United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 27, 2009 Decided June 19, 2009
No. 07-5392
MYRA A. HENDRICKS,
APPELLANT
v.
TIMOTHY GEITHNER, SECRETARY OF THE TREASURY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 03cv02239)
Molly E. Buie argued the cause for appellant. With her on
the briefs was Robert C. Seldon.
Alan Burch, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Jeffrey A. Taylor, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Andrea W. McBarnette, Assistant U.S. Attorney, entered an
appearance.
Before: SENTELLE, Chief Judge, and GINSBURG and
BROWN, Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.
2
Opinion dissenting in part filed by Circuit Judge BROWN.
SENTELLE, Chief Judge: Appellant Myra Hendricks, a
former employee of the Treasury Inspector General for Tax
Administration (TIGTA), brought this action alleging sex and
race discrimination in her non-selection for two promotions in
violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C.
§ 2000e, et seq. The district court granted summary judgment
in favor of the employer. Hendricks appealed. Finding no error
in the district court’s conclusions that there was no substantial
issue of material fact and defendant was entitled to summary
judgment, we affirm.
I. Background
Appellant’s complaint sets forth two claims for relief based
on two separate failures to promote: first, to the position of non-
supervisory criminal investigator in January 2000; second, to the
position of supervisory criminal investigator in the technical and
forensic support division in March 2003.
A. Non-supervisory Criminal Investigator
In January 2000, appellant was a special investigator for the
TIGTA in the Special Inquiries and Intelligence Division (SIID)
at the salary level of GS-13. The TIGTA internally advertized
an opening for a non-supervisory criminal investigator paid at
the GS-14 level. Employees interested in the position sent
applications to Patricia DeBonaventura, a human resources
specialist. Following the TIGTA’s personnel policy, she was
responsible for culling from the pool of applicants all those who
were “minimally qualified and eligible for the position.”
DeBonaventura accepted four applications: those of Hendricks
(who is black), Robert Johnson (a white man), Jean Keller (a
white woman), and Michael Radetic (a white man). Each of the
3
applicants was a GS-13 special investigator.
DeBonaventura passed those applications on to a “ranking
official,” Timothy Camus, an assistant special agent in charge at
SIID, who graded each candidate in four categories based on the
written applications. Grades were out of 10, with 10 superior,
7 satisfactory, and 4 barely acceptable. Hendricks received two
10’s and two 7’s. The other three candidates each received four
10’s. Camus passed these grades, with a recommendation to
hire Johnson, to the “selecting official,” Brian Dwyer, special
agent in charge, who bore the ultimate responsibility for
choosing a candidate to fill the position. Dwyer reviewed the
applications, read Camus’s recommendations, and spoke with
Camus, before selecting Johnson.
Hendricks claims that she should have been selected over
Johnson because some of his past behavior made him a less
desirable candidate to fill the criminal investigator opening. She
stresses two incidents from Johnson’s past. First, in 1991 (nine
years before the selection), Johnson received a letter of
reprimand for drinking while carrying his weapon. Second, in
1995 (five years before the selection), Johnson was suspended
for 30 days for misusing a government vehicle. According to
the subsequent investigation report, he used the car to pick up
the manager of a restaurant and another IRS employee and
committed additional misconduct that is contained in a sealed
file. This was reported by an anonymous source and
investigated by the predecessor to SIID in its internal affairs
role.
Hendricks also claims that past comments and actions
allegedly made and taken by Dwyer cast into doubt the
government’s claim that Johnson’s promotion was based on
merit and free from discrimination. Most of the evidence
against Dwyer is in the form of proffered testimony concerning
4
incidents of discriminatory behavior or prejudicial animus
directed toward employees other than appellant. The Supreme
Court recently discussed this type of evidence in Sprint/United
Management Co. v. Mendelson, 128 S. Ct. 1140 (2008). That
case made clear that in a discrimination case, evidence
concerning discriminatory behavior outside the instance in
litigation is neither per se relevant under Federal Rule of
Evidence Rule 401 nor per se excludable under Rule 403. We
assume without deciding that evidence of Dwyer’s other
behavior would be admissible.
According to testimony of women who worked in SIID,
Dwyer made a number of comments disparaging to women and
to their role in law enforcement. Some time between May 1998
and April 1999, he said “it was the downfall of Inspection when
they hired women.” (IRS “Inspection” was the predecessor
agency to the TIGTA.) During the same period, he said his
office ought to have more men working there. He explained the
difficult behavior of a male employee by saying his behavior
was “the result of hi[s] being hired in an all male law
enforcement work force in the 1970s” and that in that
environment his “actions would have been tolerated by other
males. It was only when women were hired in law enforcement
that men had to change the way they behaved in the workforce.”
