While the majority disappoints in a predictable affirmance of summary judgment in a federal employee Title VII case, the dissent proves piercing and all the more welcome because of its source.
Hendricks v. Geithner, No. 07-5392 (D.C. Cir. June 19, 2009): A female, African-American law enforcement agent loses out on two promotions. The panel agrees unanimously that the second promotion does not present a viable claim, but sharply split on the first promotion. The two salient factors are a decision maker named Dwyer who has — according to the summary judgment record — spouted off anti-woman sentiments, and a successful (white male) candidate named Johnson who generally outpointed the plaintiff, but whose career took a nasty turn in the decade running up to the decision (reprimanded for drinking while carrying his weapon, suspended for 30 days for misusing a government vehicle, addition al misconduct constrained in a sealed file). The majority holds that the plaintiff presented no genuine issue of material fact on this claim, because Dwyer’s conduct was ambiguous, Johnson’s last act of misconduct was five years earlier, and all of the other candidates outpointed her anyway.
Judge Janice Rogers Brown, a liberal dartboard during her two-year-long confirmation ordeal, turns out an unusually strong dissent from affirmance on Hendricks’s first promotion. Here’s the introduction, which restates the summary judgment standard in a nice fashion:
“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’ [fn 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 non-promotion.”
She also works in a fine image of the impact that prior misconduct can have in a promotion setting, and explains why it is important to allow juries to wort that factor out:
“[T]he 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 Hendricks’ non-selection was free of discriminatory taint. Instead, this is a quintessential question of fact, appropriate only for an actual jury to decide.”
Pity that Judge Brown didn’t carry the day with her colleagues: this language could have been awfully useful to plaintiffs fighting off summary judgment in the future. Given the vote split, might an en banc petition be coming down the pike?