Hendricks v. Geithner

• Decision Date: 19 June 2009
• Docket Number: No. 07-5392.,07-5392.
• Citation: 568 F.3d 1008
• Parties: Myra A. HENDRICKS, Appellant v. Timothy GEITHNER, Secretary of the Treasury, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

568 F.3d 1008

Myra A. HENDRICKS, Appellant v. Timothy GEITHNER, Secretary of the Treasury, Appellee.

No. 07-5392.

United States Court of Appeals, District of Columbia Circuit.

Argued January 27, 2009.

Decided June 19, 2009.

Appeal from the United States District Court for the District of Columbia (No. 03cv02239).

Molly E. Buie argued the cause for appellant. With her on the briefs was Robert C. Seldon.

Alan Burch, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Andrea W. McBarnette, Assistant U.S. Attorney, entered an appearance.

Before: SENTELLE, Chief Judge, and GINSBURG and BROWN, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

Opinion dissenting in part filed by Circuit Judge BROWN.

SENTELLE, Chief Judge:

Appellant Myra Hendricks, a former employee of the Treasury Inspector General for Tax Administration (TIGTA), brought this action alleging sex and race discrimination in her non-selection for two promotions in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e, et seq. The district court granted summary judgment in favor of the employer. Hendricks appealed. Finding no error in the district court's conclusions that there was no substantial issue of material fact and defendant was entitled to summary judgment, we affirm.

I. Background

Appellant's complaint sets forth two claims for relief based on two separate failures to promote: first, to the position of non-supervisory criminal investigator in January 2000; second, to the position of supervisory criminal investigator in the technical and forensic support division in March 2003.

A. Non-supervisory Criminal Investigator

In January 2000, appellant was a special investigator for the TIGTA in the Special Inquiries and Intelligence Division (SIID) at the salary level of GS-13. The TIGTA internally advertized an opening for a nonsupervisory criminal investigator paid at the GS-14 level. Employees interested in the position sent applications to Patricia DeBonaventura, a human resources specialist. Following the TIGTA's personnel policy, she was responsible for culling from the pool of applicants all those who were "minimally qualified and eligible for the position." DeBonaventura accepted four applications: those of Hendricks (who is black), Robert Johnson (a white man), Jean Keller (a white woman), and Michael Radetic (a white man). Each of the applicants was a GS-13 special investigator.

DeBonaventura passed those applications on to a "ranking official," Timothy Camus, an assistant special agent in charge at SIID, who graded each candidate in four categories based on the written applications. Grades were out of 10, with 10 superior, 7 satisfactory, and 4 barely acceptable. Hendricks received two 10's and two 7's. The other three candidates each received four 10's. Camus passed these grades, with a recommendation to hire Johnson, to the "selecting official," Brian Dwyer, special agent in charge, who bore the ultimate responsibility for choosing a candidate to fill the position. Dwyer reviewed the applications, read Camus's recommendations, and spoke with Camus, before selecting Johnson.

Hendricks claims that she should have been selected over Johnson because some of his past behavior made him a less desirable candidate to fill the criminal investigator opening. She stresses two incidents from Johnson's past. First, in 1991 (nine years before the selection), Johnson received a letter of reprimand for drinking while carrying his weapon. Second, in 1995 (five years before the selection), Johnson was suspended for 30 days for misusing a government vehicle. According to the subsequent investigation report, he used the car to pick up the manager of a restaurant and another IRS employee and committed additional misconduct that is contained in a sealed file. This was reported by an anonymous source and investigated by the predecessor to SIID in its internal affairs role.

