Kandan v. Burrows

                UNITED STATES DISTRICT COURT                             
                EASTERN DISTRICT OF LOUISIANA                            


UMA R KANDAN                               CIVIL ACTION                  

VERSUS                                     NO. 24-2089                   

CHARLOTTE BURROWS ET AL.                   SECTION: (3)                  



                     ORDER AND REASONS                                   
    This  lawsuit  arises  from  Equal  Employment  Opportunity  Commission 
(“EEOC”) Houston District Director Rayford Irvin’s selection of Michael Kirkland (a 
male)1 rather than Uma Kandan (a female)2 for the position of Field Director for the 
New Orleans Field Office (“NOFO”).3 EEOC filed a Motion in Limine to Exclude 
Evidence (R. Doc. 47) relative to testimony (and any supporting exhibits) from three 
EEOC employees that directly compares the qualifications of Kandan and Kirkland.4 
EEOC also seeks to exclude testimony (and any supporting exhibits) relative to other 
hiring and promotion decisions by Irvin in which he chose male candidates over 
female candidates.5 For the following reasons, the motion is granted in part and 
denied in part.                                                           


1 R. Docs. 35-2 at 1, 36.                                                 
2 R. Doc. 36-7.                                                           
3 R. Doc. 13, ¶¶ 1–5.                                                     
4 R. Doc. 47-1 at 1.                                                      
5 Id.                                                                     
I.   Potential Coworker Testimony                                         
    EEOC seeks to limit the testimony of three witnesses: Kevin C. Rung, Andrew 
Kingsley,  and  Jennifer  Ortiz  Prather.6  The  potential  testimony  arises  from  the 

following contexts.                                                       
    A.    Kevin C. Rung, EEOC Supervisory Administrative Judge.          
    Rung is a GS-14 Supervisory Administrative Judge at the NOFO.7 His first-
line  supervisor  is  Irvin.8  Rung  has  known  Kandan  as  a  NOFO  colleague  for 
approximately 20 years.9 He has also known Kirkland as a NOFO colleague for 
approximately 18 months.10 Rung was not involved in Kirkland’s selection as NOFO 

Field Director but expressed surprise that Kandan was not chosen based on her 
experience at EEOC, including as Acting Field Director.11                 
    Rung is aware that Jennifer Mitchem, a female EEOC employee, complained 
when Irvin chose Kirkland (then an outside candidate) rather than Mitchem for the 
position of enforcement supervisor in 2021.12 Rung was familiar with Mitchem’s 
background and experience.13 At the time, Rung had not yet had an opportunity to 
work with Kirkland.14 Rung felt that Mitchem was “probably the better qualified 



6 Id. at 3.                                                               
7 R. Doc. 47-2 at 1.                                                      
8 Id.                                                                     
9 R. Doc. 55-2 at 17.                                                     
10Id. at 6.                                                               
11 R. Doc. 47-2 at 3.                                                     
12 R. Doc. 55-2 at 10.                                                    
13 Id. at 9–10.                                                           
14 Id. at 14.                                                             
candidate” than Kirkland given her knowledge of the law, background, and years of 
experience.15                                                             
    B.   Andrew Kingsley, Special Assistant/Senior Attorney Advisor.     

    From 2016 to 2022, Kingsley was a trial attorney in the NOFO.16 For part of 
that time, he was also the union representative.17 As a union representative, Kingsley 
reviewed resumes relative to the enforcement supervisor position for which Kirkland 
was selected in 2021.18                                                   
     Kingsley  noted  that  both  candidates  had  served  in  the  U.S.  Army,  but 
Mitchem was a major (GS-12) equivalent), while Kirkland was a command sergeant 

major (GS-6 equivalent).19 Kingsley also noted that Mitchem had more than 20 years 
of experience at the agency, while Kirkland had never worked there and had “limited, 
if any,” analogous experience.20 Finally, he noted that Mitchem had a bachelor’s 
degree, while Kirkland’s resume listed no degree.21 He also characterized Mitchem 
as among the most, and perhaps the most, capable and competent investigators.22 
The disparity between Mitchem and Kirkland’s qualifications concerned Kingsley.23 




