United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2010 Decided January 21, 2011
No. 09-5315
IONA D. CALHOUN,
APPELLANT
v.
MARTHA N. JOHNSON, ADMINISTRATOR, UNITED STATES
GENERAL SERVICES ADMINISTRATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-01441)
James L. Fuchs argued the cause for appellant. With him
on the briefs were Ari Taragin and Michael J. Snider.
Claire Whitaker, 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.
Before: GINSBURG, ROGERS, and GARLAND, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Plaintiff Iona Calhoun brought
suit against her employer, the General Services Administration
(GSA), claiming (inter alia) discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. The district court granted summary judgment in
favor of GSA. Before us on appeal are Calhoun’s claims that
GSA violated Title VII by failing to select her for positions in its
Office of Information Technology and Office of Real Property.
For the reasons set forth below, we reverse the district court’s
grant of summary judgment dismissing Calhoun’s claim that
GSA unlawfully discriminated against her in connection with
the Office of Information Technology position, and we remand
that claim for trial. We affirm the district court’s judgment with
respect to the remaining claims.
I
In 2000, Iona Calhoun, an African-American, was a GS-13
Computer Specialist in GSA’s Office of Information
Technology (OIT). In December of that year, she applied for a
newly created position as a GS-14 Computer Specialist. OIT’s
Division Director, Paul Whitson, left on vacation before the
application period ended and before Calhoun applied. Whitson
assigned his deputy, Wanda Peterson-Parker, as the selecting
official in his absence. As he was leaving, however, he directed
her to select Tokey Bradfield, an Asian-American, for the
position.1 Peterson-Parker followed Whitson’s directive and
selected Bradfield. See GSA Br. 2.
1
See GSA Br. 2 (“For purposes of this appeal, GSA concedes that
Whitson directed Peterson-Parker to select Bradfield.”).
3
By 2003, Calhoun had become a Program Specialist in
GSA’s Office of Real Property (ORP). During 2003-04, she
applied for three higher-paying ORP vacancies. ORP’s director,
Stanley Langfeld, did not select Calhoun for any of the three
positions. Instead, he selected Kenneth Holstrom, Robert
Burmeister, and Virginia McDonald, all of whom are white.
Calhoun’s Title VII suit alleges that, by failing to select her
for the OIT and ORP positions, GSA discriminated against her
on account of race and retaliated against her for engaging in
protected activity. The district court disagreed and granted the
government’s motion for summary judgment. With respect to
the OIT position, the court concluded that, “[b]ecause Calhoun
has not presented any evidence to refute Whitson’s
nondiscriminatory reason [for hiring Bradfield], GSA is entitled
to summary judgment.” Calhoun v. Prouty, 643 F. Supp. 2d 87,
94 (D.D.C. 2009). With respect to the ORP positions, the court
found that Calhoun had failed to submit any “evidence that
would reasonably support a conclusion that Langfield’s stated
reasons [for selecting Holstrom, Burmeister, and McDonald] are
pretextual.” Id.
II
“We review the district court’s decision to grant summary
judgment de novo.” Waterhouse v. District of Columbia, 298
F.3d 989, 991 (D.C. Cir. 2002). Summary judgment is
appropriate only if “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); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). A dispute about a material fact
“is ‘genuine’ . . . if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson, 477
U.S. at 248. In making that determination, the court “must view
the evidence in the light most favorable to [the nonmoving
4
party], draw all reasonable inferences in her favor, and eschew
making credibility determinations or weighing the evidence.”
Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003).
Title VII prohibits federal agencies from discriminating
against their employees on account of race, 42 U.S.C. § 2000e-
16(a), and from retaliating against them for asserting their rights
under Title VII, see Lathram, 336 F.3d at 1088. Where, as here,
the plaintiff lacks direct evidence of discrimination or
retaliation, we analyze her claims under the framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05
(1973), as simplified by Brady v. Office of Sergeant at Arms,
520 F.3d 490, 494 (D.C. Cir. 2008). Under Brady, once the
employer has proffered a legitimate, non-discriminatory reason
for a challenged employment action, the “central question” is
whether “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.” 520 F.3d at 494; see Jones v Bernanke, 557
F.3d 670, 678 (D.C. Cir. 2009) (holding that “these principles
apply equally to retaliation claims”). “Usually, proffering
‘evidence from which a jury could find that [the employer’s]
stated reasons . . . were pretextual . . . will be enough to get a
plaintiff’s claim to a jury.’” George v. Leavitt, 407 F.3d 405,
413 (D.C. Cir. 2005) (quoting Carpenter v. Fed. Nat’l Mortgage
Ass’n, 165 F.3d 69, 72 (D.C. Cir. 1999)).
In subpart A, we consider Calhoun’s claims regarding
GSA’s failure to select her for the OIT Computer Specialist
position. In subpart B, we consider her claims regarding the
agency’s failure to select her for the ORP vacancies.
