Gwendolyn D. Cunningham v. LLOYD J. AUSTIN , III, United States Secretary of Defense

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-1133
GWENDOLYN D. C UNNINGHAM ,
Plaintiff-Appellant,
v.
LLOYD J. A USTIN , III, United States Secretary of Defense,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:22-cv-00165 — Sarah Evans Barker, Judge.
____________________
A RGUED NOVEMBER 5, 2024 — DECIDED J ANUARY 3, 2025
____________________
Before SCUDDER , ST. E VE, and JACKSON -A KIWUMI , Circuit
Judges.
ST. EVE, Circuit Judge. Gwendolyn Cunningham, a Black
woman, alleges that the Department of Defense discriminated
against her when it failed to promote her into a newly created
position in its civil service. She sued Lloyd Austin, III, in his
official capacity as Secretary of Defense, under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. The district court
granted summary judgment in Austin’s favor, reasoning that

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2 No. 24-1133
the Department offered legitimate, nondiscriminatory rea-
sons for its promotion decision and Cunningham failed to of-
fer evidence that the Department’s reasons were pretextual.
We agree and therefore affirm the district court’s judgment.
I. Background
Gwendolyn Cunningham first joined the Department of
Defense in 1988, working as a part-time secretary in the De-
fense Finance Accounting Service (“DFAS”). Cunningham
only had a high school diploma, but through a dedicated ca-
reer of public service she ascended the General Schedule
(“GS”) ranks. In 2012, DFAS promoted Cunningham to a GS-
12 supervisor position leading its benefits team. She held this
position for 10 years, until her eventual promotion to a GS-13
position in 2022.
Five years into Cunningham’s tenure as supervisor of the
benefits team, her manager, Howard Locke, was promoted to
Director of the Human Resources Shared Services Center.
That left his prior GS-14 role, Benefits Division Chief, vacant.
Recognizing that DFAS lacked a path for GS-12 employees to
advance into the GS-14 Division Chief role, Locke sought to
both hire a new Division Chief and reorganize DFAS to enable
internal promotion in the future. After a desk-audit by the
classification team, DFAS converted a vacant GS-12 position
into a GS-13 supervisor position, which would oversee both
the benefits and workers’ compensation teams. Because the
new GS-13 supervisor position would report to the Benefits
Division Chief, Locke delayed the hiring process for the new
position until the incoming Chief could participate. He did so
despite a DFAS policy mandating that managers make hiring
decisions within a specified timeframe.

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No. 24-1133 3
Meanwhile, Cunningham applied for the GS-13 position.
So did Emmanuel Griffin and two other DFAS employees.
Griffin, a Black man, was the team leader of DFAS’s customer-
care call center. While Griffin lacked Cunningham’s supervi-
sory responsibilities, such as issuing performance evaluations
and disciplining employees, he, too, held a GS-12 position.
Griffin also had a long career in public service. Prior to joining
DFAS, Griffin served in the United States Air Force for 23
years. He also worked for a private corporation, training more
than 1,000 employees and handling workers’ compensation
matters, and for the City of Indianapolis, where he partici-
pated in human resources program design. Griffin held a
Bachelor of Science degree and an MBA.
In April of 2018, DFAS hired Andrew Hartz, a White man,
as the GS-14 Benefits Division Chief. In May, Hartz, along
with Shante Jones, the Supervisor of Talent Management and
Integration, began reviewing resumes and interviewing for
the GS-13 supervisor position. They crafted four categories on
which to evaluate the candidates: (1) HR and Benefits Subject
Matter Expertise (“SME”), (2) Supervisory/Leadership Skills,
(3) Teamwork and Process Innovation, and (4) Customer Ser-
vice. They also developed six standardized interview ques-
tions to ask each candidate, four of which were behavioral.
Griffin and Cunningham emerged as the top two candi-
dates for the position. Cunningham’s subject matter expertise,
in particular, garnered praise from Hartz, who regarded her
as the “Best SME.” But her resume and interview perfor-
mance left him unconvinced of her suitability for the job. Cun-
ningham’s resume included only five years of relevant expe-
rience and listed an incorrect phone number for her supervi-
sor, giving Hartz the impression that it was incomplete. Hartz

