Murray v. Gilmore

• Decision Date: 06 May 2005
• Docket Number: No. 04-7027.,04-7027.
• Parties: Lucy MURRAY, Appellant v. David GILMORE, as Receiver, District of Columbia Housing Authority and in his individual capacity, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

406 F.3d 708

Lucy MURRAY, Appellant v. David GILMORE, as Receiver, District of Columbia Housing Authority and in his individual capacity, Appellee

No. 04-7027.

United States Court of Appeals, District of Columbia Circuit.

Argued February 16, 2005.

Decided May 6, 2005.

Appeal from the United States District Court for the District of Columbia (No. 99cv00361).

Veronice A. Holt argued the cause and filed the briefs for appellant.

Mona Lyons argued the cause and filed the briefs for appellee.

Before: ROGERS, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge.

Appellant, an employee of the D.C. Housing Authority, ostensibly lost her job as part of a "reduction in force" undertaken by the Authority's court-appointed receiver. After unsuccessfully pursuing her administrative remedies, she sued the receiver in his personal and official capacities, alleging wrongful termination in violation of the District's Comprehensive Merit Personnel Act, race discrimination in violation of Title VII and 42 U.S.C. § 1981, sex discrimination in violation of Title VII, and deprivation of due process in violation of 42 U.S.C. § 1983. The district court granted summary judgment to the receiver on all claims except the due process one against him in his official capacity, which the court dismissed without prejudice. Following the district court's denial of her motion to reinstate the due process claim, appellant filed this appeal. We now reverse the grant of summary judgment to the receiver with regard to the Title VII sex discrimination claim against him in his official capacity, but affirm in all other respects.

I.

In 1995, under the auspices of Judge Graae of the D.C. Superior Court, the D.C. Department of Public and Assisted Housing entered into a settlement agreement to resolve a lawsuit brought by plaintiffs seeking structural reform of the agency. Known as the Pearson Order, the agreement provided that the court would appoint a receiver to run the agency for at least three years and gave the receiver significant power to restructure the agency's personnel. Pearson v. Kelly, No. 92-14030 (D.C.Super.Ct. May 18, 1995). In part, the order provided:

As to employees who are not subject to collective bargaining agreements, during the transition from the start-up of the receivership to the implementation of such personnel policies as the receiver shall institute, such employees' rights as to benefits, compensation, and termination (except as stated herein) shall be governed by the Comprehensive Merit Personnel Act, D.C.Code § 1-601 et. seq. Upon the establishment by the receiver of published personnel policies for the governing of employees who are not subject to collective bargaining agreements, these employees shall be subject solely to the personnel policies the receiver shall institute governing the employees' benefits, compensation and termination. The personnel policies established by the receiver for employees who are neither at will employees, employees in their probationary period, nor subject to collective bargaining agreements ("permanent managerial civil service employees"), shall provide that these employees shall not be terminated except for cause or misconduct or for non-performance of duty or due to abolition of their position (as these terms are defined by the receiver in the published personnel policies).

Judge Graae appointed appellee David Gilmore as receiver. For one of his first moves, Gilmore hired a consulting group to evaluate the importance of positions in the department—by then renamed the "Housing Authority"—with annual salaries over $48,000.

Appellant Lucy Murray, an African-American woman, held one such management position: Public Information Officer/Chief of the Office of Public Information. According to her job description, she was responsible for supervising the Office of Public Information, developing the Authority's public information strategy, acting as its principal advisor on public affairs, serving as its official spokesperson, and carrying out other responsibilities related to these tasks. The consultants determined that her position was "essential," explaining that "it would appear that any wholesale turn-around of the agency may require the function and resources of the Office of Public Information. Accordingly, it may be necessary to retain the position of Visual and Public Information Officer." Although Gilmore did not know Murray personally, he associated her—erroneously, as he now seems to concede—with a bad public relations incident the agency had experienced before he came on board.