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A
Calhoun contends that Whitson discriminated against her on
the basis of race by directing his deputy, Peterson-Parker, to hire
Bradfield for the OIT position. GSA responds that Whitson
could not have knowingly discriminated against Calhoun
because he issued his directive as he was leaving for vacation --
before Calhoun had applied for the job. Calhoun counters,
supported by testimony from Peterson-Parker, that she was one
of only two employees in Whitson’s division who were qualified
to apply for the position. (Peterson-Parker pointedly excluded
Bradfield from that list. EEOC Hr’g Tr. 208-09 (June 6, 2006).)
It stands to reason, Calhoun argues, that Whitson would have
expected one of the few qualified GS-13 Computer Specialists
in his division to apply for his new GS-14 Computer Specialist
position. The fact that Calhoun had not done so by the time
Whitson left for vacation is hardly dispositive, she maintains,
given that the application period had not yet closed. Peterson-
Parker’s testimony that Whitson “knew who was eligible and
who could apply for the position,” id. at 207, supports Calhoun’s
contention. This evidence is sufficient for a reasonable jury to
conclude that Whitson knew Calhoun would likely be a
candidate for the position, and thus to reject the argument that
he could not have knowingly discriminated against her.
GSA also suggests that Whitson did not discriminate, but
merely gave the position to Bradfield because she was already
performing the work. There is, however, a genuine dispute on
that point. Even Whitson’s strongest statement claimed nothing
more than that “Bradfield had performed work similar to the
work required by the announced position, but at a lower grade
level . . . . She was clearly ready and able to undertake similar
work at the higher grade level.” Whitson Aff. 3 (Mar. 12, 2004)
(emphasis added). Whitson’s statement that Bradfield was
“ready” to perform “similar” work suggests he believed that
6
Bradfield was qualified for the new position. It does not
indicate that she was already performing its responsibilities.
Moreover, Peterson-Parker bluntly disputed GSA’s contention:
she testified that Bradfield had neither performed similar work
nor demonstrated the capacity to do so. EEOC Hr’g Tr. 175-77.
GSA’s principal defense to the claim of discriminatory non-
selection is that Whitson chose Bradfield because he believed
she was the most qualified candidate. Peterson-Parker,
however, strongly disputed that Bradfield was better qualified
than Calhoun. See id. at 176. And because Peterson-Parker was
Whitson’s deputy and at least formally the selecting official for
the position, see EEO Counselor’s Rep. 4 (June 7, 2001); EEOC
Hr’g Tr. 126, a jury could reasonably conclude that she was
well-positioned to evaluate the candidates’ relative
qualifications.
Peterson-Parker’s testimony regarding those qualifications
was quite specific. On three of the four factors listed in the job
vacancy notice, Peterson-Parker testified that Calhoun was the
superior candidate by a wide margin. Calhoun, she said: (1)
had superior “knowledge of internet and Federal Information
Technology policies, principles, and guidance”; (2) had better
“demonstrated the ability to provide guidance and assistance to
inter-agency committees [and] other constituencies in support of
government-wide activities”; and (3) had a greater “ability to
communicate effectively, orally and in writing.” EEOC Hr’g Tr.
145-47, 152-54, 160-63, 165-67; Peterson-Parker Dep. 28-31
(Aug. 12, 2005). On a scale of 0 to 100, Peterson-Parker gave
Calhoun scores of 90, 95, and 100 on these factors; she gave
Bradfield scores of only 60, 40, and 50. EEOC Hr’g Tr. 152-54,
163, 165-67.
Moreover, Peterson-Parker testified to a significant failing
on Bradfield’s part, which she also substantiated with
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specificity. Bradfield, she said, was unable to effectively
provide guidance to inter-agency committees, a skill expressly
required in the vacancy announcement. As evidence, Peterson-
Parker testified that Bradfield refused her requests to address
quarterly inter-agency forums because “it was a form of public
speaking she did not care to do.” Peterson-Parker Dep. 28.
Bradfield, she said, “was not a communicator.” Id.; see also
EEOC Hr’g Tr. 162 (testifying that Bradfield “was insecure with
her oral communication skills”).
GSA maintains that Whitson’s decision was nonetheless
justified because Bradfield was superior with respect to a fourth
job factor that Whitson believed to be of paramount importance:
“technical skill relating to the GSA internet page.” EEO
Counselor’s Rep. 4 (June 7, 2001). But Peterson-Parker
contradicted Whitson’s evaluation of the candidates’ technical
skills, rating the two as roughly equivalent in that regard. Id. at
154-55. More important, all four factors were listed in the
vacancy announcement, and Peterson-Parker testified that
Calhoun was not only far superior in three of those respects, but
far superior overall. Indeed, she gave Calhoun an overall rating
of 100/100, while giving Bradfield a rating of only 50/100.
EEOC Hr’g Tr. 167. Based on Whitson’s affidavit, GSA further
maintains that he reasonably discounted Calhoun’s
qualifications because they “were based primarily on education
and . . . she did not have the depth of experience [Bradfield]
had.” Whitson Aff. 3 (Mar. 12, 2004). But once again,
Peterson-Parker offered contrary testimony, stating that Calhoun
was significantly more experienced with respect to the majority
of the factors listed in the vacancy announcement. See, e.g.,
EEOC Hr’g Tr. 152-54, 160-63, 165-67 (testifying that Calhoun
“was highly qualified based upon the work she had done for
years” and had superior communications skills “based upon the
experience gained over the years”); see also Peterson-Parker
Dep. 20-23.
