Camille Grosdidier v. Broadcasting Board of Governors

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2012 Decided March 8, 2013

No. 11-5291

CAMILLE GROSDIDIER,

APPELLANT

v.

BROADCASTING BOARD OF GOVERNORS, CHAIRMAN,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-01553)

Leslie D. Alderman III argued the cause and filed the briefs

for appellant.

Jane M. Lyons, 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.

Judith A. Kidwell, Assistant U.S. Attorney, entered an

appearance.

Before: HENDERSON and ROGERS, Circuit Judges, and

SENTELLE, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

2

ROGERS, Circuit Judge: Camille Grosdidier has worked in

the French to Africa Service of the Voice of America (“VOA”)

since 1987, since 1991 as a GS 12. When she did not receive a

promotion to Senior Editor GS 13 in 2006, she sued the

Chairman of the Broadcasting Board of Governors (“BBG”)

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq. She now appeals the grant of summary

judgment, contending the district court erred in treating her

retaliation claim as a premature hostile work environment claim,

and in requiring direct evidence of discrimination beyond

evidence of pretext. She also contends that the denial of her

motion for spoliation sanctions, in light of the destruction of

interview notes by two of the three promotion review panelists,

erroneously required evidence of bad faith. We agree with the

district court’s finding that no reasonable employee could

believe the objected-to conduct was unlawful under Title VII

and hence summary judgment was appropriately granted on her

retaliation claims. And although this court has not held that bad

faith is required for a party to be entitled to a spoliation

inference where, as here, there is a duty of preservation, the

error was harmless. Grosdidier’s objections to the selection

process, even applying a spoliation inference, fail to demonstrate

that summary judgment was inappropriately granted on her

discrimination claims. Accordingly, we affirm.

I.

Grosdidier is a white female of French national origin who

has worked as an international broadcaster for the VOA’s

French to Africa Service since 1987. She has held a GS-12

grade level position since 1991 and her supervisor has been

Idrissa Seydou Dia, an African American male from Senegal.

Her experiences in that Service have not always been to her

liking. In April 2004, she complained to her supervisor, Dia,

that a coworker had forwarded an email to her and other

3

coworkers that contained what she perceived to be a sexually

suggestive image of a well-known singer. In 2005, she

complained that a coworker was engaging in inappropriate

flirting, hugging, and kissing with male employees. Previously

she had made similar informal and formal complaints related to

issues as varied as the clothing worn by a coworker and co-

worker attendance. She proffered evidence of other instances of

inappropriate office behavior, including Dia and a female

subordinate referring to one another as “Sexy Mama” and “Sexy

Papa,” a female coworker using the French word for “master” to

refer to the managing editor, and the alleged viewing of

pornography on work computers by a male coworker. She also

complained when she was not selected for a GS-13 position in

2002.

In early 2006, the BBG announced an opening for an

international broadcaster position at the GS-13 grade level in the

VOA’s French to Africa Service. The posting described “a

multi-media Senior Editor” position and listed six equally

weighted “Knowledge, Skills, and Ability Factors” related to the

position’s television, radio, and internet editing and broadcasting

responsibilities. Thereafter Dia convened a panel of VOA

employees to interview and evaluate the candidates: Andre de

Nesnera, a senior correspondent at the VOA and a Foreign

Service Officer; Diane Butts, the Television Manager for the

VOA’s Africa Division; and Sandra Lemaire, an editor at the

VOA’s English Web Desk. The panel interviewed the

applicants, including Grosdidier, and recommended the selection

of Timothee Donangmaye, a black male originally from Chad

who was the host of the Service’s television program,

Washington Forum. Although all of the panelists took notes

during the interviews, only Butts preserved her notes. Dia

forwarded the panel’s recommendation to his supervisors, and

Donangmaye was promoted.

