Prologue — Baldwin v. England

Gn Qhe apie

Supreme Court of the United States

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BRENDA J. BALDWIN,

Petitioner,

Vv.

GORDON ENGLAND, Secretary of the Navy,

United States Department of the Navy

Respondent.

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ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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PETITION FOR WRIT OF CERTIORARI

WITH APPENDIX

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Joseph D. Gebhardt

Counsel of Record

Charles W. Day, Jr.

Rebecca M. Hamburg

GEBHARDT & ASSOCIATES, LLP

1101 17 Street, N.W.

Suite 807

Washington, DC 20036-4718

(202) 496-0400

Counsel for Petitioner

THE LEX GROUP « 1750 K Street, NW ¢ Suite 475 ¢ Washington, DC 20006

(202) 955-0001 ¢ Fax: (202) 955-0022 + www.thelexgroupdc.com

QUESTION PRESENTED

The Question Presented is:

Whether, in order to establish pretext in an

employment discrimination case, the plaintiff must

show that the emplover’s inconsistent reasons

provided were in direct contradiction to each other.

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TABLE OF CONTENTS

Page

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REASON FOR GRANTING THE WRIT ................0000000- 8

IN LIGHT OF THE CONFLICT BETWEEN

THE FOURTH CIRCUIT’S RULING AND

THE LAW IN OTHER CIRCUITS, THE

COURT SHOULD ADDRESS FOR THE

FIRST TIME WHETHER WILDLY

INCONSISTENT STATEMENTS '- ARE

EVIDENCE OF PRETEXT IN

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APPENDIX

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TABLE OF AUTHORITIES

Page(s)

CASES

Aragon v. Republic Silver State Disposal,

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Castleman v. Acme Boot Co.,

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Dominguez-Cruz v. Suttle Caribe,

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EEOC v. Ethan Allen Furniture Orleans Div.

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EEOC v. Sears Roebuck & Co.,

243 F.3d 846 (4th Cir. 2001)... ccccccceeceeeeeseeseees 8

Johnson v. Nordstrom, Inc.,

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Kobrin v. Univ. of Minnesota,

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McDonnell-Douglas Corp. v. Green,

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Thurman v. Yellow Freight Systems, Inc.,

90 F. 3d 1160 (6th Cir. 1996)....0..cccccc c cessescesssesseee .

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STATUTES

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CERI CIOONI soins ok ee 1,2

PETITION FOR A WRIT OF CERTIORARI

Petitioner Brenda J. Baldwin respectfully prays

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Four*h

Circuit in this case.

OPINIONS BELOW

The opinion of the Court of Appeals (App.,

infra, la-__a)) is unpublished, but the decision is noted

at 137 Fed. Appx. 561 (4% Cir. June 22, 2005). The

decision of the District Court for the Southern District

of Maryland (App., infra, __a-__a) is unpublished.

JURISDICTION

The Court of Appeals entered judgment on June

22, 2005. The Court of Appeals had jurisdiction

pursuant to 5 US.C. § 7703(b)(1). This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

(a) Discriminatory practices prohibited; employees or

applicants for employment subject to coverage

All personnel actions affecting employees or

applicants for employment .. . in executive agencies as

defined in section 105 of title 5 . . . shall be made free

from any discrimination based on... sex....

42 US.C. § 2000e-16(a)

STATEMENT OF THE CASE

Petitioner Brenda J. Baldwin brings this civil

rights case to challenge blatant sex discrimination in

promotions at the United States Navy in violation of

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

2000e et seq. In this case, the United States Court of

Appeals for the Fourth Circuit has redefined pretext so

that the employer's excuses, no matter how varied and

inconsistent, must be accepted as legitimate and

nondiscriminatory as a matter of law unless they

directly contradict one another.

Title VII requires that “all personnel actions .. .

in executive agencies . . . shall be made free from any

discrimination based on race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-16(a). Where, as

here, Petitioner offers circumstantial evidence of

discrimination, the courts employ the familiar burden-

shifting framework of McDonnell-Douglas Corp. v.

