Barnett v. Pa Consulting Grp., Inc.

• Decision Date: 07 May 2013
• Docket Number: No. 11–7136.,11–7136.
• Citation: 715 F.3d 354
• Parties: Judith BARNETT, Appellant v. PA CONSULTING GROUP, INC., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

715 F.3d 354

Judith BARNETT, Appellant

v.PA CONSULTING GROUP, INC., Appellee.

No. 11–7136.

United States Court of Appeals,

District of Columbia Circuit.

Argued Sept. 24, 2012.

Decided May 7, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:04–cv–01245).

Richard A. Salzman argued the cause for appellant. With him on the briefs was Douglas B. Huron.

Elizabeth Lalik argued the cause for appellee. With her on the brief was Scott J. Preston.

Before: GRIFFITH, Circuit Judge, EDWARDS and SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

Judith Barnett appeals the district court's grant of summary judgment against her claims that she was fired from her work because of her age and sex. The district court credited the defense of Barnett's employer that she was let go during a restructuring of the firm only because her expertise was not a good fit with the firm's new business focus. Viewing the facts in the light most favorable to Barnett, we conclude that a reasonable jury could find her employer's defense to be pretext for discrimination, and reverse.

I

Defendant PA Consulting Group, Inc. (PA), is a management consulting firm headquartered in London, with offices in approximately thirty countries, including the United States. The firm is organized into industry-specific practice groups led by partners who supervise managing consultants, principal consultants, and support staff.

From 2000 until 2003, Barnett worked as a managing consultant in the firm's Transportation Group, which mainly advised clients in the airline industry. Unlike most of her colleagues in the Group, Barnett's book of business was not focused on airlines and airports. Instead, she worked with a range of American companies seeking to open new markets for their products in the Middle East and North Africa. Barnett's practice grew out of her prior work in government. From 1994 through 1998, she served as Deputy Assistant Secretary of Commerce for the Middle East and Africa. Upon leaving government service in 1998, Barnett joined GKMG, a small firm whose other consultants chiefly advised airlines hoping to open new routes and airports looking for additional carriers. GKMG brought Barnett on board to diversify its business and help expand its presence in the Middle East. In 1999, Barnett and her colleagues at GKMG merged with Hagler Bailly and became that firm's Transportation Group. When PA purchased Hagler Bailly in the fall of 2000, the former GKMG consultants, including Barnett, became the new Washington-based Transportation Group at PA. For a few months after joining PA, Barnett sought to switch into a different practice group, because she was concerned that her expertise was out of sync with the Transportation Group's focus on the airline industry. But James Miller, the head of the Group, convinced her to stay. Miller told Barnett that she was doing great work, making lots of money for the firm, and on track for promotion.

Barnett continued to impress her bosses at PA and received favorable performance reviews. For example, her June 2003 review, written by Miller, described her overall performance as “very good!” In his deposition testimony, Miller remembered Barnett as a “tireless” consultant who “produced great work for the client.” The percentage of her work billed to clients was higher than that of any other managing consultant in the Transportation Group.

Nevertheless, Barnett found herself part of a failing practice. Financial turmoil befell the aviation industry in the wake of the 9/11 terrorist attacks. Because PA's Transportation Group primarily served airlines and airports, its revenues plummeted in 2002. By early 2003, the Group was losing millions of dollars a year. PA's top management in London, led by its chief executive officer Jon Moynihan and its chief operating officer Bruce Tindale, stepped in to try to pull the Group out of its tailspin. First, they commissioned an internal audit, completed in January 2003, which confirmed that the Transportation Group had too many employees billing too few hours to clients. The audit recommended laying off those who were not covering their costs. Next, Moynihan and Tindale convened a series of meetings of PA executives to discuss how best to addressthe Group's woes. Those meetings took place in February, April, and twice in September 2003.

