United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 18, 2011 Decided June 17, 2011
No. 10-5047
DENISE R. COLBERT, AN INDIVIDUAL,
APPELLANT
v.
ROBERT C. TAPELLA, PUBLIC PRINTER, U.S. GOVERNMENT
PRINTING OFFICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01219)
Theodore S. Allison argued the cause and filed the briefs
for appellant.
Wyneva Johnson, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney. Alan Burch, Assistant U.S. Attorney, entered
an appearance.
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Before: HENDERSON, GARLAND and BROWN, Circuit
Judges.
Opinion for the Court filed by Circuit Judge BROWN.
Concurring opinion filed by Circuit Judge HENDERSON.
BROWN, Circuit Judge: Denise R. Colbert (“Colbert”), a
black woman, worked at the Government Printing Office
(“GPO”) for over thirty years. In December, 2005, she
applied for two job openings in the Congressional Publishing
Services, an office within the Customer Service Division of
the GPO. Without interviewing any candidates, the GPO
filled the two positions with white men. Colbert sued the
GPO under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., alleging race and gender
discrimination. The district court granted the GPO’s motion
for summary judgment. Because a reasonable jury could find
in Colbert’s favor, we reverse and remand.
I
In December, 2005, the GPO posted two vacancy
announcements for a Supervisory Printing Services Specialist.
The two jobs differed in their work schedule (day versus night
shift) and available salary range (PG 14 pay level versus PG
13/14 pay level). Each job posting contained a section
entitled “How You Will Be Evaluated,” which stated: “If you
meet the qualifications described above, you will be further
evaluated based on your narrative responses to each
knowledge, skill, ability and other characteristic (“KSAO”)
listed below.” Beneath this summary, the job posting
described the five KSAOs required for the position: (1) ability
to supervise and direct the work of others, (2) knowledge and
understanding of the laws and regulations governing the
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actions of the Government Printing Office, (3) knowledge of
the legislative process, especially the stages through which a
bill passes to become law, (4) ability to communicate
effectively orally, including skill in responding directly to
inquiries from Senators, Congressmen, and congressional
staff members, and (5) knowledge of terminology, and
mechanics of the electronic transmission of data presently
used by GPO and Congress.
Jerry Hammond, Director of the Congressional
Publishing Services, assisted by Lyle Green, the Associate
Director, selected among the applicants for the two available
printing specialist positions. Hammond did not interview the
candidates. Instead, he evaluated each on their written
application, including the candidate’s stated qualifications and
narrative responses, as well as any personal knowledge
Hammond possessed of a candidate’s work. Ultimately,
Hammond selected Joseph Benjamin and William Milans,
both white males, for the two positions.
Colbert sued the GPO, alleging race and gender
discrimination under Title VII. After discovery, the GPO
moved for summary judgment, and the district court granted
the GPO’s motion. Colbert v. Tapella, 677 F. Supp. 2d 289,
295 (D.D.C. 2010).
II
Title VII protects employees from personnel actions that
discriminate on the basis of “race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-16(a). Where an
employer asserts a non-discriminatory reason for the decision
in question, the court’s inquiry is limited to “one central
question: Has the employee produced sufficient evidence for a
reasonable jury to find that the employer’s asserted non-
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discriminatory reason was not the actual reason and that the
employer intentionally discriminated against the employee on
the basis of race, color, religion, sex, or national origin?”
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.
Cir. 2008). In considering this question, the court may look at
“(1) the [employee’s] prima facie case; (2) any evidence the
[employee] presents to attack the employer’s proffered
explanation for its actions; and (3) any further evidence of
discrimination that may be available to the [employee] . . . or
any contrary evidence that may be available to the employer.”
Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir.
1998) (en banc).
Summary judgment is appropriate only if the pleadings,
depositions, answers to interrogatories, admissions, and
affidavits show that “there is no genuine dispute as to any
material fact” and “the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). In making this
determination, we view the evidence in the light most
favorable to Colbert, and draw all reasonable inferences in her
favor, but we do not make credibility determinations, nor do
we weigh the evidence. Reeves v. Sanderson Plumbing
Prods., 530 U.S. 133, 150 (2000).
A1
The district court erred by requiring Colbert to show not
only that the GPO’s nondiscriminatory reason was pretext,
but also that discrimination was the actual reason Colbert was
not promoted. Colbert, 677 F. Supp. 2d at 295. In so doing,
1
We do not perceive a material difference between this opinion’s
description of the legal standard under Title VII and that described
by our concurring colleague.
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the district court relied on St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515 (1993). But we rejected this interpretation of
Hicks in Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1290 (D.C.
