United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 24, 2012 Decided May 7, 2013
No. 11-7136
JUDITH BARNETT,
APPELLANT
v.
PA CONSULTING GROUP, INC.,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-01245)
Richard A. Salzman argued the cause for appellant. With
him on the briefs was Douglas B. Huron.
Elizabeth Lalik argued the cause for appellee. With her on
the brief was Scott J. Preston.
Before: GRIFFITH, Circuit Judge, EDWARDS and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Judith Barnett appeals the
district court’s grant of summary judgment against her claims
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that she was fired from her work because of her age and sex.
The district court credited the defense of Barnett’s employer
that she was let go during a restructuring of the firm only
because her expertise was not a good fit with the firm’s new
business focus. Viewing the facts in the light most favorable to
Barnett, we conclude that a reasonable jury could find her
employer’s defense to be pretext for discrimination, and
reverse.
I
Defendant PA Consulting Group, Inc. (PA), is a
management consulting firm headquartered in London, with
offices in approximately thirty countries, including the United
States. The firm is organized into industry-specific practice
groups led by partners who supervise managing consultants,
principal consultants, and support staff.
From 2000 until 2003, Barnett worked as a managing
consultant in the firm’s Transportation Group, which mainly
advised clients in the airline industry. Unlike most of her
colleagues in the Group, Barnett’s book of business was not
focused on airlines and airports. Instead, she worked with a
range of American companies seeking to open new markets for
their products in the Middle East and North Africa. Barnett’s
practice grew out of her prior work in government. From 1994
through 1998, she served as Deputy Assistant Secretary of
Commerce for the Middle East and Africa. Upon leaving
government service in 1998, Barnett joined GKMG, a small
firm whose other consultants chiefly advised airlines hoping to
open new routes and airports looking for additional carriers.
GKMG brought Barnett on board to diversify its business and
help expand its presence in the Middle East. In 1999, Barnett
and her colleagues at GKMG merged with Hagler Bailly and
became that firm’s Transportation Group. When PA purchased
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Hagler Bailly in the fall of 2000, the former GKMG
consultants, including Barnett, became the new
Washington-based Transportation Group at PA. For a few
months after joining PA, Barnett sought to switch into a
different practice group, because she was concerned that her
expertise was out of sync with the Transportation Group’s
focus on the airline industry. But James Miller, the head of the
Group, convinced her to stay. Miller told Barnett that she was
doing great work, making lots of money for the firm, and on
track for promotion.
Barnett continued to impress her bosses at PA and
received favorable performance reviews. For example, her
June 2003 review, written by Miller, described her overall
performance as “very good!” In his deposition testimony,
Miller remembered Barnett as a “tireless” consultant who
“produced great work for the client.” The percentage of her
work billed to clients was higher than that of any other
managing consultant in the Transportation Group.
Nevertheless, Barnett found herself part of a failing
practice. Financial turmoil befell the aviation industry in the
wake of the 9/11 terrorist attacks. Because PA’s Transportation
Group primarily served airlines and airports, its revenues
plummeted in 2002. By early 2003, the Group was losing
millions of dollars a year. PA’s top management in London, led
by its chief executive officer Jon Moynihan and its chief
operating officer Bruce Tindale, stepped in to try to pull the
Group out of its tailspin. First, they commissioned an internal
audit, completed in January 2003, which confirmed that the
Transportation Group had too many employees billing too few
hours to clients. The audit recommended laying off those who
were not covering their costs. Next, Moynihan and Tindale
convened a series of meetings of PA executives to discuss how
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best to address the Group’s woes. Those meetings took place in
February, April, and twice in September 2003.
Two major decisions emerged from the audit and
meetings. First, effective at year’s end, the Transportation
Group would merge into the more successful Information
Technology Infrastructure Group, which would continue to be
led by PA partner Patrick Kelly. And second, not all of the
members of the Transportation Group could be retained. Some
would need to be fired. Firings in the Transportation Group had
already begun in early 2003, when Miller terminated a
managing consultant and a principal consultant who he
determined were unlikely to generate significant new revenue.
During the September 2003 meetings, Miller identified four
more employees – two consultants and two support staff – who
could be fired immediately. The meeting participants also
discussed trimming the Group’s work in China, including
closing its office in Beijing. Nobody suggested firing Barnett.
