Loni CZEKALSKI, Appellant v. Raymond L. LaHOOD, Secretary, Department of Transportation, Appellee.
No. 08-5431
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 13, 2009. Decided Dec. 29, 2009.
589 F.3d 449
Nyunt argues that he сannot obtain relief for this kind of § 1474-related violation in the CSRA process. He contends that this Court therefore retains the power to consider the BBG‘s allegedly illegal hiring policy under the precedent of Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). That decision permits, in certain limited circumstances, judicial review of agency action for alleged statutory violations even when a statute precludes review. The Leedom v. Kyne exception applies, however, only where (i) the statutory preclusion of review is implied rather than express, see Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 44, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991); see also McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of the Judicial Conference of the U.S., 264 F.3d 52, 63-64 (D.C.Cir.2001); (ii) there is no alternative procedure for review of the statutory claim; and (iii) the agency plainly acts “in excess of its delegated powers and contrary to a specific prоhibition in the” statute that is “clear and mandatory,” Leedom, 358 U.S. at 188, 79 S.Ct. 180; see also Nat‘l Air Traffic Controllers Ass‘n AFL-CIO v. Fed. Serv. Impasses Panel, 437 F.3d 1256, 1263-64 (D.C.Cir.2006). Even assuming arguendo that Nyunt‘s claim can meet the first and second requirements, it cannot meet the third, which requires that the agency error be “so extreme that one may view it as jurisdictional or nearly so.” Griffith v. FLRA, 842 F.2d 487, 493 (D.C.Cir.1988). Given that very stringent standard, a Leedom v. Kyne claim is essentially a Hail Mary pass—and in court as in football, the attempt rarely succeeds. So it is here: Even if thе BBG has misinterpreted or otherwise evaded its statutory obligation to hire “suitably qualified” U.S. citizens, its action is not the kind of “extreme” error that would justify reliance on the Leedom v. Kyne exception.
We affirm the judgment of the District Court.
So ordered.
Ellen K. Renaud argued the cause for the appellant. David H. Shapiro and Richard L. Swick were on brief.
Darrell C. Valdez, Assistant United States Attorney, argued the cause for the appellee. R. Craig Lawrence, Assistant United States Attorney, was on brief.
Before GINSBURG and HENDERSON, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
Loni Czekalski sued the Department of Transportation (DOT), alleging that her supervisor at the Federal Aviation Administration (FAA) discriminated against her on the basis of sex by reassigning her to an inferior position. Czekalski‘s claim went to trial and the jury found for the DOT. Czekalski now appeals the jury verdict as well as the district court‘s denial of her motion for a new trial. We affirm.
I.
Czekalski started working at the FAA in 1970. By 1995 she had risen to Director of the Office of Communications, Navigation, and Surveillance Systems—a Senior Executive Service (SES) position. According to Czekalski, that position supervised 269 federal employees and approximately 500 contractors, oversaw 96 programs and managed a budget of over $300 million. In June 1997, George Donohue—the FAA‘s Associate Administrator for Research and Acquisitions—reassigned Czekalski to the Office of Information Technology, where she was to serve as Program Manager for the Year 2000(Y2K) Project. According to Czekalski, the new position supervised four federal employees and four contractors, had no budget and reported to one of her former peers.
Donohue explained his reasons for the reassignment in a memorandum to Czekalski dated June 12, 1997. Pl.‘s Trial Ex. 1. He cited, inter alia, “fаil[ure] to provide direction and support,” “allowing [a] program to languish” and a general lack of “leadership qualities.” Id. Despite these criticisms, Donohue assured Czekalski that the “reassignment is a lateral move involving no loss of pay or SES status.” Id. Donohue said the move reflected his belief that Czekalski‘s “background and technical knowledge could be of substantial assistance” to the Y2K Project. Id.
Czekalski took early retirement at the end of 1997 after occupying her new position for only six months. According to multiple trial witnesses, the position proved vital. Czekalski herself acknowledged that it became a highly visible position, entailing contact and coordination with other agencies, the FAA Administrator and the Congress. Trial Tr. 57-60 (Nov. 8, 2007). One FAA employee described it as “probably ... the single most significant office in the еntire agency” and noted that the office-holder “was interviewed by everything; Wall Street Journal, New York Times; every magazine; every government publication.” Trial Tr. 36-37 (Nov. 15, 2007). He explained that the position “had huge visibility because everyone was concerned about what was going to happen with aviation. No one wanted an airplane dropping on their house ... at the stroke of midnight on 2000.” Id. at 37.
