Arthur Gilbert v. Janet Napolitano , 670 F.3d 258 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 17, 2012 Decided March 2, 2012
No. 11-5053
ARTHUR GILBERT,
APPELLANT
v.
JANET ANN NAPOLITANO, SECRETARY, DEPARTMENT OF
HOMELAND SECURITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-02128)
Leizer Z. Goldsmith argued the cause and filed the briefs
for appellant.
Michelle Lo, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Ronald C. Machen
Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: HENDERSON, TATEL, and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge TATEL.
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TATEL, Circuit Judge: Appellant alleges that his
employer, the United States Customs and Border Protection
Agency, repeatedly rejected him for promotions in violation
of Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act of 1967. The district court
granted summary judgment for the agency. For the reasons set
forth in this opinion, we reverse in part and affirm in part.
I.
Arthur Gilbert has had a long and tumultuous history at
Customs, now a component of the Department of Homeland
Security. He originally worked in the agency’s San Diego
field office, but in 1997 he was discharged for alleged
misconduct during a botched cocaine seizure. Gilbert, who is
Mexican American and was born in 1952, sued for
reinstatement, claiming age and national-origin
discrimination. When Customs refused to turn over certain
documents, Gilbert asked Virginia Gengor, a Customs
employee he had previously supervised, to get the documents
for him. Gengor agreed and delivered them to Gilbert at a
hotel. Armed with the documents, Gilbert settled with
Customs, agreeing to take two years of leave without pay,
after which he would receive a position in Customs’s D.C.
Headquarters at the GS-13 grade of the federal government’s
General Schedule pay scale. But because some of the
documents that Gengor handed over to Gilbert were
confidential and marked “official use only,” Customs
disciplined her. Jayson Ahern, who later became Assistant
Commissioner in the Office of Field Operations at Customs
Headquarters and who made one of the promotion decisions
at issue in this case, presided over Gengor’s disciplinary
hearing.
Immediately after arriving at Headquarters to begin work
at his GS-13 position, Gilbert met with Robert Jacksta, his
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second-line supervisor, and explained that he had brought
successful discrimination claims in San Diego and that he
“wanted a clean start.” Gilbert Dep. 12:25, May 13, 2009. In
his deposition, Gilbert testified that Jacksta responded that he
would “take care of [him], don’t worry.” Id. at 12:7–8. Two
months later, Gilbert started applying for promotions to GS-
14 positions. Gilbert’s name appeared on the selection register
(the list of eligible candidates) for several positions, but
Jacksta never recommended him and he was not promoted.
Instead, Customs promoted Gay Laxton, Mark Reefe, and
John Milne—all white and all younger than Gilbert.
(Although Gilbert does not take issue with it, Customs also
promoted Robert Colbert, a white male one year older than
Gilbert.) Customs returned one register without selecting
anyone.
In response, Gilbert filed a complaint with Customs’s
Equal Employment Opportunity (EEO) office and then sued
in the United States District Court for the District of
Columbia, alleging discrimination and retaliation in violation
of the Age Discrimination in Employment Act of 1967
(ADEA), 29 U.S.C. §§ 621 et seq., and Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. During the
pendency of these proceedings, Gilbert applied for another
GS-14 position, Chief of Staff to Assistant Commissioner
Ahern. Gilbert’s name again appeared on the selection
register, but Ahern selected Marcy Brodsky, a white woman
younger than Gilbert. Gilbert amended his complaint to allege
that this too was discriminatory and retaliatory.
The district court struck Gilbert’s statement of material
facts in dispute for failing to comply with Local Rule 7(h),
which requires parties to file “a separate concise statement of
genuine issues” including facts “as to which it is contended
there exists a genuine issue necessary to be litigated.” D.D.C.
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Local Civ. R. 7(h)(1). Then, after considering the remaining
record, the district court granted summary judgment to
Customs on all claims. See Gilbert v. Napolitano, 760 F.
Supp. 2d 21 (D.D.C. 2011). Gilbert appeals, and we review
the district court’s grant of summary judgment de novo. See
Jones v. Bernanke, 557 F.3d 670, 674 (D.C. Cir. 2009).
II.
Gilbert makes many arguments, only two of which have
merit.
First, Gilbert contends that the district court erred in
dismissing his claims stemming from John Milne’s
promotion. The district court dismissed those claims without
reaching the merits “because Gilbert failed to exhaust his
administrative remedies.” Gilbert, 760 F. Supp. 2d at 29.
