Colbert v. Tapella

649 F.3d 756, 396 U.S. App. D.C. 375, 2011 U.S. App. LEXIS 12395, 112 Fair Empl. Prac. Cas. (BNA) 884, 2011 WL 2417131
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 17, 2011
Docket10-5047
StatusPublished
Cited by19 cases

This text of 649 F.3d 756 (Colbert v. Tapella) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Colbert v. Tapella, 649 F.3d 756, 396 U.S. App. D.C. 375, 2011 U.S. App. LEXIS 12395, 112 Fair Empl. Prac. Cas. (BNA) 884, 2011 WL 2417131 (D.C. Cir. 2011).

Opinions

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 evaluat[758]*758ed 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 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. Topella, 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-diseriminatory 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

A1

The district court erred by requiring Colbert to show not only that the [759]*759GPO’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, the district court relied on St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (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.

B

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Colbert v. Tapella
649 F.3d 756 (D.C. Circuit, 2011)

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Bluebook (online)
649 F.3d 756, 396 U.S. App. D.C. 375, 2011 U.S. App. LEXIS 12395, 112 Fair Empl. Prac. Cas. (BNA) 884, 2011 WL 2417131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colbert-v-tapella-cadc-2011.