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4 No. 24-1133
also felt “disappointed” in Cunningham’s answers to his
standardized interview questions. When asked to describe
how she would approach training the growing number of
benefits team members, Cunningham responded that she
would train each employee herself. Hartz commented in his
interview notes that her approach “doesn’t scale well.” In-
deed, Hartz described several of Cunningham’s interview an-
swers as “tactical,” rather than “strategic,” meaning her re-
sponses reflected short-term thinking.
Griffin, on the other hand, earned high marks for his re-
sume and interview. His many years of education and expe-
rience in both the public and private sectors impressed Hartz.
Hartz also felt that Griffin gave “strategic” responses to the
standardized interview questions and demonstrated strong
leadership skills. When ranking Griffin and Cunningham
across the four identified categories, Cunningham received
higher marks only for her subject matter expertise, as Griffin
lacked extensive experience in federal benefits. Hartz found
that Griffin matched Cunningham in the leadership category
and outperformed her in the process innovation and customer
service categories. Hartz thus chose Griffin for the position,
believing him to be the better overall candidate.
Hartz explained his hiring decision to a disappointed Cun-
ningham in a subsequent meeting. In her deposition, Cun-
ningham relayed her impression of Hartz’s reasoning, stating:
I felt like maybe he [Hartz] wanted something
different organization-wise or structure – or for
the benefits division, and, you know, maybe he
felt like he could take that or do that with some-
one other than myself.

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No. 24-1133 5
Cunningham also remarked that Hartz “probably thought
Mr. Griffin was more suitable for the job” because she was
“direct” in her communication and didn’t engage in “daily
chitchat” with coworkers. Firm in her belief that she was the
more qualified applicant, Cunningham nevertheless departed
the meeting with Hartz convinced that he preferred to work
with a male and had discriminated against her based on her
sex. When asked during her deposition to explain the basis
for this belief, she stated that it was “heartfelt.”
In August of 2018, Cunningham filed a complaint with the
Equal Employment Opportunity Commission, alleging Hartz
failed to promote her because of her race, sex, and age.1 The
EEOC found Cunningham had not demonstrated discrimina-
tion and informed her of her right to sue in federal court.
Upon receiving notice of her right to sue, Cunningham
commenced this action. In her complaint, Cunningham re-
newed her allegations that DFAS had discriminated against
her based on her sex (and her race, in combination with her
sex), in violation of Title VII of the Civil Rights Act of 1964,
when it failed to promote her into the new GS-13 supervisor
position. The district court granted summary judgment in fa-
vor of DFAS, reasoning that Cunningham had not proffered
evidence of sex discrimination beyond her own heartfelt be-
lief that Hartz preferred to hire a man. This appeal followed.
1 Cunningham also filed a second EEOC complaint in August of 2024,
alleging DFAS discriminated against her by failing to non-competitively
promote her. As Cunningham has acknowledged, she abandoned her non-
competitive promotion claim before the district court. She therefore does
not pursue it on appeal, and we do not reach its substance.

