Hairston v. DaVita Vance-Cooks
| Decision Date | 16 December 2014 |
| Docket Number | No. 13–5038.,13–5038. |
| Citation | 773 F.3d 266 |
| Parties | Kevin HAIRSTON, Appellant v. Davita VANCE–COOKS, Acting Public Printer, United States Government Printing Office, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
OPINION TEXT STARTS HERE
Appeal from the United States District Court for the District of Columbia (No. 1:08–cv–01531).
Brian Wolfman argued the cause for the appellant. Anne King was with him on brief.
Javier M. Guzman, Assistant United States Attorney, argued the cause for the appellee. Ronald C. Machen, Jr., United States Attorney, John G. Interrante and R. Craig Lawrence, Assistant United States Attorneys were with him on brief.
Before: HENDERSON, Circuit Judge, and GINSBURG and SENTELLE, Senior Circuit Judges.
In 2006, Kevin Hairston applied for a promotion within the Government Printing Office (GPO). His application was ultimately rejected and Hairston believes his rejection was based on racial discrimination. He also believes that he was the victim of unlawful retaliation in 2009 when the GPO sent a group of employees, sans Hairston, to a training program in Georgia. Based on these events, Hairston sued the GPO under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., for unlawful discrimination and retaliation. The district court granted summary judgment to the GPO on all counts. We affirm.
The GPO is generally responsible for printing official documents of the federal government. See44 U.S.C. § 501. The documents include passports, which the GPO prints on a six-color Heidelberg press. As its description suggests, the Heidelberg press has six ink-fountain units that require the constant supervision of employees who have been specially trained. Operating the press also requires GPO employees to manage special dyes, invisible inks and embedded electronic chips to protect the security of passport production. The GPO assigns each Heidelberg press a four-person team consisting of a Head Pressperson, a Second Offset Pressperson, a Printing Plant Worker and a Feeder.
In 2006, the demand for passports rose and the GPO issued a Vacancy Announcement (VA) seeking applicants for the Second Offset Pressperson position. Only permanent GPO employees could apply at the time. The VA stated that an applicant should be able to do “the work of a Second Offset Pressperson with normal supervision,” including “the independent operation of offset press machinery as well as the ability to perform troubleshooting, maintenance and adjustments.” JA 67 (emphasis omitted). Hairston, a black male, applied for the position and the GPO Office of Personnel determined that he met the minimum qualifications listed in the VA. A GPO foreman, Earl Hayward, then reviewed a list of the qualified applicants to decide whom to recommend. Only Hairston's name was listed because the other applicants did not qualify. Hayward ultimately recommended Hairston and Superintendent George Domarsky approved the selection. Hairston's application was rejected, however, by Jeffrey Bernazzoli, the Production Manager in the Press Division of the GPO. Although Hairston met the minimal qualifications set out in the VA, Bernazzoli explained that the Second Offset Pressperson “was not a training position; therefore, we needed someone who could step in right away.” JA 105–06. “[I]t was clear” to Bernazzoli that Hairston did not have the necessary experience and that it “would have been detrimental to Mr. Hairston to put him in this position because he would not have been able to do it.” JA 105. Bernazzoli likened promoting Hairston to sending him “up the creek without a paddle.” Id.
According to Bernazzoli, he rejected Hairston's application based on discussions with his GPO colleagues. One person he spoke to was Domarsky, who told Bernazzoli that Hairston could not immediately run a six-color Heidelberg press. Bernazzoli also stated that Martin Verter, his Assistant Production Manager, agreed with Domarsky's assessment. Bernazzoli relied heavily on Verter's opinion because Verter was his “eyes and ears on the [production] floor.” JA 604. Verter, however, did not recall talking with Bernazzoli about Hairston but he emphasized that he was “not saying that it didn't happen.” JA 649. Verter also stated that he was unaware of the position that Hairston applied for because that position “[w]asn't my concern.” JA 646.
