Camille Grosdidier v. Broadcasting Board of Governors , 709 F.3d 19 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2012 Decided March 8, 2013
No. 11-5291
CAMILLE GROSDIDIER,
APPELLANT
v.
BROADCASTING BOARD OF GOVERNORS, CHAIRMAN,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01553)
Leslie D. Alderman III argued the cause and filed the briefs
for appellant.
Jane M. Lyons, 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.
Judith A. Kidwell, Assistant U.S. Attorney, entered an
appearance.
Before: HENDERSON and ROGERS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
2
ROGERS, Circuit Judge: Camille Grosdidier has worked in
the French to Africa Service of the Voice of America (“VOA”)
since 1987, since 1991 as a GS 12. When she did not receive a
promotion to Senior Editor GS 13 in 2006, she sued the
Chairman of the Broadcasting Board of Governors (“BBG”)
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. She now appeals the grant of summary
judgment, contending the district court erred in treating her
retaliation claim as a premature hostile work environment claim,
and in requiring direct evidence of discrimination beyond
evidence of pretext. She also contends that the denial of her
motion for spoliation sanctions, in light of the destruction of
interview notes by two of the three promotion review panelists,
erroneously required evidence of bad faith. We agree with the
district court’s finding that no reasonable employee could
believe the objected-to conduct was unlawful under Title VII
and hence summary judgment was appropriately granted on her
retaliation claims. And although this court has not held that bad
faith is required for a party to be entitled to a spoliation
inference where, as here, there is a duty of preservation, the
error was harmless. Grosdidier’s objections to the selection
process, even applying a spoliation inference, fail to demonstrate
that summary judgment was inappropriately granted on her
discrimination claims. Accordingly, we affirm.
I.
Grosdidier is a white female of French national origin who
has worked as an international broadcaster for the VOA’s
French to Africa Service since 1987. She has held a GS-12
grade level position since 1991 and her supervisor has been
Idrissa Seydou Dia, an African American male from Senegal.
Her experiences in that Service have not always been to her
liking. In April 2004, she complained to her supervisor, Dia,
that a coworker had forwarded an email to her and other
3
coworkers that contained what she perceived to be a sexually
suggestive image of a well-known singer. In 2005, she
complained that a coworker was engaging in inappropriate
flirting, hugging, and kissing with male employees. Previously
she had made similar informal and formal complaints related to
issues as varied as the clothing worn by a coworker and co-
worker attendance. She proffered evidence of other instances of
inappropriate office behavior, including Dia and a female
subordinate referring to one another as “Sexy Mama” and “Sexy
Papa,” a female coworker using the French word for “master” to
refer to the managing editor, and the alleged viewing of
pornography on work computers by a male coworker. She also
complained when she was not selected for a GS-13 position in
2002.
In early 2006, the BBG announced an opening for an
international broadcaster position at the GS-13 grade level in the
VOA’s French to Africa Service. The posting described “a
multi-media Senior Editor” position and listed six equally
weighted “Knowledge, Skills, and Ability Factors” related to the
position’s television, radio, and internet editing and broadcasting
responsibilities. Thereafter Dia convened a panel of VOA
employees to interview and evaluate the candidates: Andre de
Nesnera, a senior correspondent at the VOA and a Foreign
Service Officer; Diane Butts, the Television Manager for the
VOA’s Africa Division; and Sandra Lemaire, an editor at the
VOA’s English Web Desk. The panel interviewed the
applicants, including Grosdidier, and recommended the selection
of Timothee Donangmaye, a black male originally from Chad
who was the host of the Service’s television program,
Washington Forum. Although all of the panelists took notes
during the interviews, only Butts preserved her notes. Dia
forwarded the panel’s recommendation to his supervisors, and
Donangmaye was promoted.
4
Grosdidier, upon learning of the selection, filed a formal
complaint with the Equal Employment Opportunity office
(“EEO office”) in July 2006. She claimed that the selection
panel had discriminated against her because of her gender, race,
and national origin. She also claimed that her rejection was in
retaliation for her earlier EEO complaints in 2004 and 2005.