4

Grosdidier, upon learning of the selection, filed a formal

complaint with the Equal Employment Opportunity office

(“EEO office”) in July 2006. She claimed that the selection

panel had discriminated against her because of her gender, race,

and national origin. She also claimed that her rejection was in

retaliation for her earlier EEO complaints in 2004 and 2005.

She filed another EEO complaint in December 2007, claiming

that her decision to pursue the EEO process prompted further

discriminatory and retaliatory treatment. Before the Equal

Employment Opportunity Commission (“EEOC”), Grosdidier

filed a motion in limine requesting, as she was a United States

citizen and Donangmaye was not, that the Administrative Judge

modify the pretext standard in light of the BBG’s obligations

under 22 U.S.C. § 1474(1) to give preference in hiring to United

States citizens. The judge ruled he lacked authority to interpret

the statute and stated the case should be litigated in the district

court. Her initial effort to do so under the Administrative

Procedure Act was unavailing. See Grosdidier v. Chairman,

Broadcasting Board of Governors, 560 F.3d 495 (D.C. Cir.

2009).

Five months after the district court’s dismissal in that case,

Grosdidier sued the BBG on September 9, 2008, pursuant to

Title VII, alleging unlawful discrimination and retaliation. On

March 30, 2010, she moved for an adverse inference on the

ground that two panelists had destroyed their interview notes

despite an EEOC regulation requiring preservation of the notes

for one year, 29 C.F.R. § 1602.14.1 The district court refused to

1

22 C.F.R. § 1602.14 (2006) provides, as relevant:

Any personnel or employment record made or kept by an

employer (including but not necessarily limited to . . . records

having to do with . . . promotion . . . ) shall be preserved by

the employer for a period of one year from the date of the

5

apply an inference in the absence of evidence of bad faith by the

BBG, and granted the BBG’s motion for summary judgment,

except as related to the reduction of Grosdidier’s editing duties

after her July 2006 EEO complaint. See Grosdidier v.

Chairman, Broadcasting Board of Governors, 774 F. Supp. 2d

76, 104, 114 (D.D.C. 2011). The district court also denied her

motion for reconsideration or, in the alternative, to amend the

judgment. See id. at 115. Grosdidier appeals, and our review

of the grant of summary judgment is de novo. See Pardo-

Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010).

II.

Title VII makes it unlawful for federal employers to

discriminate on the basis of race, gender, or national origin. See

42 U.S.C. § 2000e-16(a). In addition, it prohibits employer

retaliation when an employee has “opposed any practice made

an unlawful employment practice by this subchapter,” see id.

§ 2000e-3(a); see Crawford v. Metropolitan Gov’t of Nashville

and Davidson County, Tenn., 555 U.S. 271, 274 (2009), and

when an employee “has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing under this subchapter,” see 42 U.S.C. § 2000e-3(a);

Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009) (noting

§ 2000e-3(a)’s ban on retaliation applies to federal employers

through § 2000e-16). Grosdidier’s claims involve both alleged

retaliation and discrimination.

making of the record or the personnel action involved,

whichever occurs later. * * * Where a charge of

discrimination has been filed . . . against an employer under

title VII . . . , the respondent employer shall preserve all

personnel records relevant to the charge or action until final

disposition of the charge or the action.

6

Summary judgment is appropriate when “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 dispute over a material fact is genuine when the

evidence before the district court is “such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As part of this

assessment, the court must view the evidence “in the light most

favorable to the nonmoving party and . . . draw all reasonable

inferences in favor of the nonmoving party.” Talavera v. Shah,

638 F.3d 303, 308 (D.C. Cir. 2011).

A.

Grosdidier’s retaliation claim focuses on her employer’s

responses, or lack thereof, to her informal 2004 and 2005 email

complaints. An employee’s opposition to an employment

practice is protected under Title VII when the employee

“reasonably and in good faith believed [the practice] was

unlawful under the statute.” McGrath v. Clinton, 666 F.3d 1377,

1380 (D.C. Cir. 2012). Although opposition activity may be

protected even though the employer’s practices do not amount

to a violation of Title VII, the employee-plaintiff must have a

good faith and reasonable belief that the practices are unlawful.