Hendricks also claims that past comments and actions allegedly made and taken by Dwyer cast into doubt the government's claim that Johnson's promotion was based on merit and free from discrimination. Most of the evidence against Dwyer is in the form of proffered testimony concerning incidents of discriminatory behavior or prejudicial animus directed toward employees other than appellant. The Supreme Court recently discussed this type of evidence in Sprint/United Management Co. v. Mendelsohn, ___ U.S. ___, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008). That case made clear that in a discrimination case, evidence concerning discriminatory behavior outside the instance in litigation is neither per se relevant under Federal Rule of Evidence Rule 401 nor per se excludable under Rule 403. We assume without deciding that evidence of Dwyer's other behavior would be admissible.

According to testimony of women who worked in SIID, Dwyer made a number of comments disparaging to women and to their role in law enforcement. Some time between May 1998 and April 1999, he said "it was the downfall of Inspection when they hired women." (IRS "Inspection" was the predecessor agency to the TIGTA.) During the same period, he said his office ought to have more men working there. He explained the difficult behavior of a male employee by saying his behavior was "the result of hi[s] being hired in an all male law enforcement work force in the 1970s" and that in that environment his "actions would have been tolerated by other males. It was only when women were hired in law enforcement that men had to change the way they behaved in the workforce."

According to Jean Keller, Dwyer "was very nasty to [her]" when he was an assistant special agent in charge of SIID and Keller was an agent. She also says he assigned her extra administrative duties. Even after Keller was promoted to assistant special agent in charge (ASAC), she says his behavior continued. She complained to his supervisor that he treated her differently than the other ASACs, both of whom were men. A month later she was demoted. Keller says that another employee, Karen Parker, told her that Dwyer read Keller's demotion letter aloud in a departmental meeting. Finally, Dwyer transferred Keller out of SIID entirely for conduct she alleges was equally egregious to or less egregious than conduct of "other people" who received no discipline.

B. Supervisory Criminal Investigator in the Technical and Forensic Support Division

In March 2003, the TIGTA advertized an opening for a supervisory criminal investigator in the technical and forensic support division. This position was at the ASAC level, with a GS-14 pay grade. Of the seven candidates who applied for the position, five were eligible. Of those five, three were considered "non-competitive eligibles" — their current government positions were already paid at the GS-14 level. Two candidates, including Hendricks, were "competitive eligibles" paid at the GS-13 level.

As with the earlier selection, this opening was filled by one official making the selection based upon another official's recommendation. Steven Jones, the assistant inspector general for investigations, made the formal selection after discussing the candidates and receiving a recommendation from Michael Doak, the special agent in charge of the division. Based on "consistent guidance [he had] received from personnelists in filling jobs," Jones considered only the non-competitive applicants. Of those, Jones said that Michael Radetic "was the individual who had the most experience in the various programs managed by this vacancy, in other words, firearm and oversight of firearms programs or federal law enforcement radio or records and then, the tech program or electronics, surveillance equipment."

Whether to consider competitive eligibles was a matter within Jones's discretion. In at least one past hiring, Jones exercised that discretion to consider competitive eligibles when only one non-competitive candidate was available. In that instance, toward the end of 2002 and the beginning of 2003, six total candidates were interviewed for a GS-14 criminal investigator opening. Ronald McKeever, a white man and one of the competitive eligibles, was eventually hired. The race of the sole non-competitive eligible applicant, John Heckman, does not appear in the record.

II. Analysis

We review a district court's granting of summary judgment de novo. Hunter-Boykin v. George Washington Univ., 132 F.3d 77, 79 (D.C.Cir.1998). That is, on the record before us, we perform the same analysis as the district court, under which the court is to grant summary judgment if the pleadings, discovery, and disclosure materials of record and any affidavits before the court demonstrate that there is "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see, e.g., Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Material facts are those that might affect the outcome of the suit under governing law; genuine issues are those in which the evidence before the court is such that a reasonable trier of fact could find for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Before the district court, and because our review is de novo before this court, the movant has the initial burden of demonstrating the absence of a genuine issue of material fact. Upon such demonstration, the burden shifts to the opposing party to "come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). In a Title VII case such as this one, where the prima facie case as set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), has...