Grosdidier v. Governors

• Decision Date: 03 May 2013
• Docket Number: No. 11–5291.,11–5291.
• Citation: 709 F.3d 19
• Parties: Camille GROSDIDIER, Appellant v. BROADCASTING BOARD OF GOVERNORS, CHAIRMAN, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

709 F.3d 19

Camille GROSDIDIER, Appellant

v.BROADCASTING BOARD OF GOVERNORS, CHAIRMAN, Appellee.

No. 11–5291.

United States Court of Appeals,District of Columbia Circuit.

Argued Nov. 13, 2012.

Decided March 8, 2013.

Rehearing En Banc Denied May 3, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:08–cv–01553).

Leslie D. Alderman III argued the cause and filed the briefs for appellant.

Jane M. Lyons, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Judith A. Kidwell, Assistant U.S. Attorney, entered an appearance.

Before: HENDERSON and ROGERS, Circuit Judges, and SENTELLE, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Camille Grosdidier has worked in the French to Africa Service of the Voice of America (“VOA”) since 1987, since 1991 as a GS 12. When she did not receive a promotion to Senior Editor GS 13 in 2006, she sued the Chairman of the Broadcasting Board of Governors (“BBG”) pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. She now appeals the grant of summary judgment, contending the district court erred in treating her retaliation claim as a premature hostile work environment claim, and in requiring direct evidence of discrimination beyond evidence of pretext. She also contends that the denial of her motion for spoliation sanctions, in light of the destruction of interview notes by two of the three promotion review panelists, erroneously required evidence of bad faith. We agree with the district court's finding that no reasonable employee could believe the objected-to conduct was unlawful under Title VII and hence summary judgment was appropriately granted on her retaliation claims. And although this court has not held that bad faith is required for a party to be entitled to a spoliation inference where, as here, there is a duty of preservation, the error was harmless. Grosdidier's objections to the selection process, even applying a spoliation inference, fail to demonstrate that summary judgment was inappropriately granted on her discrimination claims. Accordingly, we affirm.

I.

Grosdidier is a white female of French national origin who has worked as an international broadcaster for the VOA's French to Africa Service since 1987. She has held a GS–12 grade level position since 1991 and her supervisor has been Idrissa Seydou Dia, an African American male from Senegal. Her experiences in that Service have not always been to her liking. In April 2004, she complained to her supervisor, Dia, that a coworker had forwarded an email to her and other coworkers that contained what she perceived to be a sexually suggestive image of a well-known singer. In 2005, she complained that a coworker was engaging in inappropriate flirting, hugging, and kissing with male employees. Previously she had made similar informal and formal complaints related to issues as varied as the clothing worn by a coworker and coworker attendance. She proffered evidence of other instances of inappropriate office behavior, including Dia and a female subordinate referring to one another as “Sexy Mama” and “Sexy Papa,” a female coworker using the French word for “master” to refer to the managing editor, and the alleged viewing of pornography on work computers by a male coworker. She also complained when she was not selected for a GS–13 position in 2002.

In early 2006, the BBG announced an opening for an international broadcaster position at the GS–13 grade level in the VOA's French to Africa Service. The posting described “a multi-media Senior Editor” position and listed six equally weighted “Knowledge, Skills, and Ability Factors” related to the position's television, radio, and internet editing and broadcasting responsibilities. Thereafter Dia convened a panel of VOA employees to interview and evaluate the candidates: Andre de Nesnera, a senior correspondent at the VOA and a Foreign Service Officer; Diane Butts, the Television Manager for the VOA's Africa Division; and Sandra Lemaire, an editor at the VOA's English Web Desk. The panel interviewed the applicants, including Grosdidier, and recommended the selection of Timothee Donangmaye, a black male originally from Chad who was the host of the Service's television program, Washington Forum. Although all of the panelists took notes during the interviews, only Butts preserved her notes. Dia forwarded the panel's recommendation to his supervisors, and Donangmaye was promoted.