Where, as here, a plaintiff contends that the practices she

opposes constitute a hostile work environment, the court must

assess whether she could have reasonably believed that “the

workplace [wa]s permeated with discriminatory intimidation,

ridicule, and insult that [wa]s sufficiently severe or pervasive to

alter the conditions of [her] employment and create an abusive

working environment.” George v. Leavitt, 407 F.3d 405, 416

(D.C. Cir. 2005) (quoting Oncale v. Sundowner Offshore Servs.,

Inc., 523 U.S. 75, 78 (1998)) (internal quotation marks omitted).

Not all complaints are protected under this framework.

7

Viewing the evidence most favorably to Grosdidier, her

complaints identified conduct by her co-workers that was

inappropriate in a professional office environment. Her

complaints regarding this conduct were not, however, protected

activity because, as the district court found, “no reasonable

employee could believe that the conduct about which she

complained amounted to a hostile work environment under Title

VII.” Grosdidier, 774 F. Supp. 2d at 108. The type of conduct

referenced in Grosdidier’s complaints, such as circulating an

email with a suggestive image of a well-known musician

straddling a cannon and excessive hugging and kissing between

a female coworker and several male coworkers and visitors, is

insufficient to support a good faith belief that the conduct was

“so objectively offensive as to alter the ‘conditions’ of [her]

employment.” Oncale, 523 U.S. at 81. Even considering the

additional evidence she proffered in her motion for

reconsideration, which the district court properly declined to

consider because she should have submitted it in opposing

summary judgment, Grosdidier, 774 F. Supp. 2d at 118–19, the

evidence viewed as a whole was not sufficient to show the

requisite reasonable belief.

Whatever merit there might be to her suggestion that these

kinds of complaints should be protected so that an employer will

take steps to ameliorate the conduct before it escalates and

results in a hostile work environment, cf. Burlington Indus., Inc.

v. Ellerth, 524 U.S. 742, 764–65 (1998); Parker v. Baltimore &

Ohio R.R. Co., 652 F.2d 1012, 1019 (D.C. Cir. 1981), this court

has required that under Title VII she must show that she had a

reasonable belief the conduct was unlawful. See McGrath, 666

F.3d at 1380. The conduct about which she complained may

have been distasteful and personally objectionable, but there was

no evidence from which to find that a reasonable employee

could have believed it was so “extreme” as to alter the

conditions of her employment. George, 407 F.3d at 416

8

(quotation marks omitted). Summary judgment was therefore

appropriately granted to the BBG on the retaliation claims.

B.

Grosdidier’s contentions regarding discrimination in the

GS-13 hiring process fall into two categories: The first is a

relative qualifications claim, in which she maintains that the

disparity between her skills and experience of the other

applicants was so stark as to support a claim of discrimination.

The second claim is based on pretext, resting largely on her view

that she proffered sufficient evidence to show that the BBG’s

reason for selecting Donangmaye — i.e., that he was better

qualified — was pretextual, and that this sufficed to survive

summary judgment.

Because the BBG has proffered a legitimate, non-

discriminatory reason for the selection of Donangmaye, the

court need not apply the familiar McDonnell Douglas burden-

shifting framework; in such situations, the burden-shifting

framework evaporates and the remaining question becomes one

of discrimination. See Pardo-Kronemann, 601 F.3d at 603;

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

In assessing the legitimacy of the proffered reason and the

ultimate question of discrimination, the court looks 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 v. Washington

Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc).

