Barbour, Joyce A. v. Browner, Carol M.

181 F.3d 1342, 337 U.S. App. D.C. 50, 1999 U.S. App. LEXIS 15558, 78 Empl. Prac. Dec. (CCH) 46,040, 80 Fair Empl. Prac. Cas. (BNA) 683

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 13, 1999
• Docket: 98-5408, 98-5409
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge GINSBURG.

Opinion concurring in part and dissenting in part filed by Circuit Judge TATEL.

GINSBURG, Circuit Judge:

Joyce Barbour sued the Environmental Protection Agency under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(l), claiming that the agency had refused to promote her because of her race (black) and had failed to prevent an agency contractor from harassing her. A jury found for her on both counts, and the district court entered judgment accordingly. The EPA now appeals, arguing that because neither of Barbour’s claims was supported by sufficient evidence, the district court erred by denying the agency’s motion for judgment as a matter of law. We agree and hence reverse.

I. Background

Barbour began working for the EPA’s Toxic Substances Control Act “security staff’ in 1990. She says that her supervisor, Doug Sellers, told her when she started that he would promote her from GS-12 to GS-13 after a year if she performed well. Accordingly, when she was rated “exceeds expectations” after her first annual review, she thought Sellers would promote her immediately. Her job, however, is not one that ordinarily allows promotion above GS-12, so Sellers told her that she would have to- demonstrate, by means of a “desk audit,” that she had responsibilities beyond those commensurate with her GS-12 level. If the audit revealed that she was performing GS-13 level tasks,' Sellers assured her, a promotion would follow. Claiming an audit unnecessary, Barbour refused. She ultimately received the promotion without having an audit, but not until 1996.

Barbour contrasts her experience with that of Janette Peterson, a white member of the security staff who received a promotion to GS-13 after two years as a GS-12. Barbour concedes, however, that Peterson’s promotion followed a desk audit. Moreover, although Peterson’s job duties overlapped to some degree with Barbour’s, there is undisputed evidence that Peterson had management responsibilities that Barbour did not have. Barbour disputes the importance of these differences, pointing out that the EPA occasionally waives the desk audit requirement and that the additional duties Peterson had were of a sort usually assigned to .a GS-14, not to a GS-13, employee.

Barbour’s harassment claim arises out of her supervision of work performed by Computer Based Systems, Inc. (CBSI), a contractor that performed data management services for the EPA. Despite her position of authority, Barbour says, CBSI employees consistently treated her with disrespect. One CBSI supervisor directed a subordinate to drag his heels on a request Barbour had made. Another turned her back on Barbour during a contentious meeting. Still others would call Sellers or Peterson to verify the accuracy of the instructions Barbour had given them. When Barbour complained to Sellers about CBSI’s conduct, his response was halfhearted. When white EPA employees, who had fewer problems with CBSI, complained to Sellers, his' intervention was more effective.

Barbour filed this suit in 1994. In March, 1997 the parties tried the case to a jury, which returned a verdict in Barbour’s favor on both her failure to promote and her harassment claims. The EPA appealed after the trial court denied its motion for judgment as a matter of law.'

II. Analysis

We review de novo a district court’s disposition of a motion for judgment as a matter of law, in the sense that we apply to the jury’s decision the same forgiving standard as did the district court: The jury’s resolution of a factual dispute will stand if it is reasonably supported by the evidence. See, e.g., Barbour v. Merrill, 48 F.3d 1270, 1276 (D.C.Cir.1995). As to so-called “mixed questions of law and fact,” which require the application of a broad legal standard to particular facts, see Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), there is no obvious way to decide whether determinations made at the trial level should be reviewed deferentially or independently. See Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (standard of review “turn[s] on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question”). Therefore, the reviewing court must make a reasoned judgment whether the risk of an erroneous trial level decision, or the need to clarify the governing law, or any other value secured -by review de novo, is warranted in view of the added costs of such review. See, e.g., Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (“Independent review [of probable cause determinations] is ... necessary if appellate courts are to maintain control of, and to clarify, the [governing] legal principles”); Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 505, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (appellate courts independently review jury, determinations that speech is unprotected by the First Amendment “both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits”). We touch upon this issue because, as will be seen, the present appeal requires us to review jufy findings on two mixed questions of law and fact, and we have not previously addressed the standard of review applicable to either.

