Barnette v. Chertoff, No. 04-5443.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Tatel
• Citation: 453 F.3d 513
• Parties: Margaret A. BARNETTE, Appellant v. Michael CHERTOFF, Secretary of the Department of Homeland Security, Appellee.
• Docket Number: No. 04-5443.
• Decision Date: 07 July 2006

453 F.3d 513 Margaret A. BARNETTE, Appellant
v.
Michael CHERTOFF, Secretary of the Department of Homeland Security, Appellee. No. 04-5443. United States Court of Appeals, District of Columbia Circuit. Argued April 13, 2006. Decided July 7, 2006.

Appeal from the United States District Court for the District of Columbia (No. 02cv01897).

Charles W. Day, Jr. argued the cause for appellant. With him on the briefs was Joseph D. Gebhardt.

Peter D. Blumberg, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: ROGERS, TATEL, and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge.

Passed over for promotion, appellant, an African American woman in her fifties, claims that her employing agency discriminated against her on the basis of race and age when it selected a younger, white woman for the position she sought. After

Page 514

full discovery, the district court, finding appellant had failed to plead facts sufficient to refute the employing agency's proffered non-discriminatory reason for its decision, granted the agency's motion for summary judgment. Agreeing with the district court, we affirm.

I.

Appellant, Margaret Barnette, an African American woman born in 1951, works for Customs and Border Protection (CBP). Located within the Department of Homeland Security (DHS), CBP includes those elements of the U.S. Customs Service, the Immigration and Naturalization Service, and the Department of Agriculture that dealt with border-control issues before DHS's creation in 2003. During the period in which the events at issue here took place—all prior to 2003—Barnette worked for the U.S. Customs Service.

In 2001, Barnette applied for the Assistant Director for Operations (ADO) position for the South Atlantic Customs Management Center (CMC). Located in Atlanta, the South Atlantic CMC is one of twenty regional centers through which Customs oversees regional ports and manages its staff and workload. The ADO "position is a management position, which involves operational functions of the Customs Service (as opposed to administrative functions, such as personnel matters), including passenger processing, inspection of cargo, inspection of conveyances, and other programs." Barnette v. Ridge, Civ. No. 02-1897, 2004 WL 3257071, at *1, 2004 U.S. Dist. LEXIS 27546, at *4 (D.D.C. Nov. 15, 2004).

Robert Gomez, a GS-15 and Barnette's immediate supervisor, served as ADO until Customs promoted him to Director of Field Operations in 2001, thus creating the vacancy at issue in this case. Although Gomez served as ADO at the GS-15 grade, once he left the post Customs advertised it at the GS-14 level.

Although Barnette had spent twenty-two years in administrative personnel positions—including her first seven years at Customs—at the time she applied for the ADO she was a GS-14 serving as an Operations Specialist at the South Atlantic CMC, her second operations position since her 1995 transfer from personnel. As an Operations Specialist, her responsibilities included "executing, managing, coordinating and overseeing [some of the same] Customs/South Atlantic CMC core processes" managed by the ADO. Barnette ADO Application 3 (Apr. 16, 2001). Unlike her last personnel position, a GM-14 supervisory post, Barnette's permanent operations positions were all non-supervisory. She nonetheless acquired supervisory experience in operations when, following Gomez's promotion, she served a four-month detail as Acting ADO. While serving in operations positions, Barnette received several performance awards.

After reviewing all ADO applications, George Heavey, Executive Director of Field Operations in Washington and Gomez's supervisor, recommended to the selecting official, Bonni Tischler, Assistant Commissioner for Field Operations, that she choose Michelle James, not Barnette, to fill the ADO position. Tischler did so based solely on Heavey's recommendation. Heavey, a white man, explained that after consulting Gomez, a white Hispanic man, he recommended James, a white woman fifteen years younger than Barnette, based on her reputation as a "key player," "a dynamic leader," and a "good communicator," as well as on Gomez's opinion that James's front line operations experience would be valuable in the ADO post. Heavey Dep. 28, 34, 55. Unlike Barnette, James had spent her entire eight-year career at Customs in operations positions

Page 515

such as Customs Inspector, Program Officer, Supervisory Customs Inspector, and Chief Inspector at the South Atlantic CMC.

Following James's selection, Barnette filed a complaint in the U.S. District Court for the District of Columbia alleging that Customs denied her the promotion because of her race and age in violation of Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-16(a), and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a(a). Later, after Customs denied her a temporary promotion to Customs Port Director for the Port of Atlanta, Barnette amended her complaint to include a charge of retaliation in violation of Title VII. Following full discovery, the district court found that Barnette had failed to present evidence sufficient to negate Customs' proffered non-discriminatory reason for selecting James—that it preferred James's greater operations experience over Barnette's greater personnel and supervisory experience. Barnette, 2004 WL 3257071, 2004 U.S. Dist. LEXIS 27546, at *17-21. Accordingly, the district court granted summary judgment to the government and, for reasons not at issue here, dismissed Barnette's retaliation claim. Id. at *8, 2004 U.S. Dist. LEXIS 27546, at *22.

On appeal, Barnette challenges only the award of summary judgment regarding the ADO promotion. Barnette argues that she provided sufficient evidence for a reasonable jury to find that Customs' proffered non-discriminatory reason for James's selection was pretext for discrimination. Reviewing the district court's summary judgment award de novo, we view the evidence in the light most favorable to Barnette, the non-moving party. Borgo v. Goldin, 204 F.3d 251, 254 (D.C.Cir.2000). We will affirm the award of summary judgment only if there is no genuine issue as to any material fact and the government is entitled to judgment as a matter of law. Id.

II.

Title VII requires that "[a]ll personnel actions affecting employees or applicants for employment ... in executive agencies... be made free from any discrimination based on race." 42 U.S.C. § 2000e-16(a). The ADEA requires that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age ... in executive agencies ... be made free from any discrimination based on age." 29 U.S.C. § 633a(a). Given that Barnette offers no direct evidence of discrimination, to survive summary judgment and earn the right to present her case to a jury, she must resort to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Cones v. Shalala, 199 F.3d 512, 516 (D.C.Cir.2000); see also Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C.Cir.2004) (explaining that the McDonnell Douglas framework applies to ADEA claims). Under McDonnell Douglas, Barnette bears the initial burden of establishing a prima facie case, meaning she must prove by a preponderance of the evidence "that (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination." Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999).

Because the district court found that Barnette successfully made out a prima facie case, Barnette, 2004 WL 3257071, at *3, 2004 U.S. Dist. LEXIS 27546, at *13 — a finding undisputed on appeal—we proceed directly to McDonnell Douglas's second step at which the burden shifts to Customs to articulate a non-discriminatory

Page 516

reason for its decision to...