United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 3, 2008 Decided November 14, 2008
No. 07-5255
DELARSE MONTGOMERY, JR.,
APPELLANT
v.
ELAINE L. CHAO, CHAIRWOMAN, PENSION BENEFIT
GUARANTY CORP. AND BRADLEY B. BELT, EXECUTIVE
DIRECTOR, PENSION BENEFIT GUARANTY CORP.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 05cv02157)
David H. Shapiro argued the cause for appellant. With him
on the briefs was Alana M. Hecht.
Jane M. Lyons, Assistant U.S. Attorney, argued the cause for
appellees. With her on the briefs were Jeffrey A. Taylor, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Karen L. Melnik, Assistant U.S. Attorney, entered an appearance.
Before: HENDERSON, RANDOLPH, and GARLAND, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: DeLarse Montgomery challenges
the district court’s grant of summary judgment against him on
his claims of employment discrimination and retaliation by the
Pension Benefit Guaranty Corporation (PBGC). Because we
find that no reasonable jury could conclude that the PBGC’s
decisions not to promote and not to appoint Montgomery
resulted from discriminatory or retaliatory animus, we affirm the
judgment of the district court.
I
Appellant Montgomery is an African-American male who
began working at the PBGC in 1986.1 His first position was as
a secretary at the GS-5 grade level. In 1987, he became a
Management Analyst. By 1992, after a series of promotions, he
had become a Financial Specialist at the GS-11 level. After
receiving his promotion to GS-11, Montgomery filed a complaint
of race discrimination, which was settled in 1998. The
settlement gave him a promotion to a GS-12 Financial Specialist
position in the Investment Accounting Branch of the PBGC’s
Financial Operations Department.
Montgomery’s direct supervisor in the Investment
Accounting Branch was Cynthia Adams, an African-American
female. In March 2002, Adams assigned Montgomery to
perform Contracting Officer Technical Representative (COTR)
duties for the PBGC’s contract with Bert Smith Professional
Services, a firm that performed accounting work on pension
1
The PBGC is a U.S. government corporation within the
Department of Labor that insures private-sector defined-benefit
pension plans. See 29 U.S.C. § 1302; Boivin v. U.S. Airways, Inc.,
446 F.3d 148, 150 (D.C. Cir. 2006).
3
plans under contract with the PBGC. Soon thereafter,
Montgomery asked Adams to update his position description to
include the COTR duties, and in April 2003, he formally
requested a promotion to grade GS-13 based on accretion of
duties -- namely, the COTR duties that Adams had assigned to
him. On September 9, 2003, Adams notified Montgomery that
his requested accretion-of-duties promotion had been denied. On
October 1, 2003, Montgomery filed a formal Equal Employment
Opportunity (EEO) administrative complaint alleging that the
PBGC’s denial of his request for an accretion-of-duties
promotion to GS-13 resulted from race, gender, and age
discrimination.
In response to the EEO complaint, the PBGC ordered a desk
audit of appellant’s position to determine its proper GS level.
Cynthia Kyle, a Human Resources contractor, conducted the
desk audit, which included interviews of both Montgomery and
Adams as well as review of documentation regarding
Montgomery’s responsibilities. The desk audit indicated that the
job was in fact a GS-11 position. The audit also found that
COTR duties are not usually “grade-controlling,” and that for
such duties to affect Montgomery’s grade, “he would have to
possess the qualifications to ‘oversee’ the work from a
completely ‘technical’ aspect or be an Accountant.” J.A. 379.
While the EEO complaint was pending, Montgomery
applied for a GS-12/13 Accountant position. The PBGC instead
selected Lafaye Graham, an African-American female with a
bachelor’s degree in finance, a master’s degree in accounting,
and fifteen years of experience in accounting, including
investment accounting -- a qualification mentioned in the
vacancy announcement. In response to his failure to receive the
Accountant position, Montgomery filed a second EEO complaint
in late 2004, claiming both discrimination and retaliation.
4
After filing the second EEO charge, Montgomery applied
for a GS-13 Collections Analyst position, which was advertised
under both a status and a non-status vacancy announcement.2
Montgomery alleges that he applied under both vacancy
announcements, but the PBGC asserts that it only received the
non-status application. The PBGC hired a candidate from the
status list to fill the position and therefore cancelled the non-
status vacancy announcement without considering applicants,
including Montgomery, who were on the non-status list. After
failing to obtain the Collections Analyst position, Montgomery
filed his third EEO complaint, again alleging both discrimination
and retaliation.
On November 3, 2005, Montgomery filed suit in the U.S.
District Court for the District of Columbia. Montgomery
charged that, in denying him the promotion and positions just
described, the PBGC had discriminated and retaliated against
him in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq. On June 26, 2007, the district court
granted the PBGC’s motion for summary judgment on all of
Montgomery’s claims. This appeal followed.
II
We review the district court’s grant of summary judgment
de novo. Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991
(D.C. Cir. 2002). Summary judgment is appropriate only if
“there is no genuine issue as to any material fact and . . . the
movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
48 (1986). We must view the evidence in the light most
2
“A status applicant is one who has ‘competitive status within the
government’ and does not have to ‘recompete’ for the position.”