Czekalski filed this lawsuit in July 2002, аfter exhausting her administrative remedies. See Czekalski v. Peters, 475 F.3d 360, 362 (D.C.Cir.2007) (Czekalski I). She alleged that her reassignment constituted sex discrimination in violation of
The parties tried the case before a jury for ten days in November 2007. At the close of evidence and after arguments the magistrate judge instructed the jury as to the relevant law and provided it with a written version of the charge, including the applicable standard for determining an adverse employment action. The jury found for the DOT. It returned a special verdiсt form stating that Czekalski had not “proved by a preponderance of the evidence that she suffered an adverse employment action as a result of her reassignment.” Verdict Form, Czekalski v. Sec‘y of Transp., C.A. No. 02-1403 (D.D.C. Nov. 20, 2007). Czekalski moved for a new trial on the grounds that “the jury‘s verdict was against the weight of the evidence” and “the Court deprived Plaintiff of a fair and impartial trial.” Pl.‘s Mot. for New Trial, Czekalski v. Sec‘y of Transp., C.A. No. 02-1403, at 3 (D.D.C. Dec. 26, 2007). The magistrate judge denied the motion. This appeal timely followed.
II.
Czekalski argues that the magistrate judge committed reversible error in (1) instructing the jury on the standard to be used in determining an adverse employment action vel non under Title VII; (2) not instructing the jury that it could draw an adverse inference from DOT‘s failure to produce certain evidence; (3) denying her motion for a new trial and (4) making biased statements and rulings that deprived her of a “fair and impartial” trial.
A. Jury Instructions Regarding Adverse Employment Action
“An alleged failure to submit a proper jury instruction is a question of law subject to de novo review; the choice of the language to be used in a particular instruction, however, is reviewed only for abuse of discretion.” Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C.Cir.1993). The harmless error rule applies; to warrant reversal, “‘the error must have been prejudicial: It must have affected the outcome of the district court proceedings.‘” Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 168 (D.C.Cir.2007) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)); see
Czekalski contends that the magistrate judge improperly instructed the jury on what constitutes an adverse employment action under Title VII. Jury instructions are proper if, “when viewed as a whole, ‘they fairly present the applicable legal principles and standards.‘” Joy, 999 F.2d at 556 (quoting EEOC v. Atl. Cmty. Sch. Dist., 879 F.2d 434, 436 (8th Cir. 1989)). This circuit‘s standаrd for an adverse employment action is well-established: “[A]n employee suffers an adverse employment action if he experiences materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002). The magistrate judge relayed this standard in the third paragraph of the relevant instructions.3 Thus, the jury had the guidance necessary to render its special verdict as to whether Czekalski suffered an adverse employment action.
It is true that the second paragraph of the charge wants for clarity. Most troubling is its first sentence, which, as punctuated in the transcript included in the Joint Appendix, reduces to the proposition that “changes in duties and wоrking conditions ... are not adverse actions.” See Trial Tr. at 182. But we believe this perceived defect is simply the result of faulty punctuation—a mere comma corrects it4—and we therefore decline to read the instruction in such a manner as to give it a commonsensically false meaning. While the record does not contain the written charge that was sent to the jury, assuming that version has the same punctuation as the one we are reviewing, we are nevertheless assured that the jury did not misread its meaning, especially given its position in the charge. Indeed, regardless of its punctuation, the sentence is largely superfluous. As noted above, it is followed by a paragraph that lays out the adverse employment action standard as articulated in Forkkio. Further, the preceding sentence conveys much the sаme meaning, even though it refers to “[a]n employer‘s decision” instead of “changes in duties and working conditions” and it emphasizes the irrelevance of an employee‘s subjective reaction in place of reassignments per se.
Perhaps the magistrate judge could have focused more attention on what an adverse employment action is as opposed to what an adverse employment action is not. The first four sentences describing an adverse action аre framed in the negative. Trial Tr. 181-82 (Nov. 16, 2007). Not until the end of the second paragraph does the instruction begin to equip the
Czekalski also argues that the magistrate judge erred in failing to include certain alternate articulations of the adverse employment action standard.5 She expressly relies on the concurring opinion in Lutkewitte v. Gonzales, which states that “[a] party is entitled to an instruction on any legal theory that has a basis in the law and the rеcord.” 436 F.3d 248, 255 (D.C.Cir.2006) (Brown, J., concurring) (citing Joy, 999 F.2d at 556). Her argument ignores the fact that “‘[a]s long as a district judge‘s instructions are legally correct ... he is not required to give them in any particular language.‘” Joy, 999 F.2d at 556 (quoting Miller v. Poretsky, 595 F.2d 780, 788 (D.C.Cir.1978)) (ellipsis in original). As discussed above, the magistrate judge correctly instructed the jury on the relevant legal theory. The fact that she did so without including the precise language Czekalski requested was not an abuse of discretion. See Joy, 999 F.2d at 556.6
B. Jury Instruction Regarding Missing Evidence
