Crockett, Don W. v. Abraham, Spencer

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2002 Decided March 29, 2002

No. 01-5075

Don W. Crockett,
Appellant

v.

Spencer Abraham, Secretary of Energy,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 98cv01918)

David H. Shapiro argued the cause and filed the briefs for
appellant.

Richard A. Olderman, Attorney, U.S. Department of Jus-
tice, argued the cause for appellee. With him on the brief
were Robert D. McCallum, Jr., Assistant Attorney General,
Roscoe C. Howard, Jr., U.S. Attorney, and Marleigh D.

Dover, Special Counsel, U.S. Department of Justice. Irene
M. Solet, Attorney, entered an appearance.

Before: Tatel and Garland, Circuit Judges, and Williams,
Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
Williams.

Williams, Senior Circuit Judge: Don W. Crockett sued the
Department of Energy in district court, claiming that the
Department of Energy's failure to promote him to Assistant
General Counsel for Contractor Litigation in 1997, and again
in 1999, violated the Age Discrimination in Employment Act,
29 U.S.C. ss 621-634. The district court rejected his claims
and Crockett appeals. We affirm.

* * *

In August 1996 the Department of Energy announced a
vacancy for the post of Assistant General Counsel for Con-
tractor Litigation, a position in the Senior Executive Service.
Crockett applied. At the time he was 58 years old and an
18-year veteran of the Department, and had served from
1987-1995 as director of the Judicial Litigation Division of the
Economic Regulatory Administration. There he had handled
and supervised the Department's price control litigation.
With the dwindling of that specialty and a reorganization of
the Department, Crockett had held the position of Deputy
Assistant General Counsel for Litigation since 1995 and had
started handling non-price control cases. Crockett v. Rich-
ardson, 127 F. Supp. 2d 40, 41-42 (D.D.C. 2001).

On reviewing the records of 19 applicants, a Merit Staffing
Committee in October 1996 rated five candidates as "Superi-
or" (the highest of four possible rankings: Superior, Very
Good, Acceptable, and Not Qualified), the rest lower. Among
the five were Crockett and Gary Stern. Stern, then 36 years
old, had joined the Department in 1995 as Deputy Assistant
General Counsel for Information Law, and had been Special
Assistant to then-General Counsel Robert Nordhaus. Stern
had previously been "involved in several high profile, compli-
cated DOE contractor litigation matters," including "the
Rocky Flats litigation in Colorado, a mass tort action involv-
ing radiation injuries from plutonium exposure, and a class

action involving human radiation experiments." Id. at 42.
Nordhaus had appointed Stern as the Acting Assistant Gener-
al Counsel for Contractor Litigation in September 1996, and
in February 1997 selected him as the new Assistant General
Counsel for Contractor Litigation.

In July 1998 Crockett filed the present suit, alleging that
he had been denied the position due to age discrimination.
At about the same time, Stern left the Department to become
General Counsel of the National Archives and Records Ad-
ministration. This vacancy prompted another candidate
search, in which Crockett again applied, along with ten oth-
ers. In February 1999, the Merit Staffing Committee (now
with a somewhat different membership) rated two candidates
as Superior, Crockett only as Very Good along with two
others, and the rest lower. See Letter from Robert Rabben,
Chair, Merit Staffing Committee, to Mary Anne Sullivan,
General Counsel (Feb. 18, 1999) ("Rabben Letter"). Ulti-
mately, however, the appointing official, General Counsel
Mary Anne Sullivan, selected no one, but rather decided to
"revise[ ] the technical qualifications" and "to re-advertise"
the position. Deposition of Mary Anne Sullivan, at 62 (July 1,
1999) ("Sullivan Deposition"); see also Declaration of Mary
Anne Sullivan, at p 22 (Mar. 29, 2000) ("Sullivan Declara-
tion"). Although the revisions have been made, as of Sulli-
van's evidence in this case the position had not been re-
advertised due to budgetary constraints. See Sullivan Decla-
ration at p 25; Sullivan Deposition at 62. Crockett amended
his complaint to add a claim that the Department, in this later
termination of the process and failure to promote him, had
sought to retaliate against him for his earlier complaints of
age discrimination. See Amended Compl. at p 47 (Nov. 15,
1999).

At a motion hearing in July 2000, the district court granted
summary judgment for the Department on the retaliation
charge. Tr. of Motion Hearing at 64-66 (July 10, 2000).
After a bench trial, it rejected Crockett's age discrimination
claim. Crockett, 127 F. Supp. 2d at 48.

