Chambers v. Burwell

• Decision Date: 31 May 2016
• Docket Number: No. 14-5047,14-5047
• Citation: 32 A.D. Cases 1401,824 F.3d 141
• Parties: Janean E. Chambers, Appellant v. Sylvia Mathews Burwell, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

824 F.3d 141

32 A.D. Cases 1401

Janean E. Chambers, Appellant

v.Sylvia Mathews Burwell, Appellee.

No. 14-5047

United States Court of Appeals, District of Columbia Circuit.

Argued September 9, 2015

Decided May 31, 2016

Rehearing En Banc Denied August 3, 2016

Ellen K. Renaud argued the cause for appellant. With her on the briefs were David H. Shapiro and Richard L. Swick.

Alexander D. Shoaibi, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen, U.S. Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: Griffith and Srinivasan, Circuit Judges, and Silberman, Senior Circuit Judge.

Griffith

, Circuit Judge:

Janean Chambers alleges that she was denied a promotion at the Department of Health and Human Services because of her race and disability. The district court entered summary judgment against her, and we affirm.

I

Janean Chambers is a legally blind, African–American woman who has worked for HHS since 1989. In 2006, HHS promoted Chambers to be a Management Analyst in the Office of Information Services (OIS) at a GS–9 pay grade. In this position, Chambers coordinated disability accommodations for employees in HHS's Administration for Children and Families (ACF). Each operating division of HHS has someone like Chambers who is responsible for coordinating the disability accommodations required under Section 508 of the Rehabilitation Act.

Chambers became eligible to apply for GS–11 positions in 2007. Because she preferred to continue as ACF's Section 508 Coordinator at that higher grade, she requested a promotion from her second level supervisor, the Director of OIS, Michael Curtis. Curtis, however, told Chambers that he could not promote her to the GS–11 pay grade in her current position because HHS had capped that job at the GS–9 level. As a result, the agency's formal personnel policies gave Chambers only two vehicles for promotion: (1) she could apply for an available GS–11 position in the agency (including Section 508 Coordinator positions in other divisions), or (2) she could request a favorable “desk audit” to demonstrate her current duties warranted a higher pay grade. A desk audit allows an employee to have her duties independently reviewed by a human resources specialist. If the audit reveals her responsibilities are at a higher level than her position is graded, she is promoted to the higher level.

Chambers neither applied for an available GS–11 position nor asked for a desk audit. Instead, over the next four years, she pursued an informal method of promotion at the agency: the creation of a higher-graded vacancy with the same responsibilities as her current job. Curtis, for his part, told Chambers that he supported such a promotion. He explained, however, that he lacked the authority to create a new position—that could only be done by his superiors. Curtis promised Chambers that he would ask those superiors to create such a position.

When no vacancy was created, Chambers met with her immediate supervisor and Curtis in October 2011 to discuss her frustration. At the meeting, Curtis told Chambers that he had asked the current Deputy Assistant Secretary, Jason Donaldson, to create a GS–11 position but that Donaldson had refused to do so, citing budgetary constraints. In an email she sent summarizing the meeting, Chambers acknowledged that Curtis could only urge the agency to create a vacancy for which she could apply. Chambers also reported that Curtis had “indicated that [supportive] paper work was submitted to the front office” in an effort to secure her an “opportunity for advancement,” but “was denied due to the lack of budget.” Finally, Chambers requested that Curtis or her supervisor correct anything in her summary that she had misinterpreted. Neither ever replied.

That same month, Chambers filed a complaint with the equal employment opportunity office at HHS alleging that she had been denied a promotion in October 2011 because of her race and disability. Chambers claimed that at the same time that she had been told HHS lacked the funds to create her desired position, the agency had created positions to promote three white, sighted department heads from a GS–14 to a GS–15 pay grade and had created a new GS–14 network security position. She also asserted that the other Section 508 Coordinators elsewhere in HHS were paid at a higher grade than she was, despite serving smaller divisions. In an attempt to resolve the claim, the parties agreed to an expedited desk audit to determine whether Chambers's responsibilities warranted a higher grade. The audit concluded that Chambers's job was properly classified at the GS–9 level.

