Hamilton v. Geithner, No. 10-5419 (D.C. Cir. Jan. 17, 2012).

The D.C. Circuit, in a decision by Judge Tatel (joined by Judges Garland and Ginsburg, with no dissent or concurrence), held that Judge Walton erred in granting summary judgment in a Title VII discrimination and retaliation case brought by an IRS employee. Although one discrimination claim was not administratively exhausted, the other discrimination claim - denial of a permanent promotion - was properly before the court. The retaliation claim was remanded for further analysis by the district court.

There is some good language about the need not to grant summary judgment when there exists a sufficient dispute as to the comparative qualifications of the plaintiff and the successful applicant, particularly when there are "other flaws" in the hiring process - here a failure to keep any documentation of the interviews, and apparent spoliation of evidence, along with improper reliance on subjective criteria in evaluating the applicants.

TATEL, Circuit Judge:

Appellant, an employee of the Internal Revenue Service, alleges that the Service discriminated against him on the basis of race and gender when it awarded a temporary detail and then a permanent promotion to a white female employee. Appellant also claims that the IRS retaliated against him when he pursued the matter with its Equal Employment Opportunity office. The district court granted summary judgment to the government on all three claims. We agree that appellant failed to exhaust his claim regarding the temporary detail and so affirm that portion of the district court's judgment. But because we conclude that a reasonable jury could find that the government's proffered nondiscriminatory reason for denying appellant the permanent promotion was pretextual and that discrimination was the real reason, we reverse the grant of summary judgment on the discriminatory promotion claim and remand to allow that claim to proceed to trial. And because we conclude that appellant established a prima facie case of retaliation, we remand that claim for further proceedings consistent with this opinion. . . .

. . . . In support of his promotion discrimination claim, Hamilton argues that the Secretary's proffered reason for denying him the GS-14 Safety Manager promotion--that Hamilton " 'did not perform well in his interview . . . as compared to [Burrell's] performance,' " Hamilton I, 542 F. Supp. 2d at 43 (quoting Def.'s Mem. at 7)--was pretext for discrimination. According to Hamilton, the district court erred in granting summary judgment on this claim because a reasonable jury could infer discrimination based on evidence of (1) Hamilton's superior qualifications for the Safety Manager position, (2) the highly subjective nature of the government's reasons for not hiring Hamilton, and (3) procedural irregularities in the selection process. Where, as here, the employer claims a legitimate, nondiscriminatory explanation for its decision to promote one employee over another, the "one central inquiry" on summary judgment is "whether the plaintiff produced sufficient evidence for a reasonable jury to find that the employer's asserted nondiscriminatory reason was not the actual reason and that the employer intentionally discriminated against the plaintiff on a prohibited basis." Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008). We consider this question "in light of the total circumstances of the case," asking "whether the jury could infer discrimination from the combination of (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff . . . or any contrary evidence that may be available to the employer." Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289, 1291 (D.C. Cir. 1998) (en banc). Because in appropriate cases a "factfinder's disbelief of the reasons put forward by the defendant" may support an inference of intentional discrimination, St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993), we do not routinely require plaintiffs "to submit evidence over and above rebutting the employer's stated explanation in order to avoid summary judgment." Aka, 156 F.3d at 1290. In reviewing the district court's grant of summary judgment, moreover, we view the evidence in the light most favorable to Hamilton and draw all reasonable inferences in his favor, taking care neither to make credibility determinations nor weigh the evidence before us. Jones, 557 F.3d at 674, 681. Ultimately, we may affirm the district court's judgment only if we are able to conclude that no reasonable jury could reach a verdict in Hamilton's favor. Id. at 674.

Although Hamilton relies on a wide range of evidence to attack the Secretary's proffered nondiscriminatory explanation, the parties' briefs focus first and foremost on the evidence of Hamilton's and Burrell's qualifications, so we shall begin there as well. The Supreme Court has held that "qualifications evidence may suffice, at least in some circumstances," to show that an employer's proffered explanation is pretext for discrimination. Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006). Although the Court has declined to define "precisely what standard should govern," id., our cases have developed a framework for evaluating claims "involving a comparison of the plaintiff's qualifications and those of the successful candidate." Aka, 156 F.3d at 1294. Pursuant to our decision in Aka v. Washington Hospital Center, "[i]f a factfinder can conclude that a reasonable employer would have found the plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a less-qualified candidate--something that employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture." Id. That said, "we must assume that a reasonable juror who might disagree with the employer's decision, but would find the question close, would not usually infer discrimination on the basis of a comparison of qualifications alone." Id. For this reason, a disparity in qualifications, standing alone, can support an inference of discrimination only when the qualifications gap is "great enough to be inherently indicative of discrimination"--that is, when the plaintiff is "markedly more qualified," "substantially more qualified," or "significantly better qualified" than the successful candidate. Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) (internal quotation marks omitted).