15 Id. at 13–14.                                                          
16 R. Doc. 47-3 at 3.                                                     
17 Id.                                                                    
18 Id.                                                                    
19 Id.                                                                    
20 Id.                                                                    
21 Id.                                                                    
22 Id.                                                                    
23 Id.                                                                    
Based on their backgrounds and working with both individuals, Kingsley believes 
Mitchem was “substantially more qualified” than Kirkland.24               
    Kingsley also had firsthand knowledge relative to the selection of Kirkland 

over Kandan for the NOFO Field Director position.25 Kingsley notes that he was 
familiar with Kirkland’s earlier resume from when he was first hired and that he 
reviewed Kandan’s resume at her request.26 By Kingsley’s summary, Kandan was 
multilingual and Kirkland was bilingual; Kandan had two or three master’s degrees 
and Kirkland did not have a bachelor’s or master’s degree; Kandan had about 24 years 
of experience at the agency while Kirkland had about two years of experience; and 

Kandan had lived in New Orleans for 24 years while Kirkland had never lived there.27 
Kingsley described both candidates as hardworking and sociable.28 He was “very 
surprised”  when  Irvin  chose  Kirkland.29  The  “drastic  disparity”  in  Kandan  and 
Kirkland’s qualifications concerned Kingsley such that he reported it to the agency’s 
Office of Civil Rights.30 Kingsley was told that he could not submit a complaint in his 
capacity as a bystander.31 Kingsley avers that he does not know that gender, race, or 



24 R. Doc. 55-1 at 8.                                                     
25 R. Docs. 55-1 at 13–15, 5 5-1 at 16–20.                                
26 Id.                                                                    
27 R. Doc. 47-3 at 4–5. Kingsley explained that the Field Director position required 
the candidate to be the “public face of the agency in that locality.” R. Doc. 55-1 at 18–
19.                                                                       
28 R. Doc. 47-3 at 5.                                                     
29 R. Doc. 55-1 at 16.                                                    
30 R. Doc. 47-3 at 5; see also R. Doc. 55-1 at 21 (noting office’s name change). 
31 R. Doc. 47-3 at 5.                                                     
national origin was the reason for Kirkland’s selection, but Kingsley is also not aware 
of any legitimate reason for Irvin’s decision.32                          
    Kingsley also noted in connection with Kandan’s discrimination claim that he 

has observed that women are treated less favorably than men and held to a different 
standard in both the NOFO and Houston District Office.33 Kingsley has heard EEOC 
staff refer to Irvin and his managers as a “boys’ club.”34 Kingsley has observed Irvin 
and other male managers in the NOFO and the Houston District Office “permit men 
to  speak  and  behave  aggressively”  in  meetings,  while  expressing  dissatisfaction 
toward or disciplining women who do the same.35 According to Kingsley, “Women are 

expected to be demure, yet by being demure, they are considered incapable of being 
effective leaders.”36 Since Kingsley started at the agency in 2016, the Houston district 
director, two deputy directors, three field directors, and two systemic coordinators 
have all been men.37 Kingsley reports that Kandan and other women at the agency 
were “distraught” when they learned that Kandan had not been selected.38  






32 Id. at 6.                                                              
33 R. Doc. 47-3 at 6, 8.                                                  
34 R. Doc. 47-3 at 6.                                                     
35 Id. at 9.                                                              
36 Id.                                                                    
37 Id. at 6.                                                              
38 R. Doc. 55-1 at 21.                                                    
    C.   Jennifer Ortiz Prather, EEOC Supervisory Attorney.              
    Ortiz Prather is an EEOC attorney in the Houston District Office.39 She has 
been with the agency since 2010.40 Her second-line supervisor is Irvin.41  

    Ortiz  Prather  believes  that  Irvin  has  provided  almost  no  professional 
development opportunities to qualified females.42 In 2019, Ortiz Prather filed a 
complaint when Irvin did not allow her to apply for the GS-15 Deputy position in 
Houston.43 She states that Irvin has been on notice since at least that date relative 
to the lack of professional development opportunities afforded to females.44  
    In 2023, Ortiz Prather applied for a Deputy Director position but was not 

selected.45 She reports that, like Kandan, she has “many more years of service” than 
the selected male candidate.46 Ortiz Prather states that neither Kandan nor herself, 
despite years of service and positive ratings, have been offered development and 
promotion opportunities and that Irvin consistently selects males.47 Ortiz Prather 
states that the disparity is “incredibly striking.”48 Ortiz Prather believes that Irvin 
would have provided Kandan with professional development opportunities if she were 
male.49 She feels similarly relative to two other female EEOC employees (Marina 