Chambers then filed suit in district court. She alleged that she was not promoted to a GS–11 level because of her race and disability in violation of Title VII and the Rehabilitation Act. The district court granted summary judgment to HHS, reasoning that an employee could not suffer a cognizable adverse employment action when the position she sought did not exist and when her supervisor lacked the authority to create it. Chambers timely appealed.

We have jurisdiction under 28 U.S.C. § 1291

to review the district court's grant of summary judgment. Our review is de novo, and we may affirm the district court on any ground supported by the record. Wilburn v. Robinson , 480 F.3d 1140, 1148 (D.C. Cir. 2007). We view the evidence in the light most favorable to Chambers, draw all reasonable inferences in her favor, and avoid weighing the evidence or making credibility determinations. Lathram v. Snow , 336 F.3d 1085, 1088 (D.C. Cir. 2003) (citing Reeves v. Sanderson Plumbing Prods. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ).

II

The district court was right that Chambers must show that she suffered a cognizable adverse employment action to prevail under Title VII and the Rehabilitation Act. See Baloch v. Kempthorne , 550 F.3d 1191, 1196 (D.C. Cir. 2008)

. Chambers attempts to meet this burden by arguing that Curtis failed to ask his superiors to create a new GS–11 Section 508 Coordinator position. This failure, in her view, amounted to the denial of a promotion. The government agrees that the denial of a promotion is an adverse employment action. But the government argues a denial of promotion is only cognizable as an adverse employment action if a vacancy for the desired position already exists. The district court agreed and on that basis ruled against Chambers. But there is no such categorical rule in our case law. Instead, we affirm the district court's grant of summary judgment to HHS on a different ground: Chambers did not produce evidence from which a reasonable juror could find that she was denied the promotion because of her race or disability.

A

Title VII and the Rehabilitation Act forbid federal employers from discriminating on the basis of race, 42 U.S.C. § 2000e-16(a)

, or disability, 29 U.S.C. § 794(a). To survive summary judgment, a plaintiff must introduce sufficient evidence for a reasonable jury to find that she suffered a “materially adverse” employment action. See

Stewart v. Ashcroft , 352 F.3d 422, 426 (D.C. Cir. 2003). This is not an onerous burden for claimants who allege the denial of a promotion. Often, the plaintiff satisfies this requirement by showing that she applied for, and was rejected from, an available—i.e. , vacant—position.

But Chambers alleges a different kind of adverse employment action. She claims that she suffered a denial of promotion when her supervisor failed to request the creation of a new position to aid her promotion. According to Chambers, HHS routinely created new positions to promote employees similarly situated to her based on the recommendations of supervisors. Her supervisor's failure to even make such a request, she argues, deprived her of a similar opportunity for advancement. Chambers makes no attempt to argue that she was denied promotion to a vacant position; indeed, she readily concedes that no available position ever existed.

The government argues that the lack of a vacancy dooms her claim. We disagree. We have recognized that claims alleging an unlawful denial of promotion come in at least two forms: the denial of a promotion to a vacant position and the denial of an increase in pay or grade. See Cones v. Shalala , 199 F.3d 512, 516–17 (D.C. Cir. 2000)

. The government's argument recognizes the former, but overlooks the latter. Precedent makes clear that employees who pursue, and are denied, pay or grade increases can still suffer a materially adverse employment action. See

id. at 517 ; see also

Bundy v. Jackson , 641 F.2d 934, 951 (D.C. Cir. 1981). Chambers advances this type of claim, and she did not need to identify an available vacancy to survive summary judgment.

This approach avoids creating an unacceptable loophole in our antidiscrimination law. A categorical rule requiring employees to always identify a vacancy before advancing their denial of promotion claim would permit employers to systematically pass over qualified candidates because of their race or disability. An agency, for example, could limit formal promotional opportunities while allowing supervisors to promote subordinates by requesting the creation of vacancies tailored to their particular qualifications. In such a system, a supervisor could request vacancies only for white subordinates because of his animus toward African–Americans, and thereby prevent African–American employees from receiving promotions because of their race. Allowing employers to escape liability for this kind of unlawful workplace conduct would exalt form over substance by ignoring the reality that employers promote employees in a variety of ways—both formal and informal. Cour...