Hamilton v. Geithner

• Decision Date: 17 January 2012
• Docket Number: No. 10–5419.,10–5419.
• Parties: Gary HAMILTON, Appellant v. Timothy F. GEITHNER, Secretary of the United States Treasury, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

114 Fair Empl.Prac.Cas. (BNA) 239

666 F.3d 1344

95 Empl. Prac. Dec. P 44,400

Gary HAMILTON, Appellant

v.Timothy F. GEITHNER, Secretary of the United States Treasury, Appellee.

No. 10–5419.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 17, 2011.Decided Jan. 17, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:05–cv–01549).David A. Branch argued the cause and filed the briefs for appellant.

Jeremy S. Simon, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: TATEL and GARLAND, Circuit Judges, and GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

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.

I.

Gary Hamilton, an African American man, has served as an industrial hygienist in the federal government for much of his career. After earning a bachelor's degree in industrial hygiene and a master's degree in public health, Hamilton spent approximately fifteen years as an Industrial Hygienist for the Navy and the Department of Defense, a GS–13 grade position under the federal government's General Schedule pay scale. In October 2001, when Hamilton's position was relocated to another city, he accepted employment as a GS–12 Industrial Hygienist within the IRS's Real Estate and Facilities Management department.

About a year-and-a-half later, the IRS announced a vacancy for a GS–14 “Safety Specialist (Safety/ Occup[ational] Health Manager)” position, which we shall refer to as the Safety Manager position. In May 2003, Hamilton applied for that position, as did other IRS employees. Paul Carroll, an IRS program analyst, ranked the candidates based upon knowledge, skills, and abilities (KSA) criteria provided to him by IRS personnel staff. Based on Carroll's rankings, personnel staff selected the four highest-scoring candidates for the “best qualified” list, including Hamilton, Annette Burrell (a white female), Camille Carraway (a white female), and Michael Perkins (a white male). Of these, Hamilton, Burrell, and Caraway had each received the highest possible KSA ranking score of 25, while Perkins had received a score of 19. The four candidates were interviewed by a three-member panel consisting of “selecting official” Stuart Burns (a white male), Mike Huston (a white male), and Tatika Mitchell (an African American female). Although panel members took notes during the interviews, they neither rated nor scored the applicants. In July 2003, Burns selected Annette Burrell for the position.

Hamilton learned of Burrell's selection sometime in August. He also discovered that one year earlier, in August 2002, Burrell had received a temporary detail assignment as a GS–14 Management Analyst/National Safety and Health Project Manager, a position Hamilton claims was expressly designed to qualify Burrell for the Safety Manager position. Shortly thereafter, Hamilton contacted the IRS's Equal Employment Opportunity (EEO) office for a counseling session, in which he claimed that IRS officials acted with a discriminatory motive in (1) selecting Burrell, a “demonstrably” less-qualified white female, for the Safety Manager position; (2) affording Burrell preferential treatment by “giving [her] a detail (for 12 months) into the position”; and (3) using a subjective evaluation process to create a legitimate explanation for its discriminatory selection. EEO Counseling Report at 2; see also 29 C.F.R. § 1614.105(a) (requiring aggrieved persons to “consult a Counselor prior to filing a complaint in order to try to informally resolve the matter”). On October 21, 2003, Hamilton filed a formal EEO complaint alleging that IRS selecting officials discriminated against him on the basis of gender and race by “select[ing] a Caucasian female with observably and vastly inferior qualifications” for the Safety Manager position. EEO Compl. at 2. Later, in January 2004, Hamilton learned that Burns had detailed Camille Carraway—the other white female interviewed for the Safety Manager position—to a temporary GS–14 Safety Manager position, prompting Hamilton to file another EEO complaint, this one alleging discrimination and retaliation in the decision to award the detail to Carraway.

When the EEO failed to take any action within 180 days from the filing of Hamilton's complaint, see 29 C.F.R. § 1614.407(b) (authorizing civil actions if no final action is taken within 180 days after a complaint is filed), Hamilton sued the Treasury Secretary in the United States District Court for the District of Columbia. In his original complaint, Hamilton asserted two claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.: that the 2003 selection of Annette Burrell over Hamilton for the Safety Manager position was motivated by race- and gender-based discrimination (the “discriminatory promotion claim”), and that the 2004 selection of Camille Carraway for the Safety Manager detail amounted to retaliation in response to Hamilton's EEO filing (the “retaliation claim”). Hamilton subsequently amended his complaint to assert a third claim alleging that the 2002 selection of Burrell for a temporary GS–14 Management Analyst detail was discriminatory and a prohibited personnel practice in violation of the Civil Service Reform Act, 5 U.S.C. § 2302 (the “detail claim”).

The Secretary moved for summary judgment on all claims. As to Hamilton's discriminatory promotion claim, the Secretary, though conceding that Hamilton had established a prima facie case of discrimination, claimed that the IRS had a legitimate, nondiscriminatory reason for promoting Burrell over Hamilton, namely, that Hamilton did not perform as well as Burrell in the interview. In considering Hamilton's argument that this proffered nondiscriminatory reason was pretextual, the district court first addressed his claim that the “inexplicable gulf between the credentials of [Hamilton] and Burrell” was “inherently indicative of discrimination.” Hamilton v. Paulson, 542 F.Supp.2d 37, 44 (D.D.C.2008) (“ Hamilton I ”) (internal quotation marks omitted). Although acknowledging that Hamilton's “superior educational credentials and experience as an industrial hygienist suggests that he may have had a stronger grasp of the technical aspects of occupational safety,” the court observed that Burrell's “considerable experience in developing safety management programs at a national level” indicated that she might have been “better equipped” for other aspects of the position. Id. at 47. After reviewing the two candidates' relevant experience, and noting that each had received perfect KSA scores, the court found “no factual basis whatsoever for a jury to conclude that there are disparities in the relative qualifications of the plaintiff and Burrell” significant enough to support an inference of discrimination. Id. The court then reviewed Hamilton's allegations that the selection process suffered from numerous irregularities, that the IRS had destroyed evidence, that inconsistencies undermined its evidence, and that it exhibited a pattern of promoting white females over African Americans. As to each of these claims, the court found that Hamilton's allegations either lacked support in the record or suggested no bias. Id. at 48–57. “Nothing in the record,” the district court concluded, “would permit a reasonable jury to infer that the defendant's explanation ... is in any way a pretext for discrimination.” Id. at 57. Accordingly, the court granted summary judgment to the Secretary on Hamilton's discriminatory promotion claim.

The district court also granted summary judgment to the government on Hamilton's retaliation claim. Id. at 61. The court found that Hamilton had failed to establish a prima facie case because he had shown no causal connection between his statutorily protected EEO activity and the selection of Carraway for the 2004 Safety Manager detail. Observing that although a plaintiff may establish causation by showing that the defendant “had knowledge of his protected activity and that the adverse personnel action took place shortly after that activity,” the court pointed out that district courts in this circuit generally follow an informal “three-month rule” for cases in which a plaintiff attempts to establish a prima facie case of retaliation based on temporal proximity alone. Id. at 58 (quotation and alterations omitted). Measuring temporal proximity based solely on Hamilton's first protected activity—the August 2003 EEO counseling session—the district court concluded that the five- to six-month gap between that session and the January 2004 Carraway selection precluded Hamilton from establishing causation based on temporal proximity alone. In so concluding, the district court rejected Hamilton's argument that...