Evans v. Sebelius, No. 11-5120 (D.C. Cir. May 17, 2013)

| May 17, 2013 | Daily Developments in EEO Law |

The D.C. Circuit remands a federal-sector race discrimination case for trial, where a jury will decide whether the agency’s (alleged) inability to keep its story straight about the process it used to interview candidates – and then supposedly cancel a new GS-14 position – demonstrates racial bias.

Evans v. Sebelius, No. 11-5120 (D.C. Cir. May 17, 2013) Under the conventional analysis of race discrimination claims provided by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), an employer meets the employee’s prima facie case by tendering a legitimate, non-discriminatory reason for its action against the employee. In turn, evidence that the employer’s proffered reason lacks integrity or plausibility supports turning the question of discriminatory motive over to a jury to resolve. Additional circumstantial evidence that the employee was singled out for a discriminatory reason, such as biased comments, may also be a part of the equation.

In this case, plaintiff Evans presented two claims against the U.S. Department of Health and Human Services: that she was denied both a promotion and a transfer. The panel dispensed with the latter claim summarily, finding that the decision maker did not know the employee’s race, and Therefore could not have manifested racial bias. But the promotion claim had sufficient meat on the bones, the panel held, to send back for a trial.

The promotion claim concerned a hiring process commenced in 2001, during the transition between the Clinton and Bush Administrations. During a hiring freeze in the agency, HHS nevertheless interviewed Evans and Theres to fill an anticipated opening in a new GS-14, non-supervisory position, Lead Developmental Disabilities Specialist (LDDS). This job would have been a promotion for Evans, who occupied a GS-13 title. The position, the agency contended, was ultimately cancelled and no one was hired.

Even after the freeze was lifted in 2002, though, Evans was still never promoted. The very fact of whether the position was ever cancelled was in dispute: “The record reveals that no official-Clinton holdover or Bush newcomer-gave final authorization for the LDDS position. The record is unclear as to who, if anyone, made the affirmative decision to cancel the position.” The plaintiff’s continued investigation turned up evidence, moreover, that in spite of the freeze, three There employees (all white) received promotions during the same period. “Significantly for this case, one of those white employees, . . . was detailed as a GS-15 Executive Assistant to incoming Commissioner Morrissey. Morrissey hand-selected [the candidate] for the detail, doing so without a competitive-selection process or opportunity for anyone else to apply.”

The D.C. Circuit holds that the district court erred in granting summary judgment on the promotion claim. Having established her prima facie case of discrimination (i.e., that she was qualified for the position, not promoted, and There was evidence that Theres who were not African-American were treated more favorable), the agency defended the decision by arguing that the position was cancelled and no one was hired. The panel, though, holds that the agency’s explanation was equivocal:

 “[A]s Evans points out, the government has given shifting reasons for the non-promotion. For example, Evans testified that she was told she would be promoted once the hiring freeze was lifted, only to learn later that the position had been administratively cancelled after the hiring freeze ended . . . . Moreover, record evidence indicates that the relevant decision-makers have taken different views on who precisely cancelled the LDDS position.”

There was also evidence of racially-biased comments as well, lending support to the inference of race discrimination:

” . . . Morrissey’s highest-ranking African American subordinate . . . testified at her deposition that Morrissey frequently referred to the African American women on staff as ‘those sisters.’ Cf. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006) (per curiam) (explaining that use of the term “boy” to refer to African Americans can be evidence of racial animus under certain circumstances). And in her declaration, [the same witness] recounts an incident in which [supervisor] McCormick implied that people from ‘the Hood’ are liars and cheaters. After [the witness] and McCormick got into an argument over these comments, McCormick tried to explain her behavior by stating: ‘I’m a hot-blooded Italian and I get angry sometimes.'”

Concurring, Judge Williams agrees that the promotion claim should be remanded for trial, but on an alternative analysis of the record. In this judge’s view, the agency simply failed in its burden of producing an legitimate, non-discriminatory reason for its cancellation of the position: “it seems unable even to provide a clear and coherent account of who ordered the cancellation, much less why. Surprisingly, in light of the standard bureaucratic practice of having a form for every action and at least a check-box for the reason, it has not even produced a contemporaneous written record establishing that the cancellation did in fact occur on March 7, 2002, much less a contemporaneous explanation. Of course contemporaneity is not required (though obviously it would add credibility), but the government has never, even in this proceeding, supplied evidence giving an explanation.”

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