Jeffries v. Barr

Citation965 F.3d 843
Decision Date14 July 2020
Docket NumberNo. 17-5008,17-5008
Parties Timothy JEFFRIES, Appellant v. William P. BARR, Attorney General, U.S. Department of Justice, Appellee
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Jerry R. Goldstein, Silver Spring, MD, 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 Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence and Marsha W. Yee, Assistant U.S. Attorneys.

Before: Pillard, Wilkins and Rao, Circuit Judges.

Opinion concurring in part and dissenting in part filed by Circuit Judge Pillard.

Wilkins, Circuit Judge:

Timothy Jeffries brought suit against the Department of Justice ("DOJ") under Title VII of the Civil Rights Act of 1964, alleging discrimination on the basis of his race and his sex, as well as retaliation for protected activity. Specifically, he cites seven instances of being passed over for positions for which he believes he was qualified. DOJ moved for summary judgment before any formal discovery had taken place, and the District Court granted that motion. At the same time, the District Court denied Jeffries's motion, brought under Federal Rule of Civil Procedure ("Rule") 56(d), requesting to be allowed to take discovery.

In one sense, the posture of this case seems out of order, as a motion for summary judgment typically follows the conduct of at least some formal discovery rather than preceding it entirely. But Rule 56(b) provides that, with certain exceptions inapplicable here, "a party may file a motion for summary judgment at any time until 30 days after the close of all discovery." FED. R. CIV. P. 56(b) (emphasis added). A nonmovant may well be surprised by an early-filed summary-judgment motion, but the timing of such a motion need not be a death knell: The Rules also iterate that relief – including discovery – may be obtained by a nonmovant who makes the required showing. See id. 56(d).

In the case at bar, the District Court determined that Jeffries failed to make that showing as to each one of the disputed nonselections. For the most part, we find that the District Court acted within its discretion in so finding – with the notable exception of the handling of Jeffries's quest for discovery on his first nonselection. In that respect, the District Court's denial of Jeffries's Rule 56(d) motion was premised on error and was thus an abuse of discretion. We therefore vacate the District Court's entry of judgment as to that nonselection and reverse its denial of the relevant portion of Jeffries's Rule 56(d) motion. But perceiving neither genuine issues of material fact nor any abuse of discretion in the District Court's treatment, respectively, of DOJ's motion for summary judgment or Jeffries's Rule 56(d) motion with regard to the second through seventh nonselections, we affirm on those claims the District Court's entry of judgment in DOJ's favor and its denial of Jeffries's Rule 56(d) motion.

I.

We recite the facts based upon the parties’ summary-judgment filings below, considering those facts in the light most favorable to Jeffries. See Wilson v. Cox , 753 F.3d 244, 245 (D.C. Cir. 2014).

The Office of Justice Programs ("OJP") is a component of DOJ, and the Bureau of Justice Assistance ("BJA") is a bureau of OJP. Timothy Jeffries is an African-American male who has been employed with OJP since 2000 and with BJA since 2002. Sometime between his hire and 2008, Jeffries filed three complaints against DOJ with the Equal Employment Opportunity Commission ("EEOC"). These complaints were consolidated and were the subject of a March 2008 settlement agreement, which resulted in Jeffries's reassignment to a GS-13 Policy Advisor position in the Substance and Mental Health Division ("SAMH") of BJA, the position he held while this case was pending below.

Priority Consideration and First Nonselection (Supervisory Grants Program Manager)

In 2006, Jeffries was not interviewed for a GS-14 Program Analyst position in SAMH due to an error with the processing of his application. On July 30, 2007, as a result of this lack of consideration, OJP issued Jeffries a "priority consideration" letter, which provided that Jeffries would "receive priority consideration for the next open position similar and in the same geographical area to the one [for] which proper consideration was missed," and that such consideration would "be granted to [Jeffries] prior [to DOJ] issuing public notice of the vacancy." J.A. 546. The letter also said that Jeffries would be notified in writing when priority consideration had taken place. Regarding priority consideration, OJP's Merit Promotion Plan provides that candidates afforded priority consideration

are considered by the selecting official, ahead of other candidates for a particular job vacancy. Priority consideration does not place conditions on the selecting official's right to select or not to select from any appropriate source at any point in the recruitment and staffing process. A candidate who receives priority consideration is entitled to such consideration until referred for the next open similar position in the same geographical areas to one for which consideration was missed.

