Tao v. Freeh

• Decision Date: 08 July 1994
• Docket Number: No. 92-5502,92-5502
• Citation: 27 F.3d 635,307 U.S.App. D.C. 185
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 385, 307 U.S.App.D.C. 185, 63 USLW 2046, 9 IER Cases 1250 Kuo-Yun TAO, Appellant, v. Louis FREEH, Individually and as Director, Federal Bureau of Investigation; Steven L. Pomerantz, Individually and as Deputy Assistant Director-Personnel Officer, Administrative Services Division, Federal Bureau of Investigation, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 635

27 F.3d 635

65 Fair Empl.Prac.Cas. (BNA) 385, 307

U.S.App.D.C. 185,

63 USLW 2046, 9 IER Cases 1250

Kuo-Yun TAO, Appellant, v.Louis FREEH, Individually and as Director, Federal Bureau of Investigation; Steven L. Pomerantz, Individually and as DeputyAssistant Director-PersonnelOfficer, Administrative Services Division, Federal Bureau of Investigation, Appellees.

No. 92-5502.

United States Court of Appeals District of Columbia Circuit.

Argued May 9, 1994.

Decided July 8, 1994.

John H. Young, Washington, DC, for appellant.With him on the briefs was Ellen F. Randel, Washington, DC.

Marina Utgoff Braswell, Asst. U.S. Atty., Washington, DC, for appellees.With her on the brief were Eric H. Holder, Jr., U.S. Atty., and John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.

Before MIKVA, Chief Judge, SENTELLE and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

This is an appeal from the grant of summary judgment to appellees whom appellantKuo-Yun Tao alleges required her to go through a lengthy promotion-application process for a second time, while other similarly-situated employees were promoted on the basis of their first applications, in retaliation for her exercise of protected speech.¹The district court found that appellees had taken no "adverse action" against appellant sufficient to raise a constitutional claim.Because the requirement that Tao submit new lengthy promotion-application materials is sufficient, as a matter of law, to constitute an "adverse action" for constitutional purposes, we reverse and remand the case in light of genuine issues of material fact as to whether appellees' treatment of Tao was in retaliation for her exercise of protected speech.

I.

AppellantKuo-Yun Tao, an American citizen of Chinese descent, is employed as a GS-11 Chinese language specialist at the Language Service Unit (LSU) in the Washington Metropolitan Field Office of the Federal Bureau of Investigation.Tao applied in November, 1990, for a promotion to GS-12, submitting numerous examples of her work, as well as a translation prepared from a tape assigned by appellees.Tao spent twenty-seven hours preparing her application materials.Appellees found that her translations were accurate but that they lacked conciseness and organization, and they denied her promotion.

Tao filed an administrative appeal in which she complained that the denial of her promotion was arbitrary and capricious in light of an August 1990 memorandum stating that accuracy would be the only criterion applied to promotion applications.In addition, Tao's husband, who was her legal representative, wrote a letter to the Director of the FBI on March 8, 1991, advising that Tao's appeal was the "first voice of protest" against discrimination within the LSU against Chinese-Americans and requesting that the director intervene.On August 20, 1991, appellees reversed their position earlier in the summer that they would reassess Tao's promotion application without her submission of new materials, and on November 7, 1991, they denied her appeal.

Two other Chinese-American applicants in the LSU--Dennis Chang and Pearl Lau--were denied promotions at about the same time as Tao.Chang's translations were criticized for accuracy, omissions, and conciseness, while Lau's translations were criticized for accuracy and omission problems.However, Chang and Lau subsequently received an additional internal review of their original promotion paperwork, and the reviewer found that their translations were accurate.To resolve the conflict between the first and second reviewers, appellees sent Chang's and Lau's translations to an external reviewer, who found the translations to be accurate.Chang and Lau were then promoted on August 25, 1991, despite the fact that their translations had been criticized for problems besides accuracy.²

By contrast, Tao was informed by appellees that she would be required to submit new testing materials before she would be reassessed for promotion.She never received a reassessment of her original translations submitted with her application for promotion, and she was not promised a promotion upon submission of the new materials.On January 15, 1992, Tao sued appellees in the district court for declaratory and injunctive relief, alleging that appellees' treatment of her promotion application violated her First Amendment rights to free speech and to petition the government for redress of grievances.She sought reconsideration of her original promotion application by outside experts without a requirement that she resubmit new materials.Appellees moved to dismiss the complaint, or for summary judgment, averring that Tao was treated differently than Chang and Lau only because Tao's application raised different concerns.Tao cross-filed for summary judgment.The district court granted appellees' motion on the ground that appellees' requirement that Tao submit new materials in order to be re-assessed for promotion was not an adverse action sufficient to support a constitutional claim, 808 F.Supp. 24.

