United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 2015 Decided May 31, 2016
No. 14-5047
JANEAN E. CHAMBERS,
APPELLANT
v.
SYLVIA MATHEWS BURWELL,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00544)
Ellen K. Renaud argued the cause for appellant. With her
on the briefs were David H. Shapiro and Richard L. Swick.
Alexander D. Shoaibi, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were Ronald C.
Machen, U.S. Attorney at the time the brief was filed, and R.
Craig Lawrence, Assistant U.S. Attorney.
Before: GRIFFITH and SRINIVASAN, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: Janean Chambers alleges that
she was denied a promotion at the Department of Health and
Human Services because of her race and disability. The
district court entered summary judgment against her, and we
affirm.
I
Janean Chambers is a legally blind, African-American
woman who has worked for HHS since 1989. In 2006, HHS
promoted Chambers to be a Management Analyst in the
Office of Information Services (OIS) at a GS-9 pay grade. In
this position, Chambers coordinated disability
accommodations for employees in HHS’s Administration for
Children and Families (ACF). Each operating division of
HHS has someone like Chambers who is responsible for
coordinating the disability accommodations required under
Section 508 of the Rehabilitation Act.
Chambers became eligible to apply for GS-11 positions
in 2007. Because she preferred to continue as ACF’s Section
508 Coordinator at that higher grade, she requested a
promotion from her second level supervisor, the Director of
OIS, Michael Curtis. Curtis, however, told Chambers that he
could not promote her to the GS-11 pay grade in her current
position because HHS had capped that job at the GS-9 level.
As a result, the agency’s formal personnel policies gave
Chambers only two vehicles for promotion: (1) she could
apply for an available GS-11 position in the agency (including
Section 508 Coordinator positions in other divisions), or (2)
she could request a favorable “desk audit” to demonstrate her
current duties warranted a higher pay grade. A desk audit
allows an employee to have her duties independently
reviewed by a human resources specialist. If the audit reveals
3
her responsibilities are at a higher level than her position is
graded, she is promoted to the higher level.
Chambers neither applied for an available GS-11 position
nor asked for a desk audit. Instead, over the next four years,
she pursued an informal method of promotion at the agency:
the creation of a higher-graded vacancy with the same
responsibilities as her current job. Curtis, for his part, told
Chambers that he supported such a promotion. He explained,
however, that he lacked the authority to create a new
position—that could only be done by his superiors. Curtis
promised Chambers that he would ask those superiors to
create such a position.
When no vacancy was created, Chambers met with her
immediate supervisor and Curtis in October 2011 to discuss
her frustration. At the meeting, Curtis told Chambers that he
had asked the current Deputy Assistant Secretary, Jason
Donaldson, to create a GS-11 position but that Donaldson had
refused to do so, citing budgetary constraints. In an email she
sent summarizing the meeting, Chambers acknowledged that
Curtis could only urge the agency to create a vacancy for
which she could apply. Chambers also reported that Curtis
had “indicated that [supportive] paper work was submitted to
the front office” in an effort to secure her an “opportunity for
advancement,” but “was denied due to the lack of budget.”
Finally, Chambers requested that Curtis or her supervisor
correct anything in her summary that she had misinterpreted.
Neither ever replied.
That same month, Chambers filed a complaint with the
equal employment opportunity office at HHS alleging that she
had been denied a promotion in October 2011 because of her
race and disability. Chambers claimed that at the same time
4
that she had been told HHS lacked the funds to create her
desired position, the agency had created positions to promote
three white, sighted department heads from a GS-14 to a
GS-15 pay grade and had created a new GS-14 network
security position. She also asserted that the other Section 508
Coordinators elsewhere in HHS were paid at a higher grade
than she was, despite serving smaller divisions. In an attempt
to resolve the claim, the parties agreed to an expedited desk
audit to determine whether Chambers’s responsibilities
warranted a higher grade. The audit concluded that
Chambers’s job was properly classified at the GS-9 level.
Chambers then filed suit in district court. She alleged that
she was not promoted to a GS-11 level because of her race
and disability in violation of Title VII and the Rehabilitation
Act. The district court granted summary judgment to HHS,
reasoning that an employee could not suffer a cognizable
adverse employment action when the position she sought did
not exist and when her supervisor lacked the authority to
create it. Chambers timely appealed.
We have jurisdiction under 28 U.S.C. § 1291 to review
the district court’s grant of summary judgment. Our review is
de novo, and we may affirm the district court on any ground
supported by the record. Wilburn v. Robinson, 480 F.3d 1140,
1148 (D.C. Cir. 2007). We view the evidence in the light most
favorable to Chambers, draw all reasonable inferences in her
favor, and avoid weighing the evidence or making credibility
determinations. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.
