Vernard Evans v. Kathleen Sebelius , 716 F.3d 617 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 2013 Decided May 17, 2013
No. 11-5120
VERNARD EVANS,
APPELLANT
v.
KATHLEEN SEBELIUS, SECRETARY, U.S. DEPARTMENT OF
HEALTH & HUMAN SERVICES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01077)
Ellen K. Renaud argued the cause for appellant. With her
on the briefs was David H. Shapiro.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: TATEL, Circuit Judge, and WILLIAMS and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
2
Opinion concurring in part and concurring in the
judgment filed by Senior Circuit Judge WILLIAMS.
TATEL, Circuit Judge: Appellant alleges that her
employer, the United States Department of Health and Human
Services, denied her a promotion and a transfer 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 government. For the
reasons set forth below, we reverse in part and affirm in part.
I.
At the start of President George W. Bush’s
Administration, plaintiff Vernard Evans, a fifty-four-year-old
African American, worked as a GS-13 Developmental
Disabilities Program Specialist in the Administration on
Developmental Disabilities (ADD), a division of HHS’s
Administration for Children and Families (ACF). At all times
relevant to this litigation, Evans’s direct supervisor was Leola
Brooks. Until July 27, 2001, Commissioner Sue Swenson, a
holdover from the Clinton Administration, managed ADD.
After Swenson left ADD, Deputy Commissioner Reginald
Wells served as Acting Commissioner until Bush
Administration appointee Patricia Morrissey became
Commissioner on August 27, 2001.
Immediately upon entering office, the Bush
Administration imposed a hiring freeze. Then, when Tommy
Thompson became HHS Secretary in February 2001, he
issued a memorandum requiring managers to “defer decisions
to fill positions at the GS-13 through SES levels until I have
had the opportunity to review staff deployment throughout the
Department.”
3
Despite the hiring freeze, in March 2001, outgoing
Commissioner Swenson recommended the creation of a GS-
14, non-supervisory Lead Developmental Disabilities
Specialist (LDDS) position. Shortly thereafter, Evans applied
for and was interviewed for that position. On July 17, Brooks
selected Evans and another African American for two LDDS
positions. But because of the hiring freeze, neither selectee
was promoted. Swenson declined to push for formal approval
of the LDDS position, believing that her successor should
make the final decision.
Over the next few months, the new Administration
replaced the hiring freeze with a series of hiring “controls.”
Specifically, in October 2001, Assistant Secretary for
Administration and Management Ed Sontag published a
memorandum requiring his approval for any promotions to
positions at GS-14 and above. In November 2001, Assistant
Secretary for Children and Families Wade Horn issued a
memorandum rescinding the requirement that Assistant
Secretary Sontag approve promotions for all non-supervisory
GS-14 and GS-15 positions. The memo nonetheless required
Horn’s approval for promotions to GS-13 and above. And in
March 2002, Horn announced at an “All Hands Meeting” that
the hiring freeze was no longer in effect.
Despite the relaxation of the hiring controls, Evans was
never promoted to the LDDS position, and she retired in April
2002. 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.
Both before and after her retirement, Evans sought to find
out why she had not been promoted. She claims that HHS
human resources officials told her that her promotion would
4
be pushed through after the hiring controls were removed.
Evans’s union representative was told that the promotion
never occurred because of the hiring controls and that the
LDDS position was “officially cancelled” in March 2002.
Evans also sought the assistance of United States Senator Paul
Sarbanes, and in response to an inquiry from the Senator’s
office, Assistant Secretary Horn stated that “Evans could not
be placed in the [LDDS] position because ACF was under
Departmental and agency hiring controls and the position
could not be filled. ADD subsequently elected to cancel the
vacancy announcement, thereby nullifying the selection
recommendation.” Finally, responding to Evans’s Freedom of
Information Act request, HHS revealed that at least three
white employees were promoted notwithstanding the hiring
controls.
Significantly for this case, one of those white employees,
Faith McCormick, was detailed as a GS-15 Executive
Assistant to incoming Commissioner Morrissey. Morrissey
hand-selected McCormick for the detail, doing so without a
competitive-selection process or opportunity for anyone else
to apply. McCormick’s detail lasted for 154 days, after which
she was permanently selected for the position, this time
following a competitive process.