She filed another EEO complaint in December 2007, claiming
that her decision to pursue the EEO process prompted further
discriminatory and retaliatory treatment. Before the Equal
Employment Opportunity Commission (“EEOC”), Grosdidier
filed a motion in limine requesting, as she was a United States
citizen and Donangmaye was not, that the Administrative Judge
modify the pretext standard in light of the BBG’s obligations
under 22 U.S.C. § 1474(1) to give preference in hiring to United
States citizens. The judge ruled he lacked authority to interpret
the statute and stated the case should be litigated in the district
court. Her initial effort to do so under the Administrative
Procedure Act was unavailing. See Grosdidier v. Chairman,
Broadcasting Board of Governors, 560 F.3d 495 (D.C. Cir.
2009).
Five months after the district court’s dismissal in that case,
Grosdidier sued the BBG on September 9, 2008, pursuant to
Title VII, alleging unlawful discrimination and retaliation. On
March 30, 2010, she moved for an adverse inference on the
ground that two panelists had destroyed their interview notes
despite an EEOC regulation requiring preservation of the notes
for one year, 29 C.F.R. § 1602.14.1 The district court refused to
1
22 C.F.R. § 1602.14 (2006) provides, as relevant:
Any personnel or employment record made or kept by an
employer (including but not necessarily limited to . . . records
having to do with . . . promotion . . . ) shall be preserved by
the employer for a period of one year from the date of the
5
apply an inference in the absence of evidence of bad faith by the
BBG, and granted the BBG’s motion for summary judgment,
except as related to the reduction of Grosdidier’s editing duties
after her July 2006 EEO complaint. See Grosdidier v.
Chairman, Broadcasting Board of Governors, 774 F. Supp. 2d
76, 104, 114 (D.D.C. 2011). The district court also denied her
motion for reconsideration or, in the alternative, to amend the
judgment. See id. at 115. Grosdidier appeals, and our review
of the grant of summary judgment is de novo. See Pardo-
Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010).
II.
Title VII makes it unlawful for federal employers to
discriminate on the basis of race, gender, or national origin. See
42 U.S.C. § 2000e-16(a). In addition, it prohibits employer
retaliation when an employee has “opposed any practice made
an unlawful employment practice by this subchapter,” see id.
§ 2000e-3(a); see Crawford v. Metropolitan Gov’t of Nashville
and Davidson County, Tenn., 555 U.S. 271, 274 (2009), and
when an employee “has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this subchapter,” see 42 U.S.C. § 2000e-3(a);
Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009) (noting
§ 2000e-3(a)’s ban on retaliation applies to federal employers
through § 2000e-16). Grosdidier’s claims involve both alleged
retaliation and discrimination.
making of the record or the personnel action involved,
whichever occurs later. * * * Where a charge of
discrimination has been filed . . . against an employer under
title VII . . . , the respondent employer shall preserve all
personnel records relevant to the charge or action until final
disposition of the charge or the action.
6
Summary judgment is appropriate when “the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute over a material fact is genuine when the
evidence before the district court is “such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As part of this
assessment, the court must view the evidence “in the light most
favorable to the nonmoving party and . . . draw all reasonable
inferences in favor of the nonmoving party.” Talavera v. Shah,
638 F.3d 303, 308 (D.C. Cir. 2011).
A.
Grosdidier’s retaliation claim focuses on her employer’s
responses, or lack thereof, to her informal 2004 and 2005 email
complaints. An employee’s opposition to an employment
practice is protected under Title VII when the employee
“reasonably and in good faith believed [the practice] was
unlawful under the statute.” McGrath v. Clinton, 666 F.3d 1377,
1380 (D.C. Cir. 2012). Although opposition activity may be
protected even though the employer’s practices do not amount
to a violation of Title VII, the employee-plaintiff must have a
good faith and reasonable belief that the practices are unlawful.