A. Failure to Promote

The first question is whether “all of the relevant aspects of [Barbour’s] employment situation were nearly identical” to those of Janette Peterson, and therefore whether Peterson’s more rapid promotion could be said to indicate racial bias on the part of the EPA. Mungin v. Fatten Muchin & Zavis, 116 F.3d 1549, 1554 (D.C.Cir.1997). We think the jury’s implicit finding in favor of Barbour on this issue should be reviewed deferentially, although it necessarily entails a judgment about which aspects of her employment situation were “relevant.” The issue does not seem to be of general importance, peculiarly in need of clarification, or otherwise deserving of specially probing review. Nor, contrary to the EPA’s representations, does either our decision in Mungin or our decision in Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507 (D.C.Cir.1995), contain any indication that we should review this question de novo. Like the mine run of mixed questions, therefore, it should be resolved in the first instance by a jury, whose decision should be disturbed on appeal only if it could not reasonably be based upon the evidence properly received. See United States v. Gaudin, 515 U.S. 506, 512, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995).

In this case, however, we agree with the Government that no fair comparison can be drawn between Barbour and Peterson; hence, the jury’s verdict cannot stand. As the EPA points out, Barbour was responsible for only seven “specific task management activities,” all of which dealt with “things which were in place and functioning.” Peterson’s duties were both more numerous and more weighty; they included some related to the development and implementation of new policies. Furthermore, Peterson, unlike Barbour, agreed to a desk audit in order to document that she performed the duties of a GS-13 level job.

Barbour does not deny these differences; rather, she maintains that they do not relate to any “relevant aspeet[ ]” of her employment situation. First, she contends, the additional duties Peterson performed were usually assigned to a GS-14 position; consequently, a rational juror could find those duties irrelevant to the EPA’s decision to promote her, and not Barbour, to GS-13. In other words, a rational juror, we are told, could determine that in deciding not to promote Barbour the EPA did not rely upon Peterson’s performance of higher level responsibilities. This flies in the face of reason. That Peterson was capable of handling more important GS-14 level tasks is plainly relevant to whether she would acquit herself adequately in a GS-13 level position — or so an employer is entitled to believe.

* Title VII, it bears repeating, does not authorize a federal court to become “a super-personnel department that reexamines an entity’s business decisions.” Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.1986). This is precisely the role the court would play, however, were the jury to ignore Peterson’s GS-14 level job duties on the basis of the argument Barbour advances.

Barbour next argues that her limited job duties could not have been material to the EPA’s decision because, without having assumed any new ones, she received the promotion in 1996. In effect, she attempts to undercut the agency’s explanation of its decision by means of another comparison — not, this time, between herself and Peterson, but between her younger and her older selves. This approach is creative, but it is at odds with Sellers’ undisputed testimony that she received the promotion because her performance improved between 1991 and 1996. When she first requested the promotion, she had been with the security staff for only one year. When the promotion finally came, she had been on the job for six. It is not unusual, of course, that an increase in productivity would accompany a five-fold increase in experience.**

•[7] Finally, Barbour suggests that because the EPA has in the past sometimes waived the desk audit requirement, a rational juror could have doubted the bona fides of the agency’s refusal to promote her without one in 1991. We wonder; the record contains evidence of only one instance in the early 1990’s in which the agency waived the rule. Assuming for the sake of the argument, though, that the jury could have found the agency to have overstated the importance of a desk audit, that would little avail Barbour.