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6 No. 24-1133
II. Discussion
We review the district court’s grant of summary judgment
de novo. Vassileva v. City of Chicago, 118 F.4th 869, 873 (7th Cir.
2024). When “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law,” summary judgment is appropriate. Fed. R. Civ. P. 56(a).
While we “construe all facts and draw all reasonable infer-
ences in the nonmoving party’s favor,” the moving party may
prevail at summary judgment “‘by showing an absence of ev-
idence to support’ the nonmoving party’s claims.” Lewis v.
Ind. Wesleyan Univ., 36 F.4th 755, 759 (7th Cir. 2022) (quoting
Tyburski v. City of Chicago, 964 F.3d 590, 597 (7th Cir. 2020)).
Title VII “prohibits an employer from ‘discriminating
against any individual with respect to [her] compensation,
terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.’”
Igasaki v. Ill. Dep’t of Fin. & Pro. Regul., 988 F.3d 948, 957 (7th
Cir. 2021) (quoting 42 U.S.C. § 2000e-2(a)(1)); see also Logan v.
City of Chicago, 4 F.4th 529, 536 (7th Cir. 2021). To defeat a mo-
tion for summary judgment, a plaintiff must proffer evidence
that “would permit a reasonable fact-finder to conclude that
[the plaintiff] was subjected to an adverse employment action
based on a statutorily prohibited factor.” McCurry v. Kenco Lo-
gistics Servs., LLC, 942 F.3d 783, 788 (7th Cir. 2019); see also Coff-
man v. Indianapolis Fire Dep’t, 578 F.3d 559, 564 (7th Cir. 2009)
(finding that a plaintiff alleging discrimination on the basis of
her sex must demonstrate that the adverse employment ac-
tion occurred “at least in part because she is female”).
In Ortiz v. Werner Enterprises, Inc., we clarified that em-
ployment discrimination plaintiffs may carry this burden
through either direct or circumstantial evidence, and that “all

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No. 24-1133 7
evidence belongs in a single pile and must be evaluated as a
whole.” 834 F.3d 760, 766 (7th Cir. 2016). One method for
demonstrating that an employer’s failure to promote a plain-
tiff was the product of prohibited discrimination is through
the burden-shifting framework announced in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See Bragg v. Munster
Med. Rsch. Found. Inc., 58 F.4th 265, 271 (7th Cir. 2023). Because
the parties proceeded under McDonnell Douglas, we do too.
At McDonnell Douglas’s first step, the plaintiff must show
that she was (1) a member of a protected class, (2) qualified
for the position, (3) rejected for the position, and that (4) the
position was given to a person outside the protected class who
was similarly or less qualified than the plaintiff. Logan, 4 F.4th
at 536. “If an employee meets each element of her prima facie
case, the burden shifts to the employer to articulate a legiti-
mate, nondiscriminatory reason for the adverse employment
action.” Lewis, 36 F.4th at 760. If an employer does so, the bur-
den “shifts back to the employee to show why the employer’s
explanation is pretextual.” Id.
Cunningham and DFAS agree that Cunningham has es-
tablished a prima facie case of sex discrimination.2
2 Cunningham does not argue on appeal that she has stated a prima
facie case of race discrimination, acknowledging that Griffin, too, is Black.
See Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 892 (7th Cir. 2016) (holding the
plaintiff could not make out a prima facie case of race discrimination
where both she and the person promoted were Black).
Instead, Cunningham raises an intersectional discrimination claim, al-
leging that she was passed over for the promotion because of the combi-
nation of her sex and race. We do not reach the issue of whether intersec-
tional theories of discrimination are viable under Title VII. Whether

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8 No. 24-1133
Cunningham is a woman, she was qualified for the GS-13 po-
sition, and she did not receive it. Griffin, a man, who was ei-
ther similarly or less qualified, received the promotion. At is-
sue is whether DFAS has articulated a legitimate, nondiscrim-
inatory rationale for selecting Griffin and whether its ra-
tionale is pretextual.
A. Legitimate, Nondiscriminatory Hiring Rationale
An employer’s genuine belief that another candidate’s vi-
sion for the organization or skillset makes them better suited
for the job is a legitimate, nondiscriminatory hiring rationale.
See Barnes v. Bd. of Tr. of Univ. of Ill., 946 F.3d 384, 389 (7th Cir.
2020) (hiring manager’s belief that another candidate was bet-
ter suited for the job because of his “thoughtful approach to
taking over the position” constituted a legitimate, nondis-
criminatory hiring rationale); Scruggs v. Garst Seed Co., 587
F.3d 832, 838 (7th Cir. 2009) (employer’s genuine belief that
another candidate was better qualified was a legitimate non-
discriminatory hiring rationale).
Here, Hartz concluded from applicant resumes and inter-
views that Griffin’s skillset and strategic vision made him best
suited for the job. That Hartz relied on subjective assessments
to reach this conclusion does not render DFAS’s explanation
illegitimate. See Cichon v. Exelon Generation Co., 401 F.3d 803,
814 (7th Cir. 2005) (holding that employers “may legitimately
use subjective qualifications” to choose between qualified
Cunningham claims that DFAS discriminated against her because she is a
woman, or because she is a Black woman, she must offer evidence that
DFAS decided not to promote her at least in part on account of her sex. See
Barnes-Staples v. Carnahan, 88 F.4th 712, 719 (7th Cir. 2023). Cunningham
has not carried this burden.

