Talavera v. Shah

• Decision Date: 29 March 2011
• Docket Number: No. 09–5373.,09–5373.
• Citation: 638 F.3d 303
• Parties: Carmen S. TALAVERA, Appellantv.Rajiv SHAH, Administrator, U.S. Agency for International Development, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

638 F.3d 303

111 Fair Empl.Prac.Cas. (BNA) 1574

94 Empl. Prac. Dec. P 44,134

395 U.S.App.D.C. 7

Carmen S. TALAVERA, Appellant

v.Rajiv SHAH, Administrator, U.S. Agency for International Development, Appellee.

No. 09–5373.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 19, 2010.Decided March 29, 2011.

Appeal from the United States District Court for the District of Columbia (No. 1:07–cv–00720).

Jonathan L. Gould argued the cause and filed the briefs for appellant.John R. Ates and Alan R. Kabat were on the brief for amicus curiae Metropolitan Washington Employment Lawyers Association in support of appellant.Marina Utgoff Braswell, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Jane M. Lyons, Assistant U.S. Attorney, entered an appearance.Before: ROGERS and BROWN, Circuit Judges, and SILBERMAN, Senior Circuit Judge.Opinion for the Court by Circuit Judge ROGERS.Concurring opinion by Senior Judge SILBERMAN.ROGERS, Circuit Judge:

Carmen Talavera, a former employee of the United States Agency for International Development (“USAID”), appeals the grant of summary judgment on her claims of gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Talavera contends that while employed by the Office of Security she was referred for an unwarranted mental health screening in retaliation for protected activity, and that she was passed over for promotion to a GS 14 position in June 2004 and again in November 2004, and ultimately she was removed from her position in September 2005, as a result of unlawful gender discrimination and retaliation. We affirm the grant of summary judgment except with regard to the June 2004 non-promotion claim. As to that claim we hold that Talavera offered sufficient evidence to raise a material issue of disputed fact whether the USAID's explanation for her non-promotion was pretextual and from which a reasonable jury could find unlawful gender discrimination. Accordingly, we affirm in part and we reverse and remand Talavera's June 2004 non-promotion gender discrimination claim.

I.

Talavera, a Hispanic woman, had worked for the federal government for twenty-two years ¹ before working in the USAID Office of Security from September 2001 until she was removed from her position four years later. The director of the Office of Security until August 2004 was Michael Flannery. Talavera was initially assigned as a GS 13 Security Specialist to the Personnel, Information and Domestic Security Division (“Information Security” division), which was headed by Randy Streufert. In July 2003, she was transferred to a GS 13 Regional Operations Officer position in the Physical Security Program Overseas Division (“Physical Security” division), which was headed by David Blackshaw; her immediate supervisor was Gaylord Coston.

Talavera had complained in early 2003 to her team leader and Flannery about being sexually harassed by a contractor. When the contractor was nevertheless hired and Talavera complained to Flannery, Flannery transferred her to the Physical Security Division. During a training trip with Coston in 2003, Talavera challenged Coston's personnel decisions as favoring men. An Equal Employment Opportunity Office (“EEO office”) report in December 2004 showed that there were no women in GS 14 or higher positions in the Office of Security; March 2005 statistics showed no change.

The district court opinion relates the factual underpinnings of Talavera's claims with regard to her referral for a psychiatric screening (that never took place) attendant to her medical examination for clearance to serve a tour of duty in Iraq, her non-promotion to a GS 14 position in November 2004, and the eventual termination of her employment in September 2005. See Talavera v. Fore, 648 F.Supp.2d 118 (D.D.C.2009). We need not repeat them here because upon de novo review, see Miller v. Hersman, 594 F.3d 8, 10 (D.C.Cir.2010), we cannot conclude that summary judgment was inappropriately granted on these claims. We therefore focus on what happened in connection with Talavera's non-promotion to a GS 14 position in June 2004. From our review of the entire record we are confident that doing so does not prejudice either party's contentions on appeal.

In May 2004, Talavera applied for a GS 14 Security Specialist position in the Information Security division where she had worked for 22 months and where she had earned two cash bonuses approved by Streufert. She was placed on the best qualified list, based on the applicants' self assessments; an asterisk indicated only she submitted complete documentation to support her application. Streufert, the selecting official, interviewed all of the candidates in early June 2004, including Talavera. In that same time period Talavera told Coston and Blackshaw that she was filing an EEO complaint regarding the mental health screening referral. Streufert shortly thereafter selected Regional Operations Officer Anthony Mira based on his answers to the questions Streufert had asked during the interview. Although Office of Personnel Management (“OPM”) regulations required promotion materials to be preserved for two years, see 5 C.F.R. § 335.103(b)(5) (2002), and EEOC Regulations required preservation for one year, see 29 C.F.R. § 1602.14 (1991), Streufert destroyed his interview notes in August or September 2004. He also did not enter the questions he asked or the rankings and justification for his selection of Mira into the Human Resources computer system; the USAID regulations did not require him to do so.

Upon exhausting her administrative remedies, Talavera filed a complaint on April 23, 2007, and an amended complaint on January 4, 2008, alleging that the USAID had unlawfully discriminated and retaliated against her in violation of Title VII. The district court granted the USAID's motion for summary judgment, and Talavera appeals.

II.

On appeal, Talavera contends that the district court erred by failing to evaluate her evidence in its totality and failing to assume the truth of the facts and draw inferences in her favor. Specifically, as relevant to her July 2004 non-promotion, she maintains that the district court ignored all of her evidence of male favoritism in past promotions, bonus awards, and job assignments; discounted comments that showed gender bias and retaliatory animus in the GS 14 selecting official; allowed the USAID to rely on interview results despite the selecting official's improper destruction of his interview notes and excluded evidence that she was asked different questions during her interview than the men who applied; and discounted evidence of under-representation of women in upper management.

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence is to be viewed in the light most favorable to the nonmoving party and the court must draw all reasonable inferences in favor of the nonmoving party. Id. at 255, 106 S.Ct. 2505; Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). Although summary judgment is not the occasion for the court to weigh credibility or evidence, see Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Holcomb, 433 F.3d at 895, summary judgment is appropriate “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.’ ” Holcomb, 433 F.3d at 895 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a [reasonable] jury to return a verdict for that party.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505.²

The foundation for analyzing Title VII claims was laid in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and embracing subsequent Supreme Court decisions, this court has applied the standard, see Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C.Cir.1998) (en banc). More recently, the court has clarified that once the employer has asserted a legitimate non-discriminatory reason for its decision, the district court should proceed to address “one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of ... [gender]?” Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir.2008); see Jones v. Bernanke, 557 F.3d 670, 678 (D.C.Cir.2009). Accordingly, we look to “(1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff ... or any contrary evidence that may be available to the employer.” Aka, 156 F.3d at 1289; see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510–11, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

The USAID claimed that Streufert's selection in June 2004 of Anthony Mira over Talavera for the GS 14 promotion was based on his superior performance during his interview by Streufert. In support of her claim that she was passed ...