The U.S. appeals court for the District of Columbia
reversed and remanded a district court’s decision for summary
judgment in favor of the Federal Deposit Insurance
Corporation in an employee discrimination case, saying
effectively that even if a position remains unfilled, an
employee is still entitled to carry out discovery.
The employee, an African American woman in her fifties at
the GS-9 level, was vying for a GS-13 position in her
assigned unit after seeing white employees advanced to
different positions that were opened up to employees at
lower grades.
The employee claimed that her employer facilitated
promotions for non-African American and younger employees,
but not for her.
Because the GS-13 position in question was never filled,
the district court concluded that she had failed to meet
her prima facie burden in a discrimination case and granted
summary judgment to the agency.
The district court did not allow the appellant an
opportunity for discovery, something the appeals court
cited in its reason to reverse the lower courts decision
and remand it for further proceedings.
“Given the flexible nature of the prima facie burden,
appellant may, depending upon what she uncovers during
discovery, be able to prevail even if the employer never
filled the position she sought,” according to case No.
04-5426.
The appeals court therefore instructed the lower court to
permit the appellant to conduct the discovery she seeks.
