Susan Philbrick v. Eric Holder, Jr.

583 F. App'x 478
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 16, 2014
Docket13-2569
StatusUnpublished
Cited by16 cases

This text of 583 F. App'x 478 (Susan Philbrick v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Susan Philbrick v. Eric Holder, Jr., 583 F. App'x 478 (6th Cir. 2014).

Opinions

OPINION

RICE, District Judge.

Susan Philbrick, an employee of the United States Marshals Service, appeals [480]*480from the district court’s order granting Attorney General Eric Holder, Jr.’s, motion for summary judgment. She maintains that she was discriminated against on the basis, of sex and race when she was passed over for a promotion in 2009. She also maintains that she was discriminated against on the basis of sex and was retaliated against for having filed a complaint of discrimination with the Equal Employment Opportunity Commission when she was passed over for a subsequent promotion in 2011. For the reasons set forth below, we AFFIRM IN PART and REVERSE AND REMAND IN PART.

I.

Susan Philbrick, a white female, has been employed by the United States Marshals Service (“USMS”) since 1989. She served as a Supervisory Deputy United States Marshal in the Western District of Michigan from 1998 until 2001, and has served in that same role in the Eastern District of Michigan since 2002. In April of 2009, Philbrick applied for a position as Assistant Chief Deputy U.S. Marshal (“ACDUSM”) in the Eastern District of Michigan.

Pursuant to the Merit Promotion Selection Process, after a vacancy is posted, the Human Resources division of the USMS develops a list of the best qualified candidates for that position. Each applicant is assigned a numerical score based on education, experience, training, and awards. This score is combined with the applicant’s score on the merit promotion examination to create a package score. This package score is used only to develop a list of the best qualified candidates; it is not shared with anyone else involved in the hiring decision. The best qualified candidates then participate in a structured interview, during which they are evaluated by a three-person panel for perception, decisiveness, judgment, leadership, organization and planning, adaptability, interpersonal skills, and oral communication.

The U.S. Marshal for the district where the vacancy exists then reviews the resumes and interview ratings of the best qualified candidates, ranks them, and makes a recommendation to the Career Board. The Career Board consists of USMS law enforcement employees appointed by the Director of the USMS (“the Director”). It meets about four times each year and reviews the recommendations for 45-100 job vacancies at each meeting. In order to expedite the process, the chairperson of the Career Board assigns one “Presenter” for each vacancy. The Presenter is charged with reviewing the resumes, interview ratings, and the Marshal’s recommendation for the open position, and making his or her own recommendation to Career Board. In turn, the Career Board makes a recommendation to the Director, who makes the final decision.

When Philbrick applied for the AC-DUSM position in 2009, she had the highest package score of all of the applicants. In addition, her supervisor, Marshal Robert Grubbs, ranked her first among the five best qualified applicants and recommended that she be hired. Grubbs ranked Thomas Smith second and Roberto Robinson third.

Robert Fagan, the chairperson of the Career Board, assigned himself as the Presenter for this position. Fagan, however, did not follow Marshal Grubbs’ recommendation. Instead, he recommended Roberto Robinson, a Hispanic male, for the position. The Career Board and Director John Clark followed suit, and Robinson was hired as the ACDUSM for the Eastern District of Michigan. On July 27, 2009, Philbrick filed a complaint with the Equal Employment Opportunity Commis[481]*481sion (“EEOC”), alleging that she was denied the promotion based on race and gender discrimination.

In November of 2009, Philbrick became the subject of an Internal Affairs investigation after being accused of improperly recommending her niece for a position with the agency. This investigation was still ongoing in January of 2011 when Roberto Robinson received another promotion and was appointed Chief Deputy U.S. Marshal in the Northern District of Ohio. When the opening for his ACDUSM position in the Eastern District of Michigan was posted, Philbrick again applied.

On January 31, 2011, the EEOC commenced a hearing on Philbrick’s charge of discrimination arising from her non-promotion in April of 2009. At that hearing, Marshal Grubbs was harshly cross-examined by counsel for the agency concerning his motives for recommending Philbrick for the promotion and the procedures he followed. The hearing was continued until March 28, 2011.

In the meantime, on March 4, 2011, Marshal Grubbs recommended Mark Jan-kowski, a white male, for the open AC-DUSM position. Grubbs ranked Philbrick third among the best qualified candidates, behind Jankowski and “Candidate 85.” Grubbs then received notice that, due to Philbrick’s pending EEO charge, the position would be held in abeyance pending completion of those proceedings.

Grubbs was subsequently given a new list of best qualified candidates for the ACDUSM position. This time, he ranked Jankowski first and Philbrick second. John Clark was assigned as the Presenter.1 Clark recommended Jankowski to the Career Board. In turn, the Career Board recommended Jankowski to Director Stacia Hylton, who appointed Jan-kowski to fill the position.

On September 19, 2011, Philbrick filed another complaint with the EEOC, alleging gender discrimination and retaliation in connection with the most recent failure to promote her. Philbrick later filed suit against her employer, Attorney General Eric Holder, Jr. Her Amended Complaint alleged race and gender discrimination in connection with her 2009 non-promotion and gender discrimination and retaliation in connection with her 2011 non-promotion.

The district court granted the Attorney General’s motion for summary judgment in its entirety, finding no genuine issue of material fact on any of Philbrick’s claims. Philbrick now appeals that decision.

II.

We’ review de novo a district court’s ruling on a motion for summary judgment. Bickley v. Dish Network, LLC, 751 F.3d 724, 728 (6th Cir.2014). Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” We must view facts in the record and reasonable inferences that can be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). We do not weigh evidence, assess credibility of witnesses, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

[482]*482III.

Title VII of the Civil Rights Act of 1964 prohibits federal agencies from employment discrimination “based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). It is a violation of Title VII to fail to promote an employee because of his or her membership in a protected class. See, e.g., White v. Columbus Metro. Hous. Auth.,

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