Montgomery v. Chao, 495 F. Supp. 2d 2, 9 (D.D.C. 2007).
5
favorable to the nonmoving party, draw all reasonable inferences
in his favor, and eschew making credibility determinations or
weighing the evidence. Lathram v. Snow, 336 F.3d 1085, 1088
(D.C. Cir. 2003); see Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000); Aka v. Washington Hosp. Ctr., 156
F.3d 1284, 1288 (D.C. Cir. 1998) (en banc).
Title VII prohibits the federal government from
discriminating in employment on grounds of race or sex, 42
U.S.C. § 2000e-16, and from retaliating against employees for
engaging in activity protected by Title VII, see Forman v. Small,
271 F.3d 285, 297 (D.C. Cir. 2001); Ethnic Employees of the
Library of Cong. v. Boorstin, 751 F.2d 1405, 1415 & n.13 (D.C.
Cir. 1985). See also Lathram, 336 F.3d at 1088. Where the
plaintiff’s evidence of discrimination (or retaliation) is
circumstantial, the familiar McDonnell Douglas framework
applies. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973); Lathram, 336 F.3d at 1089 n.3. Under that
framework, a plaintiff “must [first] establish a prima facie case
of discrimination.” Reeves, 530 U.S. at 142. Once the plaintiff
establishes a prima facie case, the burden shifts to the defendant
to produce a “legitimate, nondiscriminatory reason” for its
actions. Id. (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 254 (1981)); McDonnell Douglas, 411 U.S. at 802.
Where, as here, the defendant produces such a reason, “‘the
McDonnell Douglas framework -- with its presumptions and
burdens’ -- disappear[s], and the sole remaining issue [is]
‘discrimination vel non.’” Reeves, 530 U.S. at 142-43 (internal
citations omitted); see also Brady v. Office of Sergeant at Arms,
520 F.3d 490, 493-94 (D.C. Cir. 2008). Thereafter, “to 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 [or
retaliatory] reason.” Lathram, 336 F.3d at 1088; see Czekalski
v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
6
In the following paragraphs, we consider whether a
reasonable jury could so conclude with respect to each of
Montgomery’s three claims.
1. Montgomery’s first claim is that the PBGC denied his
request for an accretion-of-duties promotion to grade level GS-
13, based on his new COTR duties, for discriminatory and/or
retaliatory reasons. In response, the PBGC states that it had a
nondiscriminatory (and nonretaliatory) reason for the denial: the
desk audit indicated the job was in fact a GS-11 position, and for
the COTR duties to affect Montgomery’s grade, “he would have
to possess the qualifications to ‘oversee’ the work from a
completely ‘technical’ aspect or be an Accountant,”
qualifications that he did not have. J.A. 379.
As we have previously noted, “one way for a plaintiff to
show that an adverse employment decision was made for a
discriminatory reason is to ‘show[ ] that the nondiscriminatory
explanation the defendant proffered for its decision was false.’”
Czekalski, 475 F.3d at 366 (quoting Lathram, 336 F.3d at 1089);
see Reeves, 530 U.S. at 146-47. Montgomery attempts to
demonstrate the falsity of the PBGC’s explanation by showing
that the agency, based on accretion of duties, had previously
promoted five other employees who were outside his protected
class. But Montgomery’s evidence did not establish that any of
those employees were similarly situated to him. None of them
had the same position he had, and none worked in the same
branch of the agency. J.A. 48-53 (Montgomery Dep.). Nor was
there evidence that any of those employees received accretion-
of-duties promotions due to COTR duties. Indeed, Montgomery
conceded at his deposition that three of the five employees did
not receive their promotions on the basis of COTR duties, J.A.
50-53, and that he had “no idea” whether the other two did or did
not. J.A. 48-49. “In the absence of evidence that the
comparators were actually similarly situated” to him, an
7
inference of falsity or discrimination is not reasonable.
Waterhouse, 298 F.3d at 995-96; see, e.g., McGill v. Munoz, 203
F.3d 843, 848 (D.C. Cir. 2000) (holding that the plaintiff
provided no evidence of pretext where she “offered no evidence
that employees with similarly suspicious patterns of absenteeism
were treated any differently than she was”).
Montgomery also contends that a jury could infer
discriminatory animus from the fact that his supervisor, Cynthia
Adams, lied to the desk auditor about his job duties (and hence
his experience). It is true that “a plaintiff can attempt to show
that the employer’s explanation misstates the candidates’
qualifications,” and that “[a]dequate evidence of this type may
suffice to permit a jury to infer that the employer’s explanation
is incorrect or fabricated, and thus to infer discrimination.” Aka,
156 F.3d at 1295. But the evidence does not show that Adams
lied about Montgomery’s duties. To the contrary, the record
reveals the parties’ agreement that, although Montgomery
performed basic accounting work, he did not perform more
complex accounting duties, such as trust or investment
accounting. See J.A. 82-83 (Montgomery Dep.); J.A. 132-34
(Adams Dep.); J.A. 138-39 (Adams Dep.); cf. Holcomb v.
