Stewart v. Ashcroft

Decision Date23 December 2003
Docket NumberNo. 02-5233.,02-5233.
Citation352 F.3d 422
PartiesHoward P. STEWART, Appellant, v. John D. ASHCROFT, Attorney General of the United States, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 01cv00265).

Richard L. Swick argued the cause for appellant. With him on the briefs was David H. Shapiro. Heidi R. Burakiewicz entered an appearance.

Anne M. Murphy, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and Marleigh Dover, Special Counsel.

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

Opinion for the Court filed by Circuit Judge SENTELLE.

Opinion concurring in the judgment filed by Circuit Judge KAREN LeCRAFT HENDERSON.

SENTELLE, Circuit Judge:

Appellant Howard P. Stewart, a Senior Litigation Counsel in the Environmental Crimes Section ("ECS") of the Department of Justice ("DOJ"), brought this action against John Ashcroft, in his official capacity as Attorney General of the United States, alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Stewart, who is black, challenges two separate incidents in which white candidates were selected over him to be Chief of ECS. The first was the 1998 selection of Stephen Solow; the second, the 2000 selection of David M. Uhlmann. The District Court, considering both challenges, granted summary judgment to the Government. This appeal followed. Stewart contends the District Court erred in concluding: (1) that his non-selections as Chief of ECS were not adverse employment actions; and (2) that he failed to rebut the Government's legitimate, nondiscriminatory reasons for not selecting him. In addition to Appellant's claims, the Government questions whether Stewart's claims surrounding the Solow selection were properly before the District Court. We agree with the Government that only the claim regarding Uhlmann's selection was properly before the District Court. With respect to that claim, we agree with Appellant that the District Court erred in failing to find his non-selection to be an adverse employment action, but because we agree with the District Court that Stewart failed to rebut the Government's legitimate, nondiscriminatory reason for not selecting him, we affirm.

I. Background
A. Stewart's Employment at DOJ

Appellant Stewart joined DOJ in 1985 as a prosecutor in the Fraud Section of the Criminal Division. From 1987 to 1989, he served as an Assistant United States Attorney ("AUSA") in the Eastern District of Pennsylvania. In 1989 he arrived at ECS, where he has since remained. In 1996, Stewart was appointed to the position of Senior Litigation Counsel, a new Senior Executive Service ("SES") position. This made Stewart the only SES-level person inside ECS, other than the Chief. Throughout Stewart's career at ECS, he has repeatedly applied for leadership positions, including: (1) Chief of ECS in 1994, 1997, and 2000; (2) Deputy Chief of ECS in 1998; and (3) two Assistant Chief positions in 1998. In this litigation, Stewart alleges that his non-selection as Chief in 1998 and 2000 was for reasons of racial discrimination.

The 1998 appointment of Stephen P. Solow

In 1997, Stewart applied for the then-vacant Chief position. In October of 1997, Lois J. Schiffer, the Assistant Attorney General responsible for filling the vacancy, sent a letter to the Senior Executive Services Board stating that Solow had been selected for the position. On October 30, 1997, she appointed Solow Acting Chief of the Division. In order to comply with federal regulations, the position was re-advertised from January 12 to January 27, 1998, and new applications were considered. On February 3, 1998, Solow was appointed to the SES, a requirement to fill the Chief position. Accordingly, he was appointed on February 3, 1998 to be Chief of ECS.

The 2000 appointment of Uhlmann

When the Chief position again became vacant in 2000, Stewart again applied. Assistant Attorney General Schiffer was again responsible for the selection. This time, she selected Uhlmann. According to Schiffer, Uhlmann had several qualities that were critical for the job, particularly his management and leadership ability. Like Stewart, Uhlmann had experience working with various United States Attorney's offices around the country. Uhlmann had handled complex cases and was "highly regarded by the Solicitor General's Office." Schiffer Dep. 159.

B. Proceedings Below

Stewart first contacted an equal employment opportunity ("EEO") counselor regarding Solow's selection as Chief on August 12, 1998, and subsequently filed a formal complaint on November 21, 1998. That complaint was amended in 2000 to cover Uhlmann's selection as Chief in that year. Having failed to obtain administrative relief, Stewart filed the present action.

