Brady v. Office of Sergeant at Arms

• Citation: 520 F.3d 490
• Decision Date: 28 March 2008
• Docket Number: No. 06-5362.,06-5362.
• Parties: Standley BRADY, Appellant v. OFFICE OF the SERGEANT AT ARMS, United States House of Representatives, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

520 F.3d 490

Standley BRADY, Appellant v. OFFICE OF the SERGEANT AT ARMS, United States House of Representatives, Appellee.

No. 06-5362.

United States Court of Appeals, District of Columbia Circuit.

Argued November 19, 2007.

Decided March 28, 2008.

Appeal from the United States District Court for the District of Columbia (No. 02cv00802).

Lenore C. Garon argued the cause for appellant. With her on the briefs were Joseph D. Gebhardt and Charles W. Day, Jr.

Victoria L. Botvin, Attorney, Office of House Employment Counsel, argued the cause for appellee. With her on the brief was Gloria J. Lett, Attorney, Office of House Employment Counsel.

Before: GINSBURG and KAVANAUGH, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge:

Seeking to punish and deter sexual harassment, the U.S. House Office of the Sergeant at Arms demoted Brady, a supervisor within the office, because it concluded that Brady grabbed his crotch in front of three employees. Brady sued under federal anti-discrimination laws, contending that he was demoted because of his race. The District Court granted summary judgment to the Sergeant at Arms on the ground that Brady had not made out a prima facie case of racial discrimination. In the alternative, the District Court ruled that Brady failed to present evidence sufficient for a reasonable jury to find that the Sergeant at Arms' stated reason for demoting Brady was not the actual reason and that the Sergeant at Arms intentionally discriminated against Brady on account of his race. We affirm based on that alternative ground. In doing so, we emphasize that the question whether the plaintiff in a disparate-treatment discrimination suit actually made out a prima facie case is almost always irrelevant when the district court considers an employer's motion for summary judgment or judgment as a matter of law. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 514-15, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-16, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983).

I

Brady worked as an assistant shift supervisor in House Garages & Parking Security", an entity within the Office of the Sergeant at Arms of the U.S. House of Representatives. In early 2001, two employees — one man and one woman — accused Brady of improper behavior in the workplace. They alleged that Brady grabbed his crotch in front of the two of them and another female employee. After learning of the incident, House Sergeant at Arms Wilson Livingood asked two supervisors to investigate. In the ensuing internal investigation, the two accusers claimed that Brady grabbed his crotch while discussing his need to use the restroom. The other employee who was present initially refused to discuss the incident, saying she did not want to be involved. After being required to give a statement, she said that Brady did not "present any offensive actions towards [her]." Joint Appendix ("J.A.") 214. She explained that Brady had acted "in a very joking manner," but she did not deny that Brady had grabbed his crotch in the way described by the other two employees. Id.

The two investigating supervisors found that the crotch-grabbing incident had likely occurred and that Brady violated the office's sexual harassment policy. One supervisor recommended demoting Brady. The other recommended firing him. Sergeant at Arms Livingood then determined that Brady "might have done it jokingly, but ... even in a joking manner, it offended two of his employees." Livingood Deposition Transcript (Nov. 10, 2005), J.A. 92. Particularly because Brady was a supervisor, Livingood concluded that "some action needed to be taken." Id. Livingood demoted Brady but did not fire him.

Brady asked Livingood to reconsider his decision. Livingood agreed to do so and hired a Washington, D.C., law firm to investigate. The law firm reviewed documents produced during the original investigation and interviewed 13 current and former employees. The firm concluded that it was "likely that an incident occurred that was most accurately described" by Brady's two initial accusers. Relman Report (June 28, 2001), J.A. 199. After receiving the law firm's report, Livingood affirmed Brady's demotion.

Brady sued, alleging racial discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2, a law that applies to offices in the Legislative Branch as a result of the Congressional Accountability Act, 2 U.S.C. §§ 1302(a), 1311(a). The District Court granted summary judgment to the Office of the Sergeant at Arms, finding that Brady failed to make out a prima facie case of racial discrimination because he could not show that a similarly situated employee outside his racial group was treated differently. Brady v. Livingood, 456 F.Supp.2d 1, 7-8 (D.D.C.2006). In the alternative, the District Court stated that "even if plaintiff were able to establish a prima facie case of discrimination, defendant's Motion for Summary Judgment would still be granted because defendant's personnel actions were in fact undertaken for legitimate, non-discriminatory reasons." Id. at 9 n. 9.

Brady appeals; our review of the summary judgment is de novo.

II

Title VII of the Civil Rights Act makes it unlawful for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). This statutory text establishes two elements for an employment discrimination case: (i) the plaintiff suffered an adverse employment action (ii) because of the employee's race, color, religion, sex, or national origin.

The District Court concluded that Brady had not made out a "prima facie case" under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).¹ The court's focus on the prima facie case was not atypical: When resolving an employer's motion for summary judgment or judgment as a matter of law in employment discrimination cases, district courts often wrestle with the question whether the employee made out a prima facie case.

But judicial inquiry into the prima facie case is usually misplaced. In the years since McDonnell Douglas, the Supreme Court's decisions have clarified that the question whether the employee made out a prima facie case is almost always irrelevant. At the motion to dismiss stage, the district court cannot throw out a complaint even if the plaintiff did not plead the elements of a prima facie case. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-11, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). And by the time the district court considers an employer's motion for summary judgment or judgment as a matter of law, the employer ordinarily will have asserted a legitimate, non-discriminatory reason for the challenged decision — for example, through a declaration, deposition, or other testimony from the employer's decision-maker. That's important because once the employer asserts a legitimate, non-discriminatory reason, the question whether the employee actually made out a prima facie case is "no longer relevant" and thus "disappear[s]" and "drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). As the Supreme Court explained a generation ago in Aikens: "Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether the defendant intentionally discriminated against the plaintiff." U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) (internal quotation marks omitted). The Aikens principle applies, moreover, to summary judgment as well as trial proceedings. See Dunaway v. Int'l Bhd. of Teamsters, 310 F.3d 758, 762 (D.C.Cir.2002); Wells v. Colorado Dep't of Transp., 325 F.3d 1205, 1227-28 (10th Cir.2003) (Hartz, J., concurring); see also Vickers v. Powell, 493 F.3d 186, 195 (D.C.Cir.2007); Holcomb v. Powell, 433 F.3d 889, 896-97 (D.C.Cir.2006); George v. Leavitt, 407 F.3d 405, 411-12 (D.C.Cir.2005); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir.1998) (en banc).

Much ink has been spilled regarding the proper contours of the prima-facie-case aspect of McDonnell Douglas. But as we read the Supreme Court precedents beginning with Aikens, the prima facie case is a largely unnecessary sideshow. It has not benefited employees or employers; nor has it simplified or expedited court proceedings. In fact, it has done exactly the opposite, spawning enormous confusion and wasting litigant and judicial resources.

Lest there be any lingering uncertainty, we state the rule clearly: In a Title VII disparate-treatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory reason for the decision, the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas. Rather, in considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin? See Hicks, 509 U.S. at 507-08, 511, 113 S.Ct. 2742; Aikens...