Evans v. Sebelius

• Decision Date: 17 May 2013
• Docket Number: No. 11–5120.,11–5120.
• Citation: 716 F.3d 617
• Court: U.S. Court of Appeals — District of Columbia Circuit
• Parties: Vernard EVANS, Appellant v. Kathleen SEBELIUS, Secretary, U.S. Department of Health & Human Services, Appellee.

716 F.3d 617

Vernard EVANS, Appellant

v.Kathleen SEBELIUS, Secretary, U.S. Department of Health & Human Services, Appellee.

No. 11–5120.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 22, 2013.

Decided May 17, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:08–cv–01077).

Ellen K. Renaud argued the cause for appellant. With her on the briefs was David H. Shapiro.

Alan Burch, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: TATEL, Circuit Judge, and WILLIAMS and SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in part and concurring in the judgment filed by Senior Circuit Judge WILLIAMS.

TATEL, Circuit Judge:

Appellant alleges that her employer, the United States Department of Health and Human Services, denied her a promotion and a transfer in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. The district court granted summary judgment for the government. For the reasons set forth below, we reverse in part and affirm in part.

I.

At the start of President George W. Bush's Administration, plaintiff Vernard Evans, a fifty-four-year-old African American, worked as a GS–13 Developmental Disabilities Program Specialist in the Administration on Developmental Disabilities (ADD), a division of HHS's Administration for Children and Families (ACF). At all times relevant to this litigation, Evans's direct supervisor was Leola Brooks. Until July 27, 2001, Commissioner Sue Swenson, a holdover from the Clinton Administration, managed ADD. After Swenson left ADD, Deputy Commissioner Reginald Wells served as Acting Commissioner until Bush Administration appointee Patricia Morrissey became Commissioner on August 27, 2001.

Immediately upon entering office, the Bush Administration imposed a hiring freeze. Then, when Tommy Thompson became HHS Secretary in February 2001, he issued a memorandum requiring managers to “defer decisions to fill positions at the GS–13 through SES levels until I have had the opportunity to review staff deployment throughout the Department.”

Despite the hiring freeze, in March 2001, outgoing Commissioner Swenson recommended the creation of a GS–14, non-supervisory Lead Developmental Disabilities Specialist (LDDS) position. Shortly thereafter, Evans applied for and was interviewed for that position. On July 17, Brooks selected Evans and another African American for two LDDS positions. But because of the hiring freeze, neither selectee was promoted. Swenson declined to push for formal approval of the LDDS position, believing that her successor should make the final decision.

Over the next few months, the new Administration replaced the hiring freeze with a series of hiring “controls.” Specifically, in October 2001, Assistant Secretary for Administration and Management Ed Sontag published a memorandum requiring his approval for any promotions to positions at GS–14 and above. In November 2001, Assistant Secretary for Children and Families Wade Horn issued a memorandum rescinding the requirement that Assistant Secretary Sontag approve promotions for all non-supervisory GS–14 and GS–15 positions. The memo nonetheless required Horn's approval for promotions to GS–13 and above. And in March 2002, Horn announced at an “All Hands Meeting” that the hiring freeze was no longer in effect.

Despite the relaxation of the hiring controls, Evans was never promoted to the LDDS position, and she retired in April 2002. The record reveals that no official—Clinton holdover or Bush newcomer—gave final authorization for the LDDS position. The record is unclear as to who, if anyone, made the affirmative decision to cancel the position.

Both before and after her retirement, Evans sought to find out why she had not been promoted. She claims that HHS human resources officials told her that her promotion would be pushed through after the hiring controls were removed. Evans's union representative was told that the promotion never occurred because of the hiring controls and that the LDDS position was “officially cancelled” in March 2002. Evans also sought the assistance of United States Senator Paul Sarbanes, and in response to an inquiry from the Senator's office, Assistant Secretary Horn stated that “Evans could not be placed in the [LDDS] position because ACF was under Departmental and agency hiring controls and the position could not be filled. ADD subsequently elected to cancel the vacancy announcement, thereby nullifying the selection recommendation.” Finally, responding to Evans's Freedom of Information Act request, HHS revealed that at least three white employees were promoted notwithstanding the hiring controls.

