United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 13, 2006 Decided July 7, 2006
No. 04-5443
MARGARET A. BARNETTE,
APPELLANT
v.
MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF
HOMELAND SECURITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv01897)
Charles W. Day, Jr. argued the cause for appellant. With
him on the briefs was Joseph D. Gebhardt.
Peter D. Blumberg, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S.
Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.
Before: ROGERS, TATEL, and BROWN, Circuit Judges.
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Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Passed over for promotion,
appellant, an African American woman in her fifties, claims that
her employing agency discriminated against her on the basis of
race and age when it selected a younger, white woman for the
position she sought. After full discovery, the district court,
finding appellant had failed to plead facts sufficient to refute the
employing agency’s proffered non-discriminatory reason for its
decision, granted the agency’s motion for summary judgment.
Agreeing with the district court, we affirm.
I.
Appellant, Margaret Barnette, an African American woman
born in 1951, works for Customs and Border Protection (CBP).
Located within the Department of Homeland Security (DHS),
CBP includes those elements of the U.S. Customs Service, the
Immigration and Naturalization Service, and the Department of
Agriculture that dealt with border-control issues before DHS’s
creation in 2003. During the period in which the events at issue
here took place—all prior to 2003—Barnette worked for the
U.S. Customs Service.
In 2001, Barnette applied for the Assistant Director for
Operations (ADO) position for the South Atlantic Customs
Management Center (CMC). Located in Atlanta, the South
Atlantic CMC is one of twenty regional centers through which
Customs oversees regional ports and manages its staff and
workload. The ADO “position is a management position, which
involves operational functions of the Customs Service (as
opposed to administrative functions, such as personnel matters),
including passenger processing, inspection of cargo, inspection
of conveyances, and other programs.” Barnette v. Ridge, Civ.
No. 02-1897, 2004 U.S. Dist. LEXIS 27546, at *4 (D.D.C. Nov.
15, 2004).
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Robert Gomez, a GS-15 and Barnette’s immediate
supervisor, served as ADO until Customs promoted him to
Director of Field Operations in 2001, thus creating the vacancy
at issue in this case. Although Gomez served as ADO at the GS-
15 grade, once he left the post Customs advertised it at the GS-
14 level.
Although Barnette had spent twenty-two years in
administrative personnel positions—including her first seven
years at Customs—at the time she applied for the ADO she was
a GS-14 serving as an Operations Specialist at the South
Atlantic CMC, her second operations position since her 1995
transfer from personnel. As an Operations Specialist, her
responsibilities included “executing, managing, coordinating
and overseeing [some of the same] Customs/South Atlantic
CMC core processes” managed by the ADO. Barnette ADO
Application 3 (Apr. 16, 2001). Unlike her last personnel
position, a GM-14 supervisory post, Barnette’s permanent
operations positions were all non-supervisory. She nonetheless
acquired supervisory experience in operations when, following
Gomez’s promotion, she served a four-month detail as Acting
ADO. While serving in operations positions, Barnette received
several performance awards.
After reviewing all ADO applications, George Heavey,
Executive Director of Field Operations in Washington and
Gomez’s supervisor, recommended to the selecting official,
Bonni Tischler, Assistant Commissioner for Field Operations,
that she choose Michelle James, not Barnette, to fill the ADO
position. Tischler did so based solely on Heavey’s
recommendation. Heavey, a white man, explained that after
consulting Gomez, a white Hispanic man, he recommended
James, a white woman fifteen years younger than Barnette,
based on her reputation as a “key player,” “a dynamic leader,”
and a “good communicator,” as well as on Gomez’s opinion that
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James’s front line operations experience would be valuable in
the ADO post. Heavey Dep. 28, 34, 55. Unlike Barnette, James
had spent her entire eight-year career at Customs in operations
positions such as Customs Inspector, Program Officer,
Supervisory Customs Inspector, and Chief Inspector at the South
Atlantic CMC.