Green, 411 U.S. 792 (1973). Under this framework, (1)

the plaintiff must make out a prima facie case of

discrimination, (2) the burden then shifts to the

defendant to articulate a legitimate, non-discriminatory

reason for its actions, and (3) finally, the burden shifts

back to the plaintiff to show that the defendant's stated

reasons were a mere pretext for discrimination. Id.

Here, the Fourth Circuit assumed that Petitioner had

made out a prima facie case of discrimination and that

Respondent had met its burden of proffering non-

discriminatory reasons for its decision not to promote

Petitioner. App. at 6a.

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In a bizarre deviation from the holdings of the

First, Third, Sixth, and Eighth Circuits, the Fourth

Circuit propounded a novel theory of law by requiring

om s | nary judgment that Ms. Baldwin show that

mana. nent’s statements of its reasons for not

promoting her - however varied and inconsistent -

could only be considered pretextual if they directly

contradicted each other.

The Proceedings Below

Petitioner Brenda J. Baldwin's case arises against

a background of rampant and shameless sex

discrimination at the United States Navy's Naval

Surface Warfare Center in Indian Head, Maryland. At

the time she was denied a promotion from GS-11 to

GS-12, Ms. Baldwin had worked for the Navy for 20

years, having begun her career in 1980. As a GS-11

Logistics Management Specialist, Ms. Baldwin was in

charge of tracking and supplying key -munitions

(Cartridge Actuated Devices or CADs) that allow the

Navy’s planes to drop bombs and eject bomb racks.

She was also responsible for working on the Navy’s

highly classified projections of future needs for these

CADs. Ms. Baldwin's female colleagues were

repeatedly thwarted by the agency’s all-male

management team in their quests for promotions,

obtaining them only after recourse through the

grievance procedures. See EEOC Hearing Testimony

of John Shumpert, June 12, 2003, at 301 [hereinafter

Shumpert Test. at _ J]; Stipulated Arbitration

Agreement by and between Indian Head Division,

Naval Surface Warfare Center and American

Federation of Gov’t Employees, AFL-CIO, Local 1923,

dated May 18, 2000, at 3.

At the same time Ms. Baldwin's male managers

were thwarting the careers of their female employees,

these same men were aggressively promoting the

careers of the male employees with whom Ms. Baldwin

worked as an equal. For example, a male colleague in

Ms. Baldwin's chain-of-command with a slightly

different specialty obtained a noncompetitive (Gradual

Accretion of Duties or “GAD”) promotion from GS-11

to GS-12 after their mutual second-line supervisor

rewrote his position description. When Ms. Baldwin

asked for a GAD promotion, however, all she received

was one lame excuse after another.

Ms. Baldwin's first, second, and third-line male

supervisors were able to agree on only one thing: that

they were not going to promote women if they could

avoid it, and consequently they were not going to

promote Ms. Baldwin. When Ms. Baldwin first asked

her immediate supervisor Stanley Chambers why she

could not be promoted, he said that there was going to

be a Reduction-in-Force (RIF) (a RIF that curiously did

not impede the GS-12 promotions of two of her male

colleagues). EEOC Hearing Testimony of Stanley

Chambers, June 12, 2003, at 398 [hereinafter Chambers

Test. at__]. On a different occasion, he said that the

RIF had no _ effect on her chance for promotion,

Deposition of Stanley Chambers, February 26, 2002, at

55 [hereinafter Chambers Dep. at __], but there was no

need for another GS-12 employee. Chambers Test. at

399..Then he told her that she was at her full promotion

potential as a GS-11 (a fact that is irrelevant to a GAD

promotion). Chambers Dep. at 39. He also told her on

one occasion that there was a lack of funds, although

he later denied doing so. Report of Investigation/ EEO

Counselor's Report, November 24, 200, at 3; Chambers

Dep. At 64.

Mr. Chambers’ credibility can be assessed in

light of the fact that at an administrative hearing at the

EEOC, he revealed for the first time that he formerly

had a secret trove of performance notes on Ms.

