He contacted

vendors for parts and materials needed, and prepared requisitions

for those items.”            J.A. 1173.    Moreover, while serving as Acting

Lead      Tech,     Porter     received    the    highest     overall      rating    of

“superior.”         

purportedly concerned about communication

skills,      the     only     evidence     he     provided    as      to    Barnhill’s

communication skills took the form of a single laudatory statement

made by Alton Walls, a man who unequivocally supported Porter over

Barnhill for the position of Lead Tech at Western Branch.                      Johnson

quoted      Walls    as     stating,   “Chris     is   a   reliable    team    member,

communicates very well and he sets an excellent example for the

rest of his fellow co-workers to follow.”                  J.A. 2037.       Otherwise,

the record is devoid of any indication as to whether Barnhill had

effective written or oral communication skills.12                     Because WSSC’s


       12
      Moreover, Johnson relied on an outdated evaluation of
Porter’s skills. In fact, Porter heeded his 1997-1998 evaluator’s
advice to “get in contact with the Educational Assistance Program
personnel and see if there are some courses in English
Comprehension to help in improving his writing skills.” J.A. 1175.
In 1999, he enrolled in an English Grammar review course and three
computer courses.   

November 2000, when the
promotion decision was made, Porter had received his 1999-2000
evaluation signed by Brian Mapes, a member of the Western Branch
interview panel. In that evaluation, Porter received the highest
overall rating of “superior” and the evaluator noted that he

                                           24
own statement, in the form of its position description, reveals

that writing was not an essential function of the job and because

Johnson does not show that Barnhill had superior written or oral

communication skills, a jury could conclude that Johnson did not

reach his decision because of Barnhill’s communication skills.

      While Johnson claimed that familiarity with Western Branch

equipment was important, he provided no specific indication that

Barnhill possessed superior knowledge of plant equipment.                  As if

Barnhill’s six years at Western Branch necessarily resolved the

question of who was more able to operate and direct the operation

of equipment at Western Branch, Johnson stated “[w]hile [Barnhill]

had   fewer   years   at   WSSC    than      Mr.   Porter,    Mr.   Barnhill   was

nonetheless very familiar with the equipment at Western Branch,

having worked there for approximately six years . . . .”                       J.A.

2430.    Notably,     Johnson     did   not    directly      compare   Barnhill’s

knowledge to Porter’s. He simply indicated that Barnhill was “very

familiar,” with Western Branch equipment, but did not go so far as

to say that Barnill was “more” familiar with any specific Western

Branch equipment. In fact, Porter’s twenty-two year tenure at WSSC

afforded him a significant degree of familiarity with Western

Branch as he gained knowledge of the Western Branch Plant during



“verbally communicates well with his supervisors, peers, and other
internal customers. He voices his opinions, communicates his ideas
to others, and gives direction to subordinates in a very congenial
manner.” J.A. 1174.

                                        25
his shift work at the facility.                 J.A. 992-93.    Maintenance shift

workers “could be called to any facility, plant, or location in the

Commission at any time.           Therefore, [they] had a working knowledge

of all WSSC facilities because [they] had to service all the

facilities.”        

although the facility at

Western Branch differed from others because of its use of a sludge

incinerator, Johnson did not indicate that Barnhill’s six years at

Western    Branch    gave    him     any   special    knowledge    of    the    sludge

incinerator as compared to Porter’s shift work and twenty-two years

at WSSC.      Accordingly, we find that a genuine issue of material

fact exists as to whether Johnson promoted Barnhill out of an

interest in selecting a candidate with the greatest knowledge of

plant equipment.

     Finally, Johnson’s motivation for promoting Barnhill over

Porter is further drawn into question because Johnson made his

decision in contravention of the entire panel’s recommendation and

that of Alton Walls, who had supervised both Porter and Barnhill.