Where, as here, a plaintiff contends that the practices she
opposes constitute a hostile work environment, the court must
assess whether she could have reasonably believed that “the
workplace [wa]s permeated with discriminatory intimidation,
ridicule, and insult that [wa]s sufficiently severe or pervasive to
alter the conditions of [her] employment and create an abusive
working environment.” George v. Leavitt, 407 F.3d 405, 416
(D.C. Cir. 2005) (quoting Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 78 (1998)) (internal quotation marks omitted).
Not all complaints are protected under this framework.
7
Viewing the evidence most favorably to Grosdidier, her
complaints identified conduct by her co-workers that was
inappropriate in a professional office environment. Her
complaints regarding this conduct were not, however, protected
activity because, as the district court found, “no reasonable
employee could believe that the conduct about which she
complained amounted to a hostile work environment under Title
VII.” Grosdidier, 774 F. Supp. 2d at 108. The type of conduct
referenced in Grosdidier’s complaints, such as circulating an
email with a suggestive image of a well-known musician
straddling a cannon and excessive hugging and kissing between
a female coworker and several male coworkers and visitors, is
insufficient to support a good faith belief that the conduct was
“so objectively offensive as to alter the ‘conditions’ of [her]
employment.” Oncale, 523 U.S. at 81. Even considering the
additional evidence she proffered in her motion for
reconsideration, which the district court properly declined to
consider because she should have submitted it in opposing
summary judgment, Grosdidier, 774 F. Supp. 2d at 118–19, the
evidence viewed as a whole was not sufficient to show the
requisite reasonable belief.
Whatever merit there might be to her suggestion that these
kinds of complaints should be protected so that an employer will
take steps to ameliorate the conduct before it escalates and
results in a hostile work environment, cf. Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 764–65 (1998); Parker v. Baltimore &
Ohio R.R. Co., 652 F.2d 1012, 1019 (D.C. Cir. 1981), this court
has required that under Title VII she must show that she had a
reasonable belief the conduct was unlawful. See McGrath, 666
F.3d at 1380. The conduct about which she complained may
have been distasteful and personally objectionable, but there was
no evidence from which to find that a reasonable employee
could have believed it was so “extreme” as to alter the
conditions of her employment. George, 407 F.3d at 416
8
(quotation marks omitted). Summary judgment was therefore
appropriately granted to the BBG on the retaliation claims.
B.
Grosdidier’s contentions regarding discrimination in the
GS-13 hiring process fall into two categories: The first is a
relative qualifications claim, in which she maintains that the
disparity between her skills and experience of the other
applicants was so stark as to support a claim of discrimination.
The second claim is based on pretext, resting largely on her view
that she proffered sufficient evidence to show that the BBG’s
reason for selecting Donangmaye — i.e., that he was better
qualified — was pretextual, and that this sufficed to survive
summary judgment.
Because the BBG has proffered a legitimate, non-
discriminatory reason for the selection of Donangmaye, the
court need not apply the familiar McDonnell Douglas burden-
shifting framework; in such situations, the burden-shifting
framework evaporates and the remaining question becomes one
of discrimination. See Pardo-Kronemann, 601 F.3d at 603;
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
In assessing the legitimacy of the proffered reason and the
ultimate question of discrimination, the court looks to “(1) the
plaintiff’s prima facie case; (2) any evidence the plaintiff
presents to attack the employer’s proffered explanation for its
actions; and (3) any further evidence of discrimination that may
be available to the plaintiff . . . or any contrary evidence that
may be available to the employer . . . .” Aka v. Washington
Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc).