To carry out the reduction in force, Kelly met with Miller
on September 30 to discuss each member of the Transportation
Group. Kelly and Miller produced a chart that rated each of the
Group’s employees in three areas: “Skill and Capability,”
“Performance,” and “Commitment to PA.” Barnett received
the highest possible rating, three check marks, for her
“Performance” and her “Commitment to PA.” According to
Kelly, “Skill and Capability” was meant to reflect “how
valuable [the employee’s] skill set was, how relevant it was to
what we’re trying to sell in the marketplace” relative to the
work of the Transportation Group. Barnett received two check
marks in the “Skill and Capability” category, with an
accompanying note: “Trade.” Significantly, another of the
Transportation Group’s managing consultants, George Gao,
who worked out of both the Washington and Beijing offices,
earned similar, but less impressive, ratings: two checks for
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“Skill and Capability” and “Performance,” and three checks
for “Commitment to PA.” Like Barnett, Gao received a note
next to his “Skill and Capability” rating: “China.” According to
Miller, Gao’s consulting practice was “very China-focused”
with minimal capabilities and experience in the aviation
industry. Gao was forty-one years old.
Immediately following the September 30 meeting, Kelly,
who was now in charge of personnel matters for the
Transportation Group, accepted Miller’s recommendation to
fire the four employees he had named. Miller directed Michael
Fleming, a Transportation Group managing consultant, to draft
a memorandum describing why Miller and Kelly had chosen to
fire these employees. The memorandum, received by Miller
and Kelly on October 7, states that the Group “had to downsize
and eliminate non-core activity . . . to align more closely with
the needs of the aviation market . . . .” The Group would
henceforth emphasize six “focus propositions”: (1) “Airport
privatization”; (2) “Airport air service development”; (3)
“Airport transformation”; (4) “Airline route profitability”; (5)
“Airline labor”; and (6) “Airline transformation.”
On October 10, Kelly met individually with senior
members of the Transportation Group, including Barnett.
Kelly testified that “the purpose of the meeting[s] was just to
get to know people a little bit, get to know their views on what
we needed to make a success of the unit.” Kelly met with
Barnett for about fifteen minutes. By October 16, Kelly had
added her to the list of those to be fired. According to Kelly, he
did so because Barnett’s practice was not focused on the
aviation industry and thus fell outside the six “focus
propositions” that would govern the Group’s work going
forward. An updated version of the October 7 memorandum,
dated October 16, is essentially unchanged except to include
Barnett on its list of layoffs for the first time. The October 16
6
memorandum describes Barnett’s practice as a “non-core
activity” and “essentially a standalone offering,” and
concludes that “Barnett does not have the skills
necessary . . . to support our current propositions, and
therefore, cannot be utilized within the practice.” PA fired
Barnett and the four other employees on October 17. Barnett
was fifty-seven years old at the time.
Although PA closed its Beijing office in November 2003,
Gao remained at PA. Kelly reached an accommodation with
Ken Rubin, head of a practice group focused on international
development, that Gao would split his time between Kelly’s
group and Rubin’s. Kelly asked Rubin whether Barnett could
transfer into his group, but when Rubin balked at the idea,
Kelly dropped it. Kelly never proposed to Rubin the idea of
splitting Barnett’s work between their two groups, the
accommodation reached for Gao.
Barnett filed suit against PA on April 1, 2004, alleging age
and sex discrimination in violation of the Age Discrimination
in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the
District of Columbia Human Rights Act (DCHRA), D.C. Code
§ 2-1402.11. Following discovery, PA moved for summary
judgment, which the district court granted. Barnett v. PA
Consulting Grp., Inc., 818 F. Supp. 2d 159 (D.D.C. 2011). We
have jurisdiction over Barnett’s appeal pursuant to 28 U.S.C.
§ 1291.
II
We review a grant of summary judgment de novo. See,
e.g., Salazar v. Wash. Metro. Area Transit Auth., 401 F.3d 504,
507 (D.C. Cir. 2005). Summary judgment is appropriate when
“the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any
7
material fact and that the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(c)(2). “Credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions, not
those of a judge at summary judgment. Thus, we do not
determine the truth of the matter, but instead decide only
whether there is a genuine issue for trial.” Pardo-Kronemann
v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010) (internal
quotation marks and citations omitted).
We consider Barnett’s age and sex discrimination claims
in the same way we analyze Title VII claims. See Vatel v.