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No. 24-1133 9
candidates); Kinney v. St. Mary's Health, Inc., 76 F.4th 635, 647
(7th Cir. 2023) (“[S]uperior interview performance … can be a
legitimate nondiscriminatory reason for hiring.”); Groves v. S.
Bend Cmty. Sch. Corp., 51 F.4th 766, 771 (7th Cir. 2022) (finding
that an employer’s determination that the plaintiff’s interview
“did not go well” was subjective, yet an “entirely proper” ba-
sis for the hiring decision).
Nor does DFAS’s decision to ask behavioral interview
questions, rather than substantive ones, render its reliance on
interview performance illegitimate. Our court is not “a super-
personnel department that reexamines an entity’s business
decisions.” Baron v. City of Highland Park, 195 F.3d 333, 341 (7th
Cir. 1999) (citation omitted). When hiring for the GS-13 posi-
tion, DFAS encountered a common HR dilemma: whether to
prioritize subject matter expertise or difficult-to-measure in-
tangibles, such as skilled customer service, familiarity with
process improvement, and passion for the position evinced by
thorough interview preparation. DFAS chose the intangibles,
and we will not second guess its decision.
Having found that DFAS articulated a legitimate, nondis-
criminatory reason for its hiring decision, we next consider
whether Cunningham offered sufficient evidence to create a
genuine issue of material fact as to pretext.
B. Pretext
An otherwise legitimate, nondiscriminatory hiring ra-
tionale is pretextual if the hiring manager did not “sincerely
believe[]” the rationale when making his final decision. Little
v. Ill. Dep’t of Revenue, 369 F.3d 1007, 1015 (7th Cir. 2004). In
other words, to be pretext, a hiring rationale must be “a lie”
or “phony,” Barnes-Staples, 88 F.4th at 716, “allowing an

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10 No. 24-1133
inference that the [defendant’s] true intent was discrimina-
tory,” Runkel v. City of Springfield, 51 F.4th 736, 744 (7th Cir.
2022). When an employer honestly believed it promoted the
best candidate, its reasoning is not pretext, “even if its deci-
sion was inaccurate, unfair, … foolish, trivial, or baseless.”
Barnes-Staples, 88 F.4th at 716 (citation omitted); see also Blise
v. Antaramian, 409 F.3d 861, 867 (7th Cir. 2005) (“[A]n em-
ployer’s decision to favor one candidate over another can be
mistaken, ill-considered or foolish, [but] so long as [the em-
ployer] honestly believed those reasons, pretext has not been
shown.” (citation omitted)). Cunningham bears the burden of
proving that Hartz’s stated reason for selecting Griffin was
false. Hague v. Thompson Distrib. Co., 436 F.3d 816, 824–25 (7th
Cir. 2006).
Cunningham’s own admissions make it difficult for a rea-
sonable factfinder to conclude that Hartz’s rationale for select-
ing Griffin was pretextual. When asked during her deposition
why she thought Hartz selected Griffin, Cunningham replied
that Hartz “wanted something different organization-wise”
and “maybe … felt like he could take that or do that with
someone other than myself.” She also acknowledged that
Hartz “probably thought Mr. Griffin was more suitable for the
job.” In Cunningham’s own telling, then, Hartz’s belief that
Griffin would better accomplish the organizational transfor-
mation Hartz sought was not pretext; it was true.
Even setting aside Cunningham’s deposition statements,
she has failed to present evidence of pretext. Cunningham
clearly believes she was better qualified than Griffin, but for a
disparity in qualifications to support an inference of pretext
under Title VII, the plaintiff’s credentials must “be so superior
to the credentials of the person selected for the job that no