Other GPO employees believed Hairston to be inexperienced. Hayward said that Hairston was far from the “seasoned veteran” the GPO was hoping to hire as Second Offset Pressperson. JA 111. Hayward also stated that it would take approximately six to eight months to train Hairston to be a fully operational Second Offset Pressperson. Charles Dais, a former GPO Head Offset Pressperson–in–Charge, likewise stated that “it probably takes the average pressperson who is promoted from within [the GPO] to Second Offset Pressperson about six months to feel comfortable enough” to run a six-color press. JA 429. And Nelson Batty, a GPO multicolor pressperson, agreed that it would take “a minimum of at least six months of daily training to train a single color pressperson [like Hairston] to be proficient” on a six-color Heidelberg press. JA 314.
Hairston then attempted to file a complaint with the GPO Equal Employment Opportunity (EEO) office alleging that he was not promoted to Second Offset Pressperson based on racial discrimination. The EEO office told Hairston that it could not process his complaint until the GPO “actually b[r]ought in a White employee” for the position listed in the VA. JA 540.
With Hairston's application rejected, the GPO relisted the VA with the same requirements and enlarged the applicant pool to include those who did not work in the GPO. The new notice was posted on October 13, 2006, and ran for three weeks. Hairston applied again under the relisted VA and his name was included on a final list of seven applicants who then had in-person interviews with a panel of GPO supervisors. During his interview, Hairston answered numerous questions incorrectly and received the lowest overall score among the seven candidates. The GPO ultimately hired Douglas Davis, a white male who had ten years of experience working on multicolor presses and who received the highest interview score. Davis began working at the GPO approximately five months after the relisted VA was posted. Upon learning of Davis's hire, Hairston then filed his EEO complaint. Subsequently, the GPO issued another VA for a Second Offset Pressperson but Hairston did not apply. One of the individuals hired under this VA was black.
Months after the GPO filled the relisted VA, Hairston temporarily performed a limited number of the functions of a Second Offset Pressperson. Hairston claims that he quickly learned how to run the six-color press and that he was able to operate it by himself. Hairston received good reviews during his temporary stint and he was nominated for a time-off award due to his high level of performance. Hayward, however, said that Hairston performed only “a condensed part of the job” while temporarily filling in as a Second Offset Pressperson. JA 629.
Hairston further alleged that he was retaliated against for filing his EEO complaint. Because his other retaliation claims were dismissed for failure to exhaust administrative remedies, Hairston's only allegation of retaliatory action is that he was excluded from a GPO training program held in Kennesaw, Georgia. Davis—who was hired for the relisted VA position—was in charge of coordinating attendance for the program. Davis in turn directed Carter Daniel, a GPO Head Web Pressperson and union representative, to survey presspersons and gauge their interest in attending. According to Daniel, Hairston expressed no interest in attending the training session and Davis ended up sending eight other employees, including four black employees, to the Georgia training program. Davis claimed that he did not know of Hairston's EEO activity when he selected the eight attendees.
Hairston disputes that he was asked whether he wanted to attend the training program, claiming that “[t]here is always more to learn on presses, and I like to take advantage of the training opportunities I am offered.” JA 390. Yet when asked if he would have wanted to attend the Georgia training program, Hairston indicated he would not because he “wanted to concentrate [his] training on things that [he] hadn't learned at all.” JA 566–67.
Hairston brought suit against the GPO in district court on September 3, 2008. He included three counts in his amended complaint: (1) Bernazzoli's failure to promote him was based on racial discrimination; (2) the GPO's failure to include him in the Georgia training program was motivated by racial animus; and (3) the GPO unlawfully retaliated against him by excluding him from the Georgia training program. The GPO moved for summary judgment on all three counts. The district court held that Hairston had not presented evidence from which a reasonable jury could reject the GPO's nondiscriminatory reason for not promoting him. It also held that failing to send Hairston to the Georgia program was not an adverse employment action and thus could not trigger an unlawful retaliation claim. In the alternative, the court held that Hairston had not presented any evidence to rebut the GPO's evidence that the program attendees were chosen according to a bona fide understanding of who was interested. See Hairston v. Boardman, 915 F.Supp.2d 155, 162 (D.D.C.2013). Accordingly, the district court granted summary judgment to the GPO on all counts. Hairston timely appealed. Our jurisdiction is based on 28 U.S.C. § 1291.
“We review a grant of summary judgment de novo.” Hampton v. Vilsack, 685 F.3d 1096, 1099 (D.C.Cir.2012). Summary judgment will be granted when “there is no genuine dispute as to any material fact and the movant is...
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