Labor & Employment Law Daily DOJ employee passed over for seven jobs gets second chance to litigate first rejection
Thursday, July 16, 2020

DOJ employee passed over for seven jobs gets second chance to litigate first rejection

By Wayne D. Garris Jr., J.D.

The employer filed a pre-discovery motion for summary judgment; in response the employee moved under Rule 56(d) to take discovery.

Affirming in part a federal district court’s grant of summary judgment to the DOJ, the D.C. Circuit held that an employee who alleged that he was not selected for promotion on seven occasions failed to prove that he was entitled to discovery under Rule 56(b) or that he was subjected to discrimination with the regard to the second through seventh nonselections. The court reversed the district court’s denial of the 56(b) motion and dismissal of the employee’s claim with regard to his first non-selection, however, finding that he was entitled to priority consideration for that position and there was evidence that the employer deviated from its priority consideration procedures; thus, the employee was entitled to discovery on that claim (Jeffries v. Barr, July 14, 2020, Wilkins, R.).

The employee, an African-American male, worked a policy advisor in the Substance and Mental Health Division of the Bureau of Justice Assistance. Sometime between his hire and 2008, he filed three EEO complaints against the employer, which were consolidated and settled in March 2008.

District court proceedings. Between March 2011 and April 2014, the employee applied internally for seven different positions posted by the employer. He filed suit alleging that he was denied these opportunities due to his race, gender, and retaliation for his prior EEO activity. Before formal discovery commenced, the employer moved for summary judgment relying on documents produced during the EEO proceedings.

In addition to his opposition to the summary judgment motion, the employee moved under Rule 56(d) for an order allowing him to take discovery on each nonselection arguing that facts would ‘demonstrate that [DOJ’s] rationales for not selecting Jeffries for any of the positions in issue . . . are pretext and that the true reasons are discrimination and/or retaliation.’

The district court granted the employer’s motion for summary judgment. It also denied the employee’s Rule 56(d) motion holding that the employee failed to outline the particular facts that he intended to discover and describe why those facts are necessary to the litigation. The employee appealed.

Rule 56(d) motion. The appeals court began by examining the employee’s Rule 56(d) motion. Rule 56(d) allows nonmovants who can show, by affidavit or declaration, that “for specified reasons” they “cannot present facts essential to justify” their opposition to summary judgment. In order to succeed on his Rule 56(d) motion, the employee had to (1) “outline the particular facts [the party defending against summary judgment] intends to discover and describe why those facts are necessary to the litigation”; (2) explain why the party could not produce those facts in opposition to the pending summary-judgment motion and (3) “show [that] the information is in fact discoverable.”

The court held that the employee met his burden with respect to the first nonselection only. The employee applied for a Supervisory Grants Program Manager position. Several years prior to applying for the position, the employee received a priority consideration letter from the employer due to a processing error on his application for another position.

When priority consideration applies, the candidate gets the first interview and decision “up or down” on his or her candidacy before other applicants are considered. The employee notified the employer that he wanted to use his priority consideration for the position. The employee interviewed for the position but was not selected for the position due to spelling and grammatical errors in his writing sample as well as his failure to fully answer several interview questions.

The court held that the district court abused its discretion when denying the employee’s motion because there was evidence that the interview panelists compared the employee’s application to other candidates—a deviation from the employer’s priority consideration procedures. Further, the discovery that the employee sought raised questions about the credibility of the interview panelists and whether one of the selectees was interviewed before the employee—another deviation from the priority consideration procedures. As a result, the court reversed the denial of the 56(d) motion and vacating summary judgment on the first nonselection.

Other nonselections. The court did not find that the district court’s denial of the Rule 56(d) motion with respect to the second through seventh nonselections warranted reversal. Here, the employee failed to outline the particular facts he intended to discover, instead listing broad categories of information; and he failed to show why those facts were necessary to the litigation. The court then moved to the substance of the employee’s Title VII claims with regard to the remaining nonselections.

SecondSpecial Assistant. The employer selected a Caucasian female over the employee for a special assistant position. The employee had the sixth highest score out of eight interviewees, while the selectee had the highest score. The employee argued that one of the interview panelists knew about his prior EEO activity and potentially influenced the others and that the selectee was preselected for the position. The court rejected both arguments as speculative noting that the employee failed to put forth any evidence of influence or preselection.

Third- Senior Policy Advisor for Evidence Integration. The selectee for a senior policy advisor position was a black male. The employee asserted that he was more qualified for the position than the selectee, that the panel should have considered him more qualified than it did, and that one of panel members retaliated against him by giving him low scores. The employee scored the lowest of all applicants for the position.