While   the   fact    that       another   decisionmaker       might   have    made    a

different     decision      is    not   necessarily    indicative       of    pretext,

Hawkins v. Pepsico, Inc., 

, 280 (4th Cir. 2000) (“The

alleged opinions of Hawkins’ co-workers as to the quality of her

work are similarly ‘close to irrelevant.’”), here there is reason

to question Johnson’s motives in deviating from WSSC custom.                          At

WSSC, decisionmakers rarely, if ever, disregarded the opinion of


                                           26
the panel members, who were specifically selected because of their

knowledge of the skills required of a Lead Tech.            Walls pointed out

that “it was very unusual for a selecting official to ignore the

recommendation   of    the    interview   panel,     especially    when    the

recommendation   was   so     overwhelmingly   for    one    candidate    over

another.”    J.A. 183.       In his twenty-seven year tenure at WSSC,

Walls, who had been a selecting official and a panel member on

numerous occasions, could not recall a single instance when the

selecting official made a decision that was contrary to the panel

members’ recommendation.       

could reasonably conclude that Porter was

objectively better qualified for the position of Lead Tech and

because Johnson considered subjective, nonessential qualities in

favoring the selectee over Porter, we find that Porter has raised

genuine issues of material fact regarding Johnson’s failure to

promote him, to the extent that a jury could find pretext.                Such

issues of fact are within the province of the jury and should not

be resolved at the summary judgment stage.



                                     2.

     Next, we turn to the selection decision at Piscataway.                Don

Jacobs, the selecting official at Piscataway, claimed he denied

Porter the promotion because he thought Randy Clark was more

qualified.    In particular, Jacobs expressed concern regarding


                                     27
Porter’s purported problems with written communication. J.A. 2418.

He further contended that Porter failed to demonstrate the kinds of

leadership and communication skills required of a Lead Tech in his

interview.     

Group Leader and Plant Superintendent

at WSSC’s Piscataway Plant, selected Randy Clark, a Caucasian male,

to fill the Lead Tech position at Piscataway.           Jacobs asked three

individuals,     Gary Slaughter (Caucasian), Clarence Pyles (African-

American),   and     Osama   Amad    (Arab-American),   to    assist   him   in

selecting a Lead Tech, but he was the final decisionmaker.               With

the assistance of his panel, Jacobs culled through the applications

and selected five candidates to interview, two Caucasian candidates

(Randy   Clark     and   Blaine     Roelke)   and   three    African-American

candidates (Lester Collier, Ben Porter, and Andre Proctor).              J.A.

2414.

     In his 2004 declaration, Jacobs indicated that he declined to

select Porter for the position because “[t]here was a significant

amount of administrative work associated with the position, and I

felt it necessary to have someone in the position who would be able

to handle such tasks independently and effectively.” J.A. 2418-19.

The record before us presents a factual dispute as to whether

administrative skills indeed played a decisive role in Jacobs’s

promotion decision.          First, as stated above, WSSC’s position

description, its only pre-decisional statement as to the skills


                                       28
required    of    a   Lead      Tech,   made    no   mention    of    a   need   for

administrative skills. Second, Jacobs had not previously indicated

that Porter’s allegedly weak administrative skills played any role

in Porter’s nonselection.          On December 5, 2000, just after he made

the decision to promote Clark, Jacobs sent the individuals who had

interviewed for the Lead Tech position an email explaining his

reasons for selecting Randy Clark. In that email, Jacobs justified

his decision on the following grounds:

       Using the information from the recent round of Lead Tech
       interviews I was able to chose [sic] the person who I
       felt    was    most    knowable    [sic]    about    the
       electrical/mechanical equipment at Piscataway and our
       remote stations. In addition I wanted a Lead Tech that
       could help bring the E/M & Operations folks closer
       together as a team. A person who has worked both as an
       operator and an E/M Tech seemed like a good match. For
       these reasons Randy Clark will be recommended for this
       position.

J.A. 2424.       As Jacobs did not mention administrative skills as a

justification for his decision at the outset, his post-hoc claim

that administrative skills had a determinative impact on his

decision is probative of pretext.              

(citing

EEOC v. Sears Roebuck, 

, 852-53 (4th Cir. 2001)) (“The

fact    that     an     employer    has    offered     inconsistent        post-hoc

explanations      for     its    employment      decisions     is    probative   of

pretext.”). Finally, as previously stated, even if such skills are

of value for the job, Porter’s thirty-three month successful stint

as Lead Tech at Anacostia, which led to glowing evaluations,

indicates that he possessed all the skills required of a Lead Tech,

                                          29
including any minimal administrative skills that may have been of

value.

