On March 17, 2006, the United States Court of Appeals for the District of Columbia Circuit in Chappell-Johnson v. Powell, Chairman, Federal Deposit Insurance Corporation, 440 F.3d 484, reversed a district court’s granting of summary judgment in the agency’s favor and held that appellant raised an “inference of discrimination,” despite not meeting all of the elements of a typical prima facie case, and was thus entitled to pursue her claim.
Appellant held a “grade CG-11” position until her grade was reduced to CG-9 during a reorganization. When a vacancy for a CG-13 position in her unit was announced, she was ineligible to compete for it because she was a CG-9. Appellant alleged that the agency had reduced the grade of vacant positions to permit lower grade employees to compete, but that the agency only used this practice to benefit younger, non-African American employees and would not do the same for her.
The agency, instead of answering the complaint, moved to dismiss or, in the alternative, for summary judgment, arguing that the claim “must fail for the simple reason that the position was never filled.” The district court denied the agency’s motion to dismiss, finding that “all a complaint need state is ‘I was turned down for a job because of my race.'” (quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1115 (D.C. Cir. 2000)). The district court, however, granted the agency’s motion for summary judgment holding that “If the position was not filled by someone younger or of a different race . . . she has not suffered an actionable injury.”
On appeal, the D.C. Circuit looked to McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), where the Supreme Court set out a burden-shifting approach to employment discrimination claims. To proceed under McDonnell Douglas, the plaintiff must establish a prima facie case by showing (i) that she belongs to a protected class; (ii) that she applied and was qualified for a vacant job; (iii) that, despite her qualifications, she was rejected; and (iv) that, after her rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. The Supreme Court emphasized that “[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required . . . is not necessarily applicable in every respect to differing factual situations.” The Supreme Court has also made clear that “[t]he burden of establishing a prima facie case of disparate treatment is not onerous,” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, (1981), and that “the precise requirements of a prima facie case can vary depending on the context and were ‘never intended to be rigid, mechanized, or ritualistic.'” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
The D.C. Circuit noted that “even in failure-to-hire cases we impose no requirement that the employer filled the sought-after position with a person outside the plaintiff’s protected class.” See Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002). The D.C. Circuit then found that the appellant attempted to show that the agency denied her an opportunity for advancement that it gave to non-African-American and younger employees. The D.C. Circuit held that “This is a perfectly acceptable way to try to satisfy her prima facie burden, which . . . she may do by producing any evidence that gives rise to an ‘inference of discrimination.’”
Further, the D.C. Circuit found that holding the appellant to a particular method of raising an “inference of discrimination” is especially inappropriate given that there had not yet been time for discovery as discovery may even uncover direct evidence of discrimination which would eliminate the need to prove a prima facie case.
This case points out the important role of discovery in obtaining evidence to oppose any likely agency motion for summary judgment. Too often, unrepresented federal employees fail to take advantage of discovery before the Equal Employment Opportunity Commission (EEOC) which often results in an unfavorable decision. In some cases, EEOC administrative judges have allowed agencies to file motions for summary judgment without allowing for discovery, which severely disadvantages complainants.
This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com
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