To prevail on a relative qualifications claim, Grosdidier

must show that she is “significantly better qualified for the job

than [the applicant] ultimately chosen.” Adeyemi v. District of

Columbia, 525 F.3d 1222, 1227 (D.C. Cir. 2008) (quoting

9

Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006)). The

evidence showed that Grosdidier had more experience as an

editor than Donangmaye. But the evidence also showed that

Donangmaye had more internet and television broadcasting

experience than Grosdidier, which is relevant to the position

described in the official posting. Grosdidier conceded that

Donangmaye had superior qualifications in these areas during

the EEO investigation, and although critical of his performance

nowhere suggests that he was unqualified for the position. The

picture that emerges from the evidence, even viewed most

favorably to Grosdidier, is one in which both applicants had

different levels of expertise in various domains relevant to the

GS-13 position. Neither stood out to the degree necessary,

however, to meet the criteria for a relative qualifications claim.

The evidence of pretext is stronger. Grosdidier points to

Dia’s tailoring of the job description to fit Donangmaye’s skill

set, the reduction of her editing duties, the “arbitrary” evaluation

methods used by the interview panelists, two panelists’

decisions to destroy their notes from the interview process, and

the panelists’ failure to give proper weight to the applicants’

editing experience for a job styled a Senior Editing position.

This evidence was, she maintains, sufficient to survive summary

judgment and the district court thus erred in applying a “pretext

plus” standard, requiring her to come forward with direct

evidence of discrimination beyond evidence of pretext. But “the

circumstances of some cases may render evidence undercutting

the employer’s explanation insufficient to infer discrimination,”

Aka, 156 F.3d at 1292, and this is one such case. Rather than

applying a “pretext plus” standard, as Grosdidier suggests, the

district court asked simply whether there was sufficient evidence

to rebut the BBG’s nondiscriminatory reason for selecting

Donangmaye, and found there was not, see Grosdidier, 774 F.

Supp. 2d at 106. We agree for the following reasons.

10

First, a reasonable juror could not infer from the evidence

of preselection that the legitimate nondiscriminatory reason the

BBG gave for selecting another candidate over Grosdidier was

not the actual reason. True, there is evidence that Dia crafted

the job description to include TV hosting and website

programming, tasks Donangmaye was doing regularly and

Grosdidier did only occasionally. And he diminished

Grosdidier’s editing responsibilities in the months leading up to

the GS-13 position announcement. But the employer’s decision

to consolidate hosting duties for a particular program with

editorial and internet responsibilities in a single position merely

suggests a preference for a particular constellation of

qualifications in its candidate of choice, not unlawful Title VII

discriminatory preselection. Cf. Goostree v. Tennessee, 796

F.2d 854, 861 (6th Cir. 1986); Kennedy v. Landon, 598 F.2d

337, 341 (4th Cir. 1979). The discretion to package certain

skills in a single position, as here, remains with the employer,

unless it involves an attempt to exclude members of a protected

class from gaining access to the position. Cf. Adeyemi, 525 F.3d

at 1227. The evidence regarding the particular combination of

job qualifications does not suggest an attempt to mask an

alternative, non-merit-based reason for selecting Donangmaye.

Second, the evidence of an allegedly “arbitrary” selection

process is not probative of pretext. Grosdidier suggests

evidence that the interview panelists failed to emphasize editing

experience during the selection process, diverged in their

accounts of the applicants’ qualifications, and arbitrarily

assessed and scored the interviewees shows that the BBG has

attempted to conceal the discriminatory purpose behind its

decision to reject Grosdidier for the GS-13 position. At most,

however, the evidence shows an undisciplined but legally

adequate selection process. In Fischbach v. D.C. Dep’t of

Corrections, 86 F.3d 1180 (D.C. Cir. 1996), the court

emphasized that “[e]vidence indicating that an employer

11

misjudged an employee’s performance or qualifications is . . .

relevant to the question whether its stated reason is a pretext

masking prohibited discrimination.” Id. at 1183. Such evidence

of pretext might include “an error too obvious to be

unintentional.” Id. But absent evidence of pretext or

discriminatory motive, the court “must respect the employer’s

unfettered discretion to choose among qualified applicants.” Id.