To prevail on a relative qualifications claim, Grosdidier
must show that she is “significantly better qualified for the job
than [the applicant] ultimately chosen.” Adeyemi v. District of
Columbia, 525 F.3d 1222, 1227 (D.C. Cir. 2008) (quoting
9
Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006)). The
evidence showed that Grosdidier had more experience as an
editor than Donangmaye. But the evidence also showed that
Donangmaye had more internet and television broadcasting
experience than Grosdidier, which is relevant to the position
described in the official posting. Grosdidier conceded that
Donangmaye had superior qualifications in these areas during
the EEO investigation, and although critical of his performance
nowhere suggests that he was unqualified for the position. The
picture that emerges from the evidence, even viewed most
favorably to Grosdidier, is one in which both applicants had
different levels of expertise in various domains relevant to the
GS-13 position. Neither stood out to the degree necessary,
however, to meet the criteria for a relative qualifications claim.
The evidence of pretext is stronger. Grosdidier points to
Dia’s tailoring of the job description to fit Donangmaye’s skill
set, the reduction of her editing duties, the “arbitrary” evaluation
methods used by the interview panelists, two panelists’
decisions to destroy their notes from the interview process, and
the panelists’ failure to give proper weight to the applicants’
editing experience for a job styled a Senior Editing position.
This evidence was, she maintains, sufficient to survive summary
judgment and the district court thus erred in applying a “pretext
plus” standard, requiring her to come forward with direct
evidence of discrimination beyond evidence of pretext. But “the
circumstances of some cases may render evidence undercutting
the employer’s explanation insufficient to infer discrimination,”
Aka, 156 F.3d at 1292, and this is one such case. Rather than
applying a “pretext plus” standard, as Grosdidier suggests, the
district court asked simply whether there was sufficient evidence
to rebut the BBG’s nondiscriminatory reason for selecting
Donangmaye, and found there was not, see Grosdidier, 774 F.
Supp. 2d at 106. We agree for the following reasons.
10
First, a reasonable juror could not infer from the evidence
of preselection that the legitimate nondiscriminatory reason the
BBG gave for selecting another candidate over Grosdidier was
not the actual reason. True, there is evidence that Dia crafted
the job description to include TV hosting and website
programming, tasks Donangmaye was doing regularly and
Grosdidier did only occasionally. And he diminished
Grosdidier’s editing responsibilities in the months leading up to
the GS-13 position announcement. But the employer’s decision
to consolidate hosting duties for a particular program with
editorial and internet responsibilities in a single position merely
suggests a preference for a particular constellation of
qualifications in its candidate of choice, not unlawful Title VII
discriminatory preselection. Cf. Goostree v. Tennessee, 796
F.2d 854, 861 (6th Cir. 1986); Kennedy v. Landon, 598 F.2d
337, 341 (4th Cir. 1979). The discretion to package certain
skills in a single position, as here, remains with the employer,
unless it involves an attempt to exclude members of a protected
class from gaining access to the position. Cf. Adeyemi, 525 F.3d
at 1227. The evidence regarding the particular combination of
job qualifications does not suggest an attempt to mask an
alternative, non-merit-based reason for selecting Donangmaye.
Second, the evidence of an allegedly “arbitrary” selection
process is not probative of pretext. Grosdidier suggests
evidence that the interview panelists failed to emphasize editing
experience during the selection process, diverged in their
accounts of the applicants’ qualifications, and arbitrarily
assessed and scored the interviewees shows that the BBG has
attempted to conceal the discriminatory purpose behind its
decision to reject Grosdidier for the GS-13 position. At most,
however, the evidence shows an undisciplined but legally
adequate selection process. In Fischbach v. D.C. Dep’t of
Corrections, 86 F.3d 1180 (D.C. Cir. 1996), the court
emphasized that “[e]vidence indicating that an employer
11
misjudged an employee’s performance or qualifications is . . .