Gilbert argues, as he did in the district court, that Customs
forfeited its exhaustion defense by failing to raise it in its
answer as required by Rule 8(c) of the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 8(c) (“In responding to a
pleading, a party must affirmatively state any . . . affirmative
defense[.]”). Customs points out that it promptly asserted the
defense in its motion to dismiss, but this misses the point: as
we have explained, “a party must first raise its affirmative
defenses in a responsive pleading before it can raise them in a
dispositive motion.” Harris v. Sec’y, U.S. Dep’t of Veterans
Affairs, 126 F.3d 339, 345 (D.C. Cir. 1997). Thus, Customs
forfeited the exhaustion defense, and the district court “should
not . . . have considered” it. Id. at 341; see also id. at 345(noting that defendant may seek leave to amend its answer on
remand).
Alternatively, Customs urges us to affirm on the ground
that “Gilbert fail[ed] to show that he was significantly better
qualified than Milne.” Appellee’s Br. 56. The district court,
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however, never reached this question, and we normally
decline to consider issues for the first time on appeal. See,
e.g., Solomon v. Vilsack, 628 F.3d 555, 568 (D.C. Cir. 2010)
(“Lacking the benefit of the district court’s analysis of
whether genuine issues of material fact exist that would
preclude the entry of summary judgment, we believe the most
prudent course is to remand for the district court to consider
this issue in the first instance.”). We shall thus remand this
claim to the district court.
Second, Gilbert argues that a genuine issue of material
fact exists as to whether Customs discriminated and retaliated
against him when it promoted Mark Reefe. Customs contends
that it selected Reefe over Gilbert solely because Reefe was
more qualified. Where, as here, an employer offers a
legitimate, nondiscriminatory explanation for its decision to
promote one employee over another, “the one central inquiry
on summary judgment is whether the plaintiff produced
sufficient evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory [or non-retaliatory]
reason was not the actual reason and that the employer
intentionally discriminated [or retaliated] against the plaintiff
on a prohibited basis.” Hamilton v. Geithner, No. 10-5419,
2012 WL 119134, at *5 (D.C. Cir. Jan. 17, 2012) (internal
quotation marks omitted). Because “[i]n a close case, a
reasonable juror would usually assume that the employer is
more capable of assessing the significance of small
differences in the qualifications of the candidates, or that the
employer simply made a judgment call,” the employee must
show that a reasonable juror could find him “substantially
more qualified” than the selected employee. Holcomb v.
Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) (internal
quotation marks omitted). That said, “[e]ven if [the employee]
show[s] that [the asserted reason] was not the actual reason
for his [adverse employment action], he still would have to
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demonstrate that the actual reason was a . . . discriminatory
[or retaliatory] reason.” Brady v. Office of Sergeant at Arms,
520 F.3d 490, 496 n.4 (D.C. Cir. 2008). And a jury, having
found the employer’s explanation pretextual, may in
appropriate circumstances infer discrimination if the plaintiff
is a member of a protected class (or, for ADEA claims, over
forty years of age, see 29 U.S.C. § 633a(a)), and the slot for
which he applied went to an applicant outside that class. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
147 (2000) (“The factfinder’s disbelief of the reasons put
forward by the defendant . . . may, together with the elements
of the prima facie case, suffice to show intentional
discrimination.” (internal quotation marks omitted)); see also
Cones v. Shalala, 199 F.3d 512, 516 (D.C. Cir. 2000) (the
prima facie framework is “(1) [the employee] is a member of
a protected class; (2) he applied for and was qualified for an
available position; (3) despite his qualifications he was
rejected; and (4) either someone not of his protected class
filled the position or the position remained vacant and the
employer continued to seek applicants”). Similarly, having
found the employer’s explanation pretextual, the jury may in
appropriate circumstances infer retaliation if it finds “(1) that
[the plaintiff] engaged in statutorily protected activity; (2) that
he suffered a materially adverse action by his employer; and
(3) that a causal link connects the two.” Jones, 557 F.3d at
677.
We start with Customs’s claim that Reefe was promoted
to the GS-14 position because of his superior qualifications.
In response, Gilbert points to evidence he says shows that he
was in fact substantially more qualified than Reefe. For
example, Arthur Pitts, who was Gilbert’s supervisor at the
time of the promotion and who served as the first-line
supervisor for the GS-14 position being filled, testified that “if
you were making a selection based on qualification and
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experience, the qualification and experience of Art Gilbert
would dwarf that of Mark Reefe. I know that.” Pitts Dep.