Following James’s selection, Barnette filed a complaint in
the U.S. District Court for the District of Columbia alleging that
Customs denied her the promotion because of her race and age
in violation of Title VII of the Civil Rights Act of 1964 as
amended, 42 U.S.C. § 2000e-16(a), and the Age Discrimination
in Employment Act (ADEA), 29 U.S.C. § 633a(a). Later, after
Customs denied her a temporary promotion to Customs Port
Director for the Port of Atlanta, Barnette amended her complaint
to include a charge of retaliation in violation of Title VII.
Following full discovery, the district court found that Barnette
had failed to present evidence sufficient to negate Customs’
proffered non-discriminatory reason for selecting James—that
it preferred James’s greater operations experience over
Barnette’s greater personnel and supervisory experience.
Barnette, 2004 U.S. Dist. LEXIS 27546, at *17-21.
Accordingly, the district court granted summary judgment to the
government and, for reasons not at issue here, dismissed
Barnette’s retaliation claim. Id. at *22.
On appeal, Barnette challenges only the award of summary
judgment regarding the ADO promotion. Barnette argues that
she provided sufficient evidence for a reasonable jury to find
that Customs’ proffered non-discriminatory reason for James’s
selection was pretext for discrimination. Reviewing the district
court’s summary judgment award de novo, we view the
evidence in the light most favorable to Barnette, the non-moving
party. Borgo v. Goldin, 204 F.3d 251, 254 (D.C. Cir. 2000).
We will affirm the award of summary judgment only if there is
5
no genuine issue as to any material fact and the government is
entitled to judgment as a matter of law. Id.
II.
Title VII requires that “[a]ll personnel actions affecting
employees or applicants for employment . . . in executive
agencies . . . be made free from any discrimination based on
race.” 42 U.S.C. § 2000e-16(a). The ADEA requires that “[a]ll
personnel actions affecting employees or applicants for
employment who are at least 40 years of age . . . in executive
agencies . . . be made free from any discrimination based on
age.” 29 U.S.C. § 633a(a). Given that Barnette offers no direct
evidence of discrimination, to survive summary judgment and
earn the right to present her case to a jury, she must resort to the
burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973). Cones v. Shalala, 199 F.3d
512, 516 (D.C. Cir. 2000); see also Carter v. George
Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004)
(explaining that the McDonnell Douglas framework applies to
ADEA claims). Under McDonnell Douglas, Barnette bears the
initial burden of establishing a prima facie case, meaning she
must prove by a preponderance of the evidence “that (1) she is
a member of a protected class; (2) she suffered an adverse
employment action; and (3) the unfavorable action gives rise to
an inference of discrimination.” Brown v. Brody, 199 F.3d 446,
452 (D.C. Cir. 1999).
Because the district court found that Barnette successfully
made out a prima facie case, Barnette, 2004 U.S. Dist. LEXIS
27546, at *13—a finding undisputed on appeal—we proceed
directly to McDonnell Douglas’s second step at which the
burden shifts to Customs to articulate a non-discriminatory
reason for its decision to select James rather than Barnette for
the ADO position. McDonnell Douglas, 411 U.S. at 802.
Customs’ burden, however, is one of production, meaning it
6
“need not persuade the court that it was actually motivated by
the proffered reasons. It is sufficient if [Customs’] evidence
raises a genuine issue of fact as to whether it discriminated
against [Barnette].” Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 254 (1981) (citation omitted).