     Jacobs also relied on Porter’s interview to determine that

Porter lacked the kind of communication and leadership skills

required of a Lead Tech.      Because there are compelling reasons to

question the decisive effect of the Piscataway interviews, we find

that a reasonable jury could mistrust Jacobs’s statement as to the

import of the interview process.         First, Porter testified that his

interview lasted twenty minutes and that he was not asked many

questions pertinent to the job.              J.A. 1025-26.      He explained,

“there wasn’t any questions answered that pertained to the plant.”

interview left Porter with the firm conviction

that the interview process was a mere formality and that Clark had

been preselected.     

Appellants contend that

Clark withdrew from consideration at the Western Branch Plant

because   he   knew   he   would   be    selected   for   the    position   at

Piscataway.    See, e.g., 

preselection,

alone, is not indicative of discrimination, 

, it can support a finding of pretext in conjunction with other

evidence.13


     13
      Additionally, Porter questions whether the members of the
selection committee all independently determined Clark to be the
best candidate. Appellants’ Br. at 13. Porter contends that the
interview process at Piscataway shows that, in fact, not all
interviewers preferred Clark. He supports his argument by drawing
the Court’s attention to an exhibit, which he believes reflects how
members of the selection committee scored candidates after their

                                        30
       Jacobs’s assertions aside, the record provides ample evidence

of Porter’s strong leadership abilities.      Individuals who worked

with Porter praised his leadership skills.     In Porter’s 1997-1998

evaluation, Alton Walls explained how Porter came to be entrusted

with   particular   leadership   responsibilities:   “Because   of   his

positive attitude and his firm grasp of the knowledge on the

equipment and his fellow co-workers, Ben has been put in charge to

oversee the Anacostia Zone’s day-to-day operation.” J.A. 1175. In

Porter’s 1999-2000 evaluation, Brian Mapes remarked that Porter

“gives direction to subordinates in a very congenial manner.”        

subordinates concurred:   “Mr. Porter was a very good

supervisor.     He treated everyone fairly and dealt quickly to

resolve any issues that arose.      I found it easy to talk to and

communicate with him.”    

Porter was a very good

leader and seemed to have the finesse to be a good supervisor.        He

always listened but gave clear instructions and priorities. He was

a good motivator and things worked smoothly under his supervision.”

  According to Porter, not all candidates for the
Piscataway Lead Tech position had the benefit of an interview by
every member of the selection committee. Thus, Porter maintains
that when the interview scores were totaled, those candidates who
were interviewed by a greater number of individuals received an
unfair advantage. He believes the document shows that Clark was
interviewed by five people, while he and Proctor were only
interviewed by three people. Because WSSC correctly notes that the
document was not authenticated, we decline to consider it and
accordingly find insufficient factual support for Porter’s
contention.

                                   31
      While Clark received praise for his informal leadership as an

Electrical/Mechanical           Technician,        “Mr.    Clark    maintains        a   good

relationship with his fellow employees and continues to provide

guidance to those employees less experienced than himself,” J.A.

2061,     he,   unlike    Porter      was    not    selected       to    act    as   a   Lead

Technician,      and     thus   had    not    experienced          the    responsibility

associated with such a supervisory position. Additionally, Clark’s

evaluations focused on his ability to act with little supervision

rather than on an ability to supervise others.                      Thus, a jury might

disbelieve Jacobs’s assertion that he considered Clark’s leadership

skills to be superior to Porter’s.

      We believe Porter has raised a genuine issue of material fact

as   to    whether     Jacobs    decided      not     to    promote       him    based     on

administrative and leadership skills.                      Never before had Jacobs

expressed concern for administrative skills.                        And, other than a

cursory interview, the record provides no evidence that Clark was

a more able leader than Porter.               Rather, the record reflects that

Porter’s leadership skills were superior to Clark’s.

      In sum, we conclude that a jury could reasonably find that the

decisionmakers at Western Branch and Piscataway were dissembling

when they proclaimed that the selectees were more qualified than

Porter     as   their     justifications           are     post-hoc      and     based     on

subjective, nonessential qualifications to the exclusion of more

relevant considerations.           Porter had a twenty-two year performance


                                             32
history and received glowing reviews while serving as Acting Lead

Tech.     If an employee with Porter’s record of performance cannot

get past summary judgment, we are left to wonder who can.