According to Jean Keller, Dwyer “was very nasty to [her]”
when he was an assistant special agent in charge of SIID and
Keller was an agent. She also says he assigned her extra
administrative duties. Even after Keller was promoted to
assistant special agent in charge (ASAC), she says his behavior
continued. She complained to his supervisor that he treated her
differently than the other ASACs, both of whom were men. A
month later she was demoted. Keller says that another
employee, Karen Parker, told her that Dwyer read Keller’s
demotion letter aloud in a departmental meeting. Finally,
5
Dwyer transferred Keller out of SIID entirely for conduct she
alleges was equally egregious to or less egregious than conduct
of “other people” who received no discipline.
B. Supervisory Criminal Investigator in the Technical and
Forensic Support Division
In March 2003, the TIGTA advertized an opening for a
supervisory criminal investigator in the technical and forensic
support division. This position was at the ASAC level, with a
GS-14 pay grade. Of the seven candidates who applied for the
position, five were eligible. Of those five, three were considered
“non-competitive eligibles”—their current government positions
were already paid at the GS-14 level. Two candidates, including
Hendricks, were “competitive eligibles” paid at the GS-13 level.
As with the earlier selection, this opening was filled by one
official making the selection based upon another official’s
recommendation. Steven Jones, the assistant inspector general
for investigations, made the formal selection after discussing the
candidates and receiving a recommendation from Michael Doak,
the special agent in charge of the division. Based on “consistent
guidance [he had] received from personnelists in filling jobs,”
Jones considered only the non-competitive applicants. Of those,
Jones said that Michael Radetic “was the individual who had the
most experience in the various programs managed by this
vacancy, in other words, firearm and oversight of firearms
programs or federal law enforcement radio or records and then,
the tech program or electronics, surveillance equipment.”
Whether to consider competitive eligibles was a matter
within Jones’s discretion. In at least one past hiring, Jones
exercised that discretion to consider competitive eligibles when
only one non-competitive candidate was available. In that
instance, toward the end of 2002 and the beginning of 2003, six
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total candidates were interviewed for a GS-14 criminal
investigator opening. Ronald McKeever, a white man and one
of the competitive eligibles, was eventually hired. The race of
the sole non-competitive eligible applicant, John Heckman, does
not appear in the record.
II. Analysis
We review a district court’s granting of summary judgment
de novo. Hunter-Boykin v. George Washington Univ., 132 F.3d
77, 79 (D.C. Cir. 1998). That is, on the record before us, we
perform the same analysis as the district court, under which the
court is to grant summary judgment if the pleadings, discovery,
and disclosure materials of record and any affidavits before the
court demonstrate that there is “no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c); see, e.g., Tao v. Freeh, 27
F.3d 635, 638 (D.C. Cir. 1994). Material facts are those that
might affect the outcome of the suit under governing law;
genuine issues are those in which the evidence before the court
is such that a reasonable trier of fact could find for the moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-51
(1986). Before the district court, and because our review is de
novo before this court, the movant has the initial burden of
demonstrating the absence of a genuine issue of material fact.
Upon such demonstration, the burden shifts to the opposing
party to “come forward with ‘specific facts showing that there
is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R.
Civ. P. 56(e)). In a Title VII case such as this one, where the
prima facie case as set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), has been taken out of the case by
the employer’s assertion of a legitimate nondiscriminatory
reason for its actions, the question is whether the employer’s
reason is a pretext for discrimination. Brady v. Office of the
7
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Our task,
then, is to determine whether there is a genuine issue of material
fact with respect to that issue, or if the defendant is entitled to
judgment as a matter of law. Upon conducting our de novo
review, we conclude that there is no such genuine issue and that
the district court properly ruled that the employer was entitled
to judgment as a matter of law on both claims.
A. Non-supervisory Criminal Investigator
The TIGTA argues that Johnson was selected not due to any
discriminatory animus toward Hendricks, but because he was
the best candidate for the job. A plaintiff can show her
employer discriminated by showing that she was “significantly”
or “markedly” more qualified for the job than was the candidate
who actually received it. Lathram v. Snow, 336 F.3d 1085, 1091-
92 (D.C. Cir. 2003) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d
1284, 1294, 1299 (D.C. Cir. 1998)). If a plaintiff shows this,
then “the jury could infer discrimination.” Id. at 1091 (citing
Aka, 156 F.3d at 1294)). Without such a decisive showing, we
rightfully defer to the business judgment of an employer and
have no cause to infer discrimination. But if “a factfinder
c[ould] conclude that a reasonable employer would have found
the plaintiff to be significantly better qualified,” then we
question the employer’s judgment. Id. (quoting Aka, 156 F.3d
at 1294). “[E]mployers do not usually” “consciously select[] a
less-qualified candidate . . . unless some other strong
consideration, such as discrimination, enters into the picture.”
