Barnette, Margaret v. Chertoff, Michael

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 13, 2006 Decided July 7, 2006

No. 04-5443

MARGARET A. BARNETTE,

APPELLANT

v.

MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF

HOMELAND SECURITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 02cv01897)

Charles W. Day, Jr. argued the cause for appellant. With

him on the briefs was Joseph D. Gebhardt.

Peter D. Blumberg, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Kenneth L.

Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S.

Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered

an appearance.

Before: ROGERS, TATEL, and BROWN, Circuit Judges.

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Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Passed over for promotion,

appellant, an African American woman in her fifties, claims that

her employing agency discriminated against her on the basis of

race and age when it selected a younger, white woman for the

position she sought. After full discovery, the district court,

finding appellant had failed to plead facts sufficient to refute the

employing agency’s proffered non-discriminatory reason for its

decision, granted the agency’s motion for summary judgment.

Agreeing with the district court, we affirm.

I.

Appellant, Margaret Barnette, an African American woman

born in 1951, works for Customs and Border Protection (CBP).

Located within the Department of Homeland Security (DHS),

CBP includes those elements of the U.S. Customs Service, the

Immigration and Naturalization Service, and the Department of

Agriculture that dealt with border-control issues before DHS’s

creation in 2003. During the period in which the events at issue

here took place—all prior to 2003—Barnette worked for the

U.S. Customs Service.

In 2001, Barnette applied for the Assistant Director for

Operations (ADO) position for the South Atlantic Customs

Management Center (CMC). Located in Atlanta, the South

Atlantic CMC is one of twenty regional centers through which

Customs oversees regional ports and manages its staff and

workload. The ADO “position is a management position, which

involves operational functions of the Customs Service (as

opposed to administrative functions, such as personnel matters),

including passenger processing, inspection of cargo, inspection

of conveyances, and other programs.” Barnette v. Ridge, Civ.

No. 02-1897, 2004 U.S. Dist. LEXIS 27546, at *4 (D.D.C. Nov.

15, 2004).

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Robert Gomez, a GS-15 and Barnette’s immediate

supervisor, served as ADO until Customs promoted him to

Director of Field Operations in 2001, thus creating the vacancy

at issue in this case. Although Gomez served as ADO at the GS-

15 grade, once he left the post Customs advertised it at the GS-

14 level.

Although Barnette had spent twenty-two years in

administrative personnel positions—including her first seven

years at Customs—at the time she applied for the ADO she was

a GS-14 serving as an Operations Specialist at the South

Atlantic CMC, her second operations position since her 1995

transfer from personnel. As an Operations Specialist, her

responsibilities included “executing, managing, coordinating

and overseeing [some of the same] Customs/South Atlantic

CMC core processes” managed by the ADO. Barnette ADO

Application 3 (Apr. 16, 2001). Unlike her last personnel

position, a GM-14 supervisory post, Barnette’s permanent

operations positions were all non-supervisory. She nonetheless

acquired supervisory experience in operations when, following

Gomez’s promotion, she served a four-month detail as Acting

ADO. While serving in operations positions, Barnette received

several performance awards.

After reviewing all ADO applications, George Heavey,

Executive Director of Field Operations in Washington and

Gomez’s supervisor, recommended to the selecting official,

Bonni Tischler, Assistant Commissioner for Field Operations,

that she choose Michelle James, not Barnette, to fill the ADO

position. Tischler did so based solely on Heavey’s

recommendation. Heavey, a white man, explained that after

consulting Gomez, a white Hispanic man, he recommended

James, a white woman fifteen years younger than Barnette,

based on her reputation as a “key player,” “a dynamic leader,”

and a “good communicator,” as well as on Gomez’s opinion that

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James’s front line operations experience would be valuable in

the ADO post. Heavey Dep. 28, 34, 55. Unlike Barnette, James

had spent her entire eight-year career at Customs in operations

positions such as Customs Inspector, Program Officer,

Supervisory Customs Inspector, and Chief Inspector at the South

Atlantic CMC.