Powell, 433 F.3d 889, 899 (D.C. Cir. 2006) (suggesting that only
“a rather explicit misstatement” regarding an employee’s
experience “might permit an inference of discrimination” (citing
Aka, 156 F.3d at 1295)). Under these circumstances, an
inference of discriminatory animus is not reasonable.
2. Turning next to Montgomery’s claim that he was
unlawfully denied the GS-12/13 Accountant position, the PBGC
again offers a nondiscriminatory reason for failing to select
Montgomery: it simply chose a more qualified applicant. Even
“[i]n a close case, a reasonable juror would usually assume that
the employer is more capable of assessing the significance of
small differences in the qualifications of the candidates, or that
8
the employer simply made a judgment call.” Aka, 156 F.3d at
1294. But this case is not even close. By his own admission,
Montgomery had only an associate’s degree in marketing, 24
credit hours of college-level accounting courses, and experience
limited to accounting for cash assets. J.A. 80-82 (Montgomery
Dep.); J.A. 100 (Montgomery Aff.). By contrast, the person
whom the PBGC hired -- Lafaye Graham -- had an
undergraduate degree in finance, a master’s degree in
accounting, and fifteen years of accounting experience, including
investment accounting. J.A. 140 (Adams Dep.). Under these
circumstances, a reasonable jury could not have inferred
discrimination. See Holcomb, 433 F.3d at 897-98.
Montgomery attempts to rebut the PBGC’s
nondiscriminatory explanation by insisting that the agency
refused to give him appropriate credit for his 24 hours of
accounting courses. Although he acknowledges that he failed to
submit a transcript showing that he had completed the courses,
as required by the vacancy announcement, he insists that the
agency had made allowances for other applicants in similar
circumstances. This argument, however, is simply irrelevant.
With or without the 24 hours, Montgomery’s qualifications do
not approach those of the applicant the agency hired.
Of course, demonstrating that the employer’s proffered
explanation for its actions is untrue is not the only way to show
that it made an adverse employment decision for a
discriminatory reason. See, e.g., Morgan v. Fed. Home Loan
Mortgage Corp., 328 F.3d 647, 654 (D.C. Cir. 2003).
“[E]vidence of discriminatory statements or attitudes on the part
of the employer” is another way. Czekalski, 475 F.3d at 363
(quoting Aka, 156 F.3d at 1289). Although Montgomery offers
no evidence of discriminatory statements or attitudes on the part
of PBGC employees, he does contend that he has evidence of
retaliatory animus.
9
The strongest evidence that Montgomery proffers -- on this
or any of his other claims -- is an ambiguous statement that
Adams made at her deposition. In response to counsel’s question
as to why a Human Resources (H.R.) Specialist had asked her
about Montgomery’s qualifications, Adams answered that it may
have been “because of Mr. Montgomery’s past history.” J.A.
145. Montgomery speculates that this must have been a
reference to his 1998 EEO settlement, and that it shows agency
animus against such activity. Immediately before answering
that question, however, Adams had answered “no” to the direct
question of whether she and the H.R. Specialist had discussed
Montgomery’s “prior EEO activity.” J.A. 145. And the H.R.
Specialist himself testified that what he had discussed with
Adams was Montgomery’s accounting experience at the agency.
J.A. 180 (Lattimer Aff.). Against this, Montgomery has only a
form of compound speculation: his speculation about the
meaning of Adams’ speculation about why the H.R. Specialist
had contacted her. The possibility that a jury might speculate in
the plaintiff’s favor under such circumstances is simply
insufficient to defeat summary judgment. See Haynes v.
Williams, 392 F.3d 478, 485 (D.C. Cir. 2004); Rogers Corp. v.
EPA, 275 F.3d 1096, 1103 (D.C. Cir. 2002).
3. Finally, we turn to Montgomery’s challenge to the
PBGC’s failure to select him for the GS-13 Collections Analyst
position, a position that was advertised under both a status and
a non-status vacancy announcement. Regarding his failure to
win appointment under the former, Montgomery offered no
evidence to rebut the PBGC’s nondiscriminatory reason for non-
selection: that the agency’s decisionmakers had never received
a status application from him. Although there may have been a
genuine dispute (based on his own testimony) as to whether
Montgomery actually submitted such an application, there was
no genuine dispute that the decisionmakers never received it.
There was no computer (or other) record that the PBGC had
10
received a status application from Montgomery, and no evidence
(or allegation) that the employee who logged in and disseminated
such applications (the receptionist) had any animus toward him.
See Def. Mot. Ex. 2 at 156-57 (Montgomery Dep.). Regarding
his non-status application, Montgomery likewise failed to rebut
the PBGC’s nondiscriminatory explanation for not choosing him:
that it filled the position with a candidate from the status list and
therefore, consistent with its selection procedures, did not
consider anyone on the non-status list. Nor did Montgomery
offer any other evidence that supported a claim of discrimination
or retaliation with respect to his failure to win the Collections
Analyst position under either announcement.
III
Because no reasonable jury could conclude from all of the
evidence that the PBGC discriminated or retaliated against
Montgomery, the district court’s grant of summary judgment in
favor of the PBGC is
Affirmed.