Id. 94-95. At oral argument, DOJ conceded that, when priority consideration is normally being applied, the candidate gets the first interview and a decision "up or down" on her candidacy before other candidates are considered. Oral Arg. Recording 13:48-13:59.

On March 29, 2011, Jeffries notified the human resources department at OJP of his desire to use the letter for a GS-14 Supervisory Grants Program Manager position, for which two vacancies had already been publicly announced. Jeffries does not contend that the Supervisory Grants Program Manager position was similar to the Program Analyst position (as would have triggered the automatic use of his priority consideration letter). After Jeffries invoked his priority consideration letter, but prior to his interview, OJP personnel compiled a list of "best qualified" applicants for the Supervisory Grants Program Manager position. J.A. 566-71.

Jeffries was interviewed on May 11, 2011. The interview panel consisted of Edmund Aponte (Hispanic male), Tammy Reid (African-American female), and Jonathan Faley (Caucasian male). All of the panelists were aware of Jeffries's having engaged in previous equal employment opportunity ("EEO") activity, and indeed Faley and Aponte had been named as responsible management officials in Jeffries's prior EEO complaints.

Aponte and Reid later indicated that they had compared Jeffries's qualifications to those of other applicants. DOJ conceded at oral argument that such comparisons are generally "not kosher" in the context of priority consideration and that they occurred in this instance. Oral Arg. Recording 15:47-16:04. There is a factual dispute as to whether the panelists told Jeffries at the conclusion of his interview that they had to interview other applicants before making a decision.

On July 29, 2011, OJP's human resources department informed Jeffries via letter that he had not been selected for the Supervisory Grants Program Manager position, and included four critiques of his interview performance, explaining that he had not demonstrated his fitness for the position. Tracey Trautman, the selecting official,1 noted in a later affidavit that Jeffries had provided the panel with a writing sample containing spelling and grammatical errors, and that the panelists’ notes indicated that Jeffries had failed to give complete answers to several interview questions. The panelists’ notes corroborate the incompleteness of some of Jeffries's answers. The panel interviewed other applicants in September 2011. The ultimate selectees were Naydine Fulton-Jones (African-American female) and Esmerelda Womack (Caucasian female). Neither selectee had previously filed a formal EEO complaint against DOJ.

Second Nonselection (Special Assistant)

In September 2011, DOJ advertised a vacancy for a Special Assistant, a GS-13/14 position. The interview panel consisted of Patrick McCreary (Caucasian male), Ruby Qazilbash (Caucasian and Asian female), and Ellen Williams (African-American female). The panel interviewed eight applicants in total, scoring each of them on their interview (representing 35% of the total score), work history (20%), experience (35%), and "[r]esume – [e]ducation" (10%). J.A. 159. The Interview Guide for the Special Assistant position contained a five-point proficiency scale and allowed panel members to assign applicants a score for each of the fourteen interview questions. The interview panel discussed the applicants and "had the opportunity to reconcile the scores they attributed to candidates based upon this discussion and the opportunity for clarification." Id. 154. Williams's interview scoresheet for Jeffries's interview (which is the only scoresheet from this selection in the record) shows that Williams changed her scores in three instances, each time downgrading Jeffries by one point on the scale.

Jeffries was interviewed on December 2, 2011. Neither Williams nor McCreary was aware at the time of Jeffries's interview of any of his prior EEO complaints. Qazilbash averred in May 2012 that she learned in 2008 that Jeffries was being transferred onto her team as a result of some sort of settlement, which she "assumed to be EEO-related," and that in March 2011 she was informed that Jeffries would be afforded priority consideration "as a result of an EEO-related settlement a few years earlier[.]" Id. 125-26. In August 2012, Qazilbash averred that she had learned of EEO complaints or pre-complaints filed by Jeffries on July 1, 2011, December 28, 2011, and April 17, 2012.

The selectee was Cornelia Sorensen Sigworth (Caucasian female). Shortly before the vacancy announcement was posted, Sigworth was given a special assignment to work with grant-funded programming and technical assistance to...

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