Hendricks v. Geithner

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 27, 2009 Decided June 19, 2009

No. 07-5392

MYRA A. HENDRICKS,

APPELLANT

v.

TIMOTHY GEITHNER, SECRETARY OF THE TREASURY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 03cv02239)

Molly E. Buie argued the cause for appellant. With her on

the briefs was Robert C. Seldon.

Alan Burch, Assistant U.S. Attorney, argued the cause for

appellee. With him on the brief were Jeffrey A. Taylor, U.S.

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

Andrea W. McBarnette, Assistant U.S. Attorney, entered an

appearance.

Before: SENTELLE, Chief Judge, and GINSBURG and

BROWN, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

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Opinion dissenting in part filed by Circuit Judge BROWN.

SENTELLE, Chief Judge: Appellant Myra Hendricks, a

former employee of the Treasury Inspector General for Tax

Administration (TIGTA), brought this action alleging sex and

race discrimination in her non-selection for two promotions in

violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C.

§ 2000e, et seq. The district court granted summary judgment

in favor of the employer. Hendricks appealed. Finding no error

in the district court’s conclusions that there was no substantial

issue of material fact and defendant was entitled to summary

judgment, we affirm.

I. Background

Appellant’s complaint sets forth two claims for relief based

on two separate failures to promote: first, to the position of non-

supervisory criminal investigator in January 2000; second, to the

position of supervisory criminal investigator in the technical and

forensic support division in March 2003.

A. Non-supervisory Criminal Investigator

In January 2000, appellant was a special investigator for the

TIGTA in the Special Inquiries and Intelligence Division (SIID)

at the salary level of GS-13. The TIGTA internally advertized

an opening for a non-supervisory criminal investigator paid at

the GS-14 level. Employees interested in the position sent

applications to Patricia DeBonaventura, a human resources

specialist. Following the TIGTA’s personnel policy, she was

responsible for culling from the pool of applicants all those who

were “minimally qualified and eligible for the position.”

DeBonaventura accepted four applications: those of Hendricks

(who is black), Robert Johnson (a white man), Jean Keller (a

white woman), and Michael Radetic (a white man). Each of the

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applicants was a GS-13 special investigator.

DeBonaventura passed those applications on to a “ranking

official,” Timothy Camus, an assistant special agent in charge at

SIID, who graded each candidate in four categories based on the

written applications. Grades were out of 10, with 10 superior,

7 satisfactory, and 4 barely acceptable. Hendricks received two

10’s and two 7’s. The other three candidates each received four

10’s. Camus passed these grades, with a recommendation to

hire Johnson, to the “selecting official,” Brian Dwyer, special

agent in charge, who bore the ultimate responsibility for

choosing a candidate to fill the position. Dwyer reviewed the

applications, read Camus’s recommendations, and spoke with

Camus, before selecting Johnson.

Hendricks claims that she should have been selected over

Johnson because some of his past behavior made him a less

desirable candidate to fill the criminal investigator opening. She

stresses two incidents from Johnson’s past. First, in 1991 (nine

years before the selection), Johnson received a letter of

reprimand for drinking while carrying his weapon. Second, in

1995 (five years before the selection), Johnson was suspended

for 30 days for misusing a government vehicle. According to

the subsequent investigation report, he used the car to pick up

the manager of a restaurant and another IRS employee and

committed additional misconduct that is contained in a sealed

file. This was reported by an anonymous source and

investigated by the predecessor to SIID in its internal affairs

role.

Hendricks also claims that past comments and actions

allegedly made and taken by Dwyer cast into doubt the

government’s claim that Johnson’s promotion was based on

merit and free from discrimination. Most of the evidence

against Dwyer is in the form of proffered testimony concerning

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incidents of discriminatory behavior or prejudicial animus

directed toward employees other than appellant. The Supreme

Court recently discussed this type of evidence in Sprint/United

Management Co. v. Mendelson, 128 S. Ct. 1140 (2008). That

case made clear that in a discrimination case, evidence

concerning discriminatory behavior outside the instance in

litigation is neither per se relevant under Federal Rule of

Evidence Rule 401 nor per se excludable under Rule 403. We

assume without deciding that evidence of Dwyer’s other

behavior would be admissible.

According to testimony of women who worked in SIID,

Dwyer made a number of comments disparaging to women and

to their role in law enforcement. Some time between May 1998

and April 1999, he said “it was the downfall of Inspection when

they hired women.” (IRS “Inspection” was the predecessor

agency to the TIGTA.) During the same period, he said his

office ought to have more men working there. He explained the

difficult behavior of a male employee by saying his behavior

was “the result of hi[s] being hired in an all male law

enforcement work force in the 1970s” and that in that

environment his “actions would have been tolerated by other

males. It was only when women were hired in law enforcement

that men had to change the way they behaved in the workforce.”