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No. 24-1133 11
reasonable person, in the exercise of impartial judgment,
could have chosen the candidate selected over the plaintiff for
the job in question.” Millbrook v. IBP, Inc., 280 F.3d 1169, 1180–
81 (7th Cir. 2002) (citation omitted). This is “a high evidentiary
bar,” Riley, 829 F.3d at 894, and Cunningham does not clear it.
Griffin had a 23-year military career, private sector experi-
ence, and familiarity with federal benefits through his leader-
ship of the customer care center. He impressed Hartz in his
interview with his strategic approach to the benefits division’s
future. In short, a reasonable person could have selected Grif-
fin for the GS-13 supervisor position; the difference between
his credentials and Cunningham’s does not support an infer-
ence of pretext.
Hartz’s reliance on subjective assessments of the candi-
dates’ interview performances does not support an inference
of pretext either. As we have previously explained, “subjec-
tive evaluations of a job candidate are often critical to the de-
cisionmaking process.” Millbrook, 280 F.3d at 1176 (citation
omitted). So, “absent evidence that subjective hiring criteria
were used as a mask for discrimination, the fact that an em-
ployer based a hiring or promotion decision on purely subjec-
tive criteria will rarely, if ever, prove pretext under Title VII.”
Id. (citation omitted); see also Groves, 51 F.4th at 771 (finding
that consideration of the plaintiff’s interview performance
was “entirely proper,” given no evidence suggesting that the
plaintiff’s membership in a protected class influenced the hir-
ing decision). Here, Cunningham presented no evidence that
Hartz’s subjective evaluation of her, based on her responses
to standardized interview questions, masked a discrimina-
tory intent.

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12 No. 24-1133
Cunningham’s argument that DFAS violated its own pol-
icies during the GS-13 hiring process fares no better. While
“an employer’s divergence from its standard hiring practices
can establish, or at least be evidence of, pretext,” Barnes-Sta-
ples, 88 F.4th at 717, DFAS’s policy deviations do not evidence
sex discrimination. As Cunningham herself acknowledged,
DFAS delayed its hiring for the GS-13 position because it
wanted the GS-14 Division Chief to select the candidate, a de-
cision that impacted all candidates equally. See id. (finding no
evidence of pretext where the purported policy violation “af-
fected all candidates equally”). So did Hartz’s interview ques-
tions, which, in any event, did not violate DFAS policy.
The remainder of Cunningham’s pretext arguments also
lack merit. Hartz’s use of terms such as “tactical” and “strate-
gic” to evaluate all applicants, male and female, reflects the
broader organizational mission and lexicon of the Depart-
ment of Defense, not hidden sex discrimination. That Locke
did not non-competitively promote Cunningham in 2017 does
not bear on whether Hartz discriminated against her in his
2018 hiring decision. And while the district court misstated
the law when it dismissed Cunningham’s statistical evidence
out of hand, for statistics to support an employment discrim-
ination claim, the plaintiff must also proffer individualized ev-
idence of discrimination. See id. at 719 (holding “data alone”
cannot demonstrate discrimination, but “‘must be coupled
with other evidence, which does most of the work.’” (quoting
Baylie v. Fed. Rsrv. Bank, 476 F.3d 522, 524 (7th Cir. 2007))).
Cunningham has not done so here.
In short, Cunningham has offered no evidence that
DFAS’s hiring rationale was pretextual. Armed with only her
heartfelt belief that Hartz preferred to work with a man, she

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No. 24-1133 13
cannot defeat a motion for summary judgment. See, e.g., Payne
v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003) (observing that a
plaintiff cannot “thwart summary judgment by speculating as
to the defendant/employer’s state of mind”).
* * *
The judgment of the district court is
AFFIRMED.

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