NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 9 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRANDON SINCLAIR BRUCE, No. 24-5453
Plaintiff - Appellant, D.C. No. 3:22-cv-00115-JES-JLB v. ORDER XAVIER BECERRA, Secretary, U.S. Department of Health and Human Services,
Defendant - Appellee.
Appeal from the United States District Court for the Southern District of California James E. Simmons, Jr., District Judge, Presiding
Argued and Submitted October 6, 2025 Pasadena, California
Before: GILMAN,** GOULD, and KOH, Circuit Judges.
The Memorandum Disposition filed on October 24, 2025 is amended and
filed concurrently with this order. The Petition for Rehearing is otherwise
DENIED, and no further petitions for rehearing will be accepted.
** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 9 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
Plaintiff - Appellant, D.C. No. 3:22-cv-00115-JES-JLB v. AMENDED MEMORANDUM* XAVIER BECERRA, Secretary, U.S. Department of Health and Human Services,
Appeal from the United States District Court for the Southern District of California James E. Simmons, Jr., District Judge, Presiding
Brandon Sinclair Bruce applied for a promotion to one of several available
GS-14 Regulatory Counsel positions in the Center for Tobacco Products (“CTP”),
which is embedded within the Department of Health and Human Services
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. (“HHS”). He was not selected. Bruce, who is Black, then brought
race-discrimination and retaliation claims against HHS under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et. seq.
The district court granted summary judgment in favor of HHS on both
claims. Bruce has appealed. We have jurisdiction under 28 U.S.C. § 1291, and we
review the grant of summary judgment de novo, Alexander v. Nguyen, 78 F.4th
1140, 1144 (9th Cir. 2023). For the reasons set forth below, we AFFIRM the
judgment of the district court as to Bruce’s race-discrimination claim, but
REVERSE its judgment as to Bruce’s retaliation claim and REMAND the latter
claim for further proceedings.
1. The district court did not err in granting summary judgment on
Bruce’s race-discrimination claim. Under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973),
Bruce failed to show that the reason proffered by HHS for not promoting him—
“the quality of the candidates,” including the candidates’ interview scores—was a
pretext designed to mask race discrimination. We have found that a plaintiff can
show a genuine dispute of material fact as to pretext when the plaintiff’s
qualifications are “clearly superior” to the selected candidates’ qualifications. See
Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1492 (9th Cir. 1995).
2 Here, Bruce’s qualifications are not “clearly superior” to the candidates
selected by HHS. He holds B.A., J.D., and LL.M. degrees, as well as a
Contracting Officer’s Representative Level III Certificate, and had at the time
almost five years of experience as a Regulatory Counsel at the Office of
Compliance and Enforcement (“OCE”). But each of the selected candidates also
had at least five years of experience at the OCE, working with the OCE, or as a
Regulatory Counsel. And three of the selected candidates likewise hold J.D.
degrees, and one has an LL.M. as well. Although one selected candidate does not
hold a J.D. degree, he has a Paralegal Certificate and a B.A. degree, as well as a
Program/Project Management Level II Certificate and a Contracting Officer’s
Representative Level III Certificate. That candidate also has extensive knowledge
of and experience with federal contracting, especially in the private sector, which
was valued by the HHS division that selected him. Although Bruce also had
experience with federal contracting, his experience was not in the private sector.
Under these circumstances, Bruce’s qualifications are not “clearly superior”
to the selected candidates, and therefore do not support an inference of race
discrimination. See Blue v. Widnall, 162 F.3d 541, 546 (9th Cir. 1998) (“‘The
closer the qualifications of the candidates, the less weight the court should give to
perceived differences in qualifications in deciding whether the proffered
explanations were pretextual.’” (quoting Odima, 991 F.2d at 602)).
3 We have also held that deviations from an employer’s established policy or
practice can support an inference of pretext. See Diaz v. Eagle Produce Ltd.
P’ship, 521 F.3d 1201, 1214 (9th Cir. 2008). Bruce alleges that HHS deviated
from its established policy or practice in not coming to a consensus interview
rating, but he did not offer any evidence that HHS was bound by or typically
followed the Office of Personnel Management’s “Practical Guide to Structured
Interviews” that recommends coming to a consensus.