According to Jean Keller, Dwyer “was very nasty to [her]”

when he was an assistant special agent in charge of SIID and

Keller was an agent. She also says he assigned her extra

administrative duties. Even after Keller was promoted to

assistant special agent in charge (ASAC), she says his behavior

continued. She complained to his supervisor that he treated her

differently than the other ASACs, both of whom were men. A

month later she was demoted. Keller says that another

employee, Karen Parker, told her that Dwyer read Keller’s

demotion letter aloud in a departmental meeting. Finally,

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Dwyer transferred Keller out of SIID entirely for conduct she

alleges was equally egregious to or less egregious than conduct

of “other people” who received no discipline.

B. Supervisory Criminal Investigator in the Technical and

Forensic Support Division

In March 2003, the TIGTA advertized an opening for a

supervisory criminal investigator in the technical and forensic

support division. This position was at the ASAC level, with a

GS-14 pay grade. Of the seven candidates who applied for the

position, five were eligible. Of those five, three were considered

“non-competitive eligibles”—their current government positions

were already paid at the GS-14 level. Two candidates, including

Hendricks, were “competitive eligibles” paid at the GS-13 level.

As with the earlier selection, this opening was filled by one

official making the selection based upon another official’s

recommendation. Steven Jones, the assistant inspector general

for investigations, made the formal selection after discussing the

candidates and receiving a recommendation from Michael Doak,

the special agent in charge of the division. Based on “consistent

guidance [he had] received from personnelists in filling jobs,”

Jones considered only the non-competitive applicants. Of those,

Jones said that Michael Radetic “was the individual who had the

most experience in the various programs managed by this

vacancy, in other words, firearm and oversight of firearms

programs or federal law enforcement radio or records and then,

the tech program or electronics, surveillance equipment.”

Whether to consider competitive eligibles was a matter

within Jones’s discretion. In at least one past hiring, Jones

exercised that discretion to consider competitive eligibles when

only one non-competitive candidate was available. In that

instance, toward the end of 2002 and the beginning of 2003, six

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total candidates were interviewed for a GS-14 criminal

investigator opening. Ronald McKeever, a white man and one

of the competitive eligibles, was eventually hired. The race of

the sole non-competitive eligible applicant, John Heckman, does

not appear in the record.

II. Analysis

We review a district court’s granting of summary judgment

de novo. Hunter-Boykin v. George Washington Univ., 132 F.3d

77, 79 (D.C. Cir. 1998). That is, on the record before us, we

perform the same analysis as the district court, under which the

court is to grant summary judgment if the pleadings, discovery,

and disclosure materials of record and any affidavits before the

court demonstrate that there is “no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c); see, e.g., Tao v. Freeh, 27

F.3d 635, 638 (D.C. Cir. 1994). Material facts are those that

might affect the outcome of the suit under governing law;

genuine issues are those in which the evidence before the court

is such that a reasonable trier of fact could find for the moving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-51

(1986). Before the district court, and because our review is de

novo before this court, the movant has the initial burden of

demonstrating the absence of a genuine issue of material fact.

Upon such demonstration, the burden shifts to the opposing

party to “come forward with ‘specific facts showing that there

is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R.

Civ. P. 56(e)). In a Title VII case such as this one, where the

prima facie case as set out in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), has been taken out of the case by

the employer’s assertion of a legitimate nondiscriminatory

reason for its actions, the question is whether the employer’s

reason is a pretext for discrimination. Brady v. Office of the

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Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Our task,

then, is to determine whether there is a genuine issue of material

fact with respect to that issue, or if the defendant is entitled to

judgment as a matter of law. Upon conducting our de novo

review, we conclude that there is no such genuine issue and that

the district court properly ruled that the employer was entitled

to judgment as a matter of law on both claims.

A. Non-supervisory Criminal Investigator

The TIGTA argues that Johnson was selected not due to any

discriminatory animus toward Hendricks, but because he was

the best candidate for the job. A plaintiff can show her

employer discriminated by showing that she was “significantly”

or “markedly” more qualified for the job than was the candidate

who actually received it. Lathram v. Snow, 336 F.3d 1085, 1091-

92 (D.C. Cir. 2003) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d

1284, 1294, 1299 (D.C. Cir. 1998)). If a plaintiff shows this,

then “the jury could infer discrimination.” Id. at 1091 (citing

Aka, 156 F.3d at 1294)). Without such a decisive showing, we

rightfully defer to the business judgment of an employer and

have no cause to infer discrimination. But if “a factfinder

c[ould] conclude that a reasonable employer would have found

the plaintiff to be significantly better qualified,” then we

question the employer’s judgment. Id. (quoting Aka, 156 F.3d

at 1294). “[E]mployers do not usually” “consciously select[] a

less-qualified candidate . . . unless some other strong

consideration, such as discrimination, enters into the picture.”

