In two recent federal-sector race discrimination decisions, the D.C. Circuit - while ruling in the employer-agency's favor - issued opinions that may be even more useful for employees in future cases. Both opinions criticized short-cuts sometimes used by district courts to improperly weigh summary judgment records.
Chambers v. Burwell, No. 14-5047 (D.C. Cir. May 31, 2016): Chambers claimed that she was denied a promotion because of race (Black) and disability (eyesight). She worked as the agency's disability coordinator at a GS-9 pay grade, but sought employment that would bump her up to a GS-11.
Chambers eventually won the support of her immediate superior (Curtis) for the creation of a new GS-11 position in her office, with the same responsibilities as her current position. Curtis recommended the promotion, though he had no authority to create a position himself. The agency denied the plan, supposedly due to budgetary constraints.
Chambers complained to the agency that while her request had been turned down, "the agency had created positions to promote three white, sighted department heads from a GS-14 to a GS-15 pay grade and had created a new GS-14 network security position." She also asserted that other coordinators were paid at a higher grade than she, although an audit of her role confirmed that she should remain at GS-9
The district court held that Chambers' Title VII and ADA claim failed at the threshold, because denial of a position that did not exist could not, as a matter of law, constitute an "adverse employment action."
The D.C. Circuit, while affirming summary judgment, clarifies that the district court erred by holding that Chambers could not have suffered an adverse action: the simple denial of a requested pay or grade increase, even without a vacancy, could be a materially adverse employment action:
"A categorical rule requiring employees to always identify a vacancy before advancing their denial of promotion claim would permit employers to systematically pass over qualified candidates because of their race or disability .... [ otherwise], a supervisor could request vacancies only for white subordinates because of his animus toward African-Americans, and Thereby prevent African-American employees from receiving promotions because of their race."
The panel observes that courts must always be prepared, in discrimination cases, to "tailor the evidence needed to survive summary judgment to the particular circumstances of the plaintiff's claim."
In this case, though, the panel holds that summary judgment was appropriate because of a lack of evidence of bias. Her supervisor had regularly sought to promote Chambers and indeed had promoted her twice as often as other employees on his staff:
"While she does point to three promotions that may have occurred through HHS's creation of tailor-made vacancies, the record shows that Curtis's superiors exercised their own initiative in creating these GS-15 positions for department heads under their supervision. There is no evidence that a supervisor like Curtis, who lacked the ability to create new positions, played any role in requesting the creation of these positions."
Moreover, whatever the reason for management's decision not to create budget for a new position, it could not have been race or disability discrimination where the senior manager was "not aware that the requested position was designed to facilitate Chambers's promotion."
Johnson v. Perez, No. 14-5034 (D.C. Cir. May 20, 2016): This was the highly-unusual case where the district court found a genuine dispute of material fact about whether the employer's stated rationale for firing a probationary employee was pretextual, yet granted summary judgment on the ground that There was no evidence that the real reason was race discrimination. The D.C. Circuit affirms here on the more conventional ground that There was insufficient evidence of pretext.
The agency argued that the plaintiff was terminated based on the recommendation of a supervisor (Burke) that Johnson "had 'not completed satisfactorily' the projects he had been assigned and had shown an 'argumentative response and demeanor' when confronted with his poor work." Johnson pushed back that these reasons were rebutted by his own testimony and other witnesses. Yet:
"Johnson has failed to identify record evidence from which a reasonable jury could conclude that race played a role in his discharge. Had Johnson been able to show that Burke gave conflicting justifications for his recommendation, or that the reasons he gave were not credible based on the underlying facts of Johnson's job performance, Johnson might have raised a material factual dispute."
Despite holding against Johnson, the panel opinion "offer[s] brief clarification on three points of potential confusion" in discrimination cases that may benefit plaintiffs in the future.
First, it reaffirms that while "some summary judgment records" might allow a finding a pretext, but not discriminatory intent, this holding "should not be taken to suggest that a successful showing of pretext, without more, is necessarily inadequate to support an inference of unlawful racial discrimination."
Second, it states that a plaintiff may provide their own testimony in support of summary judgment, and that district courts should not deflect whatever probative value it might have by labelling it "self-serving." As the panel states;
"[P]arties, like other fact witnesses, are legally competent to give material testimony. Indeed, in many kinds of cases, parties are the key, or even sole, witnesses. To the extent the testimony of a witness who is also a party may be impaired by party self-interest, it is ordinarily the role of the jury-not the court on summary judgment-to discount it accordingly."
Third, it holds that even uncorroborated testimony of co-workers is admissible to defeat summary judgment: "determining whether a co-worker's specific and relevant, if uncorroborated, testimony is trustworthy is a credibility determination reserved for the jury."