Id. at 1092 (quoting Aka, 156 F.3d at 1294). While Hendricks
identified several instances from Dwyer’s past that she says
suggest he may be inclined to discriminate against women, she
can point to only two discrete instances from Johnson’s past to
suggest he is less qualified for the job than she is.
8
Hendricks argues that a reasonable jury could conclude that
Dwyer knew or should have known about Johnson’s
misconduct, and that the details of that misconduct were
disqualifying. Some evidence in the record suggests that
Johnson had a “cowboy” image and that rumors about him were
“widespread” in the agency. Dwyer admits to knowing that
Johnson had been investigated for misconduct in the past, but
denies knowing the details of the misconduct (saying it “wasn’t
part of [his] responsibility” to know those details). He did check
with his supervisor to see if Johnson’s being disciplined would
be a barrier to promotion. Dwyer’s supervisor, the assistant
inspector general for investigations, told him that as long as
Johnson “had fulfilled his . . . punishment,” it would not be a
problem. In any case, Johnson’s alleged misconduct all
occurred at least five years before the selection, with some of it
nine years before the selection.
Hendricks argues that his misconduct strips him of the
“integrity” that all parties agree is central to the mission of SIID.
But even calling his character into question, Hendricks struggles
to assert that Johnson is “significantly” or “markedly” less
qualified for the job than she is. Johnson had 14 years of
experience compared with Hendricks’s 8 years; on the relevant
performance appraisal, Johnson received perfect scores in all but
one area, whereas Hendricks was downgraded in four areas. She
challenges Camus’s scoring of her application with two 7’s. But
even if she clearly established that Camus graded her
incorrectly, which she has not, Hendricks failed to produce
either direct or circumstantial evidence suggesting his grading
was motivated by discrimination. Cones v. Shalala, 199 F.3d
512 (D.C. Cir. 2000), cited by Hendricks, is not to the contrary.
Although the Cones court did transfer evidence of a
discriminatory motive from one manager to another, 199 F.3d at
519, it was evaluating a very different case. Cones involved
ascribing discriminatory intent to the entire process from
9
someone superficially removed from it. Id. Here the alleged
discriminatory decision maker, Dwyer, was clearly involved in
the process. Camus’s contribution, moreover, was unlikely to
make a difference. Hendricks’s scores were lower than all three
other applicants (who had perfect scores). Even if she could
prove she deserved perfect scores, this only would have put her
on even footing with the other three candidates. To prove her
discrimination claim, she would also have to offer evidence
supporting an inference that, absent discrimination, she would
have been picked for the job.
Hendricks points to evidence of Dwyer’s past alleged
comments—that there were too many women at SIID, that
women were the “downfall” of the agency, and that women are
the reason men have to behave in the office. She also points to
the evidence concerning Jean Keller, whose alleged
mistreatment at the hands of Dwyer is detailed above. But even
taking the Keller case at face value, it is ambiguous. While
Dwyer was allegedly discriminating against her, Keller was also
the only female ASAC in the office. Dwyer might have been
mistreating her because she was a woman, or he might have
been mistreating her for some other reason. In sum, Hendricks
has offered no evidence that the legitimate nondiscriminatory
reason offered by the employer was pretextual. We agree with
the district court that Hendricks has offered no evidence
sufficient for a jury to conclude that Hendricks was not selected
on the basis of her sex. (Hendricks supplied no evidence
whatsoever alleging discrimination on the basis of her race.)
In Aka v. Washington Hospital Center, we opined that a
Title VII discrimination plaintiff cannot prevail by presenting
evidence that tends to show the employer’s proffered reason is
pretextual but also “demonstrates that the real explanation for
the employer’s behavior is not discrimination, but some other
motivation.” 156 F.3d at 1291. Even viewing Hendricks’s
10
evidence in the most favorable light, her attempted rebuttal of
the proffered reason for Johnson’s selection at best falls in this
category.
Hendricks questions whether Johnson was the most
qualified candidate, by offering evidence he lacked the
“integrity” necessary for the job. But her evidence supports at
most favoritism, not sex discrimination. The evidence of
Dwyer’s conduct in choosing among the four candidates and
selecting the one with the allegedly questionable background did
not support an inference that sex drove Dwyer’s choice. If he
was driven by sex discrimination, Dwyer could have selected
Michael Radetic, who was neither female nor had an alleged
history of misconduct. Because Dwyer hired Johnson over
either Hendricks or Radetic, it suggests at worst that Dwyer
acted for idiosyncratic reasons, not discriminatory ones.