140:11–14, Dec. 6, 2002. According to Pitts, the difference
between Gilbert and Reefe’s qualifications “was large enough
to slap you in the face.” Pitts Dep. 69:5–7, June 30, 2009. The
government objects, claiming that because “Pitts had not
supervised Reefe prior to the selection,” he “had no basis for
comparing their relative qualifications.” Appellee’s Br. 43.
Not so. A reasonable jury could easily conclude that Pitts—
not only the supervisor for the very position in question, but
someone who worked directly with both Reefe and Gilbert
immediately after the promotion—was well-positioned to
assess their relative qualifications. Should the jury credit
Pitts’s testimony, it could find that Gilbert’s qualifications
indeed “dwarf[ed]” Reefe’s, and that Customs’s reliance on
relative qualifications was pretextual. Because Gilbert is
Mexican American and was over forty when Customs
promoted Reefe, a younger white male, the jury could then
conclude that Customs’s true reason was Gilbert’s race or age.
We shall therefore reverse the grant of summary judgment on
Gilbert’s discrimination claims stemming from this promotion
and remand for trial.
Gilbert’s retaliation claim is a different matter. To create
a triable issue of fact on that claim, aside from establishing
pretext, Gilbert must offer evidence that he engaged in
protected activity, i.e., “opposed any practice made an
unlawful employment practice by [Title VII],” 42 U.S.C.
§ 2000e-3(a), and that a causal link connects the protected
activity and his non-promotion. Jones, 557 F.3d at 677; see
also Talavera v. Shah, 638 F.3d 303, 313 (D.C. Cir. 2011)
(employee must “present evidence from which a reasonable
jury could find that [the] non-promotion was the result of
unlawful retaliation”). Gilbert identifies two incidents he
claims qualify as protected activity.
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First, he argues that his initial meeting with Jacksta, in
which he asked for a clean start, was itself protected because
he “demanded non-retaliation.” Appellant’s Br. 43. Gilbert
cites Crawford v. Metropolitan Government of Nashville &
Davidson County, which held that describing an employer’s
past discrimination while responding to questions in an
internal investigation constitutes opposing the unlawful
practice. 555 U.S. 271 (2009). But Crawford provides no
support for the odd proposition that asking a new employer
for fair treatment going forward, as opposed to challenging
the employer’s past unlawful activity, qualifies as opposing a
practice made unlawful by Title VII.
Second, Gilbert points to the discrimination claims he
brought in the San Diego litigation, reasoning that Jacksta,
who knew of those proceedings, retaliated against him by
declining to recommend him for the promotion that ultimately
went to Reefe. Although bringing discrimination charges
undoubtedly qualifies as protected activity, see 42 U.S.C.
§ 2000e-3(a), Customs argues, and we agree, that Gilbert has
failed to establish a causal link to that activity. Not only did
the litigation take place more than three years earlier, see
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001)
(“Action taken . . . 20 months later suggests, by itself, no
causality at all.”), but Gilbert acknowledges that he never
gave Jacksta any details about the charges, instead merely
informing him that “I had a prior EEO activity in San Diego,”
Gilbert Dep. 12:15. In our view, no reasonable jury could
infer that the mere mention of such long-ago activity at a
distant office would give Jacksta a reason to discriminate.
This is especially so given that Jacksta was based in
Washington and had no involvement in the events underlying
Gilbert’s San Diego claims. See Vickers v. Powell, 493 F.3d
186, 196 (D.C. Cir. 2007) (holding that no reasonable jury
could “find a retaliatory motive at work” where selecting
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official never “participate[d] in any of the alleged incidents
that make up [employee’s] [Title VII] claim”).
We can easily dispose of Gilbert’s remaining arguments.
He challenges the district court’s order striking his
statement of material facts for failing to comply with Local
Rule 7(h), which requires that parties file a “concise”
statement that includes only issues actually in dispute. D.D.C.
Local Civ. R. 7(h)(1). Gilbert filed a ninety-page statement
containing 758 facts, many of which the district court found
“neither material nor disputed.” Gilbert, 760 F. Supp. 2d at 23
n.1. Given this, the district court’s rejection of his statement
can hardly be considered an abuse of discretion. See Twist v.