Id. at 1092 (quoting Aka, 156 F.3d at 1294). While Hendricks

identified several instances from Dwyer’s past that she says

suggest he may be inclined to discriminate against women, she

can point to only two discrete instances from Johnson’s past to

suggest he is less qualified for the job than she is.

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Hendricks argues that a reasonable jury could conclude that

Dwyer knew or should have known about Johnson’s

misconduct, and that the details of that misconduct were

disqualifying. Some evidence in the record suggests that

Johnson had a “cowboy” image and that rumors about him were

“widespread” in the agency. Dwyer admits to knowing that

Johnson had been investigated for misconduct in the past, but

denies knowing the details of the misconduct (saying it “wasn’t

part of [his] responsibility” to know those details). He did check

with his supervisor to see if Johnson’s being disciplined would

be a barrier to promotion. Dwyer’s supervisor, the assistant

inspector general for investigations, told him that as long as

Johnson “had fulfilled his . . . punishment,” it would not be a

problem. In any case, Johnson’s alleged misconduct all

occurred at least five years before the selection, with some of it

nine years before the selection.

Hendricks argues that his misconduct strips him of the

“integrity” that all parties agree is central to the mission of SIID.

But even calling his character into question, Hendricks struggles

to assert that Johnson is “significantly” or “markedly” less

qualified for the job than she is. Johnson had 14 years of

experience compared with Hendricks’s 8 years; on the relevant

performance appraisal, Johnson received perfect scores in all but

one area, whereas Hendricks was downgraded in four areas. She

challenges Camus’s scoring of her application with two 7’s. But

even if she clearly established that Camus graded her

incorrectly, which she has not, Hendricks failed to produce

either direct or circumstantial evidence suggesting his grading

was motivated by discrimination. Cones v. Shalala, 199 F.3d

512 (D.C. Cir. 2000), cited by Hendricks, is not to the contrary.

Although the Cones court did transfer evidence of a

discriminatory motive from one manager to another, 199 F.3d at

519, it was evaluating a very different case. Cones involved

ascribing discriminatory intent to the entire process from

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someone superficially removed from it. Id. Here the alleged

discriminatory decision maker, Dwyer, was clearly involved in

the process. Camus’s contribution, moreover, was unlikely to

make a difference. Hendricks’s scores were lower than all three

other applicants (who had perfect scores). Even if she could

prove she deserved perfect scores, this only would have put her

on even footing with the other three candidates. To prove her

discrimination claim, she would also have to offer evidence

supporting an inference that, absent discrimination, she would

have been picked for the job.

Hendricks points to evidence of Dwyer’s past alleged

comments—that there were too many women at SIID, that

women were the “downfall” of the agency, and that women are

the reason men have to behave in the office. She also points to

the evidence concerning Jean Keller, whose alleged

mistreatment at the hands of Dwyer is detailed above. But even

taking the Keller case at face value, it is ambiguous. While

Dwyer was allegedly discriminating against her, Keller was also

the only female ASAC in the office. Dwyer might have been

mistreating her because she was a woman, or he might have

been mistreating her for some other reason. In sum, Hendricks

has offered no evidence that the legitimate nondiscriminatory

reason offered by the employer was pretextual. We agree with

the district court that Hendricks has offered no evidence

sufficient for a jury to conclude that Hendricks was not selected

on the basis of her sex. (Hendricks supplied no evidence

whatsoever alleging discrimination on the basis of her race.)

In Aka v. Washington Hospital Center, we opined that a

Title VII discrimination plaintiff cannot prevail by presenting

evidence that tends to show the employer’s proffered reason is

pretextual but also “demonstrates that the real explanation for

the employer’s behavior is not discrimination, but some other

motivation.” 156 F.3d at 1291. Even viewing Hendricks’s

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evidence in the most favorable light, her attempted rebuttal of

the proffered reason for Johnson’s selection at best falls in this

category.

Hendricks questions whether Johnson was the most

qualified candidate, by offering evidence he lacked the

“integrity” necessary for the job. But her evidence supports at

most favoritism, not sex discrimination. The evidence of

Dwyer’s conduct in choosing among the four candidates and

selecting the one with the allegedly questionable background did

not support an inference that sex drove Dwyer’s choice. If he

was driven by sex discrimination, Dwyer could have selected

Michael Radetic, who was neither female nor had an alleged

history of misconduct. Because Dwyer hired Johnson over

either Hendricks or Radetic, it suggests at worst that Dwyer

acted for idiosyncratic reasons, not discriminatory ones.

