Whitacre v. Davey, 88-5339

• Decision Date: 17 November 1989
• Docket Number: No. 88-5339,88-5339
• Citation: 890 F.2d 1168
• Parties: 51 Fair Empl.Prac.Cas. 538, 52 Empl. Prac. Dec. P 39,478, 281 U.S.App.D.C. 363, 58 USLW 2318 Margaret T. WHITACRE, Appellant, v. James F. DAVEY, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1168

890 F.2d 1168

51 Fair Empl.Prac.Cas. 538,

52 Empl. Prac. Dec. P 39,478, 281 U.S.App.D.C. 363,

58 USLW 2318

Margaret T. WHITACRE, Appellant, v. James F. DAVEY, et al.

No. 88-5339.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 13, 1989.

Decided Nov. 17, 1989.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 87-02762).

David H. Shapiro, with whom Joseph B. Scott and Katherine L. Garrett were on the brief, for appellant.

John Oliver Birch, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates, R. Craig Lawrence and Mark E. Nagle, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before RUTH BADER GINSBURG, SILBERMAN, and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

This is an appeal from the district court's dismissal of a Bivens claim against two court officials who allegedly discriminated in employment against appellant. ¹ The district court thought the allegation, which was adequate to allege a statutory violation, was insufficient to make out a constitutional tort. We affirm.

I.

Margaret Whitacre was employed since 1967 by the Office of the Clerk of the United States District Court for the District of Columbia. In August 1985, Whitacre, who was then 51 years old, held one of the two Assistant Clerk positions at a grade 14 level. She was the highest subordinate to James Davey, the Clerk, and in his absence she served as the acting Clerk. On August 8, Davey informed Whitacre of a reorganization of the managerial structure in the Clerk's Office that would result in the creation of a single Chief Deputy Clerk position to replace the two Assistant Clerk jobs. Davey warned her that he intended to remove Whitacre from all managerial responsibilities and place her in a grade 12 position or lower. When Whitacre nonetheless applied for the new Chief Deputy Clerk job, Davey selected Nancy Mayer, the other Assistant Clerk, who was then 31 years old and at that time held a lower grade.

Whitacre lodged an administrative complaint alleging age discrimination with LeeAnn Flynn, the district court's Equal Employment Opportunity ("EEO") Coordinator and the Administrative Assistant to the Chief Judge of the district court. Whitacre requested Flynn to recuse herself from the investigation because of Flynn's allegedly close friendship with Mayer and long association with Davey. Flynn refused, and after an investigation pursuant to the office's informal "Discrimination Complaint Procedures," she found that Davey had not discriminated against Whitacre on the basis of age. In accordance with the complaint procedures, Whitacre appealed that report to Chief Judge Robinson, who summarily affirmed Flynn's conclusions.

In October 1987, Whitacre filed a Bivens-type ² action against Davey and Flynn in federal district court. She alleged that Davey discriminated against her on the basis of her age in violation of the fifth amendment's equal protection guarantee. She also claimed that Flynn denied Whitacre her fifth amendment due process right to an unbiased administrative review of her allegations. The complaint demanded $375,000 in compensatory and punitive damages from Davey and Flynn. Upon the defendants' motion, the district court dismissed the complaint for failure to state claims upon which relief could be granted. See Fed.R.Civ.P. 12(b)(6). This appeal followed.

II.

The primary issue presented to us is whether a complaint that sets forth allegations that would constitute a prima facie case in certain statutory discrimination actions, such as under Title VII, satisfies our Circuit's heightened pleading standard for Bivens actions. ³ In a Title VII action, a prima facie case is made out simply by showing that a qualified plaintiff who is a member of a protected class was disadvantaged in favor of a person who is not a member of the protected class. Upon this demonstration, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If the employer carries this burden, the plaintiff then must prove by the preponderance of the evidence that the proffered excuse is merely a pretext for discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981); McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. It follows, then, that if a plaintiff alleges a prima facie case, the complaint may not be dismissed for failure to state a claim. We have also applied this allocation of burdens in statutory age discrimination suits brought under the ADEA. See Coburn v. Pan Am. World Airways, Inc., 711 F.2d 339, 342 (D.C.Cir.), cert. denied, 464 U.S. 994, 104 S.Ct. 488, 78 L.Ed.2d 683 (1983). But for reasons we elaborate below, we conclude that this statutorily inspired allocation of burdens is inapposite for Bivens-type cases, and therefore appellant's complaint, which would satisfy the Title VII paradigm, does not adequately allege a constitutional tort.