After exhausting her administrative remedies, Evans filed
suit in the United States District Court for the District of
Columbia under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., and the Age Discrimination in
Employment Act of 1967, 29 U.S.C. §§ 621 et seq. As
relevant to this appeal, Evans alleged that two personnel
actions—HHS’s failure to promote her to the newly created
LDDS position and Morrissey’s selection of McCormick for a
detail as her Executive Assistant—were infected by race and
age discrimination. The district court granted summary
5
judgment to the government on all claims. Regarding the
LDDS position, the district court found that Evans failed to
establish a prima facie case of discrimination, but following
this Circuit’s directive in Brady v. Office of Sergeant at Arms,
520 F.3d 490 (D.C. Cir. 2008), it went on to address the
ultimate question of discrimination and held that Evans failed
to rebut the government’s legitimate, non-discriminatory
reason for not promoting her—that the LDDS position was
cancelled administratively. Regarding the Executive Assistant
position, the district court concluded that the denial of the
detail did not qualify as an adverse employment action. See
Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003)
(explaining that an adverse action is a prerequisite for a Title
VII claim).
Evans now appeals. Because her briefs make no effort to
advance her age discrimination claims, they are waived. See
Ark Las Vegas Restaurant Corp. v. NLRB, 334 F.3d 99, 108
n.4 (D.C. Cir. 2003) (noting that arguments not raised in
briefs are waived).
II.
We review the district court’s grant of summary
judgment de novo, viewing the evidence in the light most
favorable to Evans and drawing all reasonable inferences
accordingly. See Salazar v. Washington Metropolitan Area
Transit Authority, 401 F.3d 504, 507 (D.C. Cir. 2005). We
will affirm only if no reasonable jury could find in Evans’s
favor. See id.In Title VII cases, we traditionally follow the McDonnell
Douglas burden-shifting framework. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). But where, as here, the
employer has put forward a legitimate, non-discriminatory
explanation for its decision, the McDonnell Douglas inquiry
6
distills to one question: “Has the employee produced
sufficient evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory reason was not the
actual reason and that the employer intentionally
discriminated against the employee on the basis of race . . . ?”
Brady, 520 F.3d at 494; see also Adeyemi v. District of
Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008) (explaining
that “the prima-facie-case aspect of McDonnell Douglas is
irrelevant when an employer has asserted a legitimate, non-
discriminatory reason for its decision”). “We consider this
question ‘in light of the total circumstances of the case,’
asking ‘whether the jury could infer discrimination from the
combination of (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.’ ” Hamilton v. Geithner, 666 F.3d 1344, 1351
(D.C. Cir. 2012) (quoting Aka v. Washington Hospital Center,
156 F.3d 1284, 1289, 1291 (D.C. Cir. 1998) (en banc)).
Employees may cast doubt on the employer’s proffered
reason by, among other things, pointing to “changes and
inconsistencies in the stated reasons for the adverse action;
the employer’s failure to follow established procedures or
criteria; the employer’s general treatment of minority
employees; or discriminatory statements by the
decisionmaker.” Brady, 520 F.3d at 495 n.3.
A.
We start with Evans’s claim that she was denied the
LDDS position because of her race. In support, she argues
that the government’s proffered reason is pretext because
HHS “has given different explanations for the cancellation at
different times,” because “[n]o one admits to making the
decision to cancel the promotion,” and because “the evidence
7
shows that . . . several white employees (and no African-
Americans) were promoted” during the hiring controls.
Appellant’s Br. 13. Evans also cites record evidence of
allegedly racially insensitive remarks. For its part, the
government argues that the LDDS position went unfilled
because it never found a champion in the new Administration.
The position therefore “died a quiet administrative death, due
directly to the hiring controls.” Appellee’s Br. 22. The
government further contends that the Secretary’s varying
explanations are attributable to the gradual shift from a hiring
freeze to hiring controls. Despite the government’s
protestations, we believe that Evans has produced sufficient
evidence that, when taken together, could lead a reasonable
jury to conclude that the Secretary’s proffered reason for
cancelling the LDDS position was pretext for racial
discrimination. See Lathram v. Snow, 336 F.3d 1085, 1088
(D.C. Cir. 2003) (“[T]o survive summary judgment the
plaintiff must show that a reasonable jury could conclude
from all of the evidence that the adverse employment decision
was made for a discriminatory reason.” (emphasis added)).
To begin with, as 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. See Geleta v. Gray, 645 F.3d 408, 413 (D.C. Cir.