Bruce further contends that HHS deviated from its established policy or
practice of asking all candidates for references when it asked for references only
from himself and Thomas Lawson, another candidate who is Black. HHS’s
nondiscriminatory reason for doing so is genuinely disputed, but the dispute is not
material because Lawson was in fact one of the selected candidates. In addition,
Bruce does not explain how HHS’s request for references disadvantaged him. Any
inference of race discrimination based on who was asked for references is thus
negated.
Finally, the fact that HHS selected another candidate who is Black tends to
show that HHS’s reasons for not selecting Bruce were based on factors other than
his race. See Lyons v. England, 307 F.3d 1092, 1117 (9th Cir. 2002) (noting that
evidence that the employer selected two members of the plaintiffs’ protected class
“helps to frame the dispute”).
4 2. We find more merit in Bruce’s retaliation claim. For a plaintiff to
establish a prima facie case of retaliation, he must put forth evidence that (1) he
engaged in a protected activity, (2) he suffered an adverse employment action, and
(3) there is a causal link between the protected activity and the adverse
employment action. Davis v. Team Elec. Co., 520 F.3d 1080, 1093–94 (9th Cir.
2008).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 9 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BRANDON SINCLAIR BRUCE, No. 24-5453
Plaintiff - Appellant, D.C. No. 3:22-cv-00115-JES-JLB v. ORDER XAVIER BECERRA, Secretary, U.S. Department of Health and Human Services,
Defendant - Appellee.
Appeal from the United States District Court for the Southern District of California James E. Simmons, Jr., District Judge, Presiding
Argued and Submitted October 6, 2025 Pasadena, California
Before: GILMAN,** GOULD, and KOH, Circuit Judges.
The Memorandum Disposition filed on October 24, 2025 is amended and
filed concurrently with this order. The Petition for Rehearing is otherwise
DENIED, and no further petitions for rehearing will be accepted.
** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 9 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
Plaintiff - Appellant, D.C. No. 3:22-cv-00115-JES-JLB v. AMENDED MEMORANDUM* XAVIER BECERRA, Secretary, U.S. Department of Health and Human Services,
Appeal from the United States District Court for the Southern District of California James E. Simmons, Jr., District Judge, Presiding
Brandon Sinclair Bruce applied for a promotion to one of several available
GS-14 Regulatory Counsel positions in the Center for Tobacco Products (“CTP”),
which is embedded within the Department of Health and Human Services
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. (“HHS”). He was not selected. Bruce, who is Black, then brought
race-discrimination and retaliation claims against HHS under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et. seq.
The district court granted summary judgment in favor of HHS on both
claims. Bruce has appealed. We have jurisdiction under 28 U.S.C. § 1291, and we
review the grant of summary judgment de novo, Alexander v. Nguyen, 78 F.4th
1140, 1144 (9th Cir. 2023). For the reasons set forth below, we AFFIRM the
judgment of the district court as to Bruce’s race-discrimination claim, but
REVERSE its judgment as to Bruce’s retaliation claim and REMAND the latter
claim for further proceedings.
1. The district court did not err in granting summary judgment on
Bruce’s race-discrimination claim. Under the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973),
Bruce failed to show that the reason proffered by HHS for not promoting him—
“the quality of the candidates,” including the candidates’ interview scores—was a
pretext designed to mask race discrimination. We have found that a plaintiff can
show a genuine dispute of material fact as to pretext when the plaintiff’s
qualifications are “clearly superior” to the selected candidates’ qualifications. See
Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1492 (9th Cir. 1995).
2 Here, Bruce’s qualifications are not “clearly superior” to the candidates
selected by HHS. He holds B.A., J.D., and LL.M. degrees, as well as a
Contracting Officer’s Representative Level III Certificate, and had at the time
almost five years of experience as a Regulatory Counsel at the Office of
Compliance and Enforcement (“OCE”). But each of the selected candidates also
had at least five years of experience at the OCE, working with the OCE, or as a
Regulatory Counsel. And three of the selected candidates likewise hold J.D.
degrees, and one has an LL.M. as well. Although one selected candidate does not
hold a J.D. degree, he has a Paralegal Certificate and a B.A. degree, as well as a
Program/Project Management Level II Certificate and a Contracting Officer’s
Representative Level III Certificate. That candidate also has extensive knowledge
of and experience with federal contracting, especially in the private sector, which
was valued by the HHS division that selected him. Although Bruce also had
experience with federal contracting, his experience was not in the private sector.