Cir. 2003) (citing Reeves v. Sanderson Plumbing Prods., 530
U.S. 133, 150 (2000)).
5
II
The district court was right that Chambers must show that
she suffered a cognizable adverse employment action to
prevail under Title VII and the Rehabilitation Act. See Baloch
v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008).
Chambers attempts to meet this burden by arguing that Curtis
failed to ask his superiors to create a new GS-11 Section 508
Coordinator position. This failure, in her view, amounted to
the denial of a promotion. The government agrees that the
denial of a promotion is an adverse employment action. But
the government argues a denial of promotion is only
cognizable as an adverse employment action if a vacancy for
the desired position already exists. The district court agreed
and on that basis ruled against Chambers. But there is no such
categorical rule in our case law. Instead, we affirm the district
court’s grant of summary judgment to HHS on a different
ground: Chambers did not produce evidence from which a
reasonable juror could find that she was denied the promotion
because of her race or disability.
A
Title VII and the Rehabilitation Act forbid federal
employers from discriminating on the basis of race, 42 U.S.C.
§ 2000e-16(a), or disability, 29 U.S.C. § 794(a). To survive
summary judgment, a plaintiff must introduce sufficient
evidence for a reasonable jury to find that she suffered a
“materially adverse” employment action. See Stewart v.
Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003). This is not an
onerous burden for claimants who allege the denial of a
promotion. Often, the plaintiff satisfies this requirement by
showing that she applied for, and was rejected from, an
available—i.e., vacant—position.
6
But Chambers alleges a different kind of adverse
employment action. She claims that she suffered a denial of
promotion when her supervisor failed to request the creation
of a new position to aid her promotion. According to
Chambers, HHS routinely created new positions to promote
employees similarly situated to her based on the
recommendations of supervisors. Her supervisor’s failure to
even make such a request, she argues, deprived her of a
similar opportunity for advancement. Chambers makes no
attempt to argue that she was denied promotion to a vacant
position; indeed, she readily concedes that no available
position ever existed.
The government argues that the lack of a vacancy dooms
her claim. We disagree. We have recognized that claims
alleging an unlawful denial of promotion come in at least two
forms: the denial of a promotion to a vacant position and the
denial of an increase in pay or grade. See Cones v. Shalala,
199 F.3d 512, 516-17 (D.C. Cir. 2000). The government’s
argument recognizes the former, but overlooks the latter.
Precedent makes clear that employees who pursue, and are
denied, pay or grade increases can still suffer a materially
adverse employment action. See id. at 517; see also Bundy v.
Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981). Chambers
advances this type of claim, and she did not need to identify
an available vacancy to survive summary judgment.
This approach avoids creating an unacceptable loophole
in our antidiscrimination law. A categorical rule requiring
employees to always identify a vacancy before advancing
their denial of promotion claim would permit employers to
systematically pass over qualified candidates because of their
race or disability. An agency, for example, could limit formal
promotional opportunities while allowing supervisors to
7
promote subordinates by requesting the creation of vacancies
tailored to their particular qualifications. In such a system, a
supervisor could request vacancies only for white
subordinates because of his animus toward
African-Americans, and thereby prevent African-American
employees from receiving promotions because of their race.
Allowing employers to escape liability for this kind of
unlawful workplace conduct would exalt form over substance
by ignoring the reality that employers promote employees in a
variety of ways—both formal and informal. Courts have long
avoided such anomalous results in the employment
discrimination context by tailoring the evidence needed to
survive summary judgment to the particular circumstances of
the plaintiff’s claim. See, e.g., McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 n.13 (1973); see also BARBARA
LINDEMANN & PAUL GROSSMAN, EMPLOYMENT
DISCRIMINATION LAW 2-4 (5th ed. 2012).
We follow that lead here. As a matter of law, at least
where a manager regularly requests and receives upgraded
vacancies that are earmarked for his subordinates, his decision
not to engage in that process because of an employee’s
disability or race can be an adverse employment action under
our case law.
B
We nevertheless conclude that Chambers’s claim suffers
from a fatal defect: Chambers did not show that she was
denied her promotion because of her race or disability. This
showing is an essential element of her employment
discrimination claim. Baloch, 550 F.3d at 1196. Evidence that
is “merely colorable” or “not significantly probative” is
insufficient to establish this element of her claim at summary
8
judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50 (1986). Chambers instead needed to produce evidence
from which a reasonable juror could conclude that the agency
failed to promote her because of her race or disability. See id.
at 249 (stating that to survive summary judgment, a party
must produce “sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party”). She failed
to do so.