Czekalski next argues that thе magistrate judge erred by not instructing the jury that it could infer from the DOT‘s failure to produce certain evidence that the evidence would be unfavorable to the DOT. We review the trial court‘s decision not to issue a “missing-evidence instruction” for abuse of discretion. United States v. West, 393 F.3d 1302, 1309 (D.C.Cir.2005). Such an instruction “is appropriate if it is peculiarly within the power of one party to produce the evidence and the evidence wоuld elucidate a disputed transaction.” Id. The party complaining of the missing evidence bears the burden of demonstrating that it is peculiarly in the opposing party‘s control. Id. at 1309-10. Czekalski has not shown that such an instruction would be apt in this case; she has not identified any evidence peculiarly available to the DOT—evidence which it did not produce—that would shed light on her claim. Nor has she described any attemрt on her part to obtain said evidence. See id. at 1310 (noting that party failed to carry its burden by, for instance, seeking or subpoenaing “missing” document). In addition, it appears that the “missing evidence” she describes is not missing at all but in fact resides in the record. Czekalski points to Donohue‘s testimony in which he refers to a “memorandum [that] said that an SES would be responsible for each agency to report directly to the аdministrator.” Trial Tr. 156 (Nov. 14, 2007). She complains that “no documentary evi-
C. Motion for a New Trial
Next, Czekalski argues that a new trial is warranted because the jury‘s verdict was against the weight of the evidence. “This court reviews de novo the trial court‘s denial of a motion ... for a new trial. The jury verdict stands ‘unless the evidence and all reasonable inferences that can be drawn therefrom are so one-sided that reasonable men and women could not disagrеe on the verdict.‘” Curry v. District of Columbia, 195 F.3d 654, 658-59 (D.C.Cir.1999) (quoting Smith v. Wash. Sheraton Corp., 135 F.3d 779, 782 (D.C.Cir.1998)) (citation omitted). Czekalski asserts that “[t]he evidence at trial was uncontroverted that [she] had significantly different responsibilities when she was transferred.” Appellant‘s Br. 37-38. Because she had “significantly different responsibilities,” she argues, she necessarily suffered an adverse employment action. Id. at 37-40. Her argument misunderstands the inquiry. She relies on a passage from Czekalski I7 but shе does not heed that opinion or the precedent it invokes. Neither Forkkio, Burlington nor Holcomb suggests that the entire adverse-action standard can be reduced to the question whether a change in position entails “significantly different responsibilities.”8 Nor, for that matter, does Czekalski I. It does not articulate a new rule; it simply lays out authority for the uncontroversial point that, under certain circumstances, a lateral transfer may qualify as an adverse aсtion; whether it does or not is “generally a jury question.” See 475 F.3d at 364-65. The court was as good as its word inasmuch as it remanded for trial on, inter alia, the issue of “whether the reassignment left her with ‘significantly different‘—and diminished—supervisory
and programmatic responsibilities.” Id. at 364 (emphasis added). Had the Czekalski I court meant what Czekalski contends, it of course would not have remanded for trial on that issue.
D. Bias
Czekalski also argues that a new trial is required because the magistrate judge made several statements and evidentiary rulings that manifested bias against her and deprived her of “a fair and impartial trial.” Appellant‘s Br. 40. Judicial comments during trial establish bias if “they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); see United States v. Carson, 455 F.3d 336, 355 (D.C.Cir.2006). “Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display.” Liteky, 510 U.S. at 555-56, 114 S.Ct. 1147. Having reviewed the trial transcript, including the portions Czekalski highlights, we see no indicia of “a high degrеe of favoritism or antagonism” requiring a new trial in this case. Id. at 555, 114 S.Ct. 1147. Moreover, “judicial rulings alone almost never constitute a valid basis” for an allegation of bias, id., and we see none here that would support reversal on that ground.
For the foregoing reasons, we affirm the judgment of the district court.
So ordered.
Notes
Next, you are instructed that the burden is on the Plaintiff to show that she suffered an adverse employment action. The Civil Rights Act does not apply and is not intendеd to apply to every workplace reassignment. An employer‘s decision that does not have a tangible effect on an employee does not qualify as an adverse action, even if the employee considers it insulting or offensive.
Moreover, changes in duties or working conditions, including reassignments that do not have a tangible effect on the terms, conditions or privileges of employmеnt are not adverse actions. Even if an action is contrary to an employee‘s personal preferences, that does not make it an adverse employment action. However, it is for you to determine whether the reassignment of the Plaintiff to the Year 2000 Program was a reassignment to a position with significantly different responsibilities.
An employee suffers an adverse employment action if shе experiences materially adverse consequences affecting the terms, conditions or privileges of employment such that you find objectively tangible harm. Whether a particular assignment of duties constitutes an adverse action, for purposes of Title VII, is a jury question, that is, one for you to determine.
Trial Tr. 181-82 (Nov. 16, 2007).“[W]ithdrawing an employee‘s supervisory duties,” for example, “constitutes an adverse еmployment action.” [Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir.2003) ]; see Burke v. Gould, 286 F.3d 513, 522 (D.C.Cir.2002). So, too, does “reassignment with significantly different responsibilities.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)); see Holcomb v. Powell, 433 F.3d 889, 902 (D.C.Cir.2006).
Czekalski has raised a genuine issue as to whether the reassignment left her with “significantly different“—and diminished—supervisory and programmatic responsibilities.
Czekalski I, 475 F.3d at 364.