Buckley v. Mukasey

• Decision Date: 20 August 2008
• Docket Number: No. 07-1195.,07-1195.
• Citation: 538 F.3d 306
• Parties: Mary E. BUCKLEY, Plaintiff-Appellant, v. Michael B. MUKASEY, in his official capacity as Attorney General of the United States, Department of Justice, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

538 F.3d 306

Mary E. BUCKLEY, Plaintiff-Appellant, v. Michael B. MUKASEY, in his official capacity as Attorney General of the United States, Department of Justice, Defendant-Appellee.

No. 07-1195.

United States Court of Appeals, Fourth Circuit.

Argued: March 18, 2008.

Decided: August 20, 2008.

ARGUED: Paul Reinherz Wolfson, Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., Washington, D.C., for Appellant. Kevin Jason Mikolashek, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Danielle Conley, Sarah Adams Zumwalt, Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., Washington, D.C., for Appellant. Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for Appellee.

Before KING and DUNCAN, Circuit Judges, and Jane R. ROTH, Senior Circuit Judge of the United States Court of Appeals for the Third Circuit, sitting by designation.

Vacated and remanded by published opinion. Judge KING wrote the opinion, in which Judge DUNCAN and Senior Judge ROTH joined.

OPINION

KING, Circuit Judge:

In this action under Title VII of the Civil Rights Act of 1964, Mary Buckley alleged a variety of race discrimination, sex discrimination, and retaliation claims stemming from her employment as a special agent with the Drug Enforcement Administration (the "DEA").¹ During a five-day trial conducted in the Eastern District of Virginia in the fall of 2006, the district court granted judgment as a matter of law to the government on Buckley's failure-to-promote retaliation claim, and the jury found in favor of the government on all remaining claims. Thereafter, Buckley unsuccessfully sought a new trial on three grounds: (1) that the district court improperly restricted the introduction of evidence, relevant to Buckley's theory of retaliatory animus, regarding a separate, ongoing race discrimination action against the DEA in which Buckley was a class member; (2) relatedly, that the court erred in awarding judgment as a matter of law to the government on her failure-to-promote retaliation claim; and (3) that the court wrongly refused to give an adverse inference instruction against the government for spoliation of evidence. Buckley has appealed, and, as explained below, we vacate and remand for further proceedings.

I.

A.

Buckley, an African-American woman, joined the DEA as a special agent in 1974 and has now retired. During her thirty-two-year career as a special agent, she held a variety of positions within the DEA, including undercover, international, and supervisory posts. She also received awards for distinguished service and a series of performance appraisals rating her work for the DEA as excellent.

1.

In 1977, a class action — known as the "Segar litigation" — was filed in the district court for the District of Columbia, alleging race discrimination by the DEA against African-American special agents, in contravention of Title VII. The Segar litigation was brought on behalf of, inter alia, all African-American special agents currently serving with the DEA (including Buckley). Following a bench trial, the Segar court determined, in 1981, that the defendants had indeed discriminated against African-American special agents in various ways, including reliance on subjective evaluations by supervisors to award promotions. See Segar v. Civiletti, 508 F.Supp. 690 (D.D.C. 1981). Thus, in 1982, the court entered an order enjoining the defendants from discriminating against African-American special agents in promotions and mandating implementation of a nondiscriminatory promotion system. See Segar v. Smith, No. 1:77-cv-00081, 1982 WL 214 (D.D.C. Feb.17, 1982) (the "Segar 1982 Order").

Thereafter, in 1992, the DEA implemented a new system for special agent promotions to positions at the GS-14 and -15 grades. The new system relied on an evaluation process called the Special Agent Promotion Process (the "SAPP"). Candidates scoring high on the SAPP were placed on a Best Qualified List (the "BQL"). Then, the upper-level supervisor over the vacancy in question could submit a "Short List" to the DEA's Career Board (comprised of ten senior DEA officials) of the top three candidates from the BQL in order of preference. Finally, the Career Board selected a special agent for the position, usually from the Short List.

In 1997, the plaintiffs in the Segar litigation filed a motion for a compliance order, alleging that African-American special agents continued to suffer from race discrimination under the new promotion system. In 1999, the Segar court granted the motion for a compliance order in part enjoining use of the Short List for promotions to GS-14 and -15 positions, pending a showing that its use could be validated as consistent with the DEA's obligations under Title VII. See Segar v. Reno, No. 1:77-cv-00081 (D.D.C. Sept. 27, 1999) (the "Segar 1999 Order").² When nearly 130 managerial positions subsequently went unfilled, the parties entered into a joint stipulation — approved by the court — permitting temporary use of the Short List for promotions to GS-14 and -15 positions, subject to certain terms and conditions. See Segar v. Reno, No. 1:77-cv-00081 (D.D.C. Jan. 4, 2000) (the "Segar 2000 Interim Order").³

2.