Hendricks’s case relies almost exclusively on circumstantial
evidence that one manager at SIID is difficult and prone to
misogynist comments. She also points to years-old conduct to
taint Johnson—conduct that Dwyer’s supervisor specifically
instructed him to disregard. Taken together, this is not sufficient
evidence from which a reasonable jury could conclude that
TIGTA’s asserted reason for selecting Johnson was not the
actual reason, much less that Hendricks was not selected
because of her sex.
B. Supervisory Criminal Investigator in the Technical and
Forensic Support Division
Hendricks’s claim of discrimination in the later selection is
even less substantial. She does not dispute that Steven Jones
had discretion whether to consider the group of “competitive
eligibles.” Instead, she argues that because Jones considered the
competitive eligibles in the selection of Ronald McKeever—but
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not in the selection of Michael Radetic—this should raise an
inference of discrimination. But one instance of using a
different procedure is not sufficient to create a pattern and
practice from which there was a structural departure that
disadvantaged the appellant by reason of her race or sex, and no
such inference can be drawn.
In any event, McKeever’s case is easily distinguishable. In
the McKeever selection, there was only one candidate on the
non-competitive eligibles list, and five on the competitive list.
Radetic’s selection had three candidates on the non-competitive
list, and only two on the competitive list. Further, Hendricks has
presented no evidence to suggest that Jones’s decision had
anything to do with race or sex. Even assuming Hendricks had
produced some evidence suggesting Jones or Doak (the
recommending official) was actually motivated by
discriminatory animus, she did not produce evidence sufficient
for a jury to conclude that she was not selected because of her
sex or race.
III. Conclusion
Although Hendricks may have worked in an imperfect
office with some flawed characters, without connecting her
employer’s actions with intent to discriminate against her on the
basis of sex or race, she cannot escape summary judgment. We
affirm the judgment of the district court.
So ordered.
BROWN, Circuit Judge, dissenting in part: If a jury were
to find Brian Dwyer discriminated against Myra Hendricks,
would we reverse because of insufficient evidence? Read in
the light most favorable to Hendricks, these are the facts: (1)
Hendricks was a talented employee who met or exceeded
expectations for all aspects of her job; (2) Robert Johnson,
who was promoted instead of Hendricks, had a history of
good work interspersed with serious misconduct, including
losing his government-issued handgun in a bar fight and not
immediately reporting the loss, and being suspended for thirty
days for misusing his official vehicle (the full details of his
unseemly escapade are under seal); (3) Dwyer said the
agency’s “downfall” was “hir[ing] women” and his office
ought to have more “men,” and he justified boorishness
because the offending employee “was hired in an all male law
enforcement workforce in the 1970s”1; and (4) a SIID
supervisor, Jacqueline Colonna, declared the office had “girl
jobs” and “boy jobs,” with women being “tasked with
analytical assignments” while men received “high profile
matters.” Because a jury could find for Hendricks on these
facts, I respectfully dissent from my brothers’ affirmance in
toto, though I concur as to the March 2003 nonpromotion.
I do not quarrel with the majority’s conclusion that if
Johnson’s history of misconduct is not considered, then he
was at least as qualified as Hendricks, and probably more so.
But why would a reasonable juror not consider his history?
Common experience tells us that Johnson’s personnel file
could have been a dealbreaker if someone had wanted it to be.
After all, in a holistic appraisal of who is better qualified, it is
relevant that only one candidate has a checkered past, as a
disciplinary record says something about who a person is and
what kind of employee he or she will be. Integrity and
1
Indeed, Dwyer suggested “[i]t was only when women were hired
in law enforcement that men had to change the way they behaved,”
and the man’s “actions would have been tolerated by other males.”
2
personal probity, moreover, should be especially salient to the
promotional prospects of law enforcement officers, for, as a
senior TIGTA official put it, “we’re in the integrity business.”
Thus, a reasonable jury could conclude discrimination played
a role in Johnson’s promotion because he alone had exhibited
a marked proclivity for bending the rules, and he was not
otherwise substantially better qualified than Hendricks. Think
about the issue this way: Imagine Johnson was a woman and
Hendricks a man, and Dwyer said Ms. Johnson would not be
promoted because of her past misconduct, resulting in Mr.