Cir. 1998) (en banc). There, we stated that “we do not
endorse a reading of Hicks under which employment
discrimination plaintiffs are presumptively required to submit
evidence over and above [evidence of pretext] in order to
avoid summary judgment.” Id. at 1292. And we further
noted “[t]he jury can conclude that an employer who
fabricates a false explanation has something to hide; that
‘something’ may well be discriminatory intent.” 156 F.3d at
1293.
Earlier this term, we affirmed a grant of summary
judgment in favor of an employer when the only evidence the
employer fabricated a false explanation was the employee’s
own personal opinion. See Vatel v. Alliance of Auto. Mfrs.,
627 F.3d 1245, 1247 (D.C. Cir. 2011). This case is the
natural corollary: the employer admits to having lied about
Colbert’s nonselection. In his first meeting with an EEO
investigator, Hammond said he did not select Colbert, in part,
because she “wandered.” When later asked whether he
actually believed Colbert wandered, Hammond said “not
really.” The GPO argues Hammond’s statement that Colbert
“wandered” is not a lie because Hammond said it “out of
anger more than anything else.” Oral Argument Tr. 20–21.
But this argument is nothing more than a lawyerly effort to
downplay problematic evidence. Hammond admits part of his
stated rationale for passing over Colbert was not true. It is
thus a lie, carrying with it “considerable evidentiary
significance,” Aka, 156 F.3d at 1292, regardless of
Hammond’s stated motivation.
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B
A “plaintiff cannot always avoid summary judgment by
showing the employer’s explanation to be false . . . .” Id.
“For instance, an employer would be entitled to judgment as a
matter of law if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or if
the plaintiff created only a weak issue of fact as to whether
the employer’s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination
had occurred.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 148 (2000). This case does not fit either
exception.
The record does not “conclusively reveal[] some other,
nondiscriminatory reason” for Hammond’s decision to pass
over Colbert. Id.; see Aka, 156 F.3d at 1291 (discussing
Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328 (8th Cir.
1996)). Instead, the record suggests the opposite: GPO’s
proffered non-discriminatory reason appears to be unfounded.
According to Hammond, Colbert was not better qualified than
Benjamin or Milans because her prior work experience was
“perfunctory” and “limited to routine tasks.” He also said
Colbert “never worked in procurement,” did not “expand her
technological capabilities,” and lacked “supervisory
experience.” Id. But nothing in the record supports these
statements. Colbert worked for the GPO for over 30 years.
During that time she received numerous awards and
commendations, including eight outstanding performance
awards. In addition, Colbert cites extensive knowledge of
printing procurement regulations based on work in the
Customer Service Division and as a liaison between customer
agencies and the procurement section. Colbert also took two
courses in “procurement,” an 80-hour college course in offset
printing, seven courses on electronic publishing, and eleven
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computer courses related to her work at GPO (including two
courses in procurement)—all of this, in addition to her formal
work training and over ten years supervisory experience at
GPO.
The record also does not provide “abundant and
uncontroverted independent evidence that no discrimination
had occurred.” Reeves, 530 U.S. at 148. “Where an employer
has a strong record of equal opportunity employment, any
inference of discrimination arising from the discrediting of the
employer’s explanation may be a weak one, and in some
cases not strong enough to let a reasonable factfinder
conclude that discrimination has occurred at all.” Aka, 156
F.3d at 1291. As an example, in Aka, we described “a
situation in which the hiring officer, as well as 40% of the
employer’s work force, were members of the same minority
group as the plaintiff even though the group in question
comprised only 10% of the relevant labor market.” Id. By
comparison, the GPO admits that since 1994 white employees
have exclusively filled the Print Officer and Printing Services
Specialist positions, save one. And that single minority
employee received her position through the settlement of her
own race discrimination complaint.
The district court, relying on Adeyemi v. District of
Columbia, 525 F.3d 1222, 1227 (D.C. Cir. 2008), found
“[n]othing Ms. Colbert offers . . . sufficient to show that she
was ‘significantly better qualified’ than Mr. Benjamin or Mr.
Milans.” Colbert, 677 F. Supp. 2d 289, 294 (D.D.C. 2010).
Adeyemi held, “when an employer says it made a hiring or
promotion decision based on the relative qualifications of the
candidates, a plaintiff can directly challenge that
qualifications-based explanation only if the plaintiff was
‘significantly better qualified for the job’ than those
ultimately chosen. . . . The qualifications gap must be great
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enough to be inherently indicative of discrimination.” 525
F.3d at 1227. But Adeyemi is not controlling here because
Colbert is not using her comparative qualifications to prove
discrimination. Rather, Colbert uses her qualifications to
show this is not the exceptional case in which the record
“conclusively revealed some other, nondiscriminatory
reason.” Reeves, 530 U.S. at 148.