 * * *

The appeal from the district court's decision on Crockett's
age discrimination claim need not detain us long. The court
clearly credited the Department's explanation that Stern was
more experienced and qualified than Crockett in the areas
deemed most critical for the position. Id. at 46-47. None of
the issues raised by Crockett suggests that the court's assess-
ment of the facts was clearly erroneous, see Fed. R. Civ. P.
52(a); Fogg v. Ashcroft, 254 F.3d 103, 113 (D.C. Cir. 2001), or
that it made any error of law.

On the retaliation claim, we review the district court's
grant of summary judgment de novo. Forman v. Small, 271
F.3d 285, 291 (D.C. Cir. 2001). The district court reasoned
that Crockett failed to make a prima facie case; because the
Department never filled the position, it believed that Crockett
suffered no adverse action. Tr. of Motion Hearing at 65-66.
We express no opinion on this "adverse action" issue, cf.
Cones v. Shalala, 199 F.3d 512, 521-22 (D.C. Cir. 2000),
because we find that even if there had been a prima facie
case, Crockett failed to raise a genuine issue of material fact
with regard to the Department's defense--that it cancelled
the appointment process for legitimate, nondiscriminatory
reasons. A grant of summary judgment for the government
was therefore appropriate.

According to Sullivan, the position was not filled for a
number of reasons. For example, the Department had not
received "the skill mix that [it] wanted," Sullivan Deposition
at 59-60, particularly regarding Alternative Dispute Resolu-
tion, Sullivan Declaration at p 22. The Department thus
wanted to try again after revising the qualifications to de-
scribe the position more accurately. Id. at p 22. The Depart-
ment also felt that it "had not received a sufficiently diverse
pool of applicants," and wanted "to place more emphasis on
outreach when [it] readvertised." Id. at p 24. Finally, Sulli-
van noted that the Merit Staffing Committee had concluded
that no candidate had outstanding qualifications and that it
could offer no strong recommendation. Id. at p 21.

 To rebut Sullivan's explanations, Crockett first contends
that Sullivan's account of the Merit Staff Committee's tepid
assessment of the candidates is contradicted by a letter from
Robert Rabben, Chair of the Merit Staffing Committee. But
the Rabben letter neither undermines nor contradicts Sulli-
van's account. It makes no particular recommendation and
merely lists the ratings given by the committee for each
applicant. See Rabben Letter. Just because the committee
rated some candidates Superior or Very Good does not neces-
sarily mean that it strongly recommended any of them. As
we understand the Merit Staffing Committee Procedures, to
receive an overall rating of Superior, a candidate need only
receive a Superior rating in a majority of the required
qualifications. Thus even a Superior candidate may have
serious deficiencies. Indeed, because the procedure weights
each qualification equally, a Superior candidate may actually
be deficient in those areas thought most critical for the
position.

Second, Crockett suggests that Sullivan's explanations at
an earlier deposition were vague and that they contradicted
her declaration. Self-contradiction by the moving party's
witnesses may of course create a genuine issue of material
fact precluding summary judgment. See Peckham v. Ronrico
Corp., 171 F.2d 653, 658 (1st Cir. 1948). And second-hand
gapfilling, if extreme enough, clearly can rise to the level of a
contradiction. This would surely be true, for example, if a
witness in his second statement "remembered" salient, memo-
rable facts that (if true) he surely should have remembered
and mentioned the first time around, or "remembered" facts
which too conveniently explain away troublesome portions of
the previous testimony. And this would be especially true if
some intervening event--e.g., pressure by a party, prodding
of counsel--made the embellishment seem fishy. Cf. Russell
v. Acme-Evans Co., 51 F.3d 64, 67 (7th Cir. 1995) (reflecting
suspicion of later affidavit used "to patch up" established
deficiencies).

Here there is no such contradiction. Sullivan's declaration
does not contradict her deposition but rather augments and
elaborates upon it. The omissions on which Crockett pounces