Hendricks being promoted instead. Would Ms. Johnson have
a viable Title VII claim? This is a difficult question because
notwithstanding her otherwise superior credentials, the
presence of serious misconduct, an anti-qualification, adds a
different dimension to the comparison. In other words, we
would not be surprised if Dwyer were to say: “Sorry Ms.
Johnson, but I do not want anyone with your baggage in my
department.” But here, to Mr. Johnson, Dwyer said nothing
of the sort. Why not?
To answer that question, the majority notes Dwyer’s
supervisor allegedly said that because Johnson fulfilled his
punishment, promoting him was not a problem. But even in
Dwyer’s account of that conversation, his supervisor never
said the misdeeds were irrelevant, suggesting they only were
not disqualifying. This distinction is a familiar one, as often
even a serious deficiency can be offset by other compelling
considerations. Randy Johnson, for instance, has hit a dreary
.125 for his career, but his Cy-Young-winning slider covers a
multitude of batting-box sins. See Randy Johnson,
http://www.baseballreference.com/players/j/johnsra05.shtml
(last visited June 1, 2009). Robert Johnson is no Randy
Johnson. Even if apart from this misconduct he was better
qualified than Hendricks, he was not so much better qualified
that a court-sitting-as-reasonable jury can conclude
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Hendricks’ nonselection was free of discriminatory taint.
Instead, this is a quintessential question of fact, appropriate
only for an actual jury to decide. “Although a jury may
ultimately choose to believe the [agency]’s explanation of
events rather than [the plaintiff’s], at this stage we refrain
from making credibility determinations, weighing the
evidence, or drawing inferences from the evidence—these,
after all, are jury functions, not those of a judge ruling on a
motion for summary judgment.” Jones v. Bernanke, 557 F.3d
670, 681 (D.C. Cir. 2009). See also Montgomery v. Chao,
546 F.3d 703, 706 (D.C. Cir. 2008) (“We must view the
evidence in the light most favorable to the nonmoving party,
draw all reasonable inferences in his favor, and eschew
making credibility determinations or weighing the
evidence.”); FED. R. CIV. P. 56(c).
The government also argues Dwyer properly ignored
Johnson’s misdeeds because they did not relate to “integrity.”
This seems a preternaturally narrow definition of the term,
particularly given Johnson’s deliberate misuse of the vehicle
entrusted to him. Can it really be true that any prior act—
provided it involves neither illegality nor outright lying—is
irrelevant to one’s prospects for promotion? What if Johnson
were reprimanded for being drunk every afternoon? Or for
writing a trashy romance novel at the office? In any event,
this “integrity” standard is applied at best intermittently, as
Dwyer transferred an employee out of SIID for misconduct
unrelated to lawbreaking or lying. Moreover, Dwyer’s
hostility to women, which our procedural posture requires us
to accept as established, further confirms a reasonable jury
could find for Hendricks on this record. See, e.g., Aka v.
Washington Hosp. Ctr., 156 F.3d 1284, 1295 (D.C. Cir. 1998)
(en banc) (“A plaintiff attacking a qualifications-based
explanation is of course not limited to comparing his
qualifications against those of the successful candidate.”);
4
Czekalski v. Peters, 475 F.3d 360, 368–69 (D.C. Cir. 2007)
(an employer’s “disparaging comments” “in conjunction with
strong evidence of pretext” creates a jury question).
The majority also faults Hendricks for not presenting
evidence that she was better qualified than the other
applicants who also were not promoted. No authority is cited
for this proposition, for there is none to cite. We do not
require a Title VII plaintiff to compare herself to anyone but
the person actually selected for the position. E.g., Aka, 156
F.3d at 1294 (comparing “plaintiff’s qualifications and those
of the successful candidate”). Here, I have no idea why
Dwyer did not select Michael Radetic, and neither does the
majority. See Maj. Op. at 10. It could be Dwyer found
Radetic annoying, and though Dwyer did not want to hire a
woman, he wanted to hire an annoying person even less, so he
hired Johnson. Who knows? What the record does show,
however, is Dwyer had a problem with women agents and
decided to promote a male with a sullied record even though a
qualified female with a pristine record was available. We
ought to let the jury decide what inference to draw.
If used carefully, our “significantly better qualified”
doctrine can accurately reflect the real world. In this case,
unfortunately, I fear the majority opinion has myopically
applied the doctrine in a way that just doesn’t jibe with
reality. Because Johnson was better qualified according to the
traditional categories, the majority affirms, even though
Johnson’s bad behavior mingled with Dywer’s alleged
misogyny makes this an untraditional case. With summary-
judgment facts like these, a jury of her peers—not a panel of
judges—ought to decide the merits of Hendrick’s claim.