Barbour v. Browner

• Decision Date: 13 July 1999
• Docket Number: No. 98-5409,No. 98-5408,98-5408,98-5409
• Citation: 181 F.3d 1342
• Parties: (D.C. Cir. 1999) Joyce A. Barbour, Appellee v. Carol M. Browner, Administrator, United States Environmental Protection Agency, Appellant Consolidated with
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1342

181 F.3d 1342 (D.C. Cir. 1999)

Joyce A. Barbour, Appellee v. Carol M. Browner, Administrator, United States Environmental Protection Agency, Appellant

No. 98-5408 Consolidated with No. 98-5409

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 12, 1999

Decided July 13, 1999

Appeals from the United States District Court for the District of Columbia(No. 94cv00208)(No. 95cv02013)

Michael J. Ryan, Assistant U.S. Attorney, argued the cause for appellant. With him on the briefs were Wilma A.

Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Janet Cooper argued the cause and filed the brief for appellee.

Before: Silberman, Ginsburg, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Ginsburg.

Opinion concurring in part and dissenting in part filed by Circuit Judge Tatel.

Ginsburg, Circuit Judge:

Joyce Barbour sued the Environmental Protection Agency under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), claiming that the agency had refused to promote her because of her race (black) and had failed to prevent an agency contractor from harassing her. A jury found for her on both counts, and the district court entered judgment accordingly. The EPA now appeals, arguing that because neither of Barbour's claims was supported by sufficient evidence, the district court erred by denying the agency's motion for judgment as a matter of law. We agree and hence reverse.

I. Background

Barbour began working for the EPA's Toxic Substances Control Act "security staff" in 1990. She says that her supervisor, Doug Sellers, told her when she started that he would promote her from GS-12 to GS-13 after a year if she performed well. Accordingly, when she was rated "exceeds expectations" after her first annual review, she thought Sellers would promote her immediately. Her job, however, is not one that ordinarily allows promotion above GS-12, so Sellers told her that she would have to demonstrate, by means of a "desk audit," that she had responsibilities beyond those commensurate with her GS-12 level. If the audit revealed that she was performing GS-13 level tasks, Sellers assured her, a promotion would follow. Claiming an audit unnecessary, Barbour refused. She ultimately received the promotion without having an audit, but not until 1996.

Barbour contrasts her experience with that of Janette Peterson, a white member of the security staff who received a promotion to GS-13 after two years as a GS-12. Barbour concedes, however, that Peterson's promotion followed a desk audit. Moreover, although Peterson's job duties overlapped to some degree with Barbour's, there is undisputed evidence that Peterson had management responsibilities that Barbour did not have. Barbour disputes the importance of these differences, pointing out that the EPA occasionally waives the desk audit requirement and that the additional duties Peterson had were of a sort usually assigned to a GS-14, not to a GS-13, employee.

Barbour's harassment claim arises out of her supervision of work performed by Computer Based Systems, Inc. (CBSI), a contractor that performed data management services for the EPA. Despite her position of authority, Barbour says, CBSI employees consistently treated her with disrespect. One CBSI supervisor directed a subordinate to drag his heels on a request Barbour had made. Another turned her back on Barbour during a contentious meeting. Still others would call Sellers or Peterson to verify the accuracy of the instructions Barbour had given them. When Barbour complained to Sellers about CBSI's conduct, his response was half-hearted.When white EPA employees, who had fewer problems with CBSI, complained to Sellers, his intervention was more effective.

Barbour filed this suit in 1994. In March, 1997 the parties tried the case to a jury, which returned a verdict in Barbour's favor on both her failure to promote and her harassment claims. The EPA appealed after the trial court denied its motion for judgment as a matter of law.