In September 1995, Gilmore created a new position—Director of Public Affairs— and hired Arthur Jones, an African-American male, to fill it. The parties debate whether Gilmore publicized this position prior to hiring Jones, but Gilmore acknowledged at his deposition that he considered only Jones for the position. According to the new position's job description, Jones was responsible for supervising the Office of Public Affairs (which had not existed prior to his appointment and of which he was the only member), developing the Authority's public information program, advising the receiver on public affairs, serving as the Authority's official spokesperson, and undertaking related tasks. Though Jones had no housing experience, he had an extensive press background, having served as a Deputy White House Press Secretary and as the City of Boston's Director of Communications.

Several months later, in December 1995, Gilmore issued a personnel manual which provided that the "receiver may reduce the size of the workforce, including by the abolition of positions, when the receiver determines that such action is necessary or prudent." Pursuant to the Pearson Order, the manual had the effect of terminating the application of D.C.'s Comprehensive Merit Personnel Act to Housing Authority employees. See supra at 710.

The next month, Gilmore proposed a reduction-in-force (RIF). If followed, the RIF would have eliminated sixteen positions filled by eight African-American men (of whose positions the consultants ranked four as critical, one as essential, two as non-essential, and one as not needed), four African-American women, including Murray (all of whose positions were ranked as essential), two white men (with one position ranked essential and the other non-essential), and two white women (with one position ranked non-essential and the other unnecessary). Gilmore's actual RIF, however, departed from this proposal. Ultimately, some positions were not eliminated and of the positions that were, most employees who had held these positions either accepted different jobs within the agency or took voluntary retirement. Only three employees faced other outcomes. An African-American man (whose position was ranked by the consultants as not needed) moved to a job at another agency, and Murray and another African-American woman (both of whose positions were ranked essential) were involuntarily terminated.

Twelve days after Murray's departure, Gilmore changed Jones's job title from Director of Public Affairs to Director of Public Information. A few months after that, Gilmore added a new employee—an "Information Management Specialist"—to the Office of Public Information.

Under the personnel manual, terminated employees could demand a hearing before an examiner, who would make a recommendation to the receiver, who in turn had the final say. Invoking this process, Murray promptly requested a hearing—a request she reiterated in letters sent virtually every month until the summer of 1997 when, roughly a year and a half after her firing, she finally received her hearing. In support of her wrongful termination claim, she argued that Gilmore trumped up the RIF to justify her firing. Gilmore never actually eliminated her position, Murray claimed, but instead simply renamed it and gave it to Jones, letting her go shortly thereafter. At the hearing, a Housing Authority representative acknowledged that Jones's and Murray's positions were "functionally equivalent": "they both had the reporting to the head of the Agency"; "[t]hey both had overall responsibility for the Office of Public Information"; "they both were responsible for supervising the employees in that office"; and "[f]inally, they each were the chief spokesperson."

In summer 1998, a year after the hearing, the examiner issued her recommendation, concluding that Gilmore had functionally replaced Murray with Jones and thus that "the RIF as it affected Murray was a reorganization only on paper and was only a veil for her discharge." The examiner recommended Murray's reinstatement with back pay. Two years later, in September 2000, Gilmore rejected this recommendation and instead upheld Murray's termination.

Perhaps because her internal appeal was progressing slowly, Murray had meanwhile filed a complaint alleging race and sex discrimination with the D.C. Department of Human Rights and Local Business Development. The Department found probable cause for sex discrimination, but since an African American had replaced Murray it found no cause for race discrimination. Murray also sued Gilmore in the U.S. District Court for the District of Columbia. Brought against Gilmore in his representative and individual capacities, her amended complaint alleged violations of Title VII, 42 U.S.C. § 2000e-2; 42 U.S.C. § 1981; D.C.'s Comprehensive Merit Personnel Act, D.C.Code §§ 1-601 to 1-636; and, pursuant to 42 U.S.C. § 1983, the Fifth Amendment's Due Process Clause.

The parties cross-moved for summary judgment. The district court denied Murray's motion and, in fall 2002, granted Gilmore's motion except with regard to Murray's due process claim against Gilmore in his official capacity. Murray v. Gilmore, 226 F.Supp.2d 179 (D.D.C.2002), as amended, 231 F.Supp.2d 82 (D.D.C. 2002). Finding Murray's basis for the due process claim...