Denise R. COLBERT, an individual, Appellant v. Robert C. TAPELLA, Public Printer, U.S. Government Printing Office, Appellee.
No. 10-5047.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 18, 2011. Decided June 17, 2011.
641 F.3d 528
III.
For the foregoing reasons, we deny the NMSA‘s petition for review in large part; we also grant the petition in part, vacating and remanding only that portion of the VTL Standard providing for the inspection requirement for ship-to-shore VTLs and the total ban on platform container VTLs.
So ordered.
Alan Burch, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence and Wyneva Johnson, Assistant U.S. Attornеys.
Before: HENDERSON, GARLAND and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
Concurring opinion filed by Circuit Judge HENDERSON.
BROWN, Circuit Judge:
Denise R. Colbert (“Colbert“), a black woman, worked at the Government Printing Office (“GPO“) for over thirty years. In December, 2005, she applied for two job openings in the Congressional Publishing Services, an office within the Customer Service Division of the GPO. Without interviewing any candidates, the GPO filled the two positions with white men. Colbert sued the GPO under
I
In December, 2005, the GPO posted two vacancy announcements for a Supervisory Printing Services Specialist. The two jobs differed in their work schedule (day versus night shift) and available salary range (PG 14 pay level versus PG 13/14 pay level). Each job posting contained a section entitled “How You Will Be Evaluated,” which stated: “If you meet the qualifications described above, you will be further evaluat-
Jerry Hammond, Director of the Congressional Publishing Services, assisted by Lyle Green, the Associate Director, selected among the applicants for the two available printing specialist positions. Hammond did not interview the candidates. Instead, he evaluated each on thеir written application, including the candidate‘s stated qualifications and narrative responses, as well as any personal knowledge Hammond possessed of a candidate‘s work. Ultimately, Hammond selected Joseph Benjamin and William Milans, both white males, for the two positions.
Colbert sued the GPO, alleging race and gender discrimination under Title VII. After discovery, the GPO moved for summary judgment, and the district court granted the GPO‘s motion. Colbert v. Tapella, 677 F.Supp.2d 289, 295 (D.D.C. 2010).
II
Title VII protects employees from personnel actions that discriminate on the basis of “race, color, religion, sex, or national origin.”
Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that “there is no gеnuine dispute as to any material fact” and “the movant is entitled to judgment as a matter of law.”
A1
The district court erred by requiring Colbert to show not only that the
Earlier this term, we affirmed a grant of summary judgment in favor of an emрloyer when the only evidence the employer fabricated a false explanation was the employee‘s own personal opinion. See Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011). This case is the natural corollary: the employer admits to having lied about Colbert‘s nonselection. In his first meeting with an EEO investigator, Hammond said he did not seleсt Colbert, in part, because she “wandered.” When later asked whether he actually believed Colbert wandered, Hammond said “not really.” The GPO argues Hammond‘s statement that Colbert “wandered” is not a lie because Hammond said it “out of anger more than anything else.” Oral Argument Tr. 20-21. But this argument is nothing more than a lawyerly effort to downplay problematic evidence. Hammond admits part of his stated rationale for passing over Colbert was not true. It is thus a lie, carrying with it “considerable evidentiary significance,” Aka, 156 F.3d at 1292, regardless of Hammond‘s stated motivation.
B
A “plaintiff cannot always avoid summary judgment by showing the employer‘s explanation to be false....” Id. “For instance, an employеr would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer‘s decision, or if the plaintiff created only a weak issue of fact as to whether the employer‘s reason was untrue and there was abundant and uncontrovеrted independent evidence that no discrimination had occurred.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). This case does not fit either exception.
The record does not “conclusively reveal[] some other, nondiscriminatory reason” for Hammond‘s decision to pass over Colbert. Id.; see Aka, 156 F.3d at 1291 (discussing Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328 (8th Cir. 1996)). Instead, the record suggests the opposite: GPO‘s proffered non-discriminatory reason appеars to be unfounded. According to Hammond, Colbert was not better qualified than Benjamin or Milans because her prior work experience was “perfunctory” and “limited to routine tasks.” He also said Colbert “never worked in procurement,” did not “expand her technological capabilities,” and lacked “suрervisory experience.” Id. But nothing in the record supports these statements. Colbert worked for the GPO for over 30 years. During that time she received numerous awards and commendations, including eight outstanding performance awards. In addition, Colbert cites extensive knowl-
The record also does not provide “abundant and uncontroverted independent evidence that no discrimination had occurred.” Reeves, 530 U.S. at 148. “Where an emрloyer has a strong record of equal opportunity employment, any inference of discrimination arising from the discrediting of the employer‘s explanation may be a weak one, and in some cases not strong enough to let a reasonable factfinder conclude that discrimination has occurrеd at all.” Aka, 156 F.3d at 1291. As an example, in Aka, we described “a situation in which the hiring officer, as well as 40% of the employer‘s work force, were members of the same minority group as the plaintiff even though the group in question comprised only 10% of the relevant labor market.” Id. By comparison, the GPO admits that since 1994 white employees have exclusivеly filled the Print Officer and Printing Services Specialist positions, save one. And that single minority employee received her position through the settlement of her own race discrimination complaint.
