FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Pedro A. Delgado-Hernández, U.S.
Vladimir Mihailovich on brief for appellant.
A. Schwartz, Assistant United States Attorney, Mariana E.
Bauzá-Almonte, Assistant United States Attorney,
Chief, Appellate Division, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, on
brief for appellee.
Torruella, Kayatta, and Barron, Circuit Judges.
BARRON, Circuit Judge.
appeal concerns a grant of summary judgment to the defendant
in a sex discrimination suit under Title VII, 42 U.S.C.
§§ 2000e-2000e-17, brought by an unsuccessful
applicant for two teaching positions at an elementary school
run by the Department of Defense ("DoD"). We
understand the issue on appeal, the following undisputed
facts are helpful. The Department of Defense Education
Activity ("DoDEA") is a component of the United
States Department of Defense. DoDEA operates a system of
Domestic Dependent Elementary and Secondary Schools
("DDESS") for qualifying children of United States
military personnel in the continental United States, Puerto
Rico, and Guam. Since 1997, the plaintiff, Samuel Cruz, has
been a substitute teacher at both the elementary and the
middle school on the Fort Buchanan military base in Puerto
Rico. The schools are part of the DDESS system. Since 2009,
Cruz has had an active online application to become an
elementary school teacher at Fort Buchanan's elementary
vacancy arises at a DDESS school, the principal of the school
submits a "request for personnel action" to the
Area Service Center ("ASC"), which is headquartered
in Peachtree City, Georgia. The human resources division of
the ASC then compiles a referral list for the vacant
position, based on applications in the online Employment
Application System ("EAS"), which generates scores
for each applicant for the position. The ASC's human
resources division's staff then takes account of these
scores and compiles a list of candidates that is referred to
the school principal. The referral list generally contains
approximately twenty-five applicants. The school's
principal has no role in the creation of the referral list
and is not authorized to hire candidates who are not included
on the referral list.
2010, the ASC issued a referral list for a full-time,
fifth-grade teaching position at the Fort Buchanan elementary
school. The referral list contained twelve women and seven
men. Cruz, who had no nonsubstitute teaching experience, but
had many years of substitute teaching experience (including
some experience as a "full-time" substitute
teacher), was not on the referral list. The school's
principal hired a woman from the referral list, Sandra
López, who had almost nine years of fulltime,
nonsubstitute teaching experience.
in August 2010, the ASC issued a referral list for a second
position -- a part-time fifth-grade teaching position. This
referral list contained twenty women and eight men. Again,
Cruz was not on the referral list. The school's principal
hired Barbara Dixon, a woman from the referral list who had
eight years of full-time, nonsubstitute teaching experience.
December 2010, Cruz filed a formal administrative complaint
with DoDEA, alleging discrimination in hiring on the basis of
sex in violation of Title VII. DoDEA's Office of
Diversity Management and Equal Opportunity informed Cruz via
a letter that it would investigate the ASC's failure to
include Cruz on the referral list in the two instances
described above. After an investigation, DoDEA forwarded
Cruz's request for a hearing to the Equal Employment
Opportunity Commission ("EEOC"). Then, in November
2012, the Administrative Judge ("AJ") appointed by
the EEOC determined that there had been no discrimination. In
January 2013, DoDEA adopted the AJ's decision in full.
April 2013, Cruz filed suit against the Secretary of Defense
("the Secretary") in the United States District
Court for the District of Puerto Rico, alleging
discrimination on the basis of sex in violation of Title VII,
in consequence of the hiring decisions made regarding the two
2010 vacancies to which Cruz had applied. Cruz then amended
the complaint in September 2013. After discovery, the
Secretary filed a motion for summary judgment on the ground
that Cruz had not established a prima facie case of sex
discrimination under Title VII, and that, even if he had,
there were legitimate, nonpretextual reasons that Cruz had