Parker v. Secretary, U.S. Dept. of Housing and Urban Development, 88-5295

• Decision Date: 08 December 1989
• Docket Number: No. 88-5295,88-5295
• Citation: 891 F.2d 316
• Parties: 51 Fair Empl.Prac.Cas. (BNA) 910, 52 Empl. Prac. Dec. P 39,499, 282 U.S.App.D.C. 17 Elaine G. PARKER, Appellant, v. SECRETARY, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 316

891 F.2d 316

51 Fair Empl.Prac.Cas. (BNA) 910,

52 Empl. Prac. Dec. P 39,499, 282 U.S.App.D.C. 17

Elaine G. PARKER, Appellant, v. SECRETARY, U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Appellee.

No. 88-5295.

United States Court of Appeals,

District of Columbia Circuit.

Argued Oct. 23, 1989.

Decided Dec. 8, 1989.

Appeal from the United States District Court for the District of columbia.

James E. McCollum, Jr., College Park, Md., for appellant.

Diane M. Sullivan, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates, Michael J. Ryan, Asst. U.S. Attys. and Carol W. Bernstein, Attorney, U.S. Dept. of Housing and Urban Development, Washington, D.C., were on brief for appellee.

Before MIKVA, EDWARDS and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

Appellant Elaine Parker appeals the district court's judgment for the Department of Housing and Urban Development ("HUD") in this Title VII action. Parker, a former auditor at HUD, alleged that HUD had discriminated against her on the basis of her race and/or sex in its decisions to demote her from a grade GS-13 to GS-11 and to deny her a within-grade pay increase. In addition Parker alleged that her supervisors had subjected her to discriminatory treatment by, inter alia, denying her educational opportunities accorded to others, failing to accord her the respect accorded white male GS-13 auditors in her department, and denying her the opportunity for a weekend return to her home during an extended field audit. The district court concluded that while Parker established a prima facie case of discrimination, she did not meet her burden of proving that the government's reasons for adverse employment actions were a pretext for discrimination. In reaching this conclusion the district court stated that the evidence of the merit of Parker's work was immaterial because Parker had not shown that the managers "were so clearly wrong that they, in fact, knew that they were." We reverse this judgment because the district court did not apply the correct legal standards regarding what Title VII plaintiffs must prove to demonstrate pretext. We remand for further proceedings consistent with this opinion.

I. BACKGROUND

A. Parker's Work Experience

Elaine Parker, a black female, began her career with the federal government as a clerk typist in 1964. Through evening education she received her B.A. degree in accounting in 1975 and advanced to the position of auditor, first at the Department of Transportation as a GS-7, progressing to a GS-11. Later she moved to the Department of Commerce to work as a GS-12 Auditor-Manager. In 1979 Parker applied and was selected for a position at HUD. She entered HUD as a GS-13 supervisory auditor in the Technical Services Division of the Office of the Inspector General ("OIG"), which was headed by Glen Dale.

Mr. Dale interviewed Ms. Parker for this position. At trial Parker testified that upon meeting her, Dale appeared startled, stating that he had assumed Parker was white because of her maiden name, Garbett. According to Parker, the entire interview proceeded in a discriminatory fashion because Dale: (1) suggested incorrectly that she had falsified her qualifications form; (2) suggested that being a black female was an "asset" that led to Parker's advancement; and (3) failed to discuss the substance of the job position. Dale testified that he did not recall anything about the interview other than discussing "varying aspects of the job and so forth." Dale did not recommend Parker for the job, he testified, because, based on her application and the interview, he did not believe she had the necessary writing and oral skills for the position. Dale conceded that he never saw a writing sample. Dale recommended a white female for the job but Dale's supervisor, Mr. Yazurlo, selected Parker. At the time Parker was the only black, female auditor at HUD in grades 13 through 15.