Significantly for this case, one of those white employees, Faith McCormick, was detailed as a GS–15 Executive Assistant to incoming Commissioner Morrissey. Morrissey hand-selected McCormick for the detail, doing so without a competitive-selection process or opportunity for anyone else to apply. McCormick's detail lasted for 154 days, after which she was permanently selected for the position, this time following a competitive process.

After exhausting her administrative remedies, Evans filed suit in the United States District Court for the District of Columbia under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. As relevant to this appeal, Evans alleged that two personnel actions—HHS's failure to promote her to the newly created LDDS position and Morrissey's selection of McCormick for a detail as her Executive Assistant—were infected by race and age discrimination. The district court granted summary judgment to the government on all claims. Regarding the LDDS position, the district court found that Evans failed to establish a prima facie case of discrimination, but following this Circuit's directive in Brady v. Office of Sergeant at Arms, 520 F.3d 490 (D.C.Cir.2008), it went on to address the ultimate question of discrimination and held that Evans failed to rebut the government's legitimate, non-discriminatory reason for not promoting her—that the LDDS position was cancelled administratively. Regarding the Executive Assistant position, the district court concluded that the denial of the detail did not qualify as an adverse employment action. See Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C.Cir.2003) (explaining that an adverse action is a prerequisite for a Title VII claim).

Evans now appeals. Because her briefs make no effort to advance her age discrimination claims, they are waived. See Ark Las Vegas Restaurant Corp. v. NLRB, 334 F.3d 99, 108 n. 4 (D.C.Cir.2003) (noting that arguments not raised in briefs are waived).

II.

We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to Evans and drawing all reasonable inferences accordingly. See Salazar v. Washington Metropolitan Area Transit Authority, 401 F.3d 504, 507 (D.C.Cir.2005). We will affirm only if no reasonable jury could find in Evans's favor. See id. In Title VII cases, we traditionally follow the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). But where, as here, the employer has put forward a legitimate, non-discriminatory explanation for its decision, the McDonnell Douglas inquiry distills to one 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 ...?” Brady, 520 F.3d at 494;see also Adeyemi v. District of Columbia, 525 F.3d 1222, 1226 (D.C.Cir.2008) (explaining that “the prima-facie-case aspect of McDonnell Douglas is irrelevant when an employer has asserted a legitimate, nondiscriminatory reason for its decision”). “We consider this question ‘in light of the total circumstances of the case,’ asking ‘whether the jury could infer discrimination from the combination of (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff ... or any contrary evidence that may be available to the employer.’ ” Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C.Cir.2012) (quoting Aka v. Washington Hospital Center, 156 F.3d 1284, 1289, 1291 (D.C.Cir.1998) (en banc)). Employees may cast doubt on the employer's proffered reason by, among other things, pointing to “changes and inconsistencies in the stated reasons for the adverse action; the employer's failure to follow established procedures or criteria; the employer's general treatment of minority employees; or discriminatory statements by the decisionmaker.” Brady, 520 F.3d at 495 n. 3.

A.

We start with Evans's claim that she was denied the LDDS position because of her race. In support, she argues that the government's proffered reason is pretext because HHS “has given different explanations for the cancellation at different times,” because “[n]o one admits to making the decision to cancel the promotion,” and because “the evidence shows that ... several white employees (and no African–Americans) were promoted” during the hiring controls. Appellant's Br. 13. Evans also cites record evidence of allegedly racially insensitive remarks. For its part, the government argues that the LDDS position went unfilled because it never found a champion in the new Administration. The position therefore “died a quiet administrative death, due directly to the hiring controls.” Appellee's Br. 22. The government further...