While we usually afford “considerable ... significance” to evidence showing that an employer’s explanation of a challenged decision may be pretextual, Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1292 (1998), two circumstances make this case unusual. First, Barbour calls into doubt only part of the EPA’s proffered explanation for its refusal to promote her, for the agency’s assertion that it promoted Peterson more rapidly because she performed more advanced job duties is not in doubt. This case therefore stands in clear contrast to Aka, which was premised upon evidence in the record from which a reasonable juror could find that, absent invidious discrimination, the challenged employment decision was inexplicable. See id. at 1292 (“Events have causes; if the only explanations set forth in the record have been rebutted, the jury is permitted to search for others, and may in appropriate circumstances draw an inference of discrimination”). If Barbour had produced evidence suggesting the EPA’s statements regarding the importance of a desk audit are not merely incorrect, but intentionally deceitful, then this difficulty could perhaps be overcome. See id. at 1289 n. 3 (term “pretext ... sometimes ... means that an employer’s explanation is incorrect, and sometimes it means both that the explanation is incorrect and that the employer’s real reason was discriminatory”); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (evidence of pretext is particularly indicative of bias if it supports a reasonable “suspicion of mendacity”). Evidence that the EPA invoked the desk audit requirement only when employees of an allegedly disfavored race sought promotions, for instance, might demonstrate that the agency was purposefully using the rule to cover up its discriminatory practices. Here, however, the white employee was obligated to undergo a desk audit, while the black employee was subjected to treatment that was at first identical, and later preferable. That the agency applied its rule more strictly to the white employee than to the black one hardly demonstrates that it used the rule to discriminate against blacks. See Mungin, 116 F.3d at 1556 (employer’s failure to follow its procedures, standing alone, does not reveal intent to deceive).

Also removing this case from the purview of the rule in Aka is Barbour’s inability to adduce any other evidence. In Aka, we assumed that, prior and in addition to showing pretext, the plaintiff will have presented sufficient evidence to make out a prima facie case of discrimination. See Aka, 156 F.3d at 1289 (evidence in Title VII case consists of “(1) the plaintiffs pri-ma facie case; (2) any evidence the plaintiff presents to attack the employer’s proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff.... We are [here] faced with the issue of when evidence in categories (1) and (2) alone can suffice to support a jury verdict for the plaintiff’). In this case, the assumption proves unwarranted: Barbour’s sole affirmative evidence of bias is the apples-and-oranges comparison she draws between herself and Peterson, which we rejected above. Of course, the case has been tried, so the question whether she established a prima facie case is now irrelevant. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). This does not mean, however, that in our analysis of “the ultimate question of discrimination vel non,” id. at 714, 103 S.Ct. 1478, we are obliged to pretend that there is evidence supporting a prima facie case when in fact there is not. In short, unlike the plaintiff in Aka, Barbour has nothing to buttress her evidence of pretext. Because that evidence standing alone has virtually no probative value, we conclude that the district court should have granted the EPA’s motion for judgment as a matter of law.

B. Harassment

Barbour’s claim that the EPA failed adequately to protect her from harassment by employees of CBSI requires us to examine the second mixed question of law and fact raised by this case, namely, whether the behavior of which she complains was sufficiently egregious to violate Title VII. Not all abusive behavior, even when it is motivated by discriminatory animus, is actionable. Rather, a workplace environment becomes “hostile” for the purposes of Title VII only when offensive conduct “permeate[s] [the workplace] with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 1001, 140 L.Ed.2d 201 (1998).

Whether the harassment in á particular case can be considered “severe or pervasive” is manifestly a mixed question of law and fact; in order to answer it, one aligns the established historical facts along side the legal rule, and determines whether the facts satisfy the statutory standard. See Pullman-Standard, 456 U.S. at 289 n. 19, 102 S.Ct. 1781; see also Jordan v. Clark, 847 F.2d 1368, 1375 n. 7 (9th Cir.1988). As we have seen, though, calling the issue mixed does not resolve the more important question: How closely should the appellate court review the fact-finder’s determination that the harassment was severe or pervásive? Compare id. {dé novo review) with Carr v. Allison Gas Turbine Division, 32 F.3d 1007, 1009 (7th Cir.1994) (deferential review). Nor is it clear whether de novo or deferential review would be preferable as a matter of policy. On the one hand, it is often difficult under current law to distinguish “simple teasing, offhand comments, and isolated incidents,” Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998), from the serious, discriminatory conduct that violates Title VII. To the extent that de novo appellate review could help flesh out the governing standard, it would provide a significant benefit to employees and employers alike. On the other hand, because harassment cases tend to be intensely fact-specific, a judicial determination that particular offensive conduct was or was not “severe or pervasive” will often be of limited value to courts in subsequent cases. Any clarification of the law to be had by virtue of de novo review, therefore, may not be worth the additional burden it entails. See Shira A. Scheindlin & John A. Elofson, Judges, Juries and Sexual Harassment, _Yale L. & Pol’y Rev. _ (1999).