A cause of action directly under the Constitution encompasses fundamentally different interests than a statutory cause of action such as Title VII. See Davis v. Passman, 442 U.S. 228, 241, 99 S.Ct. 2264, 2274-75, 60 L.Ed.2d 846 (1978). In his concurring opinion in Bivens, Justice Harlan recognized that the creation of the constitutional cause of action stemmed from the judiciary's historic equitable discretion to grant a traditional remedy at law. See 403 U.S. at 405, 91 S.Ct. at 2009 (Harlan, J., concurring). Thus, the question for the judiciary is "whether compensatory relief is 'necessary' or 'appropriate' to the vindication of the interest asserted." Id. at 407, 91 S.Ct. at 2010. In deciding the contours of Bivens actions, "the range of policy considerations we [the courts] may take into account is at least as broad as the range of those a legislature would consider with respect to an express statutory authorization of a traditional remedy." Id.

The Supreme Court later embraced the policy-making flexibility that Bivens claims afford in crafting the scope of qualified immunity for federal officials. The qualified immunity test originally consisted of both objective and subjective elements. A federal official was liable if "he knew or reasonably should have known" that his actions violated an individual's constitutional rights, or if he "took the action with the malicious intention to cause a deprivation of constitutional rights or other injury ..." Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975) (emphasis added). In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Court recognized that the subjective elements of that test were "incompatible" with the goal of terminating meritless Bivens claims at an early stage. Id. at 815-16, 102 S.Ct. at 2736-37. The Court explicitly weighed the need to vindicate constitutional guarantees with the "cost[s] not only to the defendant officials, but to society as a whole" when innocent federal officials face money damage claims. See id. at 814, 102 S.Ct. at 2736 (1982). The costs of meritless Bivens suits include "the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office." Id. In light of these competing interests, the Court required trial judges to identify and quickly terminate "insubstantial lawsuits" at the pleading stage before the commencement of any discovery. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985); Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978). "Bare allegations of malice" do not suffice to expose federal officials "to the costs of trial or to the burdens of broad-reaching discovery." Harlow, 457 U.S. at 817-18, 102 S.Ct. at 2738. Consequently, the Court stripped the qualified immunity test of its subjective elements and held that "government officials performing discretionary functions ... generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. at 818, 102 S.Ct. at 2738.

Since "substantial costs attend the litigation of the subjective good faith of government officials," Harlow, 457 U.S. at 816, 102 S.Ct. at 2737, and since the Court stressed the need to terminate insubstantial Bivens claims before trial, see id. at 815-16, 102 S.Ct. at 2736-37, we have supplanted the liberal pleading requirements of the Federal Rules with a heightened pleading standard whenever a plaintiff in a Bivens claim alleges an unconstitutional motive. See Martin v. Malhoyt, 830 F.2d 237, 254 (D.C.Cir.1987); Smith v. Nixon, 807 F.2d 197, 200 (D.C.Cir.1986); Hobson v. Wilson, 737 F.2d 1, 29 (D.C.Cir.1984) (dicta). Under our heightened pleading requirement, Whitacre's complaint of age discrimination must include "nonconclusory allegations of evidence of such intent" in order to survive a motion to dismiss. Hobson, 737 F.2d at 29. The allegations of facts must be specific and concrete enough to enable the defendants to prepare a response, and where appropriate, a motion for summary judgment based on qualified immunity. See Martin v. Malhoyt, 830 F.2d at 254. And we have imposed, in cases where the defendant's subjective intent is an essential part of the claim, a demanding requirement on the plaintiff in order to proceed to trial or obtain discovery. See Martin v. D.C. Metro. Police Dep't, 812 F.2d 1425, 1435 (D.C.Cir.1987). "[T]o avert dismissal short of trial, [the plaintiff] must come forward with something more than inferential or circumstantial support for his...