Under these circumstances, Bruce’s qualifications are not “clearly superior”
to the selected candidates, and therefore do not support an inference of race
discrimination. See Blue v. Widnall, 162 F.3d 541, 546 (9th Cir. 1998) (“‘The
closer the qualifications of the candidates, the less weight the court should give to
perceived differences in qualifications in deciding whether the proffered
explanations were pretextual.’” (quoting Odima, 991 F.2d at 602)).
3 We have also held that deviations from an employer’s established policy or
practice can support an inference of pretext. See Diaz v. Eagle Produce Ltd.
P’ship, 521 F.3d 1201, 1214 (9th Cir. 2008). Bruce alleges that HHS deviated
from its established policy or practice in not coming to a consensus interview
rating, but he did not offer any evidence that HHS was bound by or typically
followed the Office of Personnel Management’s “Practical Guide to Structured
Interviews” that recommends coming to a consensus.
Bruce further contends that HHS deviated from its established policy or
practice of asking all candidates for references when it asked for references only
from himself and Thomas Lawson, another candidate who is Black. HHS’s
nondiscriminatory reason for doing so is genuinely disputed, but the dispute is not
material because Lawson was in fact one of the selected candidates. In addition,
Bruce does not explain how HHS’s request for references disadvantaged him. Any
inference of race discrimination based on who was asked for references is thus
negated.
Finally, the fact that HHS selected another candidate who is Black tends to
show that HHS’s reasons for not selecting Bruce were based on factors other than
his race. See Lyons v. England, 307 F.3d 1092, 1117 (9th Cir. 2002) (noting that
evidence that the employer selected two members of the plaintiffs’ protected class
“helps to frame the dispute”).
4 2. We find more merit in Bruce’s retaliation claim. For a plaintiff to
establish a prima facie case of retaliation, he must put forth evidence that (1) he
engaged in a protected activity, (2) he suffered an adverse employment action, and
(3) there is a causal link between the protected activity and the adverse
employment action. Davis v. Team Elec. Co., 520 F.3d 1080, 1093–94 (9th Cir.
2008). The district court erred in concluding that Bruce could not establish a
causal link because of the time that had passed between his protected activity—
based on several complaints that he had filed with the Equal Employment
Opportunity Commission (“EEOC”)—and the adverse employment action.
Proximity in time is not essential to establish causation. See Porter v. Cal.
Dep’t of Corr., 419 F.3d 885, 895 (9th Cir. 2005) (noting that although “lack of
temporal proximity may make it more difficult to show causation,” “causality is
[not] dependent, as a matter of law, on temporal proximity” (citation omitted)).
Here, Bruce presented other circumstantial evidence from which a jury could
infer causation. In particular, Bruce was interviewed by three individuals in April
2020: Michelle Jackson, Steve Hilbert, and Elenita Ibarra-Pratt. Jackson led the
interview. Several of Bruce’s prior EEOC complaints had named Jackson as the
supervisor who had discriminated against him. At a hearing in July 2019,
Administrative Law Judge David Norken found that Jackson had indeed
discriminated against Bruce, and he ordered HHS “to provide four hours of
5 training to the Agency officials who discriminated against Complainant, . . .
[including] Michele [sic] Jackson, . . . regarding the Agency’s obligation to
provide employees reasonable accommodation and for the Agency to consider
disciplining . . . Jackson . . . .” Another interviewer, Hilbert, wrote in his interview
notes: “removed unlawfully” and “deal with awol and harassment – look.”
Bruce’s combined interview score was just one point lower than two of the
selected candidates’ combined scores. Hilbert interviewed each of the candidates
that HHS eventually selected and assigned Bruce the lowest score of the
candidates. Jackson interviewed two of the candidates that HHS eventually
selected and assigned Bruce a lower score than she assigned to one of the
candidates selected. The closeness of the interview scores, combined with
Jackson’s involvement in past discrimination against Bruce and the evidence
suggesting that Hilbert considered Bruce’s protected activity in the selection
process raises a genuine dispute of material fact as to whether the element of
causation has been established in this case.
Because the district court found that Bruce had failed to establish the causal-
link element of his prima facie case for retaliation, it did not address the remaining
elements of this claim. We decline to do so in the first instance, and we therefore
remand the case for further consideration by the district court consistent with this
6 disposition. See Ecological Rts. Found. v. Pac. Lumber Co., 230 F.3d 1141, 1154
(9th Cir. 2000).
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.