We need-not resolve this issue today, however, because it is clear that the EPA is entitled to judgment as a matter of law regardless of the standard of review we apply. Barbour asserts that employees of CBSI subjected her to a hostile working environment from 1990 to 1992. To support this claim, she relies primarily upon two incidents: the meeting at which a CBSI employee turned her back on Barbour and refused to answer any of her questions, and a CBSI supervisor’s intentionally slow response to one of her requests for information. These episodes certainly reflect poorly upon the professionalism of CBSI’s employees. No reasonable juror, however, could conclude that -they were “sufficiently severe or pervasive to alter the conditions of [Barbour’s] employment.” See Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1366 (10th Cir.1997) (five mild incidents of harassment over 16 month period did not create hostile working environment); Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir.1993) (same with two incidents over three week period); cf. Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir.1995) (sexual assault sufficiently severe to create hostile work environment).

Barbour tries to fill the hole in her case by pointing to testimony that CBSI employees were habitually uncooperative and unfriendly. Much of this consists of conclusory, and therefore unhelpful, statements that CBSI employees had less respect for Barbour than they had for Peterson. See Johnson v. City of Fort Wayne, 91 F.3d 922, 938 (7th Cir.1996) (“[S]pecific allegations of discriminatory or harassing conduct directed at [plaintiff]” required to show hostile work environment). She does complain specifically that employees of CBSI, in an attempt to have the deadlines she imposed relaxed, would often ask Sellers to confirm her instructions. It is hardly surprising, however, that a contractor would try to play off one of its Government overseers against another in this way. Barbour’s protestation is like to that of a waitress who complains that her customers are sometimes rude: treatment that would be objectionable in other contexts is an inevitable part of the job. See Oncale, 118 S.Ct. at 1003 (application of severe or pervasive test “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target”). Although CBSI’s gamesmanship, like its other questionable behavior, was probably regrettable, it subjected Barbour to little if anything more serious than the “ordinary tribulations of the workplace.” Faragher, 118 S.Ct. at 2284. Consequently, the district court should have awarded the EPA judgment as a matter of law on this claim as well.

III. Conclusion

For the foregoing reasons, the judgment of the district court is

Reversed.

There is- not a scintilla of evidence in the record to suggest that the EPA — as opposed to Barbour — regarded the difference as irrelevant. Our dissenting colleague contends that a rational juror could find Peterson's additional job duties immaterial because Sellers did not condition his promise to promote Barbour upon her performance of such duties. [Dissent at 8], This theory was not advanced by Barbour herself, and hence is not properly before us. In any event, it is unpersuasive. Whether Sellers kept his word to Barbour is irrelevant as this is not a contract case. The only relevant question is whether a jury could reasonably conclude that the agency's failure to promote Barbour was the product of racial discrimination, which Barbour tries to prove by comparing her treatment to that accorded Peterson.

Our dissenting colleague contends that Seller's reason for promoting Barbour in 1996— her performance had improved — belies his explanation for not promoting her in 1991, namely, her job duties were too narrow. The EPA can hardly be faulted for having failed to reconcile Sellers’ statements, however, because Barbour does not argue there is any conflict between them. Nor are the statements inconsistent: At some point, an employee's increase in productivity will come to outweigh the limited scope of her responsibilities.