                                 B.

     We now address Proctor’s claims of discrimination.    Although

Proctor applied for two Lead Tech positions relevant here, he only

challenges his nonselection at Piscataway.14    In his April 6, 2004

declaration, Jacobs offered the following allegedly legitimate,

nondiscriminatory reasons for failing to promote Proctor.    Jacobs

stated that Proctor did not have Clark’s unique combination of

skills and experience.    J.A. 2417.   Specifically, Jacobs asserted

that although Proctor had served as Acting Lead Tech, he had not

performed many of the administrative duties of a Lead Tech.      

that Proctor did not have the consistently high

level of performance that Clark possessed.        

that Proctor was not as familiar as Clark with the recent

plant upgrades.    

affidavit in support of summary judgment, Jacobs

indicated that he was concerned that the Lead Tech have strong

administrative skills: “it was important to me that the successful



     14
      Proctor attempted to apply for the position at Western
Branch, but his application went to Parkway because he had attached
the Parkway job number to the application and Human Resources (if
they detected it), did not notify him of the error.

                                 33
candidate have administrative and computer skills [sic] would

enable them to perform the administrative tasks which were a

significant part of the job.”          J.A. 2414.    Yet, as indicated above,

Jacobs’s concern for administrative skills appears to have arisen

only after the hiring decision was made and after Appellants filed

their EEOC complaints.            The only pre-decisional reference to

administrative skills came in the form of two questions allegedly

posed during the interview by Clarence Pyles who was not the actual

decisionmaker.      That Jacobs did not pose a single question about

administrative skills, that the job description made no mention of

administrative     skills,      and    that   he   previously   explained     his

decision without regard to administrative skills, at least creates

a genuine issue of material fact as to whether this quality was

either   significant      or   decisive.       Accordingly,     we   agree   with

Proctor’s      assessment      that    Jacobs’s    purported    concern      about

administrative       proficiency          developed     after        Appellants’

discrimination complaint was filed, and is thus probative of

pretext.    See 

.

       Next, Jacobs offered Clark and Proctor’s performance histories

as an additional justification for his promotion decision.                     He

claimed that Clark received “commendable” evaluations from 1996 to

1999   while    Proctor     received    “fully     satisfactory”     and   “needs

improvement” evaluations.             J.A. 2417-18.     In so doing, Jacobs




                                         34
misrepresented   and    omitted     important      components    of   Proctor’s

performance history.       This suggests pretext.

     Jacobs misrepresented Proctor’s record when he stated that

Proctor received “needs improvement” ratings during the period of

1996 to 1999.     In fact, the record before us, which does not

include Proctor’s 1997-1998 evaluation, shows that Proctor received

only one “needs improvement” rating during that time and that his

other “needs improvement” ratings were superceded by a “fully

satisfactory” evaluation.       The circumstances of that review period

merit brief elaboration.

     In 1995, Proctor and two other employees committed a safety

violation though no one was seriously injured.                  J.A. 1253-56.

Although Proctor testified that he was not directly responsible for

the violation, as the most senior person on the job, he accepted

the blame for the error and was disciplined accordingly.                  

the time of his annual evaluation, a dispute ensued as

to whether the safety violation required a “needs improvement”

rating.     Although    his    initial     evaluator    gave    him   a   “fully

satisfactory”    rating,      the   Manager   of    Facilities    Maintenance

instructed the evaluator to downgrade Proctor because “guidelines

indicate[d] that a Needs Improvement should normally follow a

written warning.”      J.A. 1414.    The evaluator reluctantly adjusted

Proctor’s rating to “needs improvement.” 

February

10, 1997, the Manager of Facilities Maintenance issued his own


                                      35
evaluation indicating that Proctor deserved a “needs improvement”

rating.      

    same     date,   however,    another

evaluator generated a separate evaluation, indicating that in light

of his investigation of the safety violation, he was changing

Proctor’s rating to “fully satisfactory” because this was Proctor’s

first and only safety violation.              

a jury might find it suspect that Jacobs failed

to mention that Proctor was rated overall “commendable” in his

1999-2000    evaluation,      while   serving      in    the    Acting   Lead     Tech

capacity.     J.A.    816-17.      Given       that   Proctor’s    single       “needs

improvement” rating occurred more than four years before the

promotion decision and that Proctor had received a “commendable”

evaluation just prior to the promotion decision, a jury could

reasonably    find   that     Jacobs’s    alleged       concern   over   Proctor’s

performance    evaluations      was   pretextual.          Proctor’s     1999-2000

evaluation, received while Proctor was serving as Acting Lead Tech

at Piscataway, was the best predictor of his likely performance as

a Lead Tech, yet Jacobs failed to discuss this evaluation.

