Lathram v. Snow

• Decision Date: 01 August 2003
• Docket Number: No. 02-5075.,02-5075.
• Citation: 336 F.3d 1085
• Parties: Layne C. LATHRAM, Appellant, v. John W. SNOW, Secretary of the Department of the Treasury, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

336 F.3d 1085 Layne C. LATHRAM, Appellant,
v.
John W. SNOW, Secretary of the Department of the Treasury, Appellee. No. 02-5075. United States Court of Appeals, District of Columbia Circuit. Argued March 11, 2003. Decided August 1, 2003.

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Appeal from the United States District Court for the District of Columbia (No. 00cv02442).

Robert C. Seldon argued the cause and filed the briefs for appellant.

Brian J. Sonfield, Assistant U.S. Attorney, argued the cause for appellee. With

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him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND, Circuit Judges.

Opinion for the Court filed by GARLAND, Circuit Judge.

GARLAND, Circuit Judge:

At issue on this appeal are plaintiff Layne Lathram's allegations of employment discrimination by the United States Customs Service, formerly an agency of the Department of the Treasury. Lathram challenges the district court's grant of summary judgment against her on three claims. Although we affirm the judgment with respect to one of those claims, we conclude that the district court erred in granting summary judgment against Lathram on the other two. Accordingly, we affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion.

I

On June 10, 1996, Lathram was hired by the Customs Service as a Public Affairs Specialist at the GS-13 grade level. Her duties included writing press releases, organizing public affairs programs, and publicizing Customs' interdiction of illegal drugs. When Lathram resigned from Customs in October 2000, she was still a GS-13. Shortly before resigning, Lathram sued the Secretary of the Treasury under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., contending that Customs had discriminated against her on the basis of her sex and retaliated against her for complaining of that discrimination.¹

This appeal concerns three claims, contained in four counts of Lathram's amended complaint. Count II alleged that Customs discriminated against Lathram when it promoted one of her male co-workers, Patrick Jones, from grade GS-13 to GS-14 and paid him a higher salary. Count IV alleged that Customs discriminated against Lathram by treating her less favorably than Dean Boyd, a male from outside the government, whom the agency hired directly into a GS-15 position with a higher salary than Lathram's. Finally, Counts V and VI alleged that Customs violated Title VII when it selected James Michie over Lathram for the GS-14/15 position of Director of the Press Operations Section of the Office of Public Affairs. Count V charged that the agency's choice of Michie constituted discrimination on the basis of sex, and Count VI charged that that decision (along with the contemporaneous reassignment of some of Lathram's duties) was intended as illegal retaliation for Lathram's complaints about the other alleged acts of discrimination.

After discovery, the defendant moved for summary judgment against Lathram on all counts, and Lathram moved for partial summary judgment in her favor. In a series of orders, the district court disposed of all of the issues in the case. The court granted the defendant's motion for summary judgment and denied Lathram's motion on all of the counts at issue on this appeal.²

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II

We review the district court's grant of summary judgment de novo. Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). Summary judgment is appropriate only if "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute about a material fact "is `genuine' ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, and a moving party is "entitled to a judgment as a matter of law" if the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). We must view the evidence in the light most favorable to Lathram, draw all reasonable inferences in her favor, and eschew making credibility determinations or weighing the evidence. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000).

Title VII prohibits federal agencies from discriminating in employment on the basis of sex, 42 U.S.C. § 2000e-16, and from retaliating against employees for the assertion of their rights under Title VII, see Forman v. Small, 271 F.3d 285, 297 (D.C.Cir.2001); Ethnic Employees of the Library of Cong. v. Boorstin, 751 F.2d 1405, 1415 & n. 13 (D.C.Cir.1985). Where, as here, the plaintiff has no direct evidence that the adverse employment actions of which she complains were caused by prohibited discrimination, we analyze the claim under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973). Under that framework, "the plaintiff must [first] establish a prima facie case of discrimination." Reeves, 530 U.S. at 142, 120 S.Ct. at 2105-06. To establish a prima facie case of discriminatory non-promotion, the plaintiff must show 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." Cones v. Shalala, 199 F.3d 512, 516 (D.C.Cir.2000) (citations omitted); see Stella v. Mineta, 284 F.3d 135, 139 (D.C.Cir.2002)(modifying fourth element).

Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to "`produc[e] evidence that the plaintiff was rejected... for a legitimate, nondiscriminatory reason.'" Reeves, 530 U.S. at 142, 120 S.Ct. at 2106 (citation omitted; alteration in original). If the defendant satisfies that burden, "the McDonnell Douglas framework — with its presumptions and burdens-disappear[s], and the sole remaining issue [is] discrimination vel non." Id. at 142-43, 120 S.Ct. at 2106 (citations and internal quotation marks omitted). At this point, to survive summary judgment the plaintiff must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory reason. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C.Cir. 1998) (en banc).

One way to do that is by showing that the nondiscriminatory explanation the defendant proffered for its decision was false. As the Supreme Court has explained, "[p]roof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Reeves, 530 U.S. at 147, 120 S.Ct. at 2108. In "appropriate

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circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Id. Thus, "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Id. at 148, 120 S.Ct. at 2109; see Aka, 156 F.3d at 1290 (holding that "a plaintiff's discrediting of an employer's stated reason for its employment decision is entitled to considerable weight").³

In the following sections, we apply this framework to Lathram's three claims.

A

Count II of Lathram's amended complaint alleged that Customs discriminated against her on the basis of her sex when, in November 1996, it promoted fellow employee Patrick Jones from a GS-13 position to the position of Public Affairs Specialist at the GS-14 grade level, and thereafter paid him a higher salary. The district court granted summary judgment for the defendant, holding that Lathram had failed to timely exhaust her administrative remedies, and that her claim failed to establish a prima facie case of discriminatory non-promotion. Because we affirm on the second ground, we need not reach the first.

Lathram's allegation that Customs violated Title VII by not promoting her to the GS-14 position is defeated by her failure to apply for that position. Lathram conceded that Customs had advertised the opening, that she had known about it, and that she neither applied nor expressed an interest in applying for it. Lathram Dep., J.A. at 304. As this court said in Stella v. Mineta, an element of a prima facie case of discriminatory non-promotion is that the plaintiff "applied for and was denied an available position for which he/she was qualified." 284 F.3d 135, 139 (D.C.Cir. 2002) (emphasis added); see Cones, 199 F.3d at 516. Although there is an exception to this requirement when such an application would have been futile, see International Bhd. of Teamsters v. United States, 431 U.S. 324, 365-66, 97 S.Ct. 1843, 1869-70, 52 L.Ed.2d 396 (1977), Lathram offered no evidence to support the applicability of that exception and does not assert it on appeal. Thus, because Lathram failed to establish a prima facie case of discrimination with regard to the Jones promotion, summary judgment against her was appropriate.

Lathram's failure to apply for the GS-14 position also effectively dooms her claim of discriminatory pay. Although the government does not dispute that after the promotion it paid Jones more than Lathram, it asserts a nondiscriminatory explanation for the differential: each was paid according to the statutory schedule applicable to his or her civil...