III
Summary judgment is inappropriate if Colbert can
produce sufficient evidence that the GPO’s non-
discriminatory reason for passing her over—that other
candidates were more qualified—is pretext for discrimination.
The district court held Colbert did not do so. But the district
court erred by requiring Colbert to show not only that the
GPO’s nondiscriminatory reason was pretext, but also that
discrimination was the actual reason Colbert was passed over.
We do not suggest merely showing the employer’s
explanation to be false would be sufficient. However, given
Hammond’s lie, his apparent lack of knowledge about
Colbert’s actual experience or training, and other evidence
that the hiring and promotion practices of CPS were generally
inhospitable to minorities, additional evidence of
discrimination was not necessary for Colbert to defeat
summary judgment. Aka, 156 F.3d at 1292.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
Although I concur, I write separately because I do not agree
with my colleagues’ articulation of the nature of the plaintiff’s
burden at the summary judgment stage of a Title VII
discrimination claim. We all rely on the following language of
Brady:
[I]n considering an employer’s motion for summary
judgment or judgment as a matter of law in those
circumstances, the district court must resolve one
central question: Has the employee 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
race, color, religion, sex, or national origin?
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.
Cir. 2008) (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
510, 511 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 715 (1983)) (emphasis added). My colleagues,
however, fault the district court for “requiring Colbert to not
only proffer evidence that the GPO’s nondiscriminatory reason
was pretext, but also additional evidence that discrimination was
the actual reason Colbert was not promoted.” Maj. op. at 4
(citing Colbert v. Tapella, 677 F. Supp. 2d 289, 295 (D.D.C.
2010) .1 As Brady makes clear, providing a false reason for the
*
Echoing Supreme Court precedent and our own, the district court
in fact stated: “[A] plaintiff must show ‘both that the reason was false,
and that discrimination was the real reason.’ ” Colbert, 677 F. Supp.
2d at 295 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 515)
(first emphasis added). The difference in language between the
majority’s and the district court’s phrasing, however, is insignificant
as the usual means to show something for the purpose of summary
judgment is to “proffer evidence” of it. See Hendricks v. Geithner,
568 F.3d 1008, 1013 (D.C. Cir. 2009) (“To prove her discrimination
claim, [the plaintiff] would . . . have to offer evidence supporting an
2
employment decision is not conclusive of pretext or of
discrimination. In the end, the employee bears the burden of
showing not that the employer is dishonest but that it engaged in
unlawful discrimination against the employee. See Hicks, 509
U.S. at 511 (“Court of Appeals’ holding that rejection of the
defendant’s proffered reasons compels judgment for the plaintiff
disregards the fundamental principle of [Fed. R. Evid.] 301 that
a presumption does not shift the burden of proof, and ignores
our repeated admonition that the Title VII plaintiff at all times
bears the ultimate burden of persuasion.” (quotation omitted)).
Thus, “ ‘there will be instances where . . . the plaintiff has . . .
set forth sufficient evidence to reject the defendant's
explanation, [yet] no rational factfinder could conclude that the
action was discriminatory.’ ” Desmond v. Mukasey, 530 F.3d
944, 963 (D.C. Cir. 2008) (quoting Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) (alterations in
Mukasey)). This principle is illustrated by our decision in
Hendricks v. Geithner, 568 F.3d 1008, 1013 (D.C. Cir. 2009).
In Hendricks, we affirmed the district court’s grant of
summary judgment to the defendant because the plaintiff, who
had been passed over for promotion, “offered no evidence
sufficient for a jury to conclude that [she] was not selected on
the basis of her sex.” 156 F.3d at 1291. We observed 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.” Id. at 1013-14. We concluded that the employee’s
“attempted rebuttal of the proffered reason” there (that she was
more qualified than the employee selected for promotion) “at
best” fell in the category of “demonstrat[ing] that the real
inference that, absent discrimination, she would have been picked for
the job.”).
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explanation for the employer’s behavior is not discrimination,
but some other motivation.” Her evidence, we explained,
“support[ed] at most favoritism, not sex discrimination,”
“suggest[ing] at worst that [the employer] acted for idiosyncratic
reasons, not discriminatory ones.” Id. at 1014. In other words,
the reason proffered by the employer may have been false—but
the evidence did not demonstrate it shielded a discriminatory
motive.
In this case, by contrast, Colbert met her burden under both
prongs of the Brady standard. The record, viewed in the light
most favorable to Colbert, could support a finding that the both
reasons proffered for passing her over—that she “wandered” and
that she did not meet the specific requirements for
promotion—were indeed pretextual and that her employer in
fact unlawfully discriminated against her. See maj. op. at 6-7.
Accordingly, I concur.