Alliance of Auto Mfrs., 627 F.3d 1245, 1246 (D.C. Cir. 2011)
(DCHRA); Ford v. Mabus, 629 F.3d 198, 201 (D.C. Cir. 2010)
(ADEA). “Once an employer has offered a legitimate reason
for an employee’s dismissal, the question at the summary
judgment stage is whether the employee has ‘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, in this case, age or sex.
Vatel, 627 F.3d at 1246 (quoting Brady v. Office of the
Sergeant of Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)). To
answer this question, we look to see if there is evidence from
which a reasonable jury could find that the employer’s stated
reason for the firing is pretext and any other evidence that
unlawful discrimination was at work. See, e.g., Hamilton v.
Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012) .
According to PA, Kelly fired Barnett because her
consulting practice did not fit the firm’s plans to narrow the
work done by the Transportation Group to the six “focus
propositions” set forth in the October 16 memorandum, all
linked to “airports and airlines in business development.”
Kelly denies considering any other factor in firing Barnett. We
8
must determine whether a reasonable jury could conclude this
explanation is pretext.
Of course, we are conscious that a court must not act as “a
super-personnel department that reexamines an entity’s
business decisions[.]” Adeyemi v. District of Columbia, 525
F.3d 1222, 1227 (D.C. Cir. 2008) (citation omitted). PA was
entitled to restructure the Transportation Group to return it to
profitability and to fire people to do so. PA was also entitled to
fire Barnett if Kelly believed that her consulting practice did
not “fit” within the restructured Group. But there is evidence in
the record from which a reasonable jury could conclude that
lack of “fit” was not why PA fired Barnett, and that unlawful
discrimination was. Summary judgment is inappropriate
where, as here, the most significant disputes between the
parties are factual in nature. See Pardo-Kronemann, 601 F.3d
at 604.
The most important factual dispute is why PA fired the
fifty-seven year-old female, Barnett, but retained the forty-one
year-old male, Gao. Different outcomes for Barnett and Gao
matter because in nearly all respects material to PA’s
explanation, Gao was similarly situated to Barnett. The most
significant differences between the two are that Gao is male
and younger than Barnett. Those are differences a jury should
be allowed to consider.
The record is replete with evidence that PA partners,
including Kelly, believed that Gao’s consulting practice did
not “fit” in the Transportation Group. In the September 30
chart created by Miller and Kelly, both Barnett and Gao
received two check marks out of a possible three in the “Skill
and Capability” rating. Each also received an accompanying
notation: “Trade” in Barnett’s case, and “China” in Gao’s.
According to Miller, these ratings meant that Barnett and Gao
9
both had strong skills in their respective areas of expertise –
trade and China – but that neither was likely to make
meaningful contributions to the Group’s focus on the aviation
industry.
There is further evidence that could lead a jury to believe
that Kelly thought Gao no longer “fit” within the
Transportation Group. Miller testified that he had the “same
discussion” with Kelly about Gao as he did about Barnett, and
that Kelly was “pretty much of the mind that [Barnett and Gao]
were going to move” out of his group. But Kelly worked out an
accommodation with Rubin to split Gao’s time and salary
“50-50” between their practice groups. By contrast, no one
proposed splitting Barnett’s salary or making any similar
arrangement to keep her at PA. And there is no evidence that
China, Gao’s niche, would be part of the Transportation
Group’s focus going forward. To the contrary, the decision to
close the Beijing office is evidence that PA had decided to
reduce the Group’s China operations.
According to Miller, Kelly was “very clear that he wanted
to make sure [Barnett] was out of the practice.” If “fit” in the
Transportation Group was the sole motivating factor in
Barnett’s firing, a jury could reasonably question why Kelly
was not similarly adamant that Gao leave the group entirely. At
the very least, the efforts Kelly took to keep Gao at PA could
raise a reasonable inference that “fit” was not the sole reason
Barnett lost her job, and that PA partners found a way to keep a
younger male consultant at the firm whose practice did not fit
neatly into its new plans.
PA makes three arguments why Gao’s retention could not
lead any reasonable jury to find pretext. First, PA points to
Kelly’s deposition testimony that Gao took a pay cut to stay.
Kelly’s testimony, however, clashes with record evidence, a
10
document prepared by human resources staff at the firm in
early 2003, that suggests Gao’s salary remained constant.