The court was not persuaded by any of the employee’s arguments. First, he merely listed all of his qualifications—he failed to show that his qualifications were significantly better qualified for the job as Title VII requires. Next, with regard to the contention that the panel should have considered him to be more qualified than it did, the court noted that it does not ‘second-guess an employer’s initial choice of appropriate qualifications.’ Lastly, regarding his retaliation claim, the employee solely relied on the temporal proximity between one of the panelist’s learning of the employee’s protected activity and the employee’s interview. This alone, was not enough to establish pretext.

Fourth—Administrative Services and Logistics Director. The employee was not selected for second-round interview for the position. According to one of the panelist’s notes, the employee ‘readily identified that he did not have experience in the area,” while the only other applicant’s experience was more in line with the job’s requirements.

The employee argued that the panel’s scoring of the applicants was impermissibly subjective and that the selectee may have been preselected. The court acknowledged its concern over employer’s “heavy reliance” on subjective factors but concluded that the alleged subjectivity here did not run afoul of Title VII.

The employers’ interview sheets showed that panelists evaluated each applicants resume for “written presentation” and “relevant experience highlighted” and evaluated their work history for “stability, leadership, etc.” While the sheet didn’t outline specific details about scoring, the court concluded that the scores were “grounded in objective considerations.”

Nor was the court persuaded by the preselection argument. The employee put forth evidence of changes to the KSAs for the position but failed to show how those changes provided an advantage to the selectee.

Fifth—Supervisor Grants Management Specialist. The employee was not selected for a second-round interview because the first-round panelists believed that he failed to provide complete answers and show that he had relevant experience or skills. The employee raised three objections to his nonselection: one of the selectees, a biracial male, was preselected; an email between two interviewers joking about selecting the employee showed discriminatory intent; and that he was entitled to an adverse inference based on spoliation of evidence.

The court found that there was some evidence that could indicate preselection: a supervisor encouraged the selectee to apply, the position was downgraded to a GS-13/14 which made the selectee eligible to apply, the union vice president congratulated the selectee on his promotion before his second interview, and the fact that two applicants were selected despite the job announcement stating that there was only one vacancy. Nevertheless, the employee’s claim failed because he did not provide any evidence that the alleged preselection was motivated by discrimination or retaliation.

Regarding the email exchange between interviews, the court stated that “while it was perhaps inappropriate,” the email alone was not enough to show that the employer’s proffered reason for not selecting the employee was pretextual. The employee’s spoliation argument was also dismissed as there was no evidence in the record that some of the interview notes were missing.

Sixth-Senior Policy Advisor.After the first round of interviews for this position, the employee was ranked fourth out of thirteen applicants. The selectee for the position was ranked first. Prior to her selection, the selectee was invited to a meeting with the National Institute of Justice to “share information and find potential areas of collaboration.”

The employee complained that there was possible discriminatory preselection and that one of the panelists arrived late to his interview “and rushed through it, cutting off his answers . . . as if she had already determined who she was going to select or did not want to select him.”

The court rejected both arguments. The preselection argument was based on “speculations and allegations” so could not create a genuine issue of fact. The employee pointed to changes made to the job description and the selectee’s participation in the NIJ meeting, but failed to show how these provided evidence of preselection or discrimination. Regarding the panel member’s conduct, the court concluded that even if the employee was subjected to “poor selection procedures” he failed to show discriminatory intent.

Seventh Nonselection–Senior Policy Advisor for Health and Criminal Justice. For the final nonselection, the employee served in this position, in an acting role, from June to August 2010. After the first round of interviews, the employee was ranked fifth out of eight interviewees. The top five candidates received a second-round interview and the employer selected a Caucasian female for the position. According to the employer, the employee had difficulty “articulating a vision,” and his interview responses “lacked depth.”

According to the employee, the employer misstated both his and the selectee’s qualifications and that he was more qualified for the position. The court concluded that the employee’s argument was based on a mischaracterization of a statement by one of the panelists that the major difference between the employee and the selectee was that “while [the employee] demonstrated good qualifications for his current position[,] . . .he did not demonstrate the more advanced qualifications needed for a GS-14 Senior Policy Advisor.” The court disagreed that this statement established that he was qualified for the position, instead finding that it illustrated his failure to show his fitness for the position during the interview.

The employee failed to create a genuine issue of fact as to the second through seventh nonselections, so the appeals court affirmed summary judgment.

Concurrence/Dissent. Judge Pillard concurred with the decision to reverse the judgment on with regard to the first nonselection. However, she dissented from the decision to the extent that it held that the employee did not have a right seek discovery on the remaining nonselections.

Judge Pillard expressed concern that if on remand, there is evidence of discriminatory or retaliatory motive in the first, that may be relevant to the subsequent nonselections.

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