Hendricks’s case relies almost exclusively on circumstantial

evidence that one manager at SIID is difficult and prone to

misogynist comments. She also points to years-old conduct to

taint Johnson—conduct that Dwyer’s supervisor specifically

instructed him to disregard. Taken together, this is not sufficient

evidence from which a reasonable jury could conclude that

TIGTA’s asserted reason for selecting Johnson was not the

actual reason, much less that Hendricks was not selected

because of her sex.

B. Supervisory Criminal Investigator in the Technical and

Forensic Support Division

Hendricks’s claim of discrimination in the later selection is

even less substantial. She does not dispute that Steven Jones

had discretion whether to consider the group of “competitive

eligibles.” Instead, she argues that because Jones considered the

competitive eligibles in the selection of Ronald McKeever—but

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not in the selection of Michael Radetic—this should raise an

inference of discrimination. But one instance of using a

different procedure is not sufficient to create a pattern and

practice from which there was a structural departure that

disadvantaged the appellant by reason of her race or sex, and no

such inference can be drawn.

In any event, McKeever’s case is easily distinguishable. In

the McKeever selection, there was only one candidate on the

non-competitive eligibles list, and five on the competitive list.

Radetic’s selection had three candidates on the non-competitive

list, and only two on the competitive list. Further, Hendricks has

presented no evidence to suggest that Jones’s decision had

anything to do with race or sex. Even assuming Hendricks had

produced some evidence suggesting Jones or Doak (the

recommending official) was actually motivated by

discriminatory animus, she did not produce evidence sufficient

for a jury to conclude that she was not selected because of her

sex or race.

III. Conclusion

Although Hendricks may have worked in an imperfect

office with some flawed characters, without connecting her

employer’s actions with intent to discriminate against her on the

basis of sex or race, she cannot escape summary judgment. We

affirm the judgment of the district court.

So ordered.

BROWN, Circuit Judge, dissenting in part: If a jury were

to find Brian Dwyer discriminated against Myra Hendricks,

would we reverse because of insufficient evidence? Read in

the light most favorable to Hendricks, these are the facts: (1)

Hendricks was a talented employee who met or exceeded

expectations for all aspects of her job; (2) Robert Johnson,

who was promoted instead of Hendricks, had a history of

good work interspersed with serious misconduct, including

losing his government-issued handgun in a bar fight and not

immediately reporting the loss, and being suspended for thirty

days for misusing his official vehicle (the full details of his

unseemly escapade are under seal); (3) Dwyer said the

agency’s “downfall” was “hir[ing] women” and his office

ought to have more “men,” and he justified boorishness

because the offending employee “was hired in an all male law

enforcement workforce in the 1970s”1; and (4) a SIID

supervisor, Jacqueline Colonna, declared the office had “girl

jobs” and “boy jobs,” with women being “tasked with

analytical assignments” while men received “high profile

matters.” Because a jury could find for Hendricks on these

facts, I respectfully dissent from my brothers’ affirmance in

toto, though I concur as to the March 2003 nonpromotion.

I do not quarrel with the majority’s conclusion that if

Johnson’s history of misconduct is not considered, then he

was at least as qualified as Hendricks, and probably more so.

But why would a reasonable juror not consider his history?

Common experience tells us that Johnson’s personnel file

could have been a dealbreaker if someone had wanted it to be.

After all, in a holistic appraisal of who is better qualified, it is

relevant that only one candidate has a checkered past, as a

disciplinary record says something about who a person is and

what kind of employee he or she will be. Integrity and

1

Indeed, Dwyer suggested “[i]t was only when women were hired

in law enforcement that men had to change the way they behaved,”

and the man’s “actions would have been tolerated by other males.”

2

personal probity, moreover, should be especially salient to the

promotional prospects of law enforcement officers, for, as a

senior TIGTA official put it, “we’re in the integrity business.”

Thus, a reasonable jury could conclude discrimination played

a role in Johnson’s promotion because he alone had exhibited

a marked proclivity for bending the rules, and he was not

otherwise substantially better qualified than Hendricks. Think

about the issue this way: Imagine Johnson was a woman and

Hendricks a man, and Dwyer said Ms. Johnson would not be

promoted because of her past misconduct, resulting in Mr.