II.

Our review of the grant of summary judgment is de novo, applying the same standards as the district court.³See e.g., Shields v. Eli Lilly and Co., 895 F.2d 1463, 1465-66(D.C.Cir.1990).Summary judgment should be granted only 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)(applying same standard as FED.R.CIV.P. 50(a))(citation omitted);seeNational Souvenir Ctr., Inc. v. Historic Figures, Inc., 728 F.2d 503, 512(D.C.Cir.), cert. denied, 469 U.S. 825, 105 S.Ct. 103, 83 L.Ed.2d 48(1984).If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available.Alyeska Pipeline Serv. Co. v. United States Envtl. Protection Agency, 856 F.2d 309, 314(D.C.Cir.1988).

Tao's complaint rests on the premise that the government may not treat her adversely in retaliation for her exercise of free speech.SeeRutan v. Republican Party of Illinois, 497 U.S. 62, 72, 110 S.Ct. 2729, 2735-36, 111 L.Ed.2d 52(1990)(quotingPerry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697-98, 33 L.Ed.2d 570(1972)).In the seminal case of Pickering v. Board of Educ., the Supreme Court held that the First Amendment precluded dismissal of a school teacher who publicly criticized the Board of Education's handling of a bond issue because "free and open debate" about whether a school system needs additional funds "is vital to informed decision-making by the electorate."391 U.S. 563, 571-72, 88 S.Ct. 1731, 1736-37, 20 L.Ed.2d 811(1968).The Court stated that it is essential that public employees such as teachers be able to speak freely on issues of public concern without fear of retaliation.Id. at 572, 88 S.Ct. at 1736-37.

However, the Supreme Court has also recognized that "government offices could not function if every employment decision became a constitutional matter," and it has drawn the line at "employee expression [that] cannot be fairly considered as relating to any matter of political, social, or other concern to the community."SeeConnick v. Myers, 461 U.S. 138, 143, 146-47, 103 S.Ct. 1684, 1689-90, 75 L.Ed.2d 708(1983).The Court has settled on the formulation that its task "is to seek 'a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' "Id. at 142, 103 S.Ct. at 1687(quotingPickering v. Board of Educ., supra, 391 U.S. at 568, 88 S.Ct. at 1734-35).

Thus, consistent with the test developed in Pickering and its offspring, this court has described the public employee's First Amendment cause of action as having four elements.Hall v. Ford, 856 F.2d 255, 258(D.C.Cir.1988).First, the public employee must have been speaking on a matter of public concern.Id.If the speech is not of public concern, it is unnecessary to scrutinize the basis for the adverse action absent "the most unusual circumstances."Id.(quotingConnick v. Myers, supra, 461 U.S. at 147, 103 S.Ct. at 1690).Second, the court must balance the interest of the employee "as a citizen, in commenting upon matters of public concern" and the interest of the employer "in promoting the efficiency of the public services it performs through its employees."Pickering v. Board of Educ., supra, 391 U.S. at 568, 88 S.Ct. at 1734-35.Thus, only where the employee's speech touches on a matter of public concern, and only where the employee's First Amendment interest is not outweighed by any disruption that the speech may cause to the efficiency of the public enterprise, is that speech constitutionally protected.Id. at 572-73, 88 S.Ct. at 1736-37;Waters v. Churchill, --- U.S. ----, ----, 114 S.Ct. 1878, ----, 128 L.Ed.2d 686(1994).Third, the employee must prove that her speech was a substantial or motivating factor in the denial of the benefit that she sought.Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471(1977).Finally, the government employer must be given an opportunity to prove that it would have reached the same decision even absent the protected conduct.Id.The first two factors under the Pickering test are questions of law for the court to resolve, while the latter are questions of fact ordinarily for the jury.Hall v. Ford, supra, 856 F.2d at 258.

Tao asserts that appellees' requirement that she submit new materials in order to be reconsidered for promotion violated her First Amendment rights because no such requirement was imposed on other applicants and she was singled out in retaliation for...