Potter v. District of Columbia, No. 07-7163 (D.C. Cir. Mar. 6, 2009); Jones v. Bernanke, No. 08-5092 (D.C. Cir. Mar. 6, 2009)

| Mar 7, 2009 | Daily Developments in EEO Law |

Two cases decided last Friday really tell us more about the state of summary judgment law in 2009 than about civil rights or anti-discrimination law per se. In the former case, the plaintiffs prevail on summary judgment substantially (it seems) because of the city’s tactical choices/blunders. In the latter case, the D.C. Circuit continues down its own road as the only circuit to hold that the ADEA/Title VII prima facie case becomes legally irrelevant once the employer proffers its legitimate non-discriminatory reason for its adverse action against the plaintiff.

Potter v. District of Columbia, No. 07-7163 (D.C. Cir. Mar. 6, 2009):  “The District of Columbia requires its firefighters and emergency medical service (‘EMS’) workers (together ‘firefighters’) to be clean shaven. A number of firefighters who wear beards for religious reasons challenged this requirement under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. (‘RFRA’).” (RFRA still applies to the federal government and D.C., though not to the states.) The firefighters won on liability at the summary judgment stage, and the panel affirms (though with a concurring opinion by Judge Williams deeply skeptical of the result).

The case hinged on the feasibility of bearded officers using a “self-contained breathing apparatus, or SCBA,” in hazardous environments. This “consists of an air tank, a regulator, and a mask. A SCBA is designed to maintain ‘positive pressure’ in the face mask – that is, the atmospheric pressure is greater inside the mask than outside.” The problem for the city was its concession, whether deliberate or not, that the SCBA was effective for plaintiffs (the burden on this issue resting with the government).  Combined with its failure to make a record of contrary studies to oppose summary judgment, the panel concluded that the non-movant failed to present a genuine issue of material fact about safety.

The city sought to turn the issue into whether bearded firefighters could use an alternative device — “an air-purifying filter, or APR, [which] consists of a mask and a filter through which the user breathes” — deemed essential for extended service in hazardous conditions.  But the district court held that the beard-ban was not narrowly tailored “because in such an environment the Department could redeploy bearded firefighters out of the zone in which APRs would be required, either ‘up’ into areas in which SCBA systems were required, or ‘down’ into areas in which no protection was needed.”

Its latter-day attack on the safety of SCBAs came too late:

“On appeal, the District of Columbia suggests two possible reasons that SCBAs might be unsafe for bearded firefighters: (1) a firefighter might ‘overbreathe’ his respirator by inhaling so vigorously that the regulator is unable to supply sufficient clean air to maintain positive pressure, thus drawing in contaminated air through a leak in the face mask seal, or (2) even if positive pressure is maintained, a leak of clean air out of the mask will exhaust the air supply more quickly than would otherwise happen. See Appellant’s Br. 13. However, the record shows the District of Columbia never advanced, and in fact disavowed, any arguments to that effect before the summary judgment stage.”

The panel majority specifically cited to the city’s failure to contest the safety of SCBA equipment in its response to the local rule statement of uncontested facts. And despite that the city did manage to work in at least one study contesting the safety of SCBA for bearded users into the summary judgment record, it failed to directly cite to it in its motion papers:  “At no point before or during the summary judgment proceedings did the District of Columbia cite the portions of either source that address SCBAs, nor argue that those sources demonstrated SCBAs are unsafe. Like the testimony of Captain Flint, this information laid fallow in the record, and a reversal of summary judgment cannot rest on arguments that the District of Columbia could have, but did not, develop based on the factual record it produced in the district court.”

Judge Williams in the concurring opinion bemoans the suppression of truth at the altar of Rule 56. “The record here unequivocally discloses a disputed issue of material fact. Yet the district court granted summary judgment. If the sole aim of the law were an open search for truth, we would plainly reverse.”  [This is what civil rights plaintiffs ordinarily complain about, but who listens, eh?] Although the concurring judge believes that the district court may have helped nudge the case in the plaintiff’s direction by a selective review of the evidence, nevertheless the judge agrees that it was the city’s duty to sound this objection in a timely fashion: “While this variance in the court’s zeal is troubling, the District rests no claim on the fact, and such a claim, even if made, would likely not justify a different result. Departures from passivity are almost always bound to give one side a net benefit, yet such departures are not ipso facto error.”

Jones v. Bernanke, No. 08-5092 (D.C. Cir. Mar. 6, 2009):  This Title VII/ADEA discrimination and retaliation case is ordinary on its face, yet enlivened by the D.C. Circuit’s adherence to a standard under Rule 56 that “the prima facie case irrelevant” once the employer produces a non-discriminatory explanation, at which point “the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Though this rule is respectably founded on Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981), no other circuit presently observes it.