In the district court, Customs advanced two explanations for
James’s selection. First, pointing out that the ADO position had
been downgraded to GS-14 after Gomez’s promotion, Customs
claimed it was agency policy to consider internal applicants
seeking promotion to a higher graded position (like James, then
a GS-13) over applicants seeking a lateral transfer (like Barnette,
then a GS-14). Second, Customs asserted that although both
candidates were qualified, it preferred James’s greater
operations experience over Barnette’s greater administrative and
supervisory experience. Given Customs’ minimal burden of
production, and given that each of these two explanations is
“both reasonable and non-discriminatory,” they may serve as
legitimate, non-discriminatory reasons for James’s selection and
are “enough to take us to the third step under McDonnell
Douglas.” Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180,
1182 (D.C. Cir. 1996). At that stage, Barnette “must be afforded
the opportunity to prove by a preponderance of the evidence”
that Customs’ proffered preference for James’s qualifications
was “not its true reason[], but w[as] a pretext for
discrimination.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000) (internal quotation marks omitted).
As to Customs’ first explanation—its preference for
promotees over lateral transfers—Barnette argues that nothing
in the record demonstrates Customs actually had such a policy.
The district court thought the policy’s existence was
“undisputed,” Barnette, 2004 U.S. Dist. LEXIS 27546, at *5, but
this is incorrect. Barnette did challenge the existence of the
policy, stating that “contrary to [Customs’] statement, [the
7
evidence] does not indicate any priority in which the candidates
are considered.” Pl.’s Statement of Material Facts in Genuine
Dispute 3. Moreover, viewing the evidence in the light most
favorable to Barnette, we see nothing in the record clearly
indicating that Customs actually had such a preference. Indeed,
government counsel conceded at oral argument that the record
fails to “ultimately support[] that point that there was a policy.”
Oral Arg. at 18:33.
The district court’s error, however, has no effect on the
propriety of its judgment because, as both parties agree, Heavey
based his recommendation solely on Customs’ second
explanation—James’s reputation and qualifications. Attacking
this second explanation, Barnette points to three types of
evidence she asserts “prove by a preponderance of the evidence”
that Customs’ alleged preference for James’s qualifications was
“pretext for discrimination.” Reeves, 530 U.S. at 143.
First, although acknowledging that “an employer has the
discretion to choose among equally qualified candidates,”
Appellant’s Br. 22-23 (quoting Burdine, 450 U.S. at 259)
(appellant’s emphasis omitted), Barnette argues that her
credentials were so superior to James’s that Customs’ obvious
“misjudg[ment]” is evidence of pretext, id. at 23. To support her
claim, Barnette cites her higher grade level at the time of the
selection (she was a GS-14 while James was a GS-13). She
points to her greater supervisory experience—she had higher
level supervisory experience (GM-14 compared to James’s GS-
13) and had spent more years as a supervisor than James (four
years to James’s 6-8 months at GS-12 and forty-two hours at
GS-13). She contends that her personnel and classification
experience gave her additional qualifications since she “spent
years observing and performing operational jobs at Customs so
that she would be able to classify them.” Id. at 24. Barnette
also argues that she had comparable substantive operations
8
experience to James (she had five years, James had eight), and
points to her service as Acting ADO as evidence that she
possessed the required substantive experience.
Finding that operations and administrative skills “are
critical to the proper conduct of agency business,” Barnette,
2004 U.S. Dist. LEXIS 27546, at *17, and that the candidates’
backgrounds were comparable, id. at *18, the district court
accepted Customs’ preference for James’s experience as a
legitimate, non-discriminatory basis for hiring her, id. at *17.
On this point, we agree with the district court. As we explained
in Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C. Cir.
1998) (en banc), a reasonable jury may infer discriminatory
intent when an employer fails to select the “significantly” or
“markedly” more qualified candidate. Id. at 1294, 1298. In
Aka, we found that a qualifications differential gave rise to an
inference of discrimination where the plaintiff-applicant for a
pharmacy position had a business administration degree and
nineteen years of non-substantive experience in the hiring
pharmacy, as compared to the selectee who had no degree and
two months of non-substantive experience in a different
pharmacy. Id. at 1296, 1298-99. We detect no similarly
significant qualifications differential in this case. To be sure,
James had less supervisory experience overall (one year to
Barnette’s four) and her supervisory positions were at a lower
grade. But James’s grade level qualified her for the position,
she had significant operations experience in relevant areas, and,
unlike Barnette, she had a permanent appointment to a position
that supervised employees performing operations functions.
