On the heels of last week’s Ninth Circuit decision in Shelley v. Geren, No. 10-35014 (9th Cir. Jan. 12, 2012), here’s another federal-sector case involving a denial of promotion, brought under Title VII and alleging race and sex discrimination (and retaliation). The panel reverses summary judgment in part, finding that the plaintiff’s unqualifiedly superior qualifications for the position – combined with the thinness of the agency’s explanation for its decision – presented sufficient evidence for a trial.
Hamilton v. Geithner, No. 10-5419 (D.C. Cir. Jan. 17, 2012): The plaintiff, an African-American man, alleged that was denied three opportunities at the Internal Revenue Service as a result of race/sex discrimination or retaliation – a temporary post in 2002, a permanent promotion in 2003, and another temporary detail in 2004. The panel holds that the first, 2002 “mixed”-claim was not administratively exhausted, either by a formal EEO complaint (for the Title VII claim), or by a complaint filed with the Merit Systems Protection Board or MSPB (for an alleged violation of the Civil Service Reform Act). But the panel remands the latter claims for reconsideration, or trial.
The opinion summarized plaintiff’s credentials:
“After earning a bachelor’s degree in industrial hygiene and a master’s degree in public health, Hamilton spent approximately fifteen years as an Industrial Hygienist for the Navy and the Department of Defense, a GS-13 grade position under the federal government’s General Schedule pay scale. In October 2001, when Hamilton’s position was relocated to another city, he accepted employment as a GS-12 Industrial Hygienist within the IRS’s Real Estate and Facilities Management department.”
In 2003, Hamilton applied for a GS-14 “Safety Specialist (Safety/Occup[ational] Health Manager)” position (“Safety Manager”), and was passed over in favor of a white woman named Burrell. Both candidates had the highest possible “knowledge, skills, and abilities” (KSA) score – 25 – but the agency contended that Burrell performed better in her interview with the hiring panel than Hamilton.
On October 21, 2003, Hamilton filed a formal EEOC complaint alleging race and sex discrimination in that Safety Manager promotion decision. In January 2004, Hamilton discovered that another white woman – named Carraway – was awarded a temporary assignment to yet another, vacant GS-14 Safety Manager position.
The D.C. Circuit reverses summary judgment on denial of both the permanent and temporary GS-14 Safety Manager positions.
Regarding the first, 2003 position, no one disputed that Hamilton made out a prima facie McDonnell Douglas case, and the focus shifted to whether the agency’s rationale for its promotion decision – that Hamilton ” ‘did not perform well in his interview . . . as compared to [Burrell’s] performance’ ” – would survive scrutiny.
The panel holds, with inferences drawn in favor of the employee, that a jury could find the agency’s explanation incredible. First, it observes that comparing the candidates, Hamilton and Burrell, the former’s experience and credentials were clearly superior to the winning candidate. Plaintiff had an M.A. in public health, with a specialty in occupational health and safety, and nineteen years’ worth of experience as an industrial hygienist. Burrell had no college degree, let alone an M.A., and just eight years of experience. Moreover, Hamilton possessed wide-ranging experience in developing safety policies, while Burrell had, at most, thin experience in the actual development and implementation of programs. Although both scored a full 25 points on KSA, the panel notes that these scores qualified candidates for advancement in the promotion process, but were not used comparatively in the final decision.
Second, the panel holds that the interview “performance” factor might be discredited by a jury:
“First, the record contains no contemporaneous documentation of the Secretary’s proffered explanation-that Burrell outperformed Hamilton in the interview. Neither selecting official Burns nor the other panelists appear to have created any written evidence of their deliberations or their reasons for choosing Burrell, leaving us with no record of the decision making process beyond notes taken during the interviews. [Panelists’] notes contain no comments, positive or negative, regarding Hamilton’s interview performance or communications skills, thus weakening their claim that they selected Burrell because Hamilton’s interview ‘did not go well[.]’ . . . .
“Second, the Secretary’s proffered non-discriminatory explanation relies heavily-indeed entirely-on subjective considerations, and our case law instructs us to treat such explanations with caution on summary judgment. . . . Although ’employers may of course take subjective considerations into account in their employment decisions,’ we have repeatedly expressed concern about the ease with which heavy reliance on subjective criteria may be used to ‘mask’ or ‘camouflage’ discrimination.” [Citations omitted]
Compounding the panel’s doubts was the fact that at least one panelist’s interview notes were (without explanation) missing a relevant page that would have allowed a comparison of the candidate, and that “the IRS job description does not emphasize communications skills, providing only a brief description of the Security [sic – Safety] Manager’s representative and liaison functions at the end of a much more detailed discussion of the position’s technical knowledge and policy experience requirements.”
Thus, “[t]o sum up, then, we believe that, when taken together, the evidence of a significant disparity in the candidates’ qualifications, the highly subjective nature of the Secretary’s proffered nondiscriminatory explanation, and the absence of any contemporaneous documentation supporting that explanation could lead a reasonable jury to disbelieve the Secretary and to reach a verdict in Hamilton’s favor.”
The panel also remands Hamilton’s retaliation claim based on denial of the 2004 temporary detail, holding that Hamilton made out at least a prima facie case by demonstrating the temporal proximity – of some two months – between Hamilton’s final protected activity and the hiring of Carraway.