Following James’s selection, Barnette filed a complaint in

the U.S. District Court for the District of Columbia alleging that

Customs denied her the promotion because of her race and age

in violation of Title VII of the Civil Rights Act of 1964 as

amended, 42 U.S.C. § 2000e-16(a), and the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. § 633a(a). Later, after

Customs denied her a temporary promotion to Customs Port

Director for the Port of Atlanta, Barnette amended her complaint

to include a charge of retaliation in violation of Title VII.

Following full discovery, the district court found that Barnette

had failed to present evidence sufficient to negate Customs’

proffered non-discriminatory reason for selecting James—that

it preferred James’s greater operations experience over

Barnette’s greater personnel and supervisory experience.

Barnette, 2004 U.S. Dist. LEXIS 27546, at *17-21.

Accordingly, the district court granted summary judgment to the

government and, for reasons not at issue here, dismissed

Barnette’s retaliation claim. Id. at *22.

On appeal, Barnette challenges only the award of summary

judgment regarding the ADO promotion. Barnette argues that

she provided sufficient evidence for a reasonable jury to find

that Customs’ proffered non-discriminatory reason for James’s

selection was pretext for discrimination. Reviewing the district

court’s summary judgment award de novo, we view the

evidence in the light most favorable to Barnette, the non-moving

party. Borgo v. Goldin, 204 F.3d 251, 254 (D.C. Cir. 2000).

We will affirm the award of summary judgment only if there is

5

no genuine issue as to any material fact and the government is

entitled to judgment as a matter of law. Id.

II.

Title VII requires that “[a]ll personnel actions affecting

employees or applicants for employment . . . in executive

agencies . . . be made free from any discrimination based on

race.” 42 U.S.C. § 2000e-16(a). The ADEA requires that “[a]ll

personnel actions affecting employees or applicants for

employment who are at least 40 years of age . . . in executive

agencies . . . be made free from any discrimination based on

age.” 29 U.S.C. § 633a(a). Given that Barnette offers no direct

evidence of discrimination, to survive summary judgment and

earn the right to present her case to a jury, she must resort to the

burden-shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). Cones v. Shalala, 199 F.3d

512, 516 (D.C. Cir. 2000); see also Carter v. George

Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004)

(explaining that the McDonnell Douglas framework applies to

ADEA claims). Under McDonnell Douglas, Barnette bears the

initial burden of establishing a prima facie case, meaning she

must prove by a preponderance of the evidence “that (1) she is

a member of a protected class; (2) she suffered an adverse

employment action; and (3) the unfavorable action gives rise to

an inference of discrimination.” Brown v. Brody, 199 F.3d 446,

452 (D.C. Cir. 1999).

Because the district court found that Barnette successfully

made out a prima facie case, Barnette, 2004 U.S. Dist. LEXIS

27546, at *13—a finding undisputed on appeal—we proceed

directly to McDonnell Douglas’s second step at which the

burden shifts to Customs to articulate a non-discriminatory

reason for its decision to select James rather than Barnette for

the ADO position. McDonnell Douglas, 411 U.S. at 802.

Customs’ burden, however, is one of production, meaning it

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“need not persuade the court that it was actually motivated by

the proffered reasons. It is sufficient if [Customs’] evidence

raises a genuine issue of fact as to whether it discriminated

against [Barnette].” Tex. Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 254 (1981) (citation omitted).