James’s grade level together with her strong supervisory and
substantive experience distinguish this case from those in which
we found a sufficiently significant qualifications differential to
give rise to an inference of discrimination. See, e.g., Lathram v.
Snow, 336 F.3d 1085, 1091-92 (D.C. Cir. 2003) (finding that a
qualifications differential gave rise to an inference of
9
discrimination where the plaintiff-applicant for a public affairs
position had three years of public affairs experience and the
selectee had none).
Our decision in Stewart v. Ashcroft, 352 F.3d 422 (D.C. Cir.
2003), also a failure-to-promote case, supports the district
court’s judgment. Holding that the kinds of distinctions
Barnette relies on are insufficient to show pretext, we explained
(1) that the applicants’ relative grade levels at the time of
application are irrelevant, for “it says little about the level of
relative qualifications . . . to serve,” id. at 429; (2) that courts
must defer to the employer’s decision as to which qualities
required by the job (substantive versus managerial) it weighs
more heavily, id.; and (3) that courts should refuse to “assess[]
the significance of small differences” in substantive experience
(such as the subject matter of candidates’ work) or length of
service (two years versus six months), id. at 430 (internal
quotation marks omitted). Given Stewart, Barnette offers no
basis for questioning Customs’ judgment that James was better
suited for the ADO position. Both Barnette and James were
eligible to apply, both had the requisite substantive and
supervisory experience, and both brought unique strengths to the
position. Faced with such nuanced differences in candidate
credentials, “we must assume that a reasonable juror who might
disagree with the employer’s decision, but would find the
question close, . . . would usually assume that the employer is
more capable of assessing the significance of small differences
in the qualifications of the candidates, or that the employer
simply made a judgment call.” Aka, 156 F.3d at 1294. Thus,
rather than serving as evidence of pretext, the qualifications
differential Barnette highlights “merely indicate[s] a ‘close
call’” and fails to move her case “beyond summary judgment.”
Stewart, 352 F.3d at 430.
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Relying on Cones v. Shalala, Barnette argues that a court
should infer pretext where an employee who served in a position
in an acting capacity is passed over for a permanent promotion
to that same position in favor of an applicant without previous
experience in the position. This misreads Cones. There, the
employing agency attempted to differentiate white employees it
promoted from the African American plaintiff it refused to
promote by pointing to the white employees’ prior service in
their positions in an acting capacity. Cones, 199 F.3d at 519.
Finding this distinction inconclusive, we explained that a jury
“could just as easily infer that the alleged differences between
Cones and the white [employees] were irrelevant, or that they
were themselves the product of discrimination since the
[agency] had failed to permanently promote Cones . . . when he
was serving in an acting capacity.” Id. We mentioned Cones’s
temporary service in the position he sought not for the
affirmative proposition Barnette suggests, but only because his
temporary service undermined the agency’s attempt to
distinguish Cones from the promoted white employees. In
Fischbach, moreover, we admonished the district court for
second-guessing the agency’s decision to pass over the plaintiff
in favor of another applicant notwithstanding that the plaintiff
had previously served in the position he sought in an acting
capacity and the selectee had not. 86 F.3d at 1181, 1183.
The second category of evidence Barnette claims
demonstrates pretext relates to the downgrading of the ADO
position from GS-15, when Gomez held the job, to GS-14.
According to Barnette, the record contains “ample evidence”
that Customs downgraded the ADO position as part of a
“transparent ruse” to “allow[] Ms. James to secure the position.”