Parker spent her initial year at HUD working under Dale. The three other GS-13's in the department were all white males. Parker asserted at trial that Dale initially gave her little work to do and then gave her "above-grade" tasks which the other GS-13's in her group were not required to complete. Dale denied these allegations. Early in Parker's tenure with HUD, Dale sent Parker to San Francisco to work on an audit of a mortgage company. Dale testified that this was part of Parker's "training" and that he sent her to San Francisco, as opposed to a closer location, because ninety percent of the agency's "Mortgage Review Board" cases came from the San Francisco region. Parker testified that Dale told her that there were three other audits that were geographically closer, including one in Washington D.C., but that he felt she would get the best exposure in California. Parker was assigned to supervise three lower grade employees who, because of her unfamiliarity with the mortgage area, knew more about the audit than she did. The audit took about five weeks to complete.

During the entire audit Parker did not return home for a weekend visit, despite a HUD policy which would have allowed such a visit after two weeks. Parker claims that Dale told her before she left that his budget would not allow such a visit. According to Parker, after her supervisor in California intervened on her behalf, Dale called her two days before the audit was to be completed and told her to "come home" because he was getting heat about her lack of a weekend visit. Parker said she would rather complete the two remaining days before returning home. Dale testified that he called Parker at the end of two weeks to tell her she was entitled to a weekend return, to which Parker replied, " 'If I come home now it will just draw the thing out and it will make it longer. I would like to stay and get it over with.' " Thus, according to Dale, at the end of four weeks Parker called him saying she wanted to come home at which point he told her it made no sense with just a few days to go. Parker claimed that no other GS-13's in the group did field audits while she was in Dale's department although Dale refuted this claim.

Upon return from California, Dale informed Parker that he was going to give her a warning letter regarding her performance. He admitted, however, (1) that he had not yet reviewed her performance on the California audit; (2) that the audit was in fact a "training function;" and (3) that "[s]he could have improved during that period out there." Although Dale prepared the warning letter, he never gave it to Parker because Mr. Yazurlo intervened and arranged for Parker's transfer to the Audit Operations Division under the supervision of George Henderson, a black male.

On two occasions Parker requested Dale's assistance in getting approval for certain educational opportunities. After Parker had been with HUD for six months, Dale refused to fill out an evaluation form that Parker requested in order to enroll in an executive management program. During the same period Parker requested consideration for a graduate program at American University which HUD sponsored for its employees. Dale also refused to recommend Parker for this program. Dale testified that at that point he did not feel he knew enough about Parker to give her a recommendation. Parker also testified that a white male who assumed the position she had held in Dale's department, successfully applied under Dale for the American University program within two months of transferring to that department. Dale testified that the male in question had been a HUD employee for several years prior to transferring to his department.

Parker also claims that Dale made derogatory statements to her such as "women like you should be home having babies." Dale denied having made such remarks or any sexist or racist remarks. Dale's former secretary testified that she believed Dale preferred men on his staff and that he rated them higher than Parker and another female auditor. Parker claimed that Dale treated her differently than the other GS-13's he supervised, claiming that Dale was hostile toward her while his other supervisees were afforded an open-door rapport with him. Dale denied these assertions.

At trial Parker conceded that she had a good working relationship with her immediate supervisor, Mr. Henderson, during her first six months as an "area audit supervisor" in the Audit Operations Division of HUD's OIG. Mr. Kirkendall, a white male GS-15, was head of that division and was Parker's second line supervisor. Once transferred to Audit Operations, Parker immediately was assigned to a complex audit which had been initiated by another GS-13 auditor, with whom Parker had exchanged positions. The assignment was an audit of HUD's payroll system, "TOPPS." Parker testified that the audit was in a chaotic state and that within one month of taking it over, Henderson requested that she start compiling her findings in a written report. Parker was supervising three other auditors on the project. She claimed that she repeatedly requested additional time to develop data; in particular she claims that she alerted Henderson to the fact that payroll checks were being sent to persons no longer employed at HUD and that in order to find the source of the problem, a computer test was needed. Henderson agreed but further testified that they decided not to order the test because it would take months to complete. Henderson testified that he, Kirkendall and Parker jointly made this decision.

In October, 1980, Henderson reviewed several of Parker's early drafts of the TOPPS report and gave her a "fully satisfactory" performance rating. He noted, however, that she needed to improve her writing and data recordation skills. In the months prior to issuing this performance evaluation, Henderson had worked closely with Parker in trying to "beef up" the factual support for the report and get the report in...