In the district court, Customs advanced two explanations for

James’s selection. First, pointing out that the ADO position had

been downgraded to GS-14 after Gomez’s promotion, Customs

claimed it was agency policy to consider internal applicants

seeking promotion to a higher graded position (like James, then

a GS-13) over applicants seeking a lateral transfer (like Barnette,

then a GS-14). Second, Customs asserted that although both

candidates were qualified, it preferred James’s greater

operations experience over Barnette’s greater administrative and

supervisory experience. Given Customs’ minimal burden of

production, and given that each of these two explanations is

“both reasonable and non-discriminatory,” they may serve as

legitimate, non-discriminatory reasons for James’s selection and

are “enough to take us to the third step under McDonnell

Douglas.” Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180,

1182 (D.C. Cir. 1996). At that stage, Barnette “must be afforded

the opportunity to prove by a preponderance of the evidence”

that Customs’ proffered preference for James’s qualifications

was “not its true reason[], but w[as] a pretext for

discrimination.” Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 143 (2000) (internal quotation marks omitted).

As to Customs’ first explanation—its preference for

promotees over lateral transfers—Barnette argues that nothing

in the record demonstrates Customs actually had such a policy.

The district court thought the policy’s existence was

“undisputed,” Barnette, 2004 U.S. Dist. LEXIS 27546, at *5, but

this is incorrect. Barnette did challenge the existence of the

policy, stating that “contrary to [Customs’] statement, [the

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evidence] does not indicate any priority in which the candidates

are considered.” Pl.’s Statement of Material Facts in Genuine

Dispute 3. Moreover, viewing the evidence in the light most

favorable to Barnette, we see nothing in the record clearly

indicating that Customs actually had such a preference. Indeed,

government counsel conceded at oral argument that the record

fails to “ultimately support[] that point that there was a policy.”

Oral Arg. at 18:33.

The district court’s error, however, has no effect on the

propriety of its judgment because, as both parties agree, Heavey

based his recommendation solely on Customs’ second

explanation—James’s reputation and qualifications. Attacking

this second explanation, Barnette points to three types of

evidence she asserts “prove by a preponderance of the evidence”

that Customs’ alleged preference for James’s qualifications was

“pretext for discrimination.” Reeves, 530 U.S. at 143.

First, although acknowledging that “an employer has the

discretion to choose among equally qualified candidates,”

Appellant’s Br. 22-23 (quoting Burdine, 450 U.S. at 259)

(appellant’s emphasis omitted), Barnette argues that her

credentials were so superior to James’s that Customs’ obvious

“misjudg[ment]” is evidence of pretext, id. at 23. To support her

claim, Barnette cites her higher grade level at the time of the

selection (she was a GS-14 while James was a GS-13). She

points to her greater supervisory experience—she had higher

level supervisory experience (GM-14 compared to James’s GS-

13) and had spent more years as a supervisor than James (four

years to James’s 6-8 months at GS-12 and forty-two hours at

GS-13). She contends that her personnel and classification

experience gave her additional qualifications since she “spent

years observing and performing operational jobs at Customs so

that she would be able to classify them.” Id. at 24. Barnette

also argues that she had comparable substantive operations

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experience to James (she had five years, James had eight), and

points to her service as Acting ADO as evidence that she

possessed the required substantive experience.

Finding that operations and administrative skills “are

critical to the proper conduct of agency business,” Barnette,

2004 U.S. Dist. LEXIS 27546, at *17, and that the candidates’

backgrounds were comparable, id. at *18, the district court

accepted Customs’ preference for James’s experience as a

legitimate, non-discriminatory basis for hiring her, id. at *17.

On this point, we agree with the district court. As we explained

in Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir.

1998) (en banc), a reasonable jury may infer discriminatory

intent when an employer fails to select the “significantly” or

“markedly” more qualified candidate. Id. at 1294, 1298. In

Aka, we found that a qualifications differential gave rise to an

inference of discrimination where the plaintiff-applicant for a

pharmacy position had a business administration degree and

nineteen years of non-substantive experience in the hiring

pharmacy, as compared to the selectee who had no degree and

two months of non-substantive experience in a different

pharmacy. Id. at 1296, 1298-99. We detect no similarly

significant qualifications differential in this case. To be sure,

James had less supervisory experience overall (one year to

Barnette’s four) and her supervisory positions were at a lower

grade. But James’s grade level qualified her for the position,

she had significant operations experience in relevant areas, and,

unlike Barnette, she had a permanent appointment to a position

that supervised employees performing operations functions.