     Jacobs’s      underestimation       of   Proctor’s     knowledge      of   plant

upgrades may be probative of pretext.                 Proctor began working at

WSSC in November 1976.        He began his career with WSSC with a four-

month stint at the Anacostia Depot, and has spent the remainder of

his career at the Piscataway Plant.             During his twenty-plus years

at the Piscataway Plant, Proctor gained extensive knowledge of the


                                         36
equipment    in    the   plant   as   well   as   plant   upgrades.       Proctor

testified that “[o]ver [his] period of time at Piscataway [he’s]

been involved in all of the upgrades.”            J.A. 1244.   Proctor’s 1999-

2000 evaluation stated that his time at Piscataway “allowed him to

witness significant upgrades to the plant and develop a good

working knowledge of the plant equipment and operational process.”

added).

     Additionally, there is a factual dispute as to whether Jacobs

overstated the significance of the plant upgrade in which Clark was

involved.    While Jacobs claimed the biological nitrogen removal

(BNR) upgrade involved half of the plant, Proctor stated it only

affected a small fraction of the plant and that he had become

familiar    with    those   upgrades    by    perusing    manuals   and   asking

questions.    J.A. 1273, 1313.        Proctor elaborated: “Piscataway is a

large plant.      To put focus on one little section of the plant where

we did upgrades is deceiving.”               

further

explained that Clark was not stationed at Piscataway when he was

working on the BNR upgrades.            

Clark was

working as an inspector at a variety of facilities.                 

statement to the EEOC, WSSC indicated that being an

inspector was a disadvantage as it meant that “[the candidate] had

been away from the daily operation and maintenance issues for a

plant for a number of years.”          

       Moreover, the fact that Jacobs failed to explain how Clark was

more capable of serving as Lead Tech than Proctor, who served

successfully in the Acting Lead Tech capacity for nine months

(without       any   commensurate   increase   in   pay),   is   probative    of

pretext.       Jacobs did not explain why Proctor was hand-selected to

serve as Acting Lead Tech if another person at the plant, such as

Clark, was more qualified for the position.

       We are also troubled by particular procedural irregularities

in the selection process at Piscataway.15           Like Porter, Proctor was

concerned about the manner in which interviews were conducted at

Piscataway. He “expect[ed] to be asked more technical questions or

more questions related to job duties . . . .”           J.A. 1307.   Instead,

he recalled being asked about his hobbies and his children.                  

concerned about his likelihood of being selected when

he “saw Randy [Clark] back out of the Western Branch position . .

. .”        

the end, he, like Porter, came to believe

that the “the questions had [no] impact on the selections,” as the

determination of who would become Lead Tech had already been made.

sum, we find sufficient evidence of pretext from which a

jury could conclude, as did the EEOC, that Jacobs was dissembling


       15
      Proctor, like Porter, questions whether individuals who were
interviewed by a greater number of people at Piscataway received an
unfair advantage in the promotion process. We are not persuaded by
Proctor’s argument for the same reasons we found Porter’s argument
unavailing.

                                       38
when he stated he failed to promote Proctor to Lead Tech on account

of alleged administrative deficiencies, poor evaluations, and lack

of knowledge of plant upgrades.       The EEOC properly noted that

     [Proctor] had significantly more experience at Piscataway
     than the applicant who was promoted over him. He also
     has spent several months working in the capacity as
     “acting” supervisor which was noted in his performance
     evaluation given three days after [Proctor] applied for
     the promotion. That same performance evaluation, with a
     commendable rating, praised [Proctor’s] experience which
     “allowed him to witness significant upgrades to the plant
     and develop a good working knowledge of the plant
     equipment and operational process.”

J.A. 306.     Accordingly, we conclude that the district erred in

granting    WSSC’s   motion   for   summary   judgment   with   respect   to

Appellants Porter and Proctor.16



                                     C.

