Brown v. Chairman

• Citation: 199 F.3d 446
• Decision Date: 21 December 1999
• Docket Number: No. 97-5347,97-5347
• Parties: (D.C. Cir. 1999) Regina C. Brown, Appellant v. Kenneth D. Brody, Chairman, Export-Import Bank of the United States, Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 446

199 F.3d 446 (D.C. Cir. 1999)

Regina C. Brown, Appellant v. Kenneth D. Brody, Chairman, Export-Import Bank of the United States, Appellee

No. 97-5347

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 1999

Decided December 21, 1999

[Copyrighted Material Omitted] Appeal from the United States District Court for the District of Columbia(95cv00298)

James L. Kestell argued the cause for appellant. With him on the briefs was Michael P. Deeds.

Michael A. Humphreys, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: Wald,^* Henderson, and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

This is an appeal from an order of the district court, Hogan, J., granting summary judgment for the Export-Import Bank on three counts of unlawful discrimination alleged by a former employee, Regina C. Brown. We affirm the district court's order granting summary judgment for the Bank because Brown has failed to allege any legally cognizable adverse employment action and because her attempts to discredit the Bank's account of its employment decisions as a web of pretextual artifice is thoroughly unconvincing.

I

Brown "is a 50 year old black female with three separate Master's Degrees." Brief for Appellant at 2. She began working at the Export-Import Bank as a GS-12 loan officer in August 1984. During the next ten years, she received two promotions, rising to the level of a GS-14 senior loan officer. In June 1994, she left the Bank to accept an appointment at the State Department as Deputy Assistant Secretary of State for African Affairs.

Brown spent her first year at the Bank on rotational assignment. After working for a short period in several divisions, including three months in Contracts Administration, she switched to the Africa/Middle East Division, concentrating her efforts on countries located in West Africa. There she remained through the early 1990's, when it became apparent that many of these countries were unable to meet their financial obligations, and that the Bank would curtail its business in the region. By the second quarter of 1993, most of these countries were closed for new business. The Bank expected this condition to endure for some time and Brown concedes that it lasted through at least 1994.

These changes and others prompted the Bank to reorganize its allocation of personnel and shift a number of people into temporary reassignments. Some of the transfers were voluntary, others were not; the rotations fell upon both sexes and upon both black and white employees. It was the Bank's policy to require all senior practitioners to make themselves available for reassignment as required by the Bank's shifting needs. The Bank also considered reassignments of this kind to be an important educational tool for the professional development of its staff.

On September 17, 1993, Brown received word from Raymond Albright--a Senior Vice-President at the Bank, a white male, and Brown's second-level supervisor--that she was to be reassigned to the Contracts Administration Division of the Bank the following month. Brown strongly objected to this reassignment because she believed Contracts was a less prestigious "back-shop" area and because, having worked for a short period in Contracts many years earlier as a GS-12, she felt she had little to learn from such a rotation. The Bank maintained that Brown's presence was needed in Contracts and that the numerous transfers in the fall of 1993 had the effect of balancing the number of senior practitioners between the Bank's various departments.

Unconvinced, Brown thought the "catalyst" behind her transfer was her immediate supervisor, Carl Leik, a white male. By her lights, she was moved because of racial and sexual animus. She first approached one of the Bank's equal employment opportunity counselors with this allegation on September 20, 1993, when she signed a form laying out her rights and responsibilities under the Bank's grievance procedures. Brown made a formal complaint on October 8, naming Leik and Albright as the discriminating officials. Despite her objections, Brown was transferred to Contracts Administration on October 18 along with another GS-14 from the Claims Division, Kenneth Vranich, who is white.