2011) (commenting that “shifting and inconsistent
justifications are probative of pretext” (internal quotation
marks omitted)). Evans also points out that Horn’s letter to
Senator Sarbanes explaining that Evans could not be
promoted because of the hiring controls omits a key fact—
that Horn could have approved Evans’s promotion. See
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
147 (2000) (explaining that a jury “can reasonably infer from
8
the falsity of the explanation that the employer is dissembling
to cover up a discriminatory purpose”). Moreover, record
evidence indicates that the relevant decision-makers have
taken different views on who precisely cancelled the LDDS
position. Acting Commissioner Wells testified that he
discussed the LDDS position with Morrissey and that she
expressed no interest in creating the position. Morrissey, by
contrast, testified that she had no role in the final cancellation
of the LDDS position because all GS-14 positions were
“removed” from her consideration and “no longer existed.”
Indeed, as the Secretary implicitly concedes, it is unclear who
cancelled the LDDS position. See Appellee’s Br. 9 (“The
proposed positions were eventually cancelled
administratively, though the record does not provide much
detail on precisely how that happened.”).
To be sure, as the government argues, there may well be
a benign explanation for these shifting rationales: HHS’s
reasons changed as the hiring freeze morphed into hiring
controls. And it may even be, again as the government argues,
that the omission from the Sarbanes letter was immaterial. But
we need not decide whether these shifting and inaccurate
explanations are, by themselves, sufficient for Evans to
survive summary judgment because documents released in
response to her FOIA request revealed that the hiring controls
the government claims prevented her elevation to the LDDS
position posed no barrier to the promotion of at least three
white employees.
On this point, Cones v. Shalala, 199 F.3d 512 (D.C. Cir.
2000), is instructive. There, an African American plaintiff
was denied a promotion that went to a white employee who
was lateralled into the position. The Secretary relied on an
Executive Order mandating a reduction in the number of GS-
14 and GS-15 employees as its legitimate, non-discriminatory
9
rationale. But despite the Executive Order, white GS-14s—
including the white employee selected for the position sought
by the plaintiff—were promoted during that period. Given
this, we concluded that “a jury could infer that HHS
deliberately misread the Executive Order to favor [the white
employee] because it preferred not to promote an African
American.” Id. at 520. So too here. Once the hiring freeze was
lifted in late 2001, Horn or Sontag could have approved the
LDDS position and promoted Evans. Instead, as in Cones,
HHS promoted whites, but not African Americans.
The government has no direct response to Cones—
indeed, its brief fails to even cite the decision. Instead, the
government argues that the promoted whites were not
similarly situated to Evans. This misses the point. As to this
claim, Evans cites the promotion of white employees as
evidence that the hiring controls were not insurmountable, not
that she was discriminatorily denied one of those positions.
Thus, while the government may be correct that the LDDS
position met a “quiet administrative death,” Appellee’s Br.
22, this still begs the Cones question of why Evans never
found a champion and why only white employees found
champions. According to our concurring colleague, the white
employees’ promotions are not inconsistent with the
government’s explanation that the hiring controls were “not
an impermeable barrier” and “at most” demonstrate that “the
government’s initial explanation [w]as imprecise.”
Concurring op. at 6. But the point of Cones is not that the
white employees’ promotions establish that the government
gave an imprecise explanation but rather that a reasonable
jury could infer that the promotion of white employees—but
not African Americans—during the hiring controls is
evidence of pretext. See Cones, 199 F.3d at 520 (“Because the
record contains evidence that downsizing had not prevented
10
the Department from promoting white GS-14s, a jury could
conclude that downsizing was pretext for discrimination.”).
Finally, Evans has produced evidence regarding behavior
by Morrissey and McCormick that a reasonable jury could
interpret as racially insensitive. Debbie Powell, 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, Powell recounts an
incident in which McCormick implied that people from “the
Hood” are liars and cheaters. After Powell 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.” According to Powell, Morrissey
failed to respond immediately to these remarks—though
Morrissey eventually reprimanded McCormick. Powell also
claims that she was involuntarily detailed out of ADD by
Morrissey after she complained about McCormick’s behavior.
Given this additional evidence, Evans’s argument about
the government’s shifting and inaccurate explanations
becomes more salient. For example, a reasonable jury
knowing that HHS promoted three whites notwithstanding the
hiring controls could be quite suspicious about why the LDDS
position was administratively cancelled even though Evans
was initially told she would be promoted after the hiring
freeze ended. Likewise, a jury, knowing not only about the
white employees but also that Morrissey referred to African
Americans as “those sisters,” could reasonably find that
Morrissey was dissembling when she disavowed her
involvement in the decision-making process.
