Jackson v. Gonzales

• Decision Date: 10 August 2007
• Docket Number: No. 06-5053.,06-5053.
• Citation: 496 F.3d 703
• Parties: Kevin L. JACKSON, Appellant v. Alberto GONZALES, Attorney General, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

496 F.3d 703

Kevin L. JACKSON, Appellant v. Alberto GONZALES, Attorney General, Appellee.

No. 06-5053.

United States Court of Appeals, District of Columbia Circuit.

Argued April 19, 2007.

Decided August 10, 2007.

Appeal from the United States District Court for the District of Columbia (No. 03cv01596).

Debra A. D'Agostino argued the cause for appellant. On the briefs was Sandra Mazliah.

Beverly M. Russell, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Michael J. Ryan, Assistant U.S. Attorney, entered an appearance.

Before: HENDERSON, ROGERS, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH, in which Circuit Judge HENDERSON joins.

Dissenting opinion filed by Circuit Judge ROGERS.

KAVANAUGH, Circuit Judge:

Kevin Jackson worked as a GS-13 employee in the Bureau of Prisons. Jackson and six other individuals applied for an open GS-14 research analyst position. The Bureau selected Jennifer Batchelder, a Caucasian woman. Jackson, who is African-American, sued and alleged racial discrimination in violation of Title VII. In its defense, the Bureau said it selected Batchelder because she was more qualified than Jackson. The District Court granted summary judgment to the Bureau, concluding that a reasonable jury could not find the Bureau's explanation a pretext for racial discrimination. We agree with the District Court and therefore affirm.

I

Kevin Jackson, an African-American man, and Jennifer Batchelder, a Caucasian woman, worked as GS-13 employees in the Bureau of Prisons. Both applied for a GS-14 research analyst job at the Bureau, as did five other individuals. A two-person initial evaluation board scored all applicants based on six general qualifications—also called "KSAs," short for "knowledge, skills, and abilities"—and other personal characteristics needed in the job to be filled. J.A. 276.¹ The board members sought to hire an applicant who had experience with the Bureau's main data management tool, known as the Key Indicators Strategic System, although the job description documents did not expressly refer to Key Indicators experience as a specific qualification (the documents listed more general qualifications). The Key Indicators system includes information about all aspects of the Bureau's operations, such as health care, sentencing issues, and inmate conduct and misconduct. In addition to aggregating the data, the system uses statistical and graphical tools to show how the relevant aspects of the Bureau's operations change over time.

Batchelder received by far the highest numerical score on the KSAs—52 out of 60 possible points. By contrast, Kevin Jackson received 22 points out of 60, which placed him third among the seven applicants. Batchelder also had significantly more experience than Jackson with the Key Indicators system. Both employees received 15 points for past performance and six points for awards—yielding total scores of 73 points for Batchelder and 43 points for Jackson. Because Batchelder's score was much higher than all the other candidates, the board forwarded only her name to the final decision-maker, Thomas Kane. Kane in turn selected Batchelder for the position.

Jackson then sued, alleging racial discrimination in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. In the district court, the Bureau explained that it hired Batchelder because she was better qualified, particularly in light of her extensive experience with the Key Indicators system. The District Court granted summary judgment to the Bureau, stating that Jackson failed to show he was significantly more qualified and that it was "therefore not proper to `second-guess [the] employer's personnel decision.'" Jackson v. Gonzales, No. Civ.A. 03-1596, 2005 WL 3371041, at *11, *13 (D.D.C. Dec. 12, 2005) (quoting Fischbach v. D.C. Dep't of Corr., 86 F.3d 1180, 1183 (D.C.Cir.1996)) (alteration in original). The District Court also concluded that the Bureau's reliance on a factor not expressly listed in the job description (Key Indicators experience) did not undermine the Bureau's explanation for its hiring decision because such experience was clearly encompassed by the qualifications listed in the job description. See id. at *10 ("[I]t is clear that Key Indicator System skills are a component of the overall skills necessary for the GS-14 position."); id. ("[A]lthough not specifically mentioned in the vacancy announcement or job description, the general terms used in these documents clearly indicate a desire on the part of the defendant to hire someone with skills acquired from working with the Key Indicator System.").