On October 22, 1993, two days after her formal transfer to Contracts Administration, Brown received a copy of her annual performance evaluation from Leik. The evaluation measured her performance in five different categories according to a mathematical scale ranging from five points for an "outstanding" rating to one point for an "unacceptable" rating. Brown received a "superior" rating in the areas of "technical knowledge," "special projects," and "supervision."She received a "fully satisfactory" rating in the "case work" category. This rating was accompanied by remarks which noted the prohibition against further loan activity in West Africa and suggested that Brown lacked enthusiasm for the lesser function of debt collection. Finally, Brown received a two-point "minimally satisfactory" rating for internal and external oral and written communication. The comments attached to that rating stated that "Ms. Brown has consistently been negligent in advising the division's managers of her meetings with the public, developments in her assignments and providing copies of outgoing correspondence. There have been a number of instances of a lack of courtesy."The cumulative average of Brown's scores was 3.4, which, as for any cumulative score between 2.75 and 3.75, meant that Brown received an overall rating of "fully satisfactory."Brown claimed that this was the lowest performance appraisal she had ever received and she met with Leik and Albright to discuss her evaluation one week later on October 29. During that meeting, Albright gave Brown a "Letter of Admonishment" chronicling a number of separately memorialized conflicts between Brown and her supervisors and also between Brown and her peers and superiors in other divisions of the Bank. Brown "indicated that [she] seriously disagreed with the allegations which he was belatedly raising" and signed the evaluation "under protest" because she felt that she should discuss the matter with her attorney. Later that same day, Brown made an informal complaint of discrimination and retaliation against Leik and Albright, but she did not amend her previous formal complaint or file a new one.¹

During this same period--the fall of 1993--Brown began to receive employment overtures from the State Department. On September 27, Brown was informed that she was being considered for Deputy Assistant Secretary for African Affairs and she was offered that job after an interview on October 8.Although Brown did not accept the position when it was originally offered, she states that she accepted it later that month contingent upon the Bank's agreement to let her return to the Bank after she finished her job at State. She began the process of obtaining a security clearance in December and requested a letter of re-employment from the Bank.

In March 1994, while the State Department had Brown's application for a security clearance under review, the Bank decided to create a new Project Finance section and posted notices for three new positions available for competitive selection. Brown applied for a transfer to one of those positions, but she was not selected during the interviews held on April 29. Albright and Leik were two of three senior managers on the selection board. Brown believed she was not selected in retaliation for having filed an EEO complaint against these individuals the previous fall. However, Brown did not file another complaint. Instead, "[a]s a result of these nonselections and because she remained stuck in the Contracts Division, Brown believed she had no choice but to accept an appointment [as] a Deputy Assistant Secretary of State for African Affairs at the State Department." Brief for Appellant at 6.²

On February 14, 1995, Brown commenced this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., charging Kenneth D. Brody, the Chairman of the Export-Import Bank with racial and sexual discrimination as well as retaliation. In her complaint, Brown claimed that the Bank had discriminated against her by involuntarily reassigning her from the Africa/Middle East Division of the Bank to Contracts Administration. She also claimed that the Bank discriminated against her by giving her an evaluation lower than she had been accustomed to receiving, by failing to promote her to a position within the Project Finance Division; and by refusing to provide her with a letter of re-employment after she had accepted a political position with the State Department. After discovery, the Bank moved for summary judgment arguing that Brown's complaint failed to present a genuine issue of material fact and that the Bank was entitled to judgment as a matter of law.

The district court granted the Bank's motion for summary judgment. As to Brown's claim of improper reassignment, the court ruled that she had failed to establish a prima facie case because the Bank routinely re-assigned employees within its organization as a common business practice; and because other similarly situated employees within the defendant's organization were, in fact, involuntarily reassigned on a regular basis. See Brown v. Brody, Civ. No. 95-298 (TFH), mem. op. at 6-7 (D.D.C. Nov. 12, 1997). Brown's claims of discrimination pertaining to a lower-than-usual performance appraisal and a letter of admonishment were, in the court's view, lacking in substance. See id. at 8, 10-11. The court also found that the Bank's actions in not transferring Brown to one of the three available positions within its Project Finance Division was...