Hendricks being promoted instead. Would Ms. Johnson have

a viable Title VII claim? This is a difficult question because

notwithstanding her otherwise superior credentials, the

presence of serious misconduct, an anti-qualification, adds a

different dimension to the comparison. In other words, we

would not be surprised if Dwyer were to say: “Sorry Ms.

Johnson, but I do not want anyone with your baggage in my

department.” But here, to Mr. Johnson, Dwyer said nothing

of the sort. Why not?

To answer that question, the majority notes Dwyer’s

supervisor allegedly said that because Johnson fulfilled his

punishment, promoting him was not a problem. But even in

Dwyer’s account of that conversation, his supervisor never

said the misdeeds were irrelevant, suggesting they only were

not disqualifying. This distinction is a familiar one, as often

even a serious deficiency can be offset by other compelling

considerations. Randy Johnson, for instance, has hit a dreary

.125 for his career, but his Cy-Young-winning slider covers a

multitude of batting-box sins. See Randy Johnson,

http://www.baseballreference.com/players/j/johnsra05.shtml

(last visited June 1, 2009). Robert Johnson is no Randy

Johnson. Even if apart from this misconduct he was better

qualified than Hendricks, he was not so much better qualified

that a court-sitting-as-reasonable jury can conclude

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Hendricks’ nonselection was free of discriminatory taint.

Instead, this is a quintessential question of fact, appropriate

only for an actual jury to decide. “Although a jury may

ultimately choose to believe the [agency]’s explanation of

events rather than [the plaintiff’s], at this stage we refrain

from making credibility determinations, weighing the

evidence, or drawing inferences from the evidence—these,

after all, are jury functions, not those of a judge ruling on a

motion for summary judgment.” Jones v. Bernanke, 557 F.3d

670, 681 (D.C. Cir. 2009). See also Montgomery v. Chao,

546 F.3d 703, 706 (D.C. Cir. 2008) (“We must view the

evidence in the light most favorable to the nonmoving party,

draw all reasonable inferences in his favor, and eschew

making credibility determinations or weighing the

evidence.”); FED. R. CIV. P. 56(c).

The government also argues Dwyer properly ignored

Johnson’s misdeeds because they did not relate to “integrity.”

This seems a preternaturally narrow definition of the term,

particularly given Johnson’s deliberate misuse of the vehicle

entrusted to him. Can it really be true that any prior act—

provided it involves neither illegality nor outright lying—is

irrelevant to one’s prospects for promotion? What if Johnson

were reprimanded for being drunk every afternoon? Or for

writing a trashy romance novel at the office? In any event,

this “integrity” standard is applied at best intermittently, as

Dwyer transferred an employee out of SIID for misconduct

unrelated to lawbreaking or lying. Moreover, Dwyer’s

hostility to women, which our procedural posture requires us

to accept as established, further confirms a reasonable jury

could find for Hendricks on this record. See, e.g., Aka v.

Washington Hosp. Ctr., 156 F.3d 1284, 1295 (D.C. Cir. 1998)

(en banc) (“A plaintiff attacking a qualifications-based

explanation is of course not limited to comparing his

qualifications against those of the successful candidate.”);

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Czekalski v. Peters, 475 F.3d 360, 368–69 (D.C. Cir. 2007)

(an employer’s “disparaging comments” “in conjunction with

strong evidence of pretext” creates a jury question).

The majority also faults Hendricks for not presenting

evidence that she was better qualified than the other

applicants who also were not promoted. No authority is cited

for this proposition, for there is none to cite. We do not

require a Title VII plaintiff to compare herself to anyone but

the person actually selected for the position. E.g., Aka, 156

F.3d at 1294 (comparing “plaintiff’s qualifications and those

of the successful candidate”). Here, I have no idea why

Dwyer did not select Michael Radetic, and neither does the

majority. See Maj. Op. at 10. It could be Dwyer found

Radetic annoying, and though Dwyer did not want to hire a

woman, he wanted to hire an annoying person even less, so he

hired Johnson. Who knows? What the record does show,

however, is Dwyer had a problem with women agents and

decided to promote a male with a sullied record even though a

qualified female with a pristine record was available. We

ought to let the jury decide what inference to draw.

If used carefully, our “significantly better qualified”

doctrine can accurately reflect the real world. In this case,

unfortunately, I fear the majority opinion has myopically

applied the doctrine in a way that just doesn’t jibe with

reality. Because Johnson was better qualified according to the

traditional categories, the majority affirms, even though

Johnson’s bad behavior mingled with Dywer’s alleged

misogyny makes this an untraditional case. With summary-

judgment facts like these, a jury of her peers—not a panel of

judges—ought to decide the merits of Hendrick’s claim.