39 R. Doc. 47-4 at 1.                                                     
40 Id.                                                                    
41 Id.                                                                    
42 Id. at 3.                                                              
43 Id.                                                                    
44 Id.                                                                    
45 Id. at 4.                                                              
46 Id.                                                                    
47 Id.                                                                    
48 Id.                                                                    
49 Id.                                                                    
Guerra  and  Elizabeth  Henderson).50  According  to  Ortiz  Prather,  the  lack  of 
development opportunities has resulted in a “slew” of female candidates leaving the 
Houston office to pursue EEOC positions elsewhere.51 When Ortiz Prather discussed 

that one such candidate had done well elsewhere, Irvin allegedly responded, in effect, 
that he would never have hired her and that it was a mistake.52           
    According to Ortiz Prather, Irvin told her that Kandan was “barely” qualified 
for her position.53 Ortiz Prather further reports that Irvin made comments about 
Kandan’s accent and complained about her use of leave to visit family in India.54 Ortiz 
Prather notes that Irvin made these comments “without seeming to have any fear” 

relative to his behavior.55 She reports being shocked that his behavior did not seem 
to rise to the level to be addressed.56 Ortiz Prather states that Irvin questioned 
Kandan’s management abilities, in response to which Ortiz Prather questioned Irvin 
about whether he had given Kandan guidance or opportunities that he provided to 
less qualified males.57 Ortiz Prather believes that the NOFO Field Director selection 
would have been different if Kandan had been given similar professional development 
opportunities.58 Ortiz Prather believes that Irvin intentionally disseminated negative 



50 Id. at 3.                                                              
51 Id. at 3–4.                                                            
52 Id. at 6.                                                              
53 Id. at 2.                                                              
54 Id. at 3.                                                              
55 Id. at 5.                                                              
56 Id.                                                                    
57 Id. at 3.                                                              
58 Id.                                                                    
information about Kandan because he wanted to perpetuate a negative view of her at 
the agency.59                                                             
    Ortiz Prather believes that Kirkland was not qualified for the Field Director 

position,  including  because  of  his  communication  skills,  legal  knowledge,  and 
background,  such  that  both  Ortiz  Prather  and  other  staff  felt  shocked  at  his 
selection.60 She suspects that Kirkland was given the questions and answers before 
his panel interview.61 Ortiz Prather doubts that Kirkland could have scored more 
highly than Kandan without additional help or support, which was not available to 
female employees.62                                                       

    Ortiz Prather also testified that Irvin required her to interview for a promotion 
while Ortiz Prather was traveling internationally with her family while on planned 
leave.63 She was told that she had to interview while abroad because a selection was 
imminent.64 She believes that Irvin knew that the interview would be difficult for 
Ortiz Prather given technological limitations associated with being out of the office.65 
According to Ortiz Prather, Irvin, with help from Shanita Williams, was in control of 
interview logistics and denied her request for a schedule change given the imminent 

nature of the selection—but then waited to choose until two weeks after Ortiz Prather 


59 Id. at 6.                                                              
60 R. Doc. 55-3 at 10–11.                                                 
61 R. Docs. 55-3 at 22, 24–25.                                            
62 R. Doc. 55-3 at 27.                                                    
63 Id. at 12.                                                             
64 Id. at 13.                                                             
65 Id.                                                                    
had returned to the office.66 Ortiz Prather believes it would have been easy for her 
interview to occur after she returned from leave.67                       
    Finally, Ortiz Prather states that there were numerous complaints about Irvin 

prior to his transfer from Phoenix to Houston and that he has been found “guilty” of 
different  discrimination,  harassment,  and  retaliation.68  She  alleges  that  Irvin 
harbors and has acted on an employment preference for males.69 She identified 
multiple males (including one who served on Kirkland and Kandan’s interview panel) 
whom she believes Irvin has groomed for leadership opportunities and has selected 
over more qualified females.70                                            

II.  The Federal Rules of Evidence do not support a blanket prohibition   
    on  testimony  comparing  Kandan  and  Kirkland’s  qualifications  or 
    discussing the possible presence of discrimination.                  