The District Court granted summary judgment to the Government. We pause to note that first, however, the District Court "assume[d] ... without deciding that ... the court ... ha[d] jurisdiction to hear the case." Stewart v. Ashcroft, 211 F.Supp.2d 166, 172 n. 1 (D.D.C.2002), but see Citizens for a Better Living Env't, 523 U.S. 83, 101, 118 S.Ct. 1003, 1016, 140 L.Ed.2d 210 (1998) ("Hypothetical jurisdiction produces nothing more than a hypothetical judgment — which comes to the same thing as an advisory opinion, disapproved by the Court from the beginning"); Galvan v. Federal Prison Indus., 199 F.3d 461, 463 (D.C.Cir.1999) ("Jurisdiction must be established before a federal court may proceed to any other question"). This was an obvious reference to Stewart's challenge of Solow's selection, which the Government had argued was time-barred by the EEOC's regulations governing administrative remedies.

Bypassing the time-bar issue, the District Court determined that the denials of Stewart's applications were the denial of lateral transfers, not failures to promote. This was because Senior Litigation Counsel Stewart's position, and Chief of ECS were both SES positions that have no difference in pay and benefits. Thus, the Court ruled Stewart had not been subject to an adverse personnel action, as required to establish a prima facie case of discrimination. Brown v. Brody, 199 F.3d 446, 453 (D.C.Cir.1999).

Alternatively, the Court concluded that Stewart failed to rebut the Government's legitimate, nondiscriminatory reason for not selecting him — that other candidates were more qualified. Additionally, he failed to present any evidence that the cause of his non-selection was based on race.

II. Analysis

This Court reviews the grant of summary judgment de novo, applying the same standards as the District Court. Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). Summary judgment should only be granted where there are no genuine issues of material fact, and all inferences must be viewed in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 255, 106 S.Ct. 2505, 2511, 2513-14, 91 L.Ed.2d 202 (1986).

A. Exhaustion

As an initial matter, we must determine whether this case is time-barred. While the District Court framed its ability to hear these claims as jurisdictional, this Court has noted that the exhaustion of remedies is not jurisdictional, but more akin to a statute of limitations. See Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997) ("The administrative time limits created by the EEOC erect no jurisdictional bars to bringing suit"). While we need not address here the timing requirements as a jurisdictional bar, we must still address these requirements.

The timing requirements for bringing a Title VII claim are set forth in 29 C.F.R. § 1614.105(a)(1), which states in pertinent part:

An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.

29 C.F.R. § 1614.105(a)(1) (2002). Stewart's August 12, 1998 initiation of EEO procedures is untimely if he knew, or should have known, about the alleged discriminatory action prior to June 27, 1998 — 45 days prior to his initial contact with EEO. Solow became Chief of ECS on February 3, 1998. Because Stewart initiated his EEO complaint well after 45 days from this time, he fails to satisfy the requirements of § 1614.105(a)(1). Therefore, Stewart must rely on the tolling provisions of § 1614.105(a)(2), which provide that the time will be tolled if he "did not know and reasonably should not have [] known that the discriminatory matter or personnel action occurred."

With the tolling provision in mind, we consider the events prior to June 27, 1998, to determine if Stewart should have known of Solow's selection. Of course, on February 3, 1998, Solow was appointed to SES and officially selected as Chief. On February 13, 1998, Stewart received a letter that went to all ECS employees and reorganized the entire section. The letter was written by Solow and in it he identified himself as Chief. Further, on June 17, 1998, Stewart wrote a letter to Solow identifying Solow as Chief. Finally, on June 23, Stewart's lawyer, hired to represent him in this matter, sent a letter requesting the status of Solow's appointment.

The evidence shows that at the very least Stewart should have known by June 27, 1998, that Solow had been appointed and any alleged discrimination had occurred. As detailed above, there were several events in February that should have prompted Stewart to inquire about the status of the job he sought. Rather, Stewart waited until June to have his attorney ask. This formalistic event simply does not salvage Stewart's claim. Particularly troublesome is Stewart's letter to Solow identifying Solow as Chief. Stewart's response that calling Solow "Chi...

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