     Unlike Appellants Porter and Proctor, Ham cannot demonstrate

that the reason given for his nonselection for promotion at Western




     16
      Additionally, we note that Porter and Proctor are not
evaluating themselves on their own criteria. See 

(“[A plaintiff] cannot establish her own criteria for
judging her qualifications for the promotion. She must compete for
the promotion based on the qualifications established by her
employer.”). Nor do they base their claims on a self-assessment of
their abilities. See, e.g., DeJarnette v. Corning Inc., 

, 299 (4th Cir. 1998) (plaintiff’s self-assessment is not
relevant to the discrimination inquiry). Rather, Appellants rest
on their employer’s pre-decisional expression of the essential
functions and duties of a Lead Tech as encompassed in the job
description, and on the positive evaluations they received while
acting as Lead Techs.

                                     39
Branch and Seneca was pretextual.17             At both facilities, the

decisionmaker    based    his   failure   to   promote   Ham   on   a   concern

regarding Ham’s style of management. Because the record shows that

Ham has been consistently criticized for his “abrasive” management

style     and   because    effective      management     is    a    legitimate

qualification for the position of Lead Tech, Ham cannot rebut

WSSC’s proffered legitimate, nondiscriminatory reason for failing

to promote him.




     17
      Ham applied for the position at Piscataway, but was denied
an interview. Ham claims that the reason given for denying him an
interview, i.e., concerns regarding his rigid and abrasive style,
were pretextual, but he does not directly challenge the hiring
decision at Piscataway.
     Although Ham applied for the position of Lead Tech at Potomac,
he maintains that he withdrew from consideration because he felt
that applying was futile.     Accordingly, Ham attempts to avail
himself of the “futile gesture” doctrine announced in Int’l Bhd. of
Teamsters v. United States, 

(1977).         Under that
doctrine, “the failure to apply for a job does not preclude
recovery if a claimant can demonstrate that he would have applied
but for accurate knowledge of an employer’s discrimination and that
he would have been discriminatorily rejected had he actually
applied.” Pinchback v. Armistead Homes Corp., 

, 1451
(4th Cir. 1990). Ham, however, has not offered evidence sufficient
to show that applying at Potomac would have been futile.        His
primary contention is that a call he received from a member of the
Potomac interview panel inquiring as to whether he was still
interested in the position at Potomac was intended to discourage
him from applying. The panelist’s inquiry alone is not clearly
indicative of racial animus nor does it suggest “that any such
application on [Ham’s] part would be met with certain rejection.”
Brown v. McLean, 

, 904 (4th Cir. 1998).       Moreover,
Ham’s claim of futility is further undermined because he was
contemplating withdrawing his application before he received the
allegedly discouraging phone call. J.A. 591-92.        Accordingly,
although the “futile gesture” doctrine is a viable legal principle,
Ham cannot properly avail himself of it here.

                                     40
     Though it is self-evident that a “Lead” Tech would be required

to   show    strong     leadership    skills,    the    position    description

reinforces this point.         A Lead Tech “directs the work of two or

more Electrical Mechanical Technicians . . . ;” “[d]irects and

assigns subordinate Electrical/Mechanical Technicians, Electrical

Mechanics, and helpers in the installation, repair, or modification

of   various    types    of    equipment,     systems,    and    devices;”   and

“[o]versees or takes the lead in the more difficult electrical or

mechanical maintenance activities.” J.A. 1762.                  Accordingly, we

conclude it was not improper for the decisionmakers at Western

Branch and Seneca to consider Ham’s style of leadership in deciding

whether to promote him.

     Additionally,       Ham    cannot    show   that    the    decisionmakers’

concerns were manufactured.          There is ample evidence in the record

to show that Ham’s management style was a cause of complaint.

Ham’s 1996-1997 evaluation included the following comment: “[Ham]

has had his ups and downs with the Commission personnel in the

building.”     J.A. 834.      His 1997-1998 evaluation stated that

     [w]hen [Ham] present [sic] his ideas or point of views
     [sic] he has a very strong delivery and may be received
     as a threat by others. [Ham] needs to explain his ideas
     in more details [sic], and be more patient when
     responding to questions when presenting his ideas.     A
     little work in this area would be most beneficial to his
     upward movement at the Commission.