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As we have repeatedly held, “‘[i]f a factfinder can conclude
that a reasonable employer would have found the plaintiff to be
significantly better qualified for the job, but this employer did
not, the factfinder can legitimately infer that the employer
consciously selected a less-qualified candidate -- something that
employers do not usually do, unless some other strong
consideration, such as discrimination, enters into the picture.’”
Lathram, 336 F.3d at 1091-92 (quoting Aka v. Wash. Hosp. Ctr.,
156 F.3d 1284, 1294 (D.C. Cir. 1998) (en banc)); see Holcomb
v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006). Under such
circumstances, a grant of summary judgment in favor of the
employer is unwarranted. Aka, 156 F.3d at 1299 (reversing
grant of summary judgment where there was “sufficient
evidence in the record so that a reasonable jury could conclude
that [the plaintiff] was markedly more qualified than [the
selectee], thus throwing into doubt the reason given for his
rejection”); see Holcomb, 433 F.3d at 897; Lathram, 336 F.3d at
1091. In Calhoun’s case, “because a reasonable jury could find
that [she] was not only qualified for the job but substantially
more qualified than [the selectee], and because such a jury could
further conclude that [GSA’s] assertions to the contrary were
pretextual, the district court’s grant of summary judgment on
this count was in error and must be reversed.” Lathram, 336
F.3d at 1092.2
2
In addition to contending that GSA failed to select her for the
OIT position because of racial discrimination, Calhoun further
contends that the non-selection constituted retaliation for her prior
“EEO activity.” Am. Compl. ¶ 67. The only such activity that she
identifies is an “EEOC complaint” that she apparently filed in 1989
and settled in 1993. See Am. Compl. ¶¶ 4, 14. This activity, however,
took place at least seven years before the non-selection of which she
complains. Calhoun offers no direct evidence that the reason for her
non-selection was retaliatory, and the length of time between the
activity and the non-selection is far too great to suggest a causal
connection on its own. See Clark Cnty. Sch. Dist. v. Breeden, 532
9
B
Calhoun also charges that GSA discriminated and retaliated
against her by selecting three other candidates for positions as
Program Experts in the Office of Real Property during 2003-04.
With respect to these positions, however, the qualifications gap
between Calhoun and the selectees ran decidedly in the
selectees’ favor.
Langfeld, the ORP supervisor, testified that he chose the
winning candidates on the basis of their real estate experience,
and that Calhoun’s experience was inferior to that of the
selectees. Langfeld Aff. 3-4 (June 15, 2004); Langfeld Aff. 2-4
(Dec. 13, 2004); Langfeld Dep. 12-15 (Jan. 11, 2006).
Holstrom, Burmeister, and McDonald, the selectees, had twenty-
nine, sixteen, and twenty-two years of real estate experience
respectively. Langfeld Aff. 3 (June 15, 2004); Langfeld Aff. 3
(Dec. 13, 2004). Calhoun, by contrast, had no more than three.
Calhoun Dep. 87 (Apr. 10, 2008). Although Calhoun maintains
that real estate experience was not “apposite to the Program
Expert position,” Calhoun Br. 32, she offers no evidence for that
assertion.
Calhoun contends that she was more qualified than
Burmeister and Holstrom because GSA’s human resources
department gave her a higher initial rating than it gave them.
But a qualifications gap alone will not support an inference that
an employer’s claim that it hired based on merit was pretextual
U.S. 268, 273 (2001) (finding that a two-year gap was too great to
raise the inference of causality necessary to a prima facie case).
Accordingly, the district court did not err in granting summary
judgment for GSA on the OIT retaliation claim.
10
unless the gap is “great enough to be inherently indicative of
discrimination.” Adeyemi v. District of Columbia, 525 F.3d
1222, 1227 (D.C. Cir. 2008) (internal quotation marks omitted).
In this case it was not. With respect to Burmeister, Calhoun’s
evidence is -- at best -- that her initial rating was only
marginally higher than his. See Calhoun Dep. 86-87 (Apr. 10,
2008) (asserting that Calhoun received a score of 91.60, while
Burmeister received a score of 91.49). With respect to
Holstrom, she says nothing more than that her rating was
“higher,” with no measure of quantification at all. Id. at 64-65.
Moreover, Calhoun does not dispute the district court’s finding
that the selecting officer would not even have received those
initial ratings. See Calhoun, 643 F. Supp. 2d at 94. Under these
circumstances, and considering her far more limited real estate
experience, the district court correctly held that Calhoun’s
claims regarding the ORP positions could not survive.
III
For the foregoing reasons, we reverse the district court’s
dismissal of Calhoun’s claim that GSA violated Title VII by
failing to select her for the OIT position in 2000, and we remand
that claim for trial. With respect to Calhoun’s other claims, the
district court’s judgment is affirmed.
So ordered.