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Employers should get their story straight before moving for summary judgment

June 20th, 2013  |  Cynthia L. Hackerott

Even though the burden shifting paradigm applicable to most federal employment discrimination cases only requires an employer to articulate (rather than actually prove – i.e. a burden of production rather than persuasion) a legitimate, non-discriminatory reason for a challenged employment action, a recent decision from the Court of Appeals for the DC Circuit serves as a reminder that lack of clarity in an employer’s articulated explanation(s) can establish a sufficient basis to defeat a summary judgment motion. Indeed, it seems a waste of litigation resources for an employer to move for summary judgment without getting its story straight first.

In the case, the US Department of Health and Human Services (HHS) attempted to justify its failure to promote an African-American employee to a position for which she had been selected by pointing first to a hiring freeze and subsequent hiring controls placed on HHS, and later to the ultimate elimination of the position. Yet, the self-contradictions in the department’s story were a sufficient basis for a jury to reasonably conclude that the stated reasons were pretextual, two members of the 3-judge DC Circuit panel ruled. Thus, the appeals court reversed a district court’s grant of summary judgment in favor of HHS on this claim. In his concurrence, the third judge found that the employer’s explanation was so unclear that it could not even qualify as legally sufficient to meet the employer’s minimal burden of merely providing a legitimate, non-discriminatory explanation. As such, the third judge would not have reached the issue of pretext, but rather, would have reversed the district court’s grant of summary judgment to the employer based on the department’s failure to meet its burden of articulation. (Evans v Sebelius, DCCir, 96 EPD ¶44,834)

Promotion never materialized. The employee was 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). She was an incumbent employee when President George W. Bush imposed a hiring freeze immediately upon taking office.  Despite the hiring freeze, in March 2001, outgoing Commissioner Sue Swenson, who managed the ADD, recommended the creation of a GS-14, non-supervisory Lead Developmental Disabilities Specialist (LDDS) position. On July 17, 2001, following an application and interview process, the employee’s direct supervisor selected the employee and another African American employee for two LDDS positions. But because of the hiring freeze, neither selectee was promoted.

Over the next few months, the new Administration replaced the hiring freeze with a series of hiring controls, providing that any promotions at GS-14 or above had to have the approval of the Assistant Secretary for Administration and Management. Despite the relaxation of the hiring controls in November 2001, the employee was never promoted to the LDDS position, and she retired in April 2002. She claimed that HHS human resources officials told her that her promotion would be pushed through after the hiring controls were removed. Nevertheless, no HHS official ever gave final authorization for the LDDS position. It was unclear as to whom, if anyone, made the affirmative decision to cancel the position. The employee’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.

White employees promoted. In response to a FOIA request from the employee, HHS revealed that at least three white employees were promoted notwithstanding the hiring controls. One of those white employees was detailed as a GS-15 Executive Assistant to incoming Commissioner Patricia Morrissey (who replaced Swenson). Morrissey hand selected the white employee for the detail without a competitive selection process or opportunity for anyone else to apply. Several months later, following a competitive selection process, the white employee was hired for the position on a permanent basis.

As part of her efforts to find out why she had not been promoted, the employee sought the assistance of US Senator Paul Sarbanes, and in response to an inquiry from the Senator’s office, ACF Assistant Secretary Wade Horn stated that the employee “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.” Yet, Horn omitted a key fact — that, due to the relaxation of the hiring controls, Horn himself could have approved the employee’s promotion.

DC Circuit ruling. The DC Circuit found that the department’s explanation for not hiring her for the LDDS position could be seen by a reasonable jury as a pretext for race discrimination given that HHS: (1) promoted whites but not African Americans during the hiring controls, (2) offered inconsistent and inaccurate explanations and (3) was unable to identify who cancelled the LDDS position.

Although there may have been benign explanations for the department’s inconsistent and inaccurate explanations, documents released in response to the employee’s 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, the court observed.  Moreover, given the employee’s additional evidence of racially insensitive remarks regarding African-Americans made by both Morrissey and the white employee whom Morrissey hand selected as her Executive Assistant, these conflicting and inaccurate explanations became more salient.

Concurrence. Senior Circuit Judge Williams concurred in the ruling, but he would have denied summary judgment on a somewhat different basis. He would not have reached the issue of pretext, but rather would have found that HHS failed to offer a legitimate, non-discriminatory explanation for its actions. In Williams’ view, the department offered no explanation at all. HHS failed to explain how the hiring freeze was relevant to the ultimate cancellation of the position. The government failed to provide a clear and coherent account of who ordered the cancellation, much less why, he pointed out.

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