        Ham acknowledged the repeated criticism of his tone and style

of management.      At deposition, he testified that he was counseled

to “lessen [his] approach when talking to others.”               J.A. 808.

And, he described his management style as follows:          “To the point.

I speak my mind.”       

at oral argument, Ham’s

attorney conceded that Ham was frequently criticized for his

allegedly “abrasive” and “militaristic” communication style.            Ham,

however, would like to show that his positive evaluation in 1999-

2000 demonstrates that any concern regarding his leadership style

is no longer warranted.          Though the evaluator stated “[Ham’s]

communication skills have improved and he maintains an effective

working relationship with our contractors and subcontractors,” he

still     rated   Mr.   Ham’s   customer    relations   skills   as   “fully

satisfactory.”     J.A. 821-22.    As both of the facilities proffered

the same reason for not selecting Ham for the position of Lead

Tech, we make only these brief facility-specific comments.



                                      1.

     We begin by examining the promotion decision at Western

Branch.     Floyd Johnson claimed he declined to hire Ham at Western

Branch because he was advised that Ham had a rigid and abrasive

communication style.       J.A. 2431.      Johnson concluded that he “did

not believe that such a communication style would allow Mr. Ham to

effectively work to promote harmony between the employees in the


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Operations and E&M groups at Western Branch.”    

explanation was consistent with WSSC’s position statement, which

stated that Ham was not selected for the position in part because

“his management style suggested he would require considerable

adjustment to the recent team building atmosphere that was being

emphasized by the Commission’s management.” 

stated

above, Ham’s evaluators shared Johnson’s concerns.         Thus, Ham

cannot demonstrate the falsity of these allegations.



                                 2.

     Finally, we consider the selection decision at Seneca. In his

April 2004 declaration, Tom Heikkinen (Caucasian), Group Leader and

Plant Superintendent at Seneca, indicated that he decided not to

hire Ham because Ham exhibited a “‘military bearing - chain of

command’ style of communication.”      J.A. 1843.   WSSC’s position

statement echoed these concerns: “Mr. Linwood Ham was not selected

for the position due to his leadership style, which was not

conducive to the Commission’s new emphasis on teaching others and

being a team builder.”   

Heikkinen selected a

Caucasian male, Carl Huddleson, for the position of Lead Tech,

following the unanimous recommendation of interview panel members

Shandy   Richardson   (African-American)   and   Charles   Rupprecht

(Caucasian).




                                 43
     As   indicated   above,   the    record   reflects   that   Ham   was

frequently criticized for his style of leadership. Thus, he cannot

show that Heikkinen’s concern was manufactured or pretextual.

Moreover, Ham deals a fatal blow to his charge of discrimination in

saying he “would have gave [Huddleson] the position if [he] was the

hiring supervisor.”   J.A. 564.

     Accordingly, we find that the district court properly granted

summary judgment on Ham’s claim of discrimination.



                                     IV.

     For the foregoing reasons, the district court’s decision is

hereby affirmed in part, reversed in part, and remanded.



                                                     AFFIRMED IN PART,
                                                     REVERSED IN PART,
                                                          AND REMANDED




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TRAXLER, Circuit Judge, concurring in the judgment:

     I agree that Appellant Ham has failed to produce sufficient

evidence that the reasons advanced by WSSC for his nonselection for

promotion were a pretext for race discrimination.     I also agree

that Porter and Proctor, unlike Ham, have produced sufficient

evidence from which a jury might conclude that WSSC’s legitimate,

nondiscriminatory reasons for not selecting them for promotion were

pretextual.

     I write in addition to my colleagues, however, because I view

the evidence as much closer than they.      For example, I cannot

conclude from the record before us that the evidence produced thus

far establishes that Porter or Proctor were objectively better

qualified for the position.   I also question the admissibility of

some of the evidence presented to us on appeal, and recited at

times by the majority, but leave those determinations to the trial

judge on remand.    In sum, because I do agree that Porter and

Procter have established a genuine issue of material fact regarding

the reasons for their nonselection and that they are entitled to a

fair opportunity to demonstrate that WSSC’s assigned reasons were

a pretext for race discrimination, I concur in the judgment which

affirms in part and reverses in part the district court’s grant of

summary judgment.




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