relevant to the question whether its stated reason is a pretext
masking prohibited discrimination.” Id. at 1183. Such evidence
of pretext might include “an error too obvious to be
unintentional.” Id. But absent evidence of pretext or
discriminatory motive, the court “must respect the employer’s
unfettered discretion to choose among qualified applicants.” Id.Viewing the evidence most favorably to Grosdidier also
does not show that the panelists made any glaring errors as part
of their role in the selection process, and the panel’s
contemporaneous written justification for their recommendation
that Donangmaye be selected hews closely to his qualifications
and the criteria listed in the job posting. Specifically, the
panel’s explanation referred to Donangmaye’s combined
internet, print, radio, and television experience, his initiative in
seeking training in the VOA’s website editing platform, and his
interpersonal and leadership skills, among others. The
knowledge, skills, and ability factors in the GS-13 job
description mention similar considerations, including “[b]road
[k]nowledge of the principles, practices, and procedures of
journalistic writing and editing for radio, TV and internet,”
“[k]nowledge of . . . internet techniques and practices,” and
“[s]kill in . . . maintaining effective and respectful working
relationships.” Although there is evidence that, when deposed
months after the interviews, the panelists were unable to clearly
articulate the factors they had used in evaluating the applicants,
such evidence is insufficient for a reasonable juror to find
pretext in light of the panel’s coherent and contemporaneous
documentation of the logic underlying its recommendation.
Grosdidier’s focus on the scoring methodology used by the
panel does not alter the analysis. The evidence shows that the
numerical scores were of minimal significance; Dia informed
the panel of the need to score the applicants only after the panel
12
had reached its decision and issued its written explanation. The
panelists assigned numerical values to the applicants in an ex
post fashion that reflected the ranking they had already
explained to Dia in writing. An inability to clearly articulate the
reasoning behind the specific allocation of numerical scores
speaks less to any effort to mask an alternative unlawful purpose
behind their decision and more to a sloppiness in organizing this
aspect of the interview process. The less-than-clear scoring
methodology may indicate a lack of precision on the part of the
panel in executing this last-minute duty, but it does not suggest
anything “fishy” was taking place. Salazar v. Wash. Metro.
Transit Auth., 401 F.3d 504, 508 (D.C. Cir. 2005) (quoting
Fischbach, 86 F.3d at 1184) (quotation marks omitted).
More troubling is the decision by two panelists to destroy
their notes despite an EEOC regulation requiring them to
maintain them for at least one year, 29 C.F.R. § 1602.14, supra
note 1. The panelists were experienced BBG employees, all of
whom had previously served on selection panels. Although one
complete set of notes exists along with all of the materials the
applicants submitted and the panel’s contemporaneous written
explanation of their recommendation, the missing notes could
have provided a more complete picture of what transpired
during the interview process, especially regarding the types of
questions the panelists asked generally and of specific applicants
and their focus on particular qualities of an applicant. The
destroyed notes were relevant to Grosdidier’s challenge to her
non-selection and their destruction deprived her of evidence that
could have been useful in supporting her arguments that the
official reason given for hiring Donangmaye was pretextual.
Nonetheless, the district court denied Grosdidier’s motion for an
adverse presumption because there was “insufficient evidence
in the record to support a finding of bad faith.” Grosdidier, 774
F. Supp. 2d at 104. This was error.
13
This court has recognized the negative evidentiary inference
arising from spoliation of records. See Webb v. D.C., 146 F.3d
964 (D.C. Cir. 1998); Shepherd v. Am. Broad. Co., 62 F.3d 1469(D.C. Cir. 1995). In Talavera, 638 F. at 311–12, the court held,
in accord with other circuit courts of appeals, that a Title VII
plaintiff was entitled to an adverse inference jury instruction
after the employer negligently destroyed the notes documenting
her interview for a vacant position in violation of the same
records retention EEOC regulation on which Grosdidier relies.
In that case, the employer defended on the ground that the
plaintiff’s non-selection was based on her poor performance
during an interview. See id. at 312. In concluding the plaintiff
was entitled to an adverse spoliation instruction, the court
considered whether the plaintiff was a “member of the classes
sought to be protected” by the record retention regulation and
whether “[t]he destroyed records were relevant” to the challenge
to the employer’s proffered reason for not selecting the plaintiff.