Meese, 854 F.2d 1421, 1424–25 (D.C. Cir. 1988) (reviewing
for abuse of discretion district court’s refusal to consider
plaintiff’s statement of disputed material facts). Moreover,
because the district court struck only the statement itself
without treating any facts as conceded, Gilbert has failed to
show how this decision, even if erroneous, would lead to a
different outcome on any of his claims.
Gilbert next argues that a jury could deem him
substantially more qualified than Gay Laxton because Laxton
had no land border program experience and because Pitts
testified that Gilbert was the substantially more qualified of
the two. Laxton, who had more than four years at
Headquarters including work on passenger control systems
directly relevant to the position, was in many ways more
qualified than Gilbert, who applied for this promotion after a
mere two months at Headquarters. And no reasonable jury
could find Customs’s qualification-based explanation
pretextual based solely on Laxton’s dearth of land border
program experience because neither the position, as described
by Customs employees, nor the vacancy announcement
10
required such experience. Nor does Pitts’s testimony that
Gilbert was substantially more qualified than Laxton create a
genuine dispute of fact because Pitts was unfamiliar with the
relative qualifications of Gilbert and Laxton. Pitts himself
admitted that he was “not necessarily” “paying particular
attention” to employees, including Gay Laxton, “who worked
for other Division Directors.” Pitts Dep. 132:17–20, June 30,
2009. Pitts also acknowledged that he “did not object to” or
“evaluate” Laxton’s promotion. Id. at 132:20–22.
Next, Gilbert contends that Customs acted unlawfully
when it returned a selection register without selecting anyone
for a promotion. To prevail on this claim, Gilbert “must show
that the position was not withdrawn simply for lack of a
vacancy.” Carter v. George Washington Univ., 387 F.3d 872,
883 (D.C. Cir. 2004). Gilbert failed to do so, offering nothing
more than his own speculation about Customs’s needs based
on transfers within the GS-13 grade. Gilbert nonetheless
argues that he should benefit from an adverse inference
because Customs violated Office of Personnel Management
regulations when it lost or destroyed promotion files related to
the non-selection. See Talavera, 638 F.3d at 312 (deeming
appropriate an adverse inference where an official destroyed
notes that went to the heart of the dispute and that regulations
required he keep). But we have no need to consider whether
an adverse inference is appropriate here because Gilbert
sought no information that would help him establish the key
missing component for this claim—that a vacancy continued
to exist.
Gilbert’s claims with respect to Marcy Brodsky’s
promotion to Ahern’s Chief of Staff are equally meritless.
Ahern offered a nondiscriminatory reason for declining to
select Gilbert: that he sought “somebody that has [his]
confidence, loyalty, trust” because he “need[ed] to make sure
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as far as the confidentiality of discussions, making sure as far
as the integrity [of] reports, everything is maintained in this
whole process going forward.” Ahern Dep. 96:3–8, Dec. 9,
2008. Having presided over Virginia Gengor’s disciplinary
proceeding, Ahern explained that he doubted Gilbert’s ability
to maintain agency confidences because Gilbert had asked
Gengor to retrieve confidential agency documents for his
personal use. Gilbert contends that a jury might find Brodsky
similarly untrustworthy and thus doubt Ahern’s explanation.
In his reply brief, however, Gilbert concedes that “Ahern
‘honestly’ believes that he rejected Gilbert for having
obtained the documents a decade earlier.” Appellant’s Reply
Br. 33 n.13. The only question, then, is whether this reason is
itself unlawful. See Woodruff v. Peters, 482 F.3d 521, 531
(D.C. Cir. 2007) (given a legitimate, nondiscriminatory, non-
retaliatory explanation, “[w]e review not the correctness or
desirability of the reasons offered but whether the employer
honestly believes in the reasons it offers” (internal quotation
marks omitted)). Insisting it is, Gilbert emphasizes that he
obtained the documents while pursuing his discrimination
claims. But it makes no difference that Gilbert’s actions—
which Ahern honestly believed constituted misconduct—
occurred in the course of a discrimination case because asking
a government employee to obtain documents unlawfully
cannot itself qualify as protected activity. Thus, because
Ahern had an honestly held, nondiscriminatory, non-
retaliatory reason for rejecting Gilbert, summary judgment for
Customs was entirely warranted.
III.
We reverse the district court’s dismissal of Gilbert’s
claims stemming from Milne’s promotion, reverse its grant of
summary judgment with respect to his age and race
discrimination claims stemming from Reefe’s promotion, and
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remand for further proceedings consistent with this opinion.
In all other respects, we affirm.
So ordered.