Two major decisions emerged from the audit and meetings. First, effective at year's end, the Transportation Group would merge into the more successful Information Technology Infrastructure Group, which would continue to be led by PA partner Patrick Kelly. And second, not all of the members of the Transportation Group could be retained. Some would need to be fired. Firings in the Transportation Group had already begun in early 2003, when Miller terminated a managing consultant and a principal consultant who he determined were unlikely to generate significant new revenue. During the September 2003 meetings, Miller identified four more employees—two consultants and two support staff—who could be fired immediately. The meeting participants also discussed trimming the Group's work in China, including closing its office in Beijing. Nobody suggested firing Barnett.

To carry out the reduction in force, Kelly met with Miller on September 30 to discuss each member of the Transportation Group. Kelly and Miller produced a chart that rated each of the Group's employees in three areas: “Skill and Capability,” “Performance,” and “Commitment to PA.” Barnett received the highest possible rating, three check marks, for her “Performance” and her “Commitment to PA.” According to Kelly, “Skill and Capability” was meant to reflect “how valuable [the employee's] skill set was, how relevant it was to what we're trying to sell in the marketplace” relative to the work of the Transportation Group. Barnett received two check marks in the “Skill and Capability” category, with an accompanying note: “Trade.” Significantly, another of the Transportation Group's managing consultants, George Gao, who worked out of both the Washington and Beijing offices, earned similar, but less impressive, ratings: two checks for “Skill and Capability” and “Performance,” and three checks for “Commitment to PA.” Like Barnett, Gao received a note next to his “Skill and Capability” rating: “China.” According to Miller, Gao's consulting practice was “very China-focused” with minimal capabilities and experience in the aviation industry. Gao was forty-one years old.

Immediately following the September 30 meeting, Kelly, who was now in charge of personnel matters for the Transportation Group, accepted Miller's recommendation to fire the four employees he had named. Miller directed Michael Fleming, a Transportation Group managing consultant, to draft a memorandum describing why Miller and Kelly had chosen to fire these employees. The memorandum, received by Miller and Kelly on October 7, states that the Group “had to downsize and eliminate non-core activity ... to align more closely with the needs of the aviation market....” The Group would henceforth emphasize six “focus propositions”: (1) “Airport privatization”; (2) “Airport air service development”; (3) “Airport transformation”; (4) “Airline route profitability”; (5) “Airline labor”; and (6) “Airline transformation.”

On October 10, Kelly met individually with senior members of the Transportation Group, including Barnett. Kelly testified that “the purpose of the meeting[s] was just to get to know people a little bit, get to know their views on what we needed to make a success of the unit.” Kelly met with Barnett for about fifteen minutes. By October 16, Kelly had added her to the list of those to be fired. According to Kelly, he did so because Barnett's practice was not focused on the aviation industry and thus fell outside the six “focus propositions” that would govern the Group's work going forward. An updated version of the October 7 memorandum, dated October 16, is essentially unchanged except to include Barnett on its list of layoffs for the first time. The October 16 memorandum describes Barnett's practice as a “non-core activity” and “essentially a standalone offering,” and concludes that “ Barnett does not have the skills necessary ... to support our current propositions, and therefore, cannot be utilized within the practice.” PA fired Barnett and the four other employees on October 17. Barnett was fifty-seven years old at the time.

Although PA closed its Beijing office in November 2003, Gao remained at PA. Kelly reached an accommodation with Ken Rubin, head of a practice group focused on international development, that Gao would split his time between Kelly's group and Rubin's. Kelly asked Rubin whether Barnett could transfer into his group, but when Rubin balked at the idea, Kelly dropped it. Kelly never proposed to Rubin the idea of splitting Barnett's work between their two groups, the accommodation reached for Gao.

Barnett filed suit against PA on April 1, 2004, alleging age and sex discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–634, and the District of Columbia Human Rights Act (DCHRA), D.C.Code § 2–1402.11. Following discovery, PA moved for summary judgment, which the district court granted. Barnett v. PA Consulting Grp., Inc., 818 F.Supp.2d 159 (D.D.C.2011). We have jurisdiction over Barnett's appeal pursuant to 28 U.S.C. § 1291.

II

We review a grant of summary judgment de novo. See, e.g., Salazar v. Wash. Metro. Area Transit Auth., 401 F.3d 504, 507 (D.C.Cir.2005). Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). “Credibility determinations, the weighing of the...