On appeal, Jackson argues that there is a genuine issue of material fact regarding whether the Bureau's real reason for not selecting him was racial discrimination. Our review is de novo. Haynes v. Williams, 392 F.3d 478, 481 (D.C.Cir.2004).

II

Title VII of the Civil Rights Act, as amended, provides that all "personnel actions affecting employees or applicants for employment" in Executive agencies "shall be made free from any discrimination based on race." 42 U.S.C. § 2000e-16(a). "Where, as here, the record contains no direct evidence that the adverse employment action of which the plaintiff complains was caused by prohibited discrimination, we turn to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to analyze the claim." Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006) (citation omitted in part). Although "intermediate evidentiary burdens shift back and forth under this framework, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)) (alteration in original).

The McDonnell Douglas framework first requires the plaintiff to establish a prima facie case of discrimination by showing that: "(1) he is a member of a protected class; (2) he applied for and was qualified for an available position; (3) despite his qualifications he was rejected; and (4) either someone ... filled the position or the position remained vacant and the employer continued to seek applicants." Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.Cir.2003) (quotation marks omitted and alteration in original). If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant employer to produce "`evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.'" Reeves, 530 U.S. at 142, 120 S.Ct. 2097 (quoting Burdine, 450 U.S. at 254, 101 S.Ct. 1089). "If the defendant satisfies that burden, the McDonnell Douglas framework—with its presumptions and burdens—disappears, and the sole remaining issue is discrimination vel non." Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C.Cir. 2002) (quotation marks and alterations omitted). At that point, the plaintiff can survive summary judgment only by showing "that a reasonable jury could conclude that [he] was terminated for a discriminatory reason." Id. To make such a showing, the plaintiff must prove that a reasonable jury could infer that the employer's given explanation was pretextual and that this pretext shielded discriminatory motives. See Murray v. Gilmore, 406 F.3d 708, 713 (D.C.Cir.2005).

The Bureau here said it selected Jennifer Batchelder because she was more qualified and had superior Key Indicators experience. When an employer says it made a hiring decision based on the relative qualifications of the candidates, "we must assume that a reasonable juror who might disagree with the employer's decision, but would find the question close, would not usually infer discrimination on the basis of a comparison of qualifications alone." Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 (D.C.Cir.1998) (en banc). On the other hand, if a factfinder can conclude that a "reasonable employer would have found the plaintiff to be significantly better qualified for the job, but this employer did not, the factfinder can legitimately infer that the employer consciously selected a less-qualified candidate—something that employers do not usually do, unless some other strong consideration, such as discrimination, enters into the picture." Id.; see also Holcomb, 433 F.3d at 897; Stewart v. Ashcroft, 352 F.3d 422, 429-30 (D.C.Cir.2003). Applying Aka, we have explained that "[i]n order to justify an inference of discrimination, the qualifications gap must be great enough to be inherently indicative of discrimination." Holcomb, 433 F.3d at 897. To conclude otherwise would be to render the judiciary a "super-personnel department that reexamines an entity's business decisions"—a role we have repeatedly disclaimed. See id. (quotation marks omitted).

Here, as the KSA scores indicate, the evidence presented by Jackson does not suggest that he was "significantly better qualified" than Jennifer Batchelder. Aka, 156 F.3d at 1294. On the contrary, it plainly suggests that Batchelder was better qualified. To be sure, we have also stated that a plaintiff may present evidence to show that the employer's qualifications-based explanation "is incorrect or fabricated." Id. at 1295; see also Holcomb, 433 F.3d at 898. Jackson thus alleges certain discrepancies between the candidates' qualifications and the evaluation board's ratings. But it is undisputed that Batchelder had been an outstanding employee at the Bureau; that her experience with the Key Indicators system was substantially superior to Jackson's; that the Key Indicators system was important to the Bureau's operations; and...