Both sets of claims were before the court of appeals on summary judgment. The panel dispenses with the discrimination claim on timing grounds, i.e., that the employee did not file this claim within 90 days of receiving the agency’s adverse determination (he added the claim by way of an amendment to the complaint more than 90 dyas later).  Although the employee sought to argue that the employment discrimination claim “related back” (under Fed. R. Civ. P. 15(c)) to the timely retaliation claim, the panel holds that the allegations of discrimination differ markedly “in both time and type” from the retaliation claims.  The panel holds that the agency did not procedurally waive the limitations argument by failing to specifically renew it in its second summary judgment motion.  The argument is preserved, the panel holds, by the assertion of a limitations defense in an answer and its presentation in a prior (unsuccessful) dispositive motion.

Summary judgment on the retaliation claims, though, is reversed.  The issue of whether the plaintiff presented a prima facie case, the panel holds, is at this stage immaterial:

“At this stage of the litigation, however, asking whether Jones satisfied his prima facie burden is an unnecessary and improper “sideshow.” Brady v. Office of  Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). The Supreme Court long ago held in United States Postal Service Board of Governors v. Aikens that once the employer asserts a legitimate, nondiscriminatory reason for its actions, it ‘has done everything that would be required . . . if the plaintiff had properly made out a prima facie case,’ so ‘whether the plaintiff really did so is no longer relevant.’ 460 U.S. 711, 715 (1983). At this point, the Court explained, the only question is the ‘ultimate factual issue in the case’ — ‘discrimination vel non.’ Id. at 714-15. We have repeatedly reiterated this principle. See, e.g., George v. Leavitt, 407 F.3d 405, 411-13 (D.C. Cir. 2005) (doing so when the defendant articulated its legitimate reasons for the contested action ‘as part of the parties’ cross-motions for summary judgment’). Indeed, in Brady v. Office of Sergeant at Arms we emphasized that ‘the question whether the employee made out a prima facie case’ under the McDonnell Douglas framework ‘is almost always irrelevant’ because ‘by the time the district court considers an employer’s motion for summary judgment . . . the employer ordinarily will have asserted a legitimate, non-discriminatory reason for the challenged decision — for example, through a declaration, deposition, or other testimony from the employer’s decision maker.’ 520 F.3d at 493; see also id. (‘[J]udicial inquiry into the prima facie case is usually misplaced.’). Not only is the prima facie case irrelevant at this point, but ‘the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas.” Id. at 494. Because the employer in Brady had asserted its legitimate, nondiscriminatory reason for the challenged demotion, we rejected awarding summary judgment on the ground that the plaintiff’s prima facie case was wanting, instead affirming because all the evidence, taken together, was insufficient to support a reasonable inference of discrimination. Id. at 494-95.”

Thus applying this standard to the claims at hand (adverse performance evaluations in 2000, and 2001-03), the panel finds genuine issues of material fact about temporal proximity.  The nut of the dispute was as follows:

“On September 22, 2000, at the conclusion of the investigation, Jones sent a letter to the Equal Employment Opportunity Commission (EEOC) requesting a hearing before an administrative law judge. Central to one of the issues before us, he sent a copy of that request to the Board’s EEO office.

“Approximately one month later, on October 25, Jones received from Richards a draft of his annual performance evaluation for the period September 1999 to October 2000. Although prior evaluations had rated Jones’s overall performance as either ‘outstanding’ or ‘exceptional,’ the 2000 evaluation reduced his rating to ‘commendable’ — the third of five possible categories and just one level above ‘marginal.’ Signed by both [managers] Richards and Martinson, the evaluation explained (among other things) that Jones had failed to complete two assigned projects. Jones’s supervisors continued to rate his performance as only ‘commendable’ in his 2001, 2002, and 2003 evaluations.”

Only one month separated the protected activity (the request for a hearing) and the downmarking of Jones’s rating.  Moreover, “Jones has offered evidence discrediting the Board’s legitimate explanation for the 2000 evaluation — evidence that alone provides an adequate basis from which a reasonable jury might infer retaliation. Specifically, in response to the Board’s claim that Jones’s 2000 ‘commendable’ rating reflected an honest assessment of his performance and his failure to complete two projects in particular, Jones offered evidence that he was never assigned one of the projects and was removed from the other. As we have said, such evidence ‘usually’ is itself sufficient to allow a reasonable jury to infer retaliation.”  As for the subsequent ratings, the panel “reverse[s] the grant of summary judgment on Jones’s retaliation claims arising from the 2001-2003 evaluations and remand to allow the district court to address the retaliation vel non question in the first instance.”

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