II. Analysis

We review de novo a district court's disposition of a motion for judgment as a matter of law, in the sense that we apply to the jury's decision the same forgiving standard as did the district court: The jury's resolution of a factual dispute will stand if it is reasonably supported by the evidence. See, e.g., Barbour v. Merrill, 48 F.3d 1270, 1276 (D.C. Cir. 1995). As to so-called "mixed questions of law and fact," which require the application of a broad legal standard to particular facts, see Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982), there is no obvious way to decide whether determinations made at the trial level should be reviewed deferentially or independently. See Miller v. Fenton, 474 U.S. 104, 114 (1985) (standard of review "turn[s] on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question"). Therefore, the reviewing court must make a reasoned judgment whether the risk of an erroneous trial level decision, or the need to clarify the governing law, or any other value secured by review de novo, is warranted in view of the added costs of such review. See, e.g., Ornelas v. United States, 517 U.S. 690, 697 (1996) ("Independent review [of probable cause determinations] is ... necessary if appellate courts are to maintain control of, and to clarify, the [governing] legal principles"); Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 505 (1984) (appellate courts independently review jury determinations that speech is unprotected by the First Amendment "both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits"). We touch upon this issue because, as will be seen, the present appeal requires us to review jury findings on two mixed questions of law and fact, and we have not previously addressed the standard of review applicable to either.

A.Failure to Promote

The first question is whether "all of the relevant aspects of [Barbour's] employment situation were nearly identical" to those of Janette Peterson, and therefore whether Peterson's more rapid promotion could be said to indicate racial bias on the part of the EPA. Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1554 (D.C. Cir. 1997). We think the jury's implicit finding in favor of Barbour on this issue should be reviewed deferentially, although it necessarily entails a judgment about which aspects of her employment situation were "relevant." The issue does not seem to be of general importance, peculiarly in need of clarification, or otherwise deserving of specially probing review. Nor, contrary to the EPA's representations, does either our decision in Mungin or our decision in Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507 (D.C. Cir. 1995), contain any indication that we should review this question de novo. Like the mine run of mixed questions, therefore, it should be resolved in the first instance by a jury, whose decision should be disturbed on appeal only if it could not reasonably be based upon the evidence properly received. See United States v. Gaudin, 515 U.S. 506, 512 (1995).

In this case, however, we agree with the Government that no fair comparison can be drawn between Barbour and Peterson; hence, the jury's verdict cannot stand. As the EPA points out, Barbour was responsible for only seven "specific task management activities," all of which dealt with "things which were in place and functioning." Peterson's duties were both more numerous and more weighty; they included some related to the development and implementation of new policies. Furthermore, Peterson, unlike Barbour, agreed to a desk audit in order to document that she performed the duties of a GS-13 level job.

Barbour does not deny these differences; rather, she maintains that they do not relate to any "relevant aspect[ ]" of her employment situation. First, she contends, the additional duties Peterson performed were usually assigned to a GS-14 position; consequently, a rational juror could find those duties irrelevant to the EPA's decision to promote her, and not Barbour, to GS-13. In other words, a rational juror, we are told, could determine that in deciding not to promote Barbour the EPA did not rely upon Peterson's performance of higher level responsibilities. This flies in the face of reason. That Peterson was capable of handling more important GS-14 level tasks is plainly relevant to whether she would acquit herself adequately in a GS-13 level position--or so an employer is entitled to believe.^* Title VII, it bears repeating, does not authorize a federal court to become "a super-personnel department that reexamines an entity's business decisions." Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986). This is precisely the role the court would play, however, were the jury to ignore Peterson's GS-14 level job duties on the basis of the argument Barbour advances.

Barbour next argues that her limited job duties could not have been material to the EPA's decision because, without having assumed any new ones, she received the promotion in 1996. In effect, she attempts to undercut the agency's explanation of its decision by means of another comparison--not, this time, between herself and Peterson, but between her younger and her older selves. This approach is creative, but it is at odds with Sellers' undisputed testimony that she received the promotion because her performance improved between 1991 and 1996. When she first requested the promotion, she had been with the security staff for only one year.When the promotion finally came, she had been on the job for six. It is not unusual, of course, that an increase in productivity would accompany a five-fold increase in experience.^**

Finally, Barbour...