11
In the end, the record supports two plausible
interpretations of what happened. One view, urged by Evans,
is that Morrissey decided not to create the position because
Evans and another African American had been selected to fill
the two spots. The other view, urged by the government, is
that no one in the incoming Administration championed the
creation of the LDDS position. As an appellate court
reviewing the district court’s grant of summary judgment, we
have no authority to choose between these competing views.
Given our “obligation to draw reasonable inferences in
[Evans’s] favor,” Salazar, 401 F.3d at 509, and given the
record evidence that HHS (1) promoted whites but not
African Americans during the hiring controls, (2) offered
inconsistent and inaccurate explanations, and (3) is unable to
identify who cancelled the LDDS position, a reasonable jury,
especially in light of Powell’s testimony about Morrissey’s
and McCormick’s comments, could find the Secretary’s
proffered explanation to be nothing more than a veil for racial
discrimination. Ultimately, this is precisely the type of factual
dispute that “must be resolved in a jury room rather than in
the pages of the Federal Reporter.” Czekalski v. Peters, 475
F.3d 360, 362 (D.C. Cir. 2007).
B.
This brings us to Evans’s second claim: that she was
denied the detail to the Executive Assistant position because
of her race. In granting summary judgment to the government,
the district court concluded that the denial of the detail did not
qualify as an adverse action. We need not address this issue,
however, because, as the government urges, we can affirm on
an alternative ground, i.e., that Evans has failed to rebut the
government’s proffered, non-discriminatory reason. See
EEOC v. Aramark Corp., 208 F.3d 266, 268 (D.C. Cir. 2000)
(explaining that “because we review the district court’s
12
judgment, not its reasoning, we may affirm on any ground
properly raised”).
Once again, the parties disagree about whether the
government has provided a consistent and legitimate
explanation. Evans contends that Morrissey gave shifting
explanations for selecting McCormick for the detail and
emphasizes Morrissey’s admission that she sought a
Republican “confidant” as her Executive Assistant. See 5
U.S.C. § 2302(b)(1)(E) (prohibiting personnel actions based
on “political affiliation”). Evans also asserts that proper
protocols were not followed in McCormick’s selection.
But the government points to a key fact: Morrissey first
met Evans in August 2001. Because Morrissey selected
McCormick for the Executive Assistant detail prior to this
date, the government’s argument goes, the record contains no
evidence of racial discrimination. Thus, even though
Morrissey gave conflicting and illegitimate reasons for
selecting McCormick and even though proper protocols were
not followed, Evans cannot establish that the Secretary’s
proffered reasons were pretext for racial discrimination.
Evans has two responses. She first claims that this
argument is waived because, she says, the government failed
to raise it in the district court. But the government did argue
in the district court that Morrissey had never met Evans prior
to August 2001. See, e.g., Defendant’s Memorandum in
Support of Motion for Summary Judgment at 16 (“There is no
evidence that Commissioner Morrissey even knew the
plaintiff at all at the time she was considering accepting the
appointment to ADD and filling the Executive Assistant
position or asking Ms. McCormick to detail to the position.”).
Second, Evans contends that nothing in the record “supports
the idea that Morrissey did not know Evans’ race when she
13
selected McCormick as her Executive Assistant.” Appellant’s
Reply Br. 21 n.5 (emphasis added). Of course, as Evans
emphasizes, an individual could quite plausibly know another
person’s race before meeting them. But here, the record
contains no evidence that Morrissey selected McCormick
because she was white or that prior to August 2001 Morrissey
was even aware of Evans’s existence, much less her race.
Although Evans contends that McCormick’s selection as
the Executive Assistant was procedurally flawed and infected
with partisan motives, she must still provide sufficient
evidence that the government’s proffered explanation is
pretext for racial discrimination. See 42 U.S.C. § 2000e-16(a)
(“All personnel actions affecting employees or applicants for
employment . . . shall be made free from any discrimination
based on race . . . .”). Because Evans has failed to make that
showing, we affirm the district court’s grant of summary
judgment for the government on the Executive Assistant
detail claim.
III.
For the foregoing reasons, we reverse in part and affirm
in part.
So ordered.
WILLIAMS, Senior Circuit Judge, concurring in the
judgment: I join the majority in finding that under the
procedure originating in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), the government is not entitled to
summary judgment on Evans’s claim regarding the LDDS
position (and also in finding that it is so entitled regarding the
“detail” as executive assistant to the Commissioner). My
route to this conclusion is more direct than that of my
colleagues. They find that while the government offered a
legitimate, non-discriminatory explanation for its actions, the
self-contradictions in its evidence were a sufficient basis for a
jury reasonably to conclude that the explanation was
pretextual and that in fact the actions were driven by
discriminatory motives in violation of Title VII. See Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000);
Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir.