    EEOC does not seek to exclude coworker testimony discussing each candidate’s 
qualifications.71 EEOC does seek, however, to exclude testimony that would compare 
Kandan or Kirkland’s “relative fitness for the NOFO Field Director position.”72 EEOC 
relies on Rules 602, 701, 702, and 403 of the Federal Rules of Evidence.73 
    With respect to Rule 602, which requires that a lay witness have personal 
knowledge, EEOC maintains that Rung, Ortiz-Prather, and Kingsley’s beliefs about 
66 Id. at 13–14.                                                          
67 Id. at 14.                                                             
68 Id. at 18.                                                             
69 Id. at 20.                                                             
70 Id. at 20–21.                                                          
71 R. Doc. 58 at 2–3.                                                     
72 Id. at 1.                                                              
73 R. Doc. 47-1 at 3–5.                                                   
what  “would  make  someone  a  successful  Field  Office  Director”  are  not  reliable 
because none of them have worked in or supervised that role.74 Moreover, EEOC 
maintains, these employees lack the “full set of facts” upon which to base such 

beliefs.75  These  arguments  can  be  made  through  cross-examination,  however.76 
Provided that the witnesses’ beliefs reflect personal knowledge of the candidates, 
there is no basis to exclude this testimony under Rule 602.               
    Similarly, EEOC’s challenge under Rules 701 and 702 lacks merit. Rule 701 
allows the admission of fact witness opinions when they are rationally based on the 
witness’s perception and “helpful to clearly understanding the witness’s testimony or 

to determining a fact in issue,” provided that the opinions are not based on specialized 
knowledge within the scope of Rule 702. Fed. R. Evid. 701. “Courts generally hold 
admissible  under  Rule  701  evidence  in  the  form  of  lay  opinion  testimony  in 
discrimination cases when given by a person whose position with the defendant entity 
provides  the  opportunity  to  personally  observe  and  experience  the  defendant's 
policies and practices.” Gossett v. Oklahoma ex rel. Bd. of Regents for Langston Univ., 
245 F.3d 1172, 1179 (10th Cir. 2001) (citing e.g., Hansard v. Pepsi–Cola Metro. 

Bottling Co., 865 F.2d 1461, 1466–67 (5th Cir. 1989).  And “[c]ourts often have 
permitted lay witnesses to express opinions about the motivation or intent of a 
particular  person  if  the  witness  has  an  adequate  opportunity  to  observe  the 

74 R. Doc. 58 at 2.                                                       
75 Id.                                                                    
76 For example, during his deposition, Kingsley made clear that he was not involved 
in Kandan’s selection process and “there is likely information that I did not see.” R. 
Doc. 58 at 3.                                                             
underlying circumstances.” Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 
1466 (5th Cir. 1989).                                                     
     The  anticipated  coworker  testimony  presented  by  Kandan  relative  to 

candidate qualifications and potential reasons for Irvin’s decision will counter the 
anticipated testimony presented by EEOC that Kirkland was the more qualified 
candidate  and  that  discrimination  did  not  affect  Irvin’s  decision.  See  Brooks  v. 
Barnhart, 78 F. App’x 52, 59 (10th Cir. 2003) (concluding that a district court abused 
its  discretion  by  refusing  to  consider  coworker  testimony).  Moreover,  allowing 
Kandan and Kirkland’s coworkers to explain their observations of the two candidates 

while prohibiting the use of comparison adjectives would impose an artificial and 
confusing constraint on the testimony. See id. at 58–59 (concluding that it was an 
abuse of discretion to allow coworkers to testify only as to their surprise at an 
employment decision without allowing them to explain why they were surprised). 
Rules 701 and 702 permit coworkers to compare candidates and testify as to their 
subjective beliefs as to discrimination so long as the witness can establish a factual 
foundation for those beliefs. See Haun v. Ideal Indus., Inc., 81 F.3d 541, 548 (5th Cir. 

1996) (“Vander Pan's opinion testimony that Ideal was phasing out older workers was 
based  on  his  perception  and  helped  the  jury  determine  whether  Ideal 
discriminated.”).                                                         
    EEOC’s alternative argument that the evidence should be excluded under Rule 
403 also fails. EEOC argues that there is a risk of prejudice because a jury might find 
an EEOC employee’s testimony about alleged discrimination particularly persuasive 
given EEOC’s mission.77 “Merely because the testimony is adverse to the opposing 
party does not mean it is unfairly prejudicial.” EEOC v. Manville Sales Corp., 27 F.3d 
1089, 1094 (5th Cir. 1994) (quotation omitted). Moreover, the possibility that a juror 