Grosdidier, upon learning of the selection, filed a formal complaint with the Equal Employment Opportunity office (“EEO office”) in July 2006. She claimed that the selection panel had discriminated against her because of her gender, race, and national origin. She also claimed that her rejection was in retaliation for her earlier EEO complaints in 2004 and 2005. She filed another EEO complaint in December 2007, claiming that her decision to pursue the EEO process prompted further discriminatory and retaliatory treatment. Before the Equal Employment Opportunity Commission (“EEOC”), Grosdidier filed a motion in limine requesting, as she was a United States citizen and Donangmaye was not, that the Administrative Judge modify the pretext standard in light of the BBG's obligations under 22 U.S.C. § 1474(1) to give preference in hiring to United States citizens. The judge ruled he lacked authority to interpret the statute and stated the case should be litigated in the district court. Her initial effort to do so under the Administrative Procedure Act was unavailing. See Grosdidier v. Chairman, Broadcasting Board of Governors, 560 F.3d 495 (D.C.Cir.2009).

Five months after the district court's dismissal in that case, Grosdidier sued the BBG on September 9, 2008, pursuant to Title VII, alleging unlawful discrimination and retaliation. On March 30, 2010, she moved for an adverse inference on the ground that two panelists had destroyed their interview notes despite an EEOC regulation requiring preservation of the notes for one year, 29 C.F.R. § 1602.14.¹ The district court refused to apply an inference in the absence of evidence of bad faith by the BBG, and granted the BBG's motion for summary judgment, except as related to the reduction of Grosdidier's editing duties after her July 2006 EEO complaint. See Grosdidier v. Chairman, Broadcasting Board of Governors, 774 F.Supp.2d 76, 104, 114 (D.D.C.2011). The district court also denied her motion for reconsideration or, in the alternative, to amend the judgment. See id. at 115. Grosdidier appeals, and our review of the grant of summary judgment is de novo. See Pardo–Kronemann v. Donovan, 601 F.3d 599, 604 (D.C.Cir.2010).

II.

Title VII makes it unlawful for federal employers to discriminate on the basis of race, gender, or national origin. See42 U.S.C. § 2000e–16(a). In addition, it prohibits employer retaliation when an employee has “opposed any practice made an unlawful employment practice by this subchapter,” see id.§ 2000e–3(a); see Crawford v. Metropolitan Gov't of Nashville and Davidson County, Tenn., 555 U.S. 271, 274, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009), and when an employee “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter,” see42 U.S.C. § 2000e–3(a); Taylor v. Solis, 571 F.3d 1313, 1320 (D.C.Cir.2009) (noting § 2000e–3(a)'s ban on retaliation applies to federal employers through § 2000e–16). Grosdidier's claims involve both alleged retaliation and discrimination.

Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute over a material fact is genuine when the evidence before the district court is “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). As part of this assessment, the court must view the evidence “in the light most favorable to the nonmoving party and ... draw all reasonable inferences in favor of the nonmoving party.” Talavera v. Shah, 638 F.3d 303, 308 (D.C.Cir.2011).

A.

Grosdidier's retaliation claim focuses on her employer's responses, or lack thereof, to her informal 2004 and 2005 email complaints. An employee's opposition to an employment practice is protected under Title VII when the employee “reasonably and in good faith believed [the practice] was unlawful under the statute.” McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C.Cir.2012). Although opposition activity may be protected even though the employer's practices do not amount to a violation of Title VII, the employee-plaintiff must have a good faith and reasonable belief that the practices are unlawful. Where, as here, a plaintiff contends that the practices she opposes constitute a hostile work environment, the court must assess whether she could have reasonably believed that “the workplace [wa]s permeated with discriminatory intimidation, ridicule, and insult that [wa]s sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” George v. Leavitt, 407 F.3d 405, 416 (D.C.Cir.2005) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)) (internal quotation marks omitted). Not all complaints are protected under this framework.

Viewing the evidence most favorably to Grosdidier, her complaints identified conduct by her co-workers that was inappropriate in a professional office environment. Her complaints regarding this conduct were not, however, protected activity because, as the district court found, “no reasonable employee could believe that the conduct about which she complained amounted to a hostile work...