In the spring of 2001, Buckley, then a GS-14 special agent assigned to the Office of Inspections in the DEA's Inspection Division, was temporarily promoted to Senior Inspector in the Office of Inspections's Internal Review and Audit Section, a GS-15 position.⁴ Buckley's immediate supervisor was Gloria Woods, head of the Office of Inspections, and Woods in turn reported to William Brown, the Acting Chief Inspector (i.e., head of the Inspection Division). In her temporary Senior Inspector position, Buckley supervised the section responsible for coordinating reviews of the DEA by the General Accounting Office (the "GAO").

a.

On June 11, 2001, a GAO representative contacted the DEA about conducting a study of the DEA's hiring, promotion, and discipline systems at the request of Congresswoman Eddie Bernice Johnson, a member of the Congressional Black Caucus. Cynthia Ryan, Chief Counsel for the DEA, informed the GAO representative that the systems in question were already the subject of the ongoing and "still very active" Segar litigation. J.A. 62. Buckley, Woods, and Brown were forwarded a copy of an email message from Ryan recounting her conversation with the GAO representative, during which the GAO representative expressed, in the words of Ryan, that she intended "to recommend against initiating this GAO investigation," because the "GAO avoids investigating an area which is the subject of current litigation." Id. In an ensuing exchange by email, Brown suggested there might be issues that the DEA would need to look into in response to the GAO inquiry. Buckley then responded to Brown, on June 11, 2001, as follows:

I do think there should be additional information in event the GAO (intended) study has no reflections on the [Segar] litigation that [Ryan] mentioned. I think that if it does involve the Congressional Black Caucus, their conclusion will be that DEA is using stalling tactics or have something to hide. In my opinion GAO's conclusion would have no bearing on any pending litigation.

Id. at 61 ("Email 1").

Thereafter, the GAO asked to meet with DEA representatives in order to gather more information for a response to Congresswoman Johnson's request. On June 18, 2001, Buckley sent the following email message to Ryan and Brown:

As you are probably already aware, GAO has made a 2nd request for a meeting with selected DEA staffers. The purpose of the meeting is to get an understanding of issues surrounding discrimination, hiring, promotions and disciplinary actions against black agents in DEA. GAO understands [Ryan's] position. However, GAO isn't familiar with the whole situation, therefore needs to make a determination as to how GAO can adequately address Eddie Bernice Johnson's request and, what aspects, if any, that GAO can look into in order to address [the Congressional Black Caucus] request.

J.A. 49 ("Email 2"). Email 2 stated that "[p]resent at this meeting will be," among others, representatives of the Segar plaintiffs' steering committee (the Equal Employment Opportunity Monitoring Committee, or "EEOMC"), Ryan, and several other specified DEA officials. Id. In addition to Ryan and Brown, Email 2 was sent to Rosalynde Fenner, head of the EEOMC, and two more EEOMC members. As such, Ryan viewed Email 2 as an effort by Buckley, acting on her own accord, to involve the EEOMC in the initial DEA-GAO meeting.⁵

Email 2 closed by stating that "[t]he meeting will take place FRIDAY, June 22, 2001, 9:30 a.m. in IN's conference room on the 4th floor West building. Thanks...." J.A. 49. The Email 2 recipients were notified on June 21, 2001, however, that the June 22 meeting with the GAO had been cancelled. Shortly thereafter, Brown sent an email message to Woods saying that he had "heard from several people that the way this meeting was handled by Mary Buckley and her staff was non-standard and aggravating," in that "[t]he meeting was agreed to and set-up with an outside agency, committing DEA participation at high levels without the courtesy of checking with them to see if the meeting agreed with their respective schedules." Id. at 50. Brown criticized Email 2 for constituting "a directive to attend the scheduled meeting rather than a message of coordination regarding a proposed meeting." Id. Brown also admonished that "[o]ur job in the Inspection Division is to facilitate contacts with outside agencies so that they can conduct their studies and audits. Our job is not to direct participation or to mandate attendance at such meetings." Id.

b.

In July 2001, the DEA posted two GS-15 position openings, "Vacancy 365" (the permanent position in which Buckley was then temporarily serving) and "Vacancy 364." Buckley applied for each of the positions, and was among...