Stella v. Mineta, 00-5458.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtHarry T. Edwards
Citation284 F.3d 135
PartiesMarie V. STELLA, Appellant v. Norman Y. MINETA and Jane F. Garvey, Administrator, Federal Aviation Administration, Appellees
Docket NumberNo. 00-5458.,00-5458.
Decision Date29 March 2002

Appeal from the United States District Court for the District of Columbia (No. 97cv02550).



Gary T. Brown argued the cause for appellant. With him on the briefs was Camilla C. McKinney.

Michael A. Humphreys, Assistant United States Attorney, argued the cause for appellee. With him on the brief were Roscoe C. Howard, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney.

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

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Appellant Marie V. Stella is an employee of the Federal Aviation Administration ("FAA"). She brought claims under the Whistleblower Protection Act of 1989, Pub.L. No. 101-12, 103 Stat. 16 (1989) (codified in scattered sections of 5 U.S.C.) ("WPA"), alleging that the FAA retaliated against her after she disclosed instances of fraud, safety problems, waste, and abuse related to several FAA programs. She also brought claims of sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). She claimed, inter alia, that discrimination played a role in the FAA's failure to promote her to the Senior Executive Service ("SES") program.

The District Court for the District of Columbia granted the FAA's motion to dismiss appellant's WPA claims for lack of jurisdiction. See Stella v. Slater, Civ. Action No. 97-2550, Mem. Op. at 28 (D.D.C. Dec. 8, 2000) ("Mem. Op."). At the time Ms. Stella initiated her action in the District Court, FAA employees were barred from bringing whistleblower claims through the Office of Special Counsel ("OSC") and the Merit Systems Protection Board ("MSPB"), which are the channels that most federal employees are required to follow. Congress recently remedied this situation, however, by passing a law granting jurisdiction for whistleblower claims by FAA employees to the OSC and the MSPB. The new law applies retroactively to Ms. Stella's case. Because she is required to bring her claim to the OSC and MSPB, we affirm the District Court's dismissal of her WPA claims.

The District Court also granted summary judgment for the FAA on the Title VII claims on the ground that Ms. Stella failed to make out a prima facie case of sex discrimination. Mem. Op. at 28. Although appellant had credibly asserted that the FAA failed to promote her to the SES positions for which she had applied, the District Court found that she had not suffered an adverse employment action because both women and men had been promoted to the SES positions. Id. at 17-18. In so ruling, the District Court applied an incorrect legal standard. In making out a prima facie case of discrimination, a plaintiff need only show that he/she is a member of a protected class, that he/she applied for and was denied an available position for which he/she is qualified, and that, after the rejection, the employer continued to seek applicants who were no more qualified than plaintiff. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (setting forth the elements of a prima facie case under Title VII). A plaintiff is not required to show that the person(s) hired in his/her stead belong to a different gender or race. We therefore reverse the grant of summary judgment and remand the Title VII claims to the District Court.

A. Alleged Discriminatory and Retaliatory Treatment

Appellant joined the FAA as a Senior System Engineer in 1991. Am. Compl. ¶ 7, reprinted in Joint Appendix ("J.A.") 91-92. She was quickly promoted to the position of Acquisition Oversight Analyst, where she exercised an oversight function for many of the major programs at FAA. Part of her job was to report on problems concerning safety, fraud, mismanagement, and abuse. Id. ¶¶ 9-10, reprinted in J.A. 92. In 1992, Ms. Stella received an exceptional performance rating and was nominated for awards. Decl. of Marie Stella ("Stella Decl.") ¶ 9, reprinted in J.A. 41-42.

In her oversight capacity, appellant identified and reported on serious problems with various major FAA programs. For example, she found improper cost estimates and other irregularities in the FAA's Oceanic Program. She reported these to a supervisor and to the Office of the Inspector General. The contract at issue was eventually terminated in 1999, allegedly for the reasons appellant had pointed out years earlier. Am. Compl. ¶¶ 12-13, reprinted in J.A. 92. Ms. Stella also found problems with other programs, including the Advanced Automation System Program. After reporting the problems, Ms. Stella was removed as the senior system engineer for that project. Id. ¶ 16, reprinted in J.A. 93. She also found major safety, technical, and funding problems with the FAA's "Data Link" program. The Office of the Inspector General is reportedly addressing these problems now, but only after the FAA allegedly expended a billion dollars of federal funds. Id. ¶ 17, reprinted in J.A. 93-94.