James’s grade level together with her strong supervisory and

substantive experience distinguish this case from those in which

we found a sufficiently significant qualifications differential to

give rise to an inference of discrimination. See, e.g., Lathram v.

Snow, 336 F.3d 1085, 1091-92 (D.C. Cir. 2003) (finding that a

qualifications differential gave rise to an inference of

9

discrimination where the plaintiff-applicant for a public affairs

position had three years of public affairs experience and the

selectee had none).

Our decision in Stewart v. Ashcroft, 352 F.3d 422 (D.C. Cir.

2003), also a failure-to-promote case, supports the district

court’s judgment. Holding that the kinds of distinctions

Barnette relies on are insufficient to show pretext, we explained

(1) that the applicants’ relative grade levels at the time of

application are irrelevant, for “it says little about the level of

relative qualifications . . . to serve,” id. at 429; (2) that courts

must defer to the employer’s decision as to which qualities

required by the job (substantive versus managerial) it weighs

more heavily, id.; and (3) that courts should refuse to “assess[]

the significance of small differences” in substantive experience

(such as the subject matter of candidates’ work) or length of

service (two years versus six months), id. at 430 (internal

quotation marks omitted). Given Stewart, Barnette offers no

basis for questioning Customs’ judgment that James was better

suited for the ADO position. Both Barnette and James were

eligible to apply, both had the requisite substantive and

supervisory experience, and both brought unique strengths to the

position. Faced with such nuanced differences in candidate

credentials, “we must assume that a reasonable juror who might

disagree with the employer’s decision, but would find the

question close, . . . would usually assume that the employer is

more capable of assessing the significance of small differences

in the qualifications of the candidates, or that the employer

simply made a judgment call.” Aka, 156 F.3d at 1294. Thus,

rather than serving as evidence of pretext, the qualifications

differential Barnette highlights “merely indicate[s] a ‘close

call’” and fails to move her case “beyond summary judgment.”

Stewart, 352 F.3d at 430.

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Relying on Cones v. Shalala, Barnette argues that a court

should infer pretext where an employee who served in a position

in an acting capacity is passed over for a permanent promotion

to that same position in favor of an applicant without previous

experience in the position. This misreads Cones. There, the

employing agency attempted to differentiate white employees it

promoted from the African American plaintiff it refused to

promote by pointing to the white employees’ prior service in

their positions in an acting capacity. Cones, 199 F.3d at 519.

Finding this distinction inconclusive, we explained that a jury

“could just as easily infer that the alleged differences between

Cones and the white [employees] were irrelevant, or that they

were themselves the product of discrimination since the

[agency] had failed to permanently promote Cones . . . when he

was serving in an acting capacity.” Id. We mentioned Cones’s

temporary service in the position he sought not for the

affirmative proposition Barnette suggests, but only because his

temporary service undermined the agency’s attempt to

distinguish Cones from the promoted white employees. In

Fischbach, moreover, we admonished the district court for

second-guessing the agency’s decision to pass over the plaintiff

in favor of another applicant notwithstanding that the plaintiff

had previously served in the position he sought in an acting

capacity and the selectee had not. 86 F.3d at 1181, 1183.

The second category of evidence Barnette claims

demonstrates pretext relates to the downgrading of the ADO

position from GS-15, when Gomez held the job, to GS-14.

According to Barnette, the record contains “ample evidence”

that Customs downgraded the ADO position as part of a

“transparent ruse” to “allow[] Ms. James to secure the position.”

