199 F.3d 512 (D.C. Cir. 2000), 97-5093, Cones v. Shalala

Docket Nº:97-5093
Citation:199 F.3d 512
Party Name:Kenneth L. Cones, Appellant v. Donna E. Shalala, Secretary, Department of Health & Human Services, Appellee
Case Date:January 04, 2000
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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199 F.3d 512 (D.C. Cir. 2000)

Kenneth L. Cones, Appellant


Donna E. Shalala, Secretary, Department of Health & Human Services, Appellee

No. 97-5093

United States Court of Appeals, District of Columbia Circuit

January 4, 2000

Argued November 5, 1999

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia(No. 96cv00701)

Roland G. Schroeder argued the cause for appellant. With him on the briefs was William D. Hopkins.

Diane M. Sullivan, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence and Kimberly N. Brown, Assistant U.S. Attorneys.

Before: Williams, Ginsburg and Tatel, Circuit Judges.[*]

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge:

In this case, we consider a federal government employee's complaint that his agency denied him a promotion on the basis of race and then retaliated against him when he complained. Because we disagree with the district court's conclusion that appellant failed to establish a prima facie case of discrimination and retaliation, and because the record contains sufficient evidence from which a jury could infer that the agency's stated reason for selecting a white person was pretext for racial discrimination, we reverse the district court's grant of summary judgment to the government.


Appellant Kenneth Cones, an African American, began working for the federal government in 1970 as a GS-1.Advancing up the career ladder during the next two decades, Cones eventually became a GS-14 Special Assistant to the Director of the Division of Buildings Management and Telecommunications, part of the Office of the Assistant Secretary for Management and Budget ("ASMB") at the Department of Health and Human Services. At ASMB, Cones received uniformly excellent evaluations and applied for several promotions but was never selected. Each time HHS filled the position with a white person.

In 1992, the head of ASMB, Assistant Secretary Arnold Tompkins, also an African American, reorganized ASMB, dissolving the Office of Management and Acquisition where Cones was working and dividing its functions between two newly created entities. One of the new entities, the Administrative Service Center ("ASC"), was given responsibility for day to day physical operations of HHS, including building maintenance, management of the wellness center, and special program coordination. Tompkins detailed Cones to serve as Acting Director of ASC. Although the new position was rated GS-15 and Cones was still a GS-14, personnel

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regulations permitted Tompkins to detail Cones to the position for up to 120 days without using the competitive selection process. See 5 C.F.R. § 335.103(c)(1)(ii). Tompkins testified that he detailed Cones to the Acting Director position because ASMB had been criticized for having a poor EEO record and also because he thought Cones deserved an opportunity to enhance his skills.

A month and a half into Cones' detail, the 1992 Presidential election occurred. An appointee of President Bush, Tompkins knew that his tenure as Assistant Secretary would soon end, so he decided that it would be "inappropriate" to advertise or permanently fill the ASC Director position before he left office. After President Clinton's inauguration, and after Elizabeth James, a white female and ASMB's highest ranking career employee, became Acting Assistant Secretary, Cones requested that the ASC Director position be competitively advertised so that he could remain in it either permanently or at least for an extended period of time. James refused, instead detailing a white female GS-14, Rosalie Reggetz, to the position for 120 days. In response, Cones filed an informal complaint of discrimination with HHS's Equal Employment Opportunity Office. Although the EEO Counselor recommended reinstating Cones to the ASC Director position, HHS refused. Cones then filed a formal complaint of discrimination, to which he later added a retaliation claim based on the Department's failure to consider him for a different acting director position.

During this entire period, ASMB was operating under an "informal" hiring freeze, meaning that senior management made every effort to avoid hiring new personnel. On February 10, President Clinton issued an Executive Order establishing a goal of eliminating 100,000 federal government positions. See Executive Order No. 12,839, 58 Fed. Reg. 8515 (1993). In relevant part, the Executive Order reads as follows:

Each executive department or agency with over 100employees shall eliminate not less than 4 percent of its civilian personnel positions ... over the next 3 fiscal years. The positions shall be vacated through attrition or early out programs established at the discretion of the department and agency heads. At least 10 percent of the reductions shall come from the Senior Executive Service, GS-15 and GS-14 levels or equivalent.


Several months later, President Clinton's nominee for Assistant Secretary, Kenneth Apfel, was confirmed and took office. Because Reggetz's 120 day detail was about to end, and because her appointment, like Cones', could not be renewed, another ASMB employee, Peggy Dodd, also a white female, was selected to serve as Acting Director for 120 days. Unlike Cones and Reggetz, Dodd was a GS-15 and had been transferred laterally rather than promoted to the position. As a result, personnel regulations permitted HHS to appoint her as permanent ASC Director without competitively advertising the position. See 5 C.F.R. § 335.103(c)(3)(v). This HHS did on December 12.

Cones then amended his still-pending EEO complaint, adding an allegation that HHS had discriminated and retaliated against him by failing to consider and hire him for the permanent ASC Director position. After his EEO complaint had been pending for well over a year, Cones filed suit in the United States District Court for the District of Columbia charging race discrimination and retaliation with respect to the permanent position. He also charged discrimination in connection with the Department's failure to hire him for other positions dating back to 1989.

Granting summary judgment for the Department, the district court found that Cones had failed to establish a prima facie case of discrimination with respect to the ASC Director position because Dodd, the white person selected to fill the position,

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had been laterally transferred rather than promoted. See Cones v. Shalala, 945 F.Supp. 342, 349 (D.D.C. 1996).Alternatively, the district court found, HHS had articulated a non-discriminatory reason for selecting Dodd--that it was in the midst of downsizing--and Cones had failed to present sufficient evidence to establish that this reason was pretext for discrimination. Id. The district court dismissed Cones' retaliation claim, again concluding that Cones had established neither a prima facie case nor pretext. Id. at 350. As to...

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