are easily attributable to understandable lapses of memory or
lack of preparation. Cf. id. at 68 (statement in affidavit
directly contradicted by earlier deposition will be disregarded
"unless it is demonstrable that the statement in the deposi-
tion was mistaken, perhaps ... because a lapse of memory is
in the circumstances a plausible explanation for the discrep-
ancy"). At her deposition Sullivan appeared on some matters
obviously ill-prepared. For example, she was rather general
in her discussion of how the candidates failed to suit the
Department's "skill mix" preferences. Sullivan Deposition at
59-60. She also couldn't recall when Stern had left the
Department, when the vacancy was announced, who was on
the selection panel, or the exact number of applicants for the
job (though she did recall that it was "[f]ewer than we hoped
for"). Id. at 51-52, 56, 58; see also id. at 57 (explaining that
she had dealt with "a whole bunch" of vacancy announce-
ments since becoming General Counsel about a year before).
In her later declaration, presumably after reviewing her
records and refreshing her memory, Sullivan addressed these
gaps and was more specific. She was able to state precisely
when Stern had left the Department, when the vacancy was
announced, who was on the selection panel, and how many
applications were received. Sullivan Declaration at p p 16-17,
19. Explaining again that the "recompete" was motivated by
a desire "to depict the skills required for the job more
accurately," she offered the specific example of "significant
experience in Alternate [sic] Dispute Resolution." Id. at p 22.
And she additionally recounted a conversation with Rabben in
which, as she recalled it, he said there was no candidate for
the post "that the Committee believed had outstanding quali-
fications, and the Committee could therefore not make a
strong recommendation." Id. at p 21. This contrasted with
Rabben's advice on other open positions. Id. While Sulli-
van's declaration did for the first time mention the Depart-
ment's concern over attracting a "diverse pool of applicants"
and the committee's lack of enthusiasm for the candidates, id.
at p p 21, 24, these further recollections do not amount to
contradictions.

 Third, Crockett argues that Sullivan's account of the Merit
Staffing Committee's view of the candidates (as reported to
her by Rabben) was inadmissible hearsay, and that it was
clear error for the district court to accept it. See Tr. of
Motion Hearing at 65. But the assessments of the committee
were not offered for the truth of "the matter asserted." Fed.
R. Evid. 801(c). Sullivan's decisionmaking was under chal-
lenge, and she explained it on the basis of the information she
received.

In his reply brief, Crockett additionally attempts to attack
Sullivan's explanations as pretextual. These contentions,
however, were not raised in Crockett's opening brief, see
Crockett Brief at 31-36, and thus would normally be consid-
ered waived. Board of Regents of the Univ. of Washington v.
EPA, 86 F.3d 1214, 1221 (D.C. Cir. 1996). That the Depart-
ment offered a very limited discussion of pretext in its brief
does not excuse or obviate Crockett's omission. See United
States v. Wilson, 240 F.3d 39, 45 (D.C. Cir. 2001) ("[W]e are
doubtful in any event whether gilding the lily in the appellee's
brief should ever excuse an appellant's complete failure to
[raise an issue in his opening brief].").

Because the district court rested its grant of summary
judgment purely on the lack of adverse action (and thereby
the lack of a prima facie case), however, Crockett may not
have had sufficient incentive to raise the pretext issue initially
on appeal. But cf. United States v. McCoy, 280 F.3d 1058,
1063-64 (D.C. Cir. 2002) (addressing waiver and the incen-
tives to raise issues in the sentencing context). But even
assuming arguendo that the issue was preserved, Crockett's
arguments regarding pretext are unconvincing and would
"require too much speculation to create a genuine issue of
fact about [Sullivan's] motivations." Carney v. American
University, 151 F.3d 1090, 1094 (D.C. Cir. 1998). Crockett
first charges that Sullivan's assertion of an effort to "place
additional emphasis on judicial litigation experience," Sullivan
Deposition at 59, must have been pretextual, evidently be-
cause Crockett (in his mind) so clearly outshone all other
candidates in this dimension. We are uncertain just why
Crockett regards this acknowledgement of interest in his long

suit as a pretext, but to the extent that he is arguing that his
judicial litigation experience was such that he would necessar-
ily win an honest competition in which that factor played any
role (and this is the nearest to a coherent theory we can
discern), the argument seems nonsense. Employment deci-
sions rarely (if ever) rest on a single attribute, and Crockett
was only rated in the second tier of candidates in the 1998-99
round.

Crockett also finds pretext in Sullivan's comment that the
initial vacancy announcement had not "sufficiently empha-
sized the need for a candidate with significant experience in
Alternate [sic] Dispute Resolution." Sullivan Declaration at
p 22. ADR, he observes, was already mentioned in the initial
vacancy announcement. But the word "sufficiently" pre-
sumes that the qualification was already there; if it wasn't
"sufficiently" emphasized, it needed more forceful presenta-
tion. In fact, the proposed revision did create greater em-
phasis by shortening the list of requirements from seven to
four. Because attainment of an overall rating of "Superior"
requires a score of Superior in a majority of the named
criteria, this reduction would have made it far more difficult
for a candidate to rank Superior overall without showing
"extensive experience in the successful use of ADR." See
Crediting Plan for Assistant General Counsel for Contractor
Litigation, Joint Appendix at 439. And of course, as with
briefs, a statement of criteria with a few concise and focused
entries gives those items more oomph than does a meander-
ing laundry list.

* * *

The judgment of the district court is

Affirmed.