The core of Chambers’s claim that she was the victim of
unlawful discrimination is her allegation that Curtis did not
request the creation of a GS-11 position from his superiors. In
other words, Chambers relies on Curtis’s allegedly
discriminatory conduct as the cause of the agency’s failure to
create the position she desired. But no reasonable juror could
find from this record that Curtis contributed to the agency’s
inaction.
In fact, the record supplies ample evidence that Curtis
made the request for the GS-11 position that Chambers
desired. Curtis testified that he asked Donaldson to create the
position. Donaldson confirmed that Curtis did in fact request
the administrative support position. Substantial evidence in
the record also confirms that Curtis supported Chambers’s
career development. He consistently gave her high
performance ratings, expressed his desire to see her promoted,
approved training to increase her promotional opportunities,
and encouraged her to pursue a desk audit or other
promotional possibilities. And, during her time at ACF,
Chambers received twice as many promotions as other
employees under Curtis.
Chambers provides no probative evidence in response.
To the contrary, any evidence that Chambers offers to
9
demonstrate that Curtis failed to make her desired request is
“merely colorable.” See Anderson, 477 U.S. at 249. She first
contends that a reasonable juror could conclude that Curtis
lied when he said that he asked for a new position, because he
gave conflicting reasons for why his request was denied.
Initially, he told Chambers the reason was budgetary. Later,
he cited management’s preference for other personnel goals.
But there is no tension between these explanations. Often an
agency lacks funding for one activity because it prioritizes
other agency goals. Indeed, as Donaldson’s account confirms,
when Curtis made the request for the administrative support
position, “[r]esources became much more constrained” and he
considered other personnel goals critical to the agency’s
needs.
Chambers also claims that a reasonable jury could
conclude that Curtis never sought her desired position because
HHS never produced any paperwork indicating a request was
made. The record is by no means clear that paperwork was
required for Curtis to request a new position. But, even if we
assume that paperwork was required, the district court found
that Chambers never sought such paperwork in discovery; and
no such discovery request is in the record—a point
Chambers’s counsel conceded at oral argument. See Oral Arg.
at 5:30-6:10. No reasonable juror could conclude that Curtis
lied merely because the agency did not produce a document
that Chambers never requested. Speculation about whether
such paperwork existed and what inferences could be drawn
from its absence cannot meet Chambers’s burden at summary
judgment.
Chambers next points to HHS’s creation of a new GS-11
Section 508 Coordinator position for ACF in 2012, after the
start of this litigation. Chambers was the only applicant for
10
the position and Curtis selected her for the slot. According to
Chambers, a reasonable juror could infer from this that Curtis
failed to ask for her position earlier. But the record contains
no probative evidence about who created this position, much
less why. It is thus mere speculation that Donaldson decided
to create the position based on a belated request by Curtis as
opposed to a change in budgetary constraints or other wholly
benign circumstances.
Chambers also failed to offer evidence that HHS ever
granted any supervisory requests like the one she asked Curtis
to make—evidence that might have supported an inference
that the agency’s failure to create the position earlier was a
result of Curtis’s failure to make the request. In fact, she
produces no evidence that Curtis secured such a vacancy for
anyone similarly situated to her, while allegedly denying her
the same opportunity. While she does point to three
promotions that may have occurred through HHS’s creation
of tailor-made vacancies, the record shows that Curtis’s
superiors exercised their own initiative in creating these
GS-15 positions for department heads under their supervision.
There is no evidence that a supervisor like Curtis, who lacked
the ability to create new positions, played any role in
requesting the creation of these positions. As such, there is no
basis, beyond mere conjecture, from which a juror could
conclude that any delay in securing the new GS-11 position
that Chambers desired was caused by Curtis’s discriminatory
failure to seek the position earlier.
Finally, a reasonable juror could not conclude from this
record that Donaldson denied the request for the GS-11
position because of Chambers’s race or disability. Chambers
acknowledges that Donaldson did not know that Curtis was
asking for the GS-11 position as a promotional opportunity
11
for Chambers. Donaldson could not then have denied the
request in order to discriminate against Chambers because he
had no idea who Curtis sought to put in that position. As a
result, we have no need to further probe the budgetary reason
that Donaldson gave for his initial denial of the request. Nor
must we resolve whether Donaldson’s budget explanation is
believable in light of his decision to create other new
positions at the same time. Whatever the reason for
Donaldson’s denial, it could not have been based on
discrimination if, as Chambers recognizes, he was not aware
that the requested position was designed to facilitate
Chambers’s promotion.
III
Chambers’s failure to offer colorable evidence that she
was denied her promotion because of her race or disability is
fatal to her case. We affirm the district court’s grant of
summary judgment to HHS.