Id. The court did not hold that the spoliation inference is
available only upon a showing that the employer destroyed the
records in bad faith. To the contrary, the spoliation inference
was appropriate in light of the duty of preservation
notwithstanding the fact that the destruction was negligent. Id.
Similarly, the Second and Fourth Circuits do not require
evidence of bad faith as a prerequisite to approval of a spoliation
inference in the Title VII context. See Buckley v. Mukasey, 538
F.3d 306, 322–23 (4th Cir. 2008); Byrnie v. Town of Cromwell,
Bd. of Educ., 243 F.3d 93, 109 (2d Cir. 2001); but see Norman-
Nunnery v. Madison Area Tech. Coll., 625 F.3d 422, 428 (7th
Cir. 2010); Turner v. Pub. Serv. Co. of Col., 563 F.3d 1136,
1148–50 (10th Cir. 2009); Caparotta v. Entergy Corp., 168 F.3d
754, 756 (5th Cir. 1999). After all, there are instances where the
court can determine the likely relevance of destroyed evidence
without a showing of bad faith destruction. Where the evidence
is relevant to a material issue, the need arises for an inference to
14
remedy the damage spoliation has inflicted on a party’s capacity
to pursue a claim whether or not the spoliator acted in bad faith.
As a Title VII litigant, Grosdidier is within the class
protected by the EEOC regulation, and the destroyed notes are
likely to have had information regarding her responses and those
of the other applicants during the interview as well as the types
of questions asked of her and other applicants, all of which
could be relevant to her contention that the BBG is hiding the
real reason for its selection decision. Grosdidier is therefore
entitled to an adverse inference, albeit not her requested
inference, which was tantamount to a directed verdict. In
moving for a spoliation inference, however, she identified,
alternatively, a list of specific adverse inferences regarding the
content of the destroyed notes. The existence of some evidence
of what the panelists were thinking, including the interview
notes of one panelist, multiple contemporaneous writings
regarding the reasoning behind the panel’s recommendation, and
application materials of other applicants, weighs in favor of
limiting the scope of the inference, but not in denying any
inference at all. Unlike in Talavera, 638 F.3d at 312, where the
non-discriminatory reason for the plaintiff’s non-selection
turned on her performance during an interview, there is no
evidence to suggest Grosdidier’s interview performance played
the same pivotal role. Under the circumstances, a permissive
inference bounded by constraints of reason is appropriate – i.e.,
the factfinder may draw reasonable inferences in favor of
Grosdidier based on the non-accidental destruction of two of the
three sets of interview notes.
Nevertheless, even if a factfinder could reasonably infer that
the destroyed notes contained information that might be
favorable to Grosdidier, favorable evidence is not in all
instances equivalent to evidence that would permit Grosdidier
to survive summary judgment. See Aka, 156 F.3d at 1292. The
15
inference Grosdidier requires must be sufficient to create a
genuine issue of material fact, not simply one that lends some
support to her pretext contention. Grosdidier requested such a
spoliation inference, including that the interview panelists
considered her to have superior qualifications. But this would
not be a reasonable inference in light of the evidence of the
relative qualifications of the applicants and the panel’s
evaluation of their qualifications. Neither does the evidence
support a reasonable inference that the notes would likely
contain information that the BBG is falsely defending on the
ground that it selected Donangmaye for his knowledge, skills,
and abilities. Even if it would be reasonable to infer that the
destroyed notes included evidence corroborating that Grosdidier
performed well in the interview or that different interviewers
emphasized different qualifications of the applicants, other
evidence, including the panel’s contemporaneous written
explanation for its recommendation in view of the skill sets for
the position, would not permit a reasonable finding that the
destroyed notes would have established pretext, let alone
unlawful discrimination. For this reason, the denial of
Grosdidier’s request for an adverse spoliation inference was
harmless error.
Accordingly, we affirm the district court’s grant of
summary judgment.