Whether Gao suffered adverse professional consequences from
the restructuring is a classic question of fact for the jury. PA
also argues that Gao’s practice was marginally more profitable
than Barnett’s in 2003. But Kelly testified that profitability had
nothing to do with Barnett’s termination, and there is no
evidence in the record to support PA’s claim that profitability
played any role in the decision to keep Gao.
Finally, PA speculates that Kelly may have offered to split
Gao’s salary with Rubin because Gao “had transportation
experience” but Barnett did not. Appellee’s Br. at 57. PA cites
Gao’s 2002 performance appraisal, which lists several projects
Gao worked on that appear to be related to airports and the
airline industry. But Miller, the partner who completed Gao’s
2002 performance appraisal, also testified that Gao “was very
China-focused. He had capabilities in aviation but really very,
very small, still in the learning phase.” (Emphasis added).
Besides, Barnett had similar aviation industry experience. She
had worked on a project for Khalifa Airlines, an Algerian
carrier. Of course, a jury could choose to credit PA’s argument
that its partners considered Gao’s aviation industry experience
to be meaningfully distinguishable from Barnett’s. The issue,
however, cannot be resolved at summary judgment.
In addition to the disputed facts regarding PA’s treatment
of Gao, a jury could rely upon other record evidence to
discredit the firm’s explanation for firing Barnett. PA makes
much of Kelly’s broad mandate to restructure the ailing
Transportation Group and “make it profitable” by limiting its
focus to the airline industry. Appellee’s Br. at 2. But PA
acknowledges that the four other employees fired on October
17 were let go for other reasons. Miller had determined they
were unlikely to bring in sufficient revenues or they presented
11
redundancies. Barnett, it turns out, seems to be the only
employee PA terminated for lack of fit.
Barnett’s evidence rebutting PA’s explanation is
sufficient to warrant reversal because “a factfinder’s disbelief
of the reasons put forward by the defendant may support an
inference of intentional discrimination.” Hamilton, 666 F.3d at
1351 (internal quotation and citation omitted). Although “we
do not routinely require plaintiffs to submit evidence over and
above rebutting the employer’s stated explanation in order to
avoid summary judgment,” id. (citation omitted), Barnett has
done that here. She has introduced evidence that PA unlawfully
considered age to be a relevant factor in deciding which
Transportation Group employees to retain. Barnett points to a
spreadsheet produced by COO Tindale’s secretary in February
2003 for Tindale and CEO Moynihan in advance of the first
meeting they convened about the Group. The spreadsheet
includes comments from the authors of the internal audit about
the productivity of each employee in the Group. The
spreadsheet also reports the age of each employee, including
Barnett.
Neither Moynihan nor Tindale could recall why ages were
part of the spreadsheet, and PA asserts that there is no evidence
of a link between the spreadsheet and Barnett’s firing. Kelly
testified that he did not see the spreadsheet and made the
decision to fire Barnett on his own, without any prodding from
Moynihan or Tindale. The district court determined the
spreadsheet “irrelevant” to Barnett’s discrimination claims,
because “Kelly, alone, made the decision to terminate Ms.
Barnett,” and credited Kelly’s testimony that his decision to
fire Barnett was not influenced by Moynihan and Tindale.
Barnett, 818 F. Supp. 2d at 170.
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The district court was too quick to resolve this issue in
PA’s favor. A reasonable jury could find the spreadsheet to be
probative of discrimination, because the jury might infer that
PA’s leadership included age as a factor in its personnel
decisions. A jury could likewise refuse to credit Kelly’s
testimony that he did not consult with Moynihan and Tindale
on firing decisions in October 2003, given evidence that PA’s
CEO and COO led meetings discussing which Transportation
Group employees to fire only a few weeks before.
Of course, a reasonable jury could draw the inference that
including ages in the spreadsheet was a one-off case of
mistaken initiative by the secretary. But so could it reasonably
infer that Moynihan and Tindale wanted ages in the
spreadsheet to help PA leadership decide whom to fire and
whom to keep. Barnett was entitled to all reasonable inferences
in her favor to be drawn from the record evidence. See Salazar,
401 F.3d at 507. By resolving these fact-bound questions in
PA’s favor, the district court committed error.
III
For the foregoing reasons, we reverse the judgment of the
district court and remand for further proceedings.
So ordered.