The district court, relying on Adeyemi v. District of Columbia, 525 F.3d 1222, 1227 (D.C. Cir. 2008), found “[n]othing Ms. Colbert offers ... sufficient to show that she was ‘significantly better qualified’ than Mr. Benjamin or Mr. Milans.” Colbert, 677 F.Supp.2d at 289, 294. Adeyemi held, “when an employer says it made a hiring or promotion decision based on the relative qualifications of the candidates, a plaintiff can directly challenge that qualifications-based explanation only if the plaintiff was ‘significantly better qualified for the job’ than those ultimately chosen.... The qualifications gap must be great enough to be inherently indicative of discrimination.” Adeyemi, 525 F.3d at 1227. But Adeyemi is not controlling here because Colbert is not using her comparative qualifications to prove discrimination. Rather, Colbert uses her qualifications to show this is not the exceptional case in which the record “conclusively revealed some other, nondiscriminatory reason.” Reeves, 530 U.S. at 148.
III
Summary judgment is inappropriate if Colbert can produce sufficient evidence that the GPO‘s nondiscriminatory reason for passing her over—that other candidates were more qualified—is pretext for discrimination. The district court held Colbert did not do so. But the district court erred by requiring Colbert to show not only that the GPO‘s nondiscriminatory reason was pretext, but also that discrimination was the actual reason Colbert was passed over. We do not suggest merely showing the employer‘s explanation to be false would be sufficient. However, given Hammond‘s lie, his apparent lack of knowledge about Colbert‘s actual experience or training, and other evidence that the hiring and promotion practices of CPS were generally inhospitable to minorities, additional evidence of discrimination was not necessary for Colbert to defeat summary judgment. Aka, 156 F.3d at 1292.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
Although I concur, I write separately because I do not agreе with my colleagues’
[I]n considering an employer‘s motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central questiоn: Has the employee produced sufficient evidence for a reasonable jury to find that the employer‘s asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, оr national origin?
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (citing St. Mary‘s Honor Ctr. v. Hicks, 509 U.S. 502, 510, 511 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)) (emphasis added). My colleagues, however, fault the district court for “requiring Colbert to not only proffer evidence that the GPO‘s nondiscriminatory reason was pretext, but also additional evidence that discrimination was the actual reason Colbert was not promoted.” Maj. op. at 758-59 (citing Colbert v. Tapella, 677 F.Supp.2d 289, 295 (D.D.C. 2010)).* As Brady makеs clear, providing a false reason for the employment decision is not conclusive of pretext or of discrimination. In the end, the employee bears the burden of showing not that the employer is dishonest but that it engaged in unlawful discrimination against the employee. See Hicks, 509 U.S. at 511 (“Court of Appeals’ holding that rejеction of the defendant‘s proffered reasons compels judgment for the plaintiff disregards the fundamental principle of [Fed.R.Evid.] 301 that a presumption does not shift the burden of proof, and ignores our repeated admonition that the Title VII plaintiff at all times bears the ultimate burden of persuasion.” (quotation оmitted)). Thus, “there will be instances where ... the plaintiff has ... set forth sufficient evidence to reject the defendant‘s explanation, [yet] no rational factfinder could conclude that the action was discriminatory.” Desmond v. Mukasey, 530 F.3d 944, 963 (D.C. Cir. 2008) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (alterations in Mukasey)). This principle is illustrated by our decision in Hendricks v. Geithner, 568 F.3d 1008, 1013 (D.C. Cir. 2009).
In Hendricks, we affirmed the district court‘s grant of summary judgment to the defendant because the plaintiff, who had been рassed over for promotion, “offered no evidence sufficient for a jury to conclude that [she] was not selected on the basis of her sex.” 156 F.3d at 1291. We observed that “a Title VII discrimination plaintiff cannot prevail by presenting evidence that tends to show the employer‘s proffered reason is pretextual but also demonstrates that the real explanation for the employer‘s behavior is not discrimination, but some other motivation.” Id. at 1013-14. We concluded that the employ-
In this case, by contrast, Colbert met her burden under both prongs of the Brady standard. The record, viewed in the light most favorable to Colbert, could support a finding that the both reasons proffered for passing her over—that she “wandered” and that she did not meet the specific requirements for promotion—were indeed pretextual and that her employer in fact unlawfully discriminated against her. See maj. op. at 759-60. Accordingly, I concur.