Viewing the evidence most favorably to Grosdidier also

does not show that the panelists made any glaring errors as part

of their role in the selection process, and the panel’s

contemporaneous written justification for their recommendation

that Donangmaye be selected hews closely to his qualifications

and the criteria listed in the job posting. Specifically, the

panel’s explanation referred to Donangmaye’s combined

internet, print, radio, and television experience, his initiative in

seeking training in the VOA’s website editing platform, and his

interpersonal and leadership skills, among others. The

knowledge, skills, and ability factors in the GS-13 job

description mention similar considerations, including “[b]road

[k]nowledge of the principles, practices, and procedures of

journalistic writing and editing for radio, TV and internet,”

“[k]nowledge of . . . internet techniques and practices,” and

“[s]kill in . . . maintaining effective and respectful working

relationships.” Although there is evidence that, when deposed

months after the interviews, the panelists were unable to clearly

articulate the factors they had used in evaluating the applicants,

such evidence is insufficient for a reasonable juror to find

pretext in light of the panel’s coherent and contemporaneous

documentation of the logic underlying its recommendation.

Grosdidier’s focus on the scoring methodology used by the

panel does not alter the analysis. The evidence shows that the

numerical scores were of minimal significance; Dia informed

the panel of the need to score the applicants only after the panel

12

had reached its decision and issued its written explanation. The

panelists assigned numerical values to the applicants in an ex

post fashion that reflected the ranking they had already

explained to Dia in writing. An inability to clearly articulate the

reasoning behind the specific allocation of numerical scores

speaks less to any effort to mask an alternative unlawful purpose

behind their decision and more to a sloppiness in organizing this

aspect of the interview process. The less-than-clear scoring

methodology may indicate a lack of precision on the part of the

panel in executing this last-minute duty, but it does not suggest

anything “fishy” was taking place. Salazar v. Wash. Metro.

Transit Auth., 401 F.3d 504, 508 (D.C. Cir. 2005) (quoting

Fischbach, 86 F.3d at 1184) (quotation marks omitted).

More troubling is the decision by two panelists to destroy

their notes despite an EEOC regulation requiring them to

maintain them for at least one year, 29 C.F.R. § 1602.14, supra

note 1. The panelists were experienced BBG employees, all of

whom had previously served on selection panels. Although one

complete set of notes exists along with all of the materials the

applicants submitted and the panel’s contemporaneous written

explanation of their recommendation, the missing notes could

have provided a more complete picture of what transpired

during the interview process, especially regarding the types of

questions the panelists asked generally and of specific applicants

and their focus on particular qualities of an applicant. The

destroyed notes were relevant to Grosdidier’s challenge to her

non-selection and their destruction deprived her of evidence that

could have been useful in supporting her arguments that the

official reason given for hiring Donangmaye was pretextual.

Nonetheless, the district court denied Grosdidier’s motion for an

adverse presumption because there was “insufficient evidence

in the record to support a finding of bad faith.” Grosdidier, 774

F. Supp. 2d at 104. This was error.

13

This court has recognized the negative evidentiary inference

arising from spoliation of records. See Webb v. D.C., 146 F.3d

964 (D.C. Cir. 1998); Shepherd v. Am. Broad. Co., 62 F.3d 1469

(D.C. Cir. 1995). In Talavera, 638 F. at 311–12, the court held,

in accord with other circuit courts of appeals, that a Title VII

plaintiff was entitled to an adverse inference jury instruction

after the employer negligently destroyed the notes documenting

her interview for a vacant position in violation of the same

records retention EEOC regulation on which Grosdidier relies.

In that case, the employer defended on the ground that the

plaintiff’s non-selection was based on her poor performance

during an interview. See id. at 312. In concluding the plaintiff

was entitled to an adverse spoliation instruction, the court

considered whether the plaintiff was a “member of the classes

sought to be protected” by the record retention regulation and

whether “[t]he destroyed records were relevant” to the challenge

to the employer’s proffered reason for not selecting the plaintiff.