may find EEOC employees especially persuasive applies with equal force to both 
sides’ witnesses. And, to be clear, this case does not involve any formal determination 
by EEOC that discrimination occurred. To the contrary, the parties seek to present 
competing testimony from EEOC employees in their individual coworker capacities. 
Compare with Guerra v. N. E. Indep. Sch. Dist., 496 F.3d 415, 419 (5th Cir. 2007) 
(“Second, the EEOC evidence spoke directly to the ultimate issue in the case. It would 

likely have prejudiced the jury since the EEOC made its own factual determination 
that  age  discrimination  occurred.”).  Finally,  the  record  reflects  that  these  three 
witnesses have different perspectives from that of Malcom Medley, who served as the 
NOFO Field Director before Kirkland’s selection, such that their testimony will not 
be improperly duplicative of his testimony. United States v. Fields, 483 F.3d 313, 356 
(5th Cir. 2007) (“Rule 403 does not ban per se all duplicative evidence. It is not 
required that each piece of evidence admitted have an entirely unique theory of 

relevancy.”).                                                             





77 R. Doc. 47-1 at 5.                                                     
III.  Whether  to  admit  evidence  of  Irvin’s  prior  selections  of  male 
    applicants over female applicants requires a case-by-case analysis.  

    EEOC seeks to exclude evidence of other times when Irvin selected a male 
applicant over a female applicant.78 EEOC challenges the relevance of this evidence 
because Kandan has not brought a pattern-and-practice or hostile-work-environment 
claim.79 Whether Irvin previously chose male candidates over female candidates is 
relevant, however, to Kandan’s contention that Irvin’s decision to select Kirkland 
rather than Kandan is discriminatory. See Goldsmith v. Bagby Elevator Co., 513 F.3d 
1261, 1286 (11th Cir. 2008) (“[Plaintiff] and coworkers Jemison and Thomas were 
discriminated against by the same supervisor, Farley, so the experiences of Jemison 
and Thomas are probative of Farley's intent to discriminate.”).           
    The Fifth Circuit has held that “other-acts evidence may be relevant and 
admissible  in  a  discrimination  case  to  prove  an  employer’s  intent  or  pretext.” 

Ferguson v. Extraco Mortg. Co., 264 F. App’x 351, 352 (5th Cir. 2007). A history of 
hiring or promoting males over females may be probative of intent, plan, motive, 
knowledge, and absence of mistake or accident. Alaniz v. Zamora-Quezada, 591 F.3d 
761,  774–75  (5th  Cir.  2009)  (concluding  that  a  district  court  did  not  abuse  its 
discretion in admitting evidence that a box had a “particular modus operandi in 
making sexual overtures to female subordinates”); Hitt v. Connell, 301 F.3d 240, 249–
50  (5th  Cir.  2002).  Similarly,  “behavior  toward  or  comments  directed  at  other 

employees in the protected group” is one type of circumstantial evidence that can 

78 R. Doc. 47-1 at 6.                                                     
79 Id. at 7.                                                              
support an inference of discrimination. Hasan v. Foley & Lardner LLP, 552 F.3d 520, 
529  (7th  Cir.  2008)  as  corrected  (Jan.  21,  2009).  Finally,  evidence  that  Irvin 
“discriminated against women in the past could help undermine” the evidence that 

his decision was the product of a neutral and fair interview-panel process. See Vance 
v. Union Planters Corp., 209 F.3d 438, 445 (5th Cir. 2000). Thus, this evidence is 
relevant under Fifth Circuit law.                                         
    In the alternative, EEOC argues that this evidence is inadmissible under Rule 
403. EEOC relies primarily on Wyvill v. United Companies Life Ins. Co., 212 F.3d 296 
(5th Cir. 2000). In Wyvill, the Fifth Circuit set forth certain criteria relative to 

determining  whether  evidence  of  discrimination  against  other  employees  is 
admissible in a pattern-or-practice case. Wyvill, instructs:              
     This court and others have held that testimony from former employees 
    who had different supervisors than the plaintiff, who worked in different 
    parts of the employer's company, or whose terminations were removed  
    in time from the plaintiff's termination cannot be probative of whether 
    age was a determinative factor in the plaintiff's discharge.         