1998). I conclude that once we identify the critical
government action, the government’s problem is that it has
offered no explanation at all.
The events culminating in Evans’s failure to secure the
promotion involve two quite separate elements: a “hiring
freeze,” which delayed but did not formally doom the
promotion, and the cancellation of the position, which
extinguished the possibility altogether. Evans indisputably
suffered eight or nine months in limbo, from her selection for
the LDDS position on July 17, 2001 to April 3, 2002, when
she concluded that the government had in fact cancelled the
position (which evidently occurred March 7). During all this
time Evans remained interested in the position, so much so
that she “unretired” in early March 2002 on the false premise
that the position was still available and her promotion
certificate was still valid. It was only after HHS told Evans
that the position had been abolished that she assessed the
situation as hopeless and retired permanently. See Evans Aff.
at 4.
2
With respect to the delay (which Evans does not appear to
identify as an independent violation of her rights), memoranda
offered by the government document the existence and
evolution of the hiring controls and unquestionably satisfy the
requirement, elucidated by the Supreme Court in its
applications of McDonnell Douglas, to “produc[e] evidence
that the adverse employment actions were taken for a
legitimate nondiscriminatory reason.” St. Mary’s Honor
Center v. Hicks, 509 U.S. 502, 507 (1993) (internal quotations
removed); see also Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 254-55 (1981). If accepted by a trier
of fact, the memoranda would justify a finding that unlawful
discrimination was not the cause of the eight-month window
during which Evans waited in vain.
But while the government has spoken of the hiring freeze
as the explanation for both the delay and the cancellation, it is
hard to spot its relevance to the cancellation. One can
imagine such a link. The government might, for example,
have introduced evidence of an HHS policy under which
vacancies are to be annulled whenever prolonged beyond
some set period, or perhaps a rule automatically dispatching
any newly created position (such as the one awaiting Evans)
that goes unfilled too long.
But the government has offered nothing of the sort. In
fact, 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. The
3
best it seems to be able to do is to use its brief (not sworn
evidence) to characterize the cancellation as “essentially
ministerial” and say that the LDDS position “died a quiet
administrative death,” Gov’t Br. 22, 25. But given the lack of
evidence explaining what rules or actions generate such
deaths, these are not explanations at all. The resulting
deficiencies would seem to preclude a finding that the
government has “clearly set forth, through the introduction of
admissible evidence, reasons for its actions.” Hicks, 509 U.S.
at 507 (internal quotations removed).
* * *
My colleagues take a different approach and view the
case as turning on the sufficiency of Evans’s evidence of
pretext. In pursuing this inquiry, they reason in the shadow of
two decisions, Reeves and Aka, which they rightly regard as
controlling their analysis. “Control” may not be quite the
right word, however. The two decisions draw a line, but with
a roller brush rather than a fine-line marker. This case seems
to me to lie somewhere within that broad swath.
Reeves and Aka hold that in a federal employment
discrimination case, where the employee has the burden of
establishing that the defendant’s action was motivated by the
protected trait in question (e.g., race, sex, age), and the
employer has offered an innocent justification, proof “that the
defendant’s explanation is unworthy of credence is simply one
form of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive.” Reeves, 530
U.S. at 147 (emphasis added). Indeed, it may be so persuasive
that, where there is no evidence of reliance on the protected
trait other than the undermining of the defendant’s
explanation, the district court, at least sometimes, may not
grant judgment as a matter of law against a jury finding of
discrimination, id. at 148-49, or, more or less equivalently,
4
may not grant summary judgment for the defendant on the
theory that there are no disputed issues of material fact, Aka,
156 F.3d at 1288.
Both the Reeves and Aka courts recognized that
mendacity in the employer’s explanation strengthened any
inference of reliance on the protected trait, but both indicated
that evidence supporting a finding of mendacity was not
essential. Reeves, 530 U.S. at 147; Aka, 156 F.3d at 1293-94.
Both courts also recognized the existence of situations
where the inference from impeachment of the employer’s
explanation would not be enough, but the fact patterns given
as examples, originally in Aka and adopted by the Court in
Reeves, seem chosen for their improbability. One is the case
where the plaintiff’s evidence undermines defendant’s
proffered explanation, only to supplant it with another
innocent explanation. The second is the case where the
undermining evidence is “weak” and “there is abundant
independent evidence in the record that no discrimination has
occurred.” Id. at 1291; Reeves, 530 U.S. at 148 (following
and citing Aka).