After pointing out these and other instances of fraud, waste, and abuse, appellant allegedly received unwarranted criticism of her work and frequently was removed from oversight positions. She also was excluded from meetings where she had active oversight responsibilities. Id. ¶¶ 20-21, reprinted in J.A. 95. After appellant reported her findings to the Office of the Inspector General, the representative from that office informed her that her safety was in danger, that she should watch her back, that she should keep her documents in a safe place, and that her career with the FAA was over. Id. ¶ 37, reprinted in J.A. 98. Ms. Stella alleged that her work computer, desk, house, and barn were broken into, and that the FAA did nothing to address these incidents. Id. ¶ 42, reprinted in J.A. 99.

Appellant also alleged that she was treated worse than her male co-workers. She alleged that the FAA failed to give her credit for an award she had received, removed her from oversight responsibilities, and assigned her to work for a lower-level male employee. Id. ¶¶ 31-33, reprinted in J.A. 9697. She alleged that supervisors and colleagues gave her unwarranted bad performance evaluations, made sexually stereotyped remarks about her, and made rude comments regarding equal employment opportunity charges she had filed. Id. ¶¶ 25-28, 35, reprinted in J.A. 96-97. Ms. Stella also alleged that the FAA took no corrective action when assorted co-workers and managers used loud sexual language and received pornographic material on the Internet, disseminated offensive e-mails about her, and told her they would not work for a woman and were praying for God to punish her. Stella Decl. ¶¶ 1-4, 14, reprinted in J.A. 40-1, 43; Am. Compl. ¶¶ 22-24, reprinted in J.A. 95-96.

Appellant alleged that since 1995, she has applied for two SES positions for which she was qualified, but not selected. Am. Compl. ¶ 51, reprinted in J.A. 101; Stella Decl. ¶ 8, reprinted in J.A. 41. She also applied for lateral transfers to high-visibility program management positions that she alleged would make her more likely to be promoted to SES. Am. Compl. ¶ 51, reprinted in J.A. 101; Stella Decl. ¶ 6, reprinted in J.A. 41. Less qualified males were selected, and many of the males selected for the lateral transfers have since advanced to SES. Am. Compl. ¶ 51, reprinted in J.A. 101.

Finally, appellant pointed to an atmosphere of FAA animus towards women. An SES manager conducted an investigation and found that other women at FAA corroborated appellant's accounts of sex discrimination. Decl. of Loni Czekalski ¶ 5, reprinted in J.A. 49-50. The women who were interviewed recounted stories of career opportunities that went to men rather than to women, and of inappropriate remarks about women. Id. ¶ 6, reprinted in J.A. 50.

B. Procedural History

Appellant filed an action in the District Court for the District of Columbia in 1997, asserting violations of Title VII and the WPA. Appellees moved to dismiss or, in the alternative, for summary judgment. The District Court granted appellees' motion to dismiss the WPA claims for lack of jurisdiction. Specifically, the court held that under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Pub. L. No. 106-181, 114 Stat. 61 (2000) ("Ford Act"), FAA employees like Ms. Stella are required to exhaust their administrative remedies as set forth in Title 5 of the United States Code. Mem. Op. at 25. Under Title 5, most federal whistleblowers must first bring their complaints to the OSC. See 5 U.S.C. § 1214(a)(1)(A) (2000). If the OSC terminates the investigation, then the employee may file a whistleblower claim with the MSPB. See id. §§ 1214(a)(3), 1221, 2302(b)(8). The MSPB's decision is appealable to the Court of Appeals for the Federal Circuit. See id. § 7703.

When appellant filed her complaint, however, FAA employees were not subject to the usual Title 5 procedures, because, in 1995, Congress had directed the FAA to develop its own personnel management system. Under that system, FAA whistleblower claims could not be brought through the usual route, and the MSPB lacked jurisdiction over FAA employees' claims. When Congress passed the Ford Act in 2000, it enacted a retroactive provision requiring federal employees to exhaust Title 5's administrative remedies. Thus, the District Court found that appellant was required to go through the OSC and the MSPB. Mem. Op. at 24-26. It accordingly dismissed her WPA claims.

The District Court also granted appellees' motion for summary judgment on the Title VII claims. In her Opposition to the FAA's motion, appellant argued, pursuant to ...

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