212 F.3d at 302 (citation omitted). As EEOC recognizes, however, Kandan’s case does 
not  involve  a  pattern-or-practice  claim.  And,  in  any  event,  Wyvill’s  framework 
supports the admission of most of the other-acts evidence at issue in EEOC’s motion. 
In contrast to the evidence held inadmissible in Wyvill, the selection decisions at issue 
in this case were made by the same supervisor (Irvin), the employees worked within 
the Houston or New Orleans offices (which interface with one another), and the 
selection decisions were close in time to Kirkland’s selection over Kandan. Further, 
“the key question is not whether” Kandan and the nonparties against whom Irvin 
allegedly discriminated are similar “in every way,” but whether those other instances 
of discrimination are relevant “in the context of the facts and arguments” in this case. 
See Dindinger v. Allsteel, Inc., 853 F.3d 414, 425 (8th Cir. 2017) (quotation omitted). 

    In Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008), the 
Supreme Court set forth a framework for assessing the admissibility of other-acts 
evidence.80  In  that  case,  the  “District  Court  excluded  testimony  by  nonparties 
alleging discrimination at the hands of supervisors of the defendant company who 
played no role in the adverse employment decision challenged by the plaintiff.” Id. at 
380. In a unanimous decision, the Supreme Court held that it is reversible error to 

impose a per se bar on evidence of discrimination by other supervisors (i.e., not the 
supervisor who prompted a plaintiff’s claim). Id. at 388. Justice Thomas explained, 
“The question whether evidence of discrimination by other supervisors is relevant in 
an individual ADEA case is fact based and depends on many factors, including how 
closely related the evidence is to the plaintiff's circumstances and theory of the case.” 
Id.  Given  that  the  Supreme  Court  has  rejected  a  per  se  bar  under  these 
circumstances, there can be no question that it would be reversible error to impose 

such a bar in a case like this one where the other-acts evidence implicates the same 
supervisor.                                                               


80 This framework addresses a “very different kind of evidence” than that used to 
show differential treatmen t as part of a prima facie case. See Sprint/United, 552 U.S. 
at 386. Here, rather than showing that Irvin treated her differently than someone 
not in her protected class, Kandan is attempting to show that Irvin discriminated 
against other members of Kandan’s protected class. See id.; see also Cox v. Kansas 
City Chiefs Football Club, Inc., 473 S.W.3d 107, 122–23 (Mo. 2015).       
    To  determine  the  relevance  of  nonparty  discrimination  evidence  under 
Mendehlsohn, courts consider factors including the identities of the nonparties, the 
nature and substance of the alleged discrimination, and its temporal proximity to the 

challenged decision. See Griffin v. Finkbeiner, 689 F.3d 584, 595 (6th Cir. 2012) 
(internal citation omitted). Thus, where other-acts evidence involves “the same place, 
the same time, [and] the same decision makers,” it is more likely to be admissible. See 
Bennett v. Nucor Corp., 656 F.3d 802, 812 (8th Cir. 2011). “[W]hether the witness and 
the plaintiff were treated in a similar manner, and whether the witness and the 
plaintiff were otherwise similarly situated” are also relevant considerations. Elion v. 

Jackson, 544 F. Supp. 2d 1, 8 (D.D.C. 2008).                              
    The Court is cognizant of EEOC’s concern that allowing other-acts evidence of 
alleged discrimination by Irvin will result in mini-trials.81 While this concern “is 
legitimate,” acting on it in every case “would tend to exclude any ‘other acts’ evidence, 
regardless of how closely related it is to the plaintiff's circumstances.” Griffin, 689 
F.3d at 600. The Supreme Court’s decision in Mendelsohn prohibits this approach. 
The Court will address evidence of other discrimination on an incident-by-incident 

basis.                                                                    
    The earliest prior incident on which Kandan relies is Irvin’s decision in 2019 
not  to  allow  Ortiz  Prather  to  apply  for  the  GS-15  Deputy  Director  position  in 
Houston.82 According to Ortiz Prather, Irvin told her that she was not qualified for 


81 See id. at 8.                                                          
82 R. Doc. 47-4 at 3.                                                     
that position and (later similarly stated to Ortiz Prather that Kandan was “barely” 
qualified for her own position).83 Instead, Irvin selected a male candidate, Travis 
Nicholson.84 Both the 2019 incident and the 2023 events underlying this lawsuit 

involve the same decisionmaker (Irvin) selecting a candidate for whom he would be a 
supervisor. Both incidents also involve Irvin’s assessment that a female candidate 
was less qualified for the position than a male candidate. And both incidents appear 
to involve a situation in which the female candidate had significantly more years of 
agency experience than the male candidate. The factual parallels between the alleged 
discriminatory incidents militates against the moderate temporal gap.     