Id. The court did not hold that the spoliation inference is

available only upon a showing that the employer destroyed the

records in bad faith. To the contrary, the spoliation inference

was appropriate in light of the duty of preservation

notwithstanding the fact that the destruction was negligent. Id.

Similarly, the Second and Fourth Circuits do not require

evidence of bad faith as a prerequisite to approval of a spoliation

inference in the Title VII context. See Buckley v. Mukasey, 538

F.3d 306, 322–23 (4th Cir. 2008); Byrnie v. Town of Cromwell,

Bd. of Educ., 243 F.3d 93, 109 (2d Cir. 2001); but see Norman-

Nunnery v. Madison Area Tech. Coll., 625 F.3d 422, 428 (7th

Cir. 2010); Turner v. Pub. Serv. Co. of Col., 563 F.3d 1136,

1148–50 (10th Cir. 2009); Caparotta v. Entergy Corp., 168 F.3d

754, 756 (5th Cir. 1999). After all, there are instances where the

court can determine the likely relevance of destroyed evidence

without a showing of bad faith destruction. Where the evidence

is relevant to a material issue, the need arises for an inference to

14

remedy the damage spoliation has inflicted on a party’s capacity

to pursue a claim whether or not the spoliator acted in bad faith.

As a Title VII litigant, Grosdidier is within the class

protected by the EEOC regulation, and the destroyed notes are

likely to have had information regarding her responses and those

of the other applicants during the interview as well as the types

of questions asked of her and other applicants, all of which

could be relevant to her contention that the BBG is hiding the

real reason for its selection decision. Grosdidier is therefore

entitled to an adverse inference, albeit not her requested

inference, which was tantamount to a directed verdict. In

moving for a spoliation inference, however, she identified,

alternatively, a list of specific adverse inferences regarding the

content of the destroyed notes. The existence of some evidence

of what the panelists were thinking, including the interview

notes of one panelist, multiple contemporaneous writings

regarding the reasoning behind the panel’s recommendation, and

application materials of other applicants, weighs in favor of

limiting the scope of the inference, but not in denying any

inference at all. Unlike in Talavera, 638 F.3d at 312, where the

non-discriminatory reason for the plaintiff’s non-selection

turned on her performance during an interview, there is no

evidence to suggest Grosdidier’s interview performance played

the same pivotal role. Under the circumstances, a permissive

inference bounded by constraints of reason is appropriate – i.e.,

the factfinder may draw reasonable inferences in favor of

Grosdidier based on the non-accidental destruction of two of the

three sets of interview notes.

Nevertheless, even if a factfinder could reasonably infer that

the destroyed notes contained information that might be

favorable to Grosdidier, favorable evidence is not in all

instances equivalent to evidence that would permit Grosdidier

to survive summary judgment. See Aka, 156 F.3d at 1292. The

15

inference Grosdidier requires must be sufficient to create a

genuine issue of material fact, not simply one that lends some

support to her pretext contention. Grosdidier requested such a

spoliation inference, including that the interview panelists

considered her to have superior qualifications. But this would

not be a reasonable inference in light of the evidence of the

relative qualifications of the applicants and the panel’s

evaluation of their qualifications. Neither does the evidence

support a reasonable inference that the notes would likely

contain information that the BBG is falsely defending on the

ground that it selected Donangmaye for his knowledge, skills,

and abilities. Even if it would be reasonable to infer that the

destroyed notes included evidence corroborating that Grosdidier

performed well in the interview or that different interviewers

emphasized different qualifications of the applicants, other

evidence, including the panel’s contemporaneous written

explanation for its recommendation in view of the skill sets for

the position, would not permit a reasonable finding that the

destroyed notes would have established pretext, let alone

unlawful discrimination. For this reason, the denial of

Grosdidier’s request for an adverse spoliation inference was

harmless error.

Accordingly, we affirm the district court’s grant of

summary judgment.