Thus at its potential outer edge, the principle allows the
plaintiff to get to the jury so long as he or she can point to any
snippet of evidence drawing the defendant’s explanation in
question. Perhaps utterly trivial snippets are inadequate: a
conflict among defendant’s witnesses over the color of tie
worn by one of them at a critical meeting? But one hesitates
to speak firmly on such a hypothetical; after all, comparable
impeaching evidence is quite standard among criminal
defense attorneys’ efforts to establish a reasonable doubt in
jurors’ minds.
The majority’s decision illustrates the range and
variability of the Reeves-Aka framework. To meet her burden
5
of demonstrating that the government’s explanation was
pretextual, Evans has drawn attention to omissions and
inconsistencies among the statements of various HHS
representatives about why her promotion stalled. Specifically,
Evans points to HHS’s failure to clarify, both to her and to
then-Senator Paul Sarbanes, that after November 2001 Evans
could have been placed in the LDDS position had the
responsible officials secured the approval of Assistant
Secretary Wade Horn or Assistant Secretary Ed Sontag—an
option created by a relaxation in the controls that permitted
the promotion of the three white employees. Evans also notes
that HHS has been unable to provide a clear and consistent
account of who cancelled the LDDS position. Finally, Evans
alleges that HHS human resources personnel promised her
that she would be placed in the LDDS position after the hiring
freeze had been lifted, and that multiple HHS employees gave
false assurances that the LDDS position was still available and
Evans’s promotion certificate still valid in the week prior to
the date HHS now contends the position was canceled.
The evidence Evans marshals does not paint a flattering
portrait of bureaucracy. It demonstrates that scattered HHS
officials were unable to speak with one voice about the
precise relationship between the hiring controls and the LDDS
position, and about the precise mechanism by which the
position was cancelled. It also supports the (one would
imagine uncontroversial) thesis that a capable attorney will
have little trouble teasing out discrepancies in the accounts of
various bureaucratic actors pertaining to personnel actions
affecting non-managerial employees—actions that, while
understandably of great concern to the affected employees,
seem likely to be submerged among a host of similar or more
vital issues demanding the attention of senior-level officials
and human resources personnel. It is no accident that the “n”
in snafu stands for “normal.”
6
What the evidence stressed by Evans does not establish is
the falsity of the government’s basic account of the
circumstances that delayed Evans’s expected promotion. For
reasons already stated, there is no reason to doubt that had
there been no hiring controls, Evans would have been placed
in the LDDS position upon her selection in July 2001. Even
in their relaxed form, the controls for a time created a
presumption against promotions to GS-14 positions. (Evans
has not advanced any contention that the three promoted
women should be viewed as candidates for a post equivalent
to the LDDS position.) The promotion of three white
individuals does not, in and of itself, establish that by late
2001 the controls had become a charade and had ceased to
have any legitimate application. Rather, the promotions prove
only that the restrictions were not an impermeable barrier—a
fact which adds nuance, but which is nonetheless consistent
with the government’s account. Evans’s evidence is at most a
reason to regard the government’s initial explanation as
imprecise; neither Reeves nor Aka gives a clue how grave an
imprecision must be to qualify as “sufficient evidence for the
trier of fact to disbelieve” the proffered explanation. Reeves,
530 U.S. at 137.
As for the cancellation of the position itself, the accounts
of who cancelled the LDDS position conflict. As noted earlier
in this opinion, the government never offered any affirmative
reason at all for the cancellation; the conflict over exactly
whose fingerprints may be on this unexplained event tells
little one way or the other.
Yet the majority finds that Evans is entitled to a jury trial
under Reeves and Aka. That is because those two cases allow,
but do not require, a court to find pretext on the basis of even
the mildest inconsistency in the defendant’s explanation for its
actions. The perverse effects of this doctrine should be plain:
District courts are at risk of seeing summary judgments
7
reversed in all cases except those in which the defense
witnesses and all documentary evidence sing in perfect
harmony (which itself might, ironically, be cited as evidence
of chicanery). Defendants, wary of jury trials and
apprehensive of the cost of litigation, and commonly facing an
appealing plaintiff and the prospect of a jury, may be inclined
to settle even weak cases. Such a regime invites frivolous
suits and rulings that defy harmonization.