    Beyond involving an alleged discriminatory selection, an additional strand of 
facts links the 2019 selection to Kandan’s case. Nicholson was a member of Kandan’s 
interview panel and had exchanged previous communications with Irvin relative to 
Kandan’s  readiness  (or  lack  thereof)  to  serve  as  an  acting  or  permanent  Field 
Director.85 Nicholson had known Kirkland for about 30 years and been stationed with 
him in the military.86 Ortiz Prather believes that Nicholson may have provided 
Kirkland with the panel interview questions or other information that would have 

compromised the neutrality of the process.87 The current record supports allowing 
evidence of Irvin’s decisions in 2019 relative to the selection of Nicholson as Deputy 
Director.                                                                 

83 Id. at 2.                                                              
84 R. Doc. 35-8, ¶¶ 2, 7.                                                 
85 Id., ¶¶ 3, 8.                                                          
86 R. Doc. 44-1 at 4.                                                     
87 R. Doc. 55-3 at 22–25.                                                 
    The next incident at issue is Irvin’s decision to hire Kirkland rather than 
Mitchem as a Supervisory Investigator in 2021.88 In doing so, Irvin hired a male 
candidate over a female candidate with greater agency experience.89 In addition, 

Mitchem’s experience in the military appears to have been more extensive (or at a 
higher  level)  than  Kirkland’s.90  This  is  relevant  to  addressing  Irvin’s  potential 
reliance  on  military  experience  as  a  factor  in  promoting  Kirkland  rather  than 
Kandan. Finally, the selected candidate (Kirkland) is the same candidate selected 
over Kandan in this case. Kandan’s narrative that Irvin groomed and promoted 
Kirkland on a discriminatory basis renders further relevance to the 2021 decision. 

    The final incident discussed in detail in the briefing is Irvin’s selection of a 
male  candidate  for  Deputy  Director  of  the  Houston  District  in  2023  over  Ortiz 
Prather.91 Here, Ortiz Prather was subject to the panel interview process while on 
pre-approved and long-planned leave.92 This may be analogous to the process that 
Kandan underwent. Moreover, the decision was made close in time to Irvin’s decision 
to hire Kirkland as Field Director. Thus, evidence relative to this incident also 
survives the Rule 403 balancing test on this record. EEOC’s motion in limine is denied 

as to Irvin’s 2019, 2021, and 2023 selection decisions as set forth above.  
    The record, including the briefing, contains passing references to other alleged 
instances  of  discriminatory  selections  by  Irvin,  including  before  his  transfer  to 

88 R. Docs. 47-1 at 6, 35-3 at 2.                                         
89 R. Docs. 55-1 at 5, 35-2 a  t 1, 36.                                   
90 R. Doc. 55-1 at 6.                                                     
91 R. Docs. 47-4 at 3–4, 47-1 at 7.                                       
92 R. Doc. 55-3 at 14.                                                    
Houston. The record does not contain sufficient information, however, to undertake 
the  requisite  individualized  assessment  of  these  other  incidents.  Thus,  EEOC’s 
motion in limine is granted as to alleged discriminatory selection decisions that are 
not analyzed above. 
     Much of the above analysis is based on the evidence and argument submitted 
in connection with the briefing, rather than the evidence that will be developed at 
trial.  This  ruling  is  provisional  and  may  be  revisited  depending  on  the  evidence 
developed at trial. See Adams v. Mem'l Hermann, 9738 F.3d 348, 351 (5th Cir. 2020) 
(“Evidence thus has force beyond any linear scheme of reasoning, and as its pieces 
come together a narrative gains momentum ....”) (quoting Old Chief v.  United States, 
519 U.S. 172, 187 (1997)). 
     For the foregoing reasons, 
     IT IS ORDERED that EEOC’s Motion in Limine (R. Doc. 47) is GRANTED 
IN PART and DENIED IN PART. Kandan may introduce evidence of Irvin’s 2019, 
2021, and 2023 selection decisions but is precluded from introducing evidence of any 
other allegedly discriminatory selection decisions. 
     New Orleans, Louisiana, September 26, 2025. 

                                               EVA    J. DOSSIER 
                                    UNITED STATES MAGISTRATE JUDGE 

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