Baldwin on his Navy computer, but that a computer

virus had destroyed his hard drive. Mr. Chambers had

no print-outs, no back ups, and no specific recollection

of what the alleged problems were. Not surprisingly,

Mr. Chambers was later demoted from his supervisory

position.

Mr. Chambers’ chameleon-like explanations as

to why Ms. Baldwin could not be promoted, in contrast

to her two male colleagues who received GS-12 non-

competitive promotions at the time, are sufficiently

bemusing that one would expect to infer pretext on the

basis of them alone. One would expect that Ms.

Baldwin's second-line supervisor would concur in her

first-line supervisor's reasons; however, John

Shumpert, her second-line supervisor, came up with

different reasons than Mr. Chambers. Mr. Shumpert

claimed that he needed to monitor Ms. Baldwin's work.

Shumpert Test., May 9, 2003, at 92. On second thought,

it was because the agency could not process the

paperwork. Id. at 32. Or was it because the agency

could not undergo any personnel actions at that time?

Id. at 30. Mr. Chambers always had a reason for Ms.

Baldwin's nonpromotion, and Mr. Shumpert could

always think up another one even though they never

had the same reason. (One would expect that federal

managers would be in regular contact about the

employees under their supervision.)

As for Ms. Baldwin's third-line supervisor,

David Williams, he stated at the administrative hearing

for the first time ever that Ms. Baldwin had

performance problems, despite her consistently high

performance ratings and the significant duties the

agency had assigned her (all of which Williams had

approved). Of course, he had done nothing to

document or address the alleged performance

problems at any time prior to the hearing; Mr.

Williams’ sudden accusation was a spontaneous

smear. !

Despite the compelling evidence of

discrimination and pretext? submitted by Ms. Baldwin,

the U.S. District Court dismissed the case on summary

judgment, incorrectly requiring that Ms. Baldwin had

to first request a desk audit before she could file an

'To advance her career and serve at a higher level of

responsibility for the government, Ms. Baldwin had to transfer to

another Navy agency where she now serves as a GS-13.

2Ms. Baldwin's co-workers Catharine (“Debbie”) Bowie

and Carla Clifton both had to file grievances to require the same

male managers to promote them from GS-11 to GS-12. By

contrast, Mr. Shumpert rewrote the position description of Charles

Rutledge, one of their GS-11 colleagues, in order to effectuate his

non-competitive GAD promotion to GS-12. It is noteworthy that

reaching GS-12 is a precursor to eligibility for GS-13 supervisory

positions. Preventing women from reaching GS-12 limited the

pool who might ultimately become GS-13 supervisors. Thus, the

all-male management team sought to perpetuate itself.

administrative EEO complaint. App. at 18a-19a. (The

government's attorney disavowed such a

“requirement” at the Fourth Circuit oral argument, and

the Court of Appeals did not mention this issue in i:s

decision.)

On appeal of the lower court’s entry of

summary judgment, the Fourth Circuit, rather than

addressing the findings of the district court, assumed

that Ms. Baldwin had stated a prima facie case and

then simply accepted the male managers’ various

inconsistent reasoris at face value. The Fourth Circuit

stated that “the varying explanations offered by the

supervisors . . . under these circumstances [do not]

suffice to demonstrate pretext.” See App. at 8a. The

Court of Appeals went on to find that the various

reasons “do not contradict each other, but rather reflect

various consistent reasons that [Ms. Baldwin] could not

be promoted.” id. The Fourth Circuit rejected Ms.

Baldwin's proffer of inconsistent reasons because she

could not demonstrate the reasons were

“contradictory” or “false.” Id. at 8a-9a. 'n so holding,

the Court set a higher burden for Ms. Baldwin than this

Court’s standard in McDonnell-Douglas and _ its

progeny as well as nearly every other Court of Appeal.

These other courts have all found that the presentation

of inconsistent statements alone is sufficient to defeat a

motion for summary judgment as discussed below.