Appellant’s Br. 2, 22. Barnette argues that because “[a]s a GS-
13, Ms. James would not have been eligible to apply for the
ADO position if it had remained a GS-15 when the vacancy was
posted . . . the Customs Service downgraded the position to
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allow Ms. James to apply.” Id. at 22. Such manipulation of “the
selection procedures,” she insists, “constitutes evidence of
pretext.” Id. at 21 (citing Krodel v. Young, 748 F.2d 701, 711
(D.C. Cir. 1984), which held that suspicious hiring practices,
together with statistical and anecdotal evidence of
discrimination, were sufficient to create an inference of pretext).
Barnette’s “ample evidence” consists of the grade reduction
itself, James’s GS-13 grade, Customs’ concurrent plans to
upgrade several Director of Operations positions to the Senior
Executive Service (SES), and Gomez’s statement to Barnette
that “the ADO position would likely be upgraded back to GS-
15.” Appellant’s Br. 7, 19, 22. None of this evidence, however,
demonstrates that Customs actually manipulated the ADO
position grading process. Moreover, Customs’ explanation for
its actions and its supporting evidence dispel any suspicion of
manipulation. Properly classified as a GS-14, the ADO was
upgraded to accommodate Gomez who came to the South
Atlantic CMC as a GS-15. To support the upgrade, Customs
added responsibilities to the ADO position, responsibilities it
later removed when Gomez was promoted. Barnette challenges
neither of these propositions, nor does she dispute several other
facts that support Customs’ contention that the ADO position
was properly graded at the GS-14 level: (1) it was processed
through the Customs’ Human Resources Department, a process
over which neither Gomez nor Heavey—the alleged
discriminators—had any control; (2) the General Schedule
Supervisory Guide states that the grade of an assistant position
should be one grade lower than the position to which it reports
and, as Customs points out, “[a]t the time of the selection . . . the
director position at the Port of Atlanta was still a GS-15
position,” so “the ADO position correctly remained a GS-14
position,” Appellee’s Br. 16; and (3) the other assistant director
position in the Port of Atlanta was occupied at the GS-14 level.
Emphasizing the impropriety of “judicial micromanagement of
12
business practices,” the district court explained—correctly in our
view—that “[w]hether it would be appropriate” to classify the
ADO position as a GS-15 prior to the Atlanta Director’s
elevation to the SES “is a decision that must be left to [Customs]
to determine without micromanagement from the Court.”
Barnette, 2004 U.S. Dist. LEXIS 27546, at *16-17.
As her last piece of evidence allegedly demonstrating
pretext, Barnette points to James’s ADO application, which,
according to Barnette, inappropriately included a supervisory-
level appraisal form. As Barnette sees it, the supervisory-level
form allowed Gomez, also James’s supervisor, to provide a far
more detailed description of James’s responsibilities than would
have been possible had James submitted the non-supervisory
appraisal sheet appropriate for her position. Barnette also argues
that Gomez intentionally and inappropriately enhanced James’s
review “to make her appear more eligible” for the GS-14 ADO
position. Appellant’s Br. 25 (emphasis added). But Barnette
presents no evidence either that the enhanced review affected
James’s basic eligibility for the ADO position or that Heavey
relied on the “exaggerat[ed]” description of her supervisory
experience when recommending James. Id. So even if a jury
concluded that Gomez intentionally manipulated the appraisal
form in order to exaggerate James’s supervisory experience, that
conclusion would do nothing to undermine Customs’ non-
discriminatory explanation for hiring James—its preference for
her greater operations experience over Barnette’s greater
supervisory and administrative experience.
III.
“This Court will not reexamine governmental promotion
decisions where it appears the Government was faced with a
difficult decision between two qualified candidates, particularly
when there is no other evidence that race [or age] played a part
in the decision.” Stewart, 352 F.3d at 430. Although we
13
recognize Ms. Barnette’s qualifications and her years of
distinguished government service, she has failed to show that
Customs’ proffered non-discriminatory basis for James’s
selection was pretext for discrimination. We therefore affirm
the district court’s grant of summary judgment for the
government.
So ordered.