Appellant’s Br. 2, 22. Barnette argues that because “[a]s a GS-

13, Ms. James would not have been eligible to apply for the

ADO position if it had remained a GS-15 when the vacancy was

posted . . . the Customs Service downgraded the position to

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allow Ms. James to apply.” Id. at 22. Such manipulation of “the

selection procedures,” she insists, “constitutes evidence of

pretext.” Id. at 21 (citing Krodel v. Young, 748 F.2d 701, 711

(D.C. Cir. 1984), which held that suspicious hiring practices,

together with statistical and anecdotal evidence of

discrimination, were sufficient to create an inference of pretext).

Barnette’s “ample evidence” consists of the grade reduction

itself, James’s GS-13 grade, Customs’ concurrent plans to

upgrade several Director of Operations positions to the Senior

Executive Service (SES), and Gomez’s statement to Barnette

that “the ADO position would likely be upgraded back to GS-

15.” Appellant’s Br. 7, 19, 22. None of this evidence, however,

demonstrates that Customs actually manipulated the ADO

position grading process. Moreover, Customs’ explanation for

its actions and its supporting evidence dispel any suspicion of

manipulation. Properly classified as a GS-14, the ADO was

upgraded to accommodate Gomez who came to the South

Atlantic CMC as a GS-15. To support the upgrade, Customs

added responsibilities to the ADO position, responsibilities it

later removed when Gomez was promoted. Barnette challenges

neither of these propositions, nor does she dispute several other

facts that support Customs’ contention that the ADO position

was properly graded at the GS-14 level: (1) it was processed

through the Customs’ Human Resources Department, a process

over which neither Gomez nor Heavey—the alleged

discriminators—had any control; (2) the General Schedule

Supervisory Guide states that the grade of an assistant position

should be one grade lower than the position to which it reports

and, as Customs points out, “[a]t the time of the selection . . . the

director position at the Port of Atlanta was still a GS-15

position,” so “the ADO position correctly remained a GS-14

position,” Appellee’s Br. 16; and (3) the other assistant director

position in the Port of Atlanta was occupied at the GS-14 level.

Emphasizing the impropriety of “judicial micromanagement of

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business practices,” the district court explained—correctly in our

view—that “[w]hether it would be appropriate” to classify the

ADO position as a GS-15 prior to the Atlanta Director’s

elevation to the SES “is a decision that must be left to [Customs]

to determine without micromanagement from the Court.”

Barnette, 2004 U.S. Dist. LEXIS 27546, at *16-17.

As her last piece of evidence allegedly demonstrating

pretext, Barnette points to James’s ADO application, which,

according to Barnette, inappropriately included a supervisory-

level appraisal form. As Barnette sees it, the supervisory-level

form allowed Gomez, also James’s supervisor, to provide a far

more detailed description of James’s responsibilities than would

have been possible had James submitted the non-supervisory

appraisal sheet appropriate for her position. Barnette also argues

that Gomez intentionally and inappropriately enhanced James’s

review “to make her appear more eligible” for the GS-14 ADO

position. Appellant’s Br. 25 (emphasis added). But Barnette

presents no evidence either that the enhanced review affected

James’s basic eligibility for the ADO position or that Heavey

relied on the “exaggerat[ed]” description of her supervisory

experience when recommending James. Id. So even if a jury

concluded that Gomez intentionally manipulated the appraisal

form in order to exaggerate James’s supervisory experience, that

conclusion would do nothing to undermine Customs’ non-

discriminatory explanation for hiring James—its preference for

her greater operations experience over Barnette’s greater

supervisory and administrative experience.

III.

“This Court will not reexamine governmental promotion

decisions where it appears the Government was faced with a

difficult decision between two qualified candidates, particularly

when there is no other evidence that race [or age] played a part

in the decision.” Stewart, 352 F.3d at 430. Although we

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recognize Ms. Barnette’s qualifications and her years of

distinguished government service, she has failed to show that

Customs’ proffered non-discriminatory basis for James’s

selection was pretext for discrimination. We therefore affirm

the district court’s grant of summary judgment for the

government.

So ordered.