Applying this standard here, we believe, as explained in detail below, that a jury confronted with the record evidence could find that Hamilton had far more formal training and education than Burrell, significantly greater technical expertise, and broader experience developing and managing complex safety programs. Whether this evidence would be sufficient to allow such a jury to find Hamilton "significantly" or "markedly" more qualified than Burrell, Holcomb, 433 F.3d at 897, and thus to infer discrimination based on qualifications evidence alone, presents a relatively close question. Given the record in this case, however, it is a question we need not conclusively resolve. Our task is to "review the record taken as a whole," Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (internal quotation marks omitted), and plaintiffs are "expressly not limited to comparing [their] qualifications against those of the successful applicant; [they] may seek to expose other flaws in the employer's explanation." Holcomb, 433 F.3d at 897; see also Ash, 546 U.S. at 458 (noting approvingly the Eleventh Circuit's suggestion that "superior qualifications may be probative of pretext when combined with other evidence"). Here, Hamilton relies not only on comparative qualifications evidence, but also "seek[s] to expose," Holcomb, 433 F.3d at 897, procedural irregularities in a highly subjective selection process. Reviewing the record as a whole, we agree that the evidence of Hamilton's superior qualifications taken together with "other flaws in the employer's explanation," id., creates a genuine issue of material fact that only a jury can resolve. . . .

. . . . Accordingly, and drawing all reasonable inferences in Hamilton's favor, we believe that a reasonable jury could find that, by comparison to Burrell, Hamilton had much greater technical expertise, more experience developing complex, large-scale safety programs, and far more formal training in occupational health and safety. This combination of superior knowledge and experience, in turn, could lead the jury to conclude that Hamilton was significantly better qualified for the Safety Manager promotion. But even if this disparity alone is insufficient, a reasonable jury, considering Hamilton's stronger qualifications together with "other flaws in the employer's explanation," Holcomb, 433 F.3d at 897, could still reach a verdict in Hamilton's favor. These flaws fall into two categories.

First, the record contains no contemporaneous documentation of the Secretary's proffered explanation--that Burrell outperformed Hamilton in the interview. ...

. . . Although we certainly do not suggest that a jury must or should draw an adverse inference, this absence of documentation, coupled with the missing page of Huston's interview notes, could lead a reasonable jury to doubt the Secretary's explanation, particularly given that the IRS requires documentation of a promotion action "sufficient for a reviewer to reconstruct the action in its entirety" as well as maintenance of complete promotion files for two years. Internal Revenue Manual § 6.335.1.12.16 (2002).

Second, the Secretary's proffered nondiscriminatory explanation relies heavily--indeed entirely--on subjective considerations, and our case law instructs us to treat such explanations with caution on summary judgment. See Aka, 156 F.3d at 1298 (noting that "courts traditionally treat explanations that rely heavily on subjective considerations with caution" and that "an employer's heavy use of highly subjective criteria, such as interpersonal skills, could support an inference of discrimination" (internal quotation marks omitted)). Although "employers may of course take subjective considerations into account in their employment decisions," we have repeatedly expressed concern about the ease with which heavy reliance on subjective criteria may be used to "mask" or "camouflage" discrimination. Id. (internal quotation marks omitted). "Subjective criteria," we have e xp l a i n e d , " l e nd them s e lve s to r a c i a l l y discriminatory abuse more readily than do objective criteria." Harris v. Group Health Ass'n, Inc., 662 F.2d 869, 873 (D.C. Cir. 1981). . . .

. . . . To sum up, then, we believe that, when taken together, the evidence of a significant disparity in the candidates' qualifications, the highly subjective nature of the Secretary's proffered nondiscriminatory explanation, and the absence of any contemporaneous documentation supporting that explanation could lead a reasonable jury to disbelieve the Secretary and to reach a verdict in Hamilton's favor. Of course, after hearing live testimony, assessing witness credibility, and weighing the evidence, the jury might also conclude that Hamilton was not significantly more qualified than Burrell and that Burrell's interview performance legitimately tipped a difficult choice in her favor. But the record suggests that these issues "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). We shall therefore reverse the grant of summary judgment on Hamilton's discriminatory promotion claim and remand for trial. . . .

The decision is available on - line at : http://www.cadc.uscourts.gov/internet/opinions.nsf/ 7F33C45097F907D4852579880056CBFE/$file/10- 5419-1352774.pdf,

– submitted by Alan R. Kabat

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Newsletter - January/February 2012