Newsom v. Barnhart , 116 F. App'x 429 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2034
DEBORAH NEWSOM,
Plaintiff - Appellant,
versus
JO ANNE BARNHART, Commissioner, Social
Security Administration,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
District Judge. (CA-02-680-H)
Argued: September 29, 2004 Decided: November 18, 2004
Before WILKINSON and LUTTIG, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: David Garrett Schiller, SCHILLER & SCHILLER, P.L.L.C.,
Raleigh, North Carolina, for Appellant. Paul Martin Newby,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Marvin
Schiller, SCHILLER & SCHILLER, P.L.L.C., Raleigh, North Carolina,
for Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Plaintiff-appellant Deborah Newsom, an employee of the Social
Security Administration (“SSA”), filed an internal complaint with
the SSA for sex discrimination against Jo Anne B. Barnhart, in her
official capacity as Commissioner of the SSA. Newsom claimed that
she was denied a promotion because of her sex, in violation of
Title VII. After Newsom was denied relief in the administrative
proceeding, she filed a complaint in the district court and
requested further discovery beyond the administrative record. The
district court denied Newsom’s discovery request and granted the
defendant’s motion for summary judgment. Newsom appeals.
I.
Appellant is an attorney employed by the SSA as a Supervisory
Attorney Advisor, a GS-13 position. J.A. 138. Her duties include
supervising 15 attorneys and several clerks and performing general
legal work such as researching and drafting memoranda. Id.
In April 1999, the position of Branch Chief of Programs
(“BCP”) became available in the Atlanta, Georgia, Regional Office
for the Office of Hearings and Appeals of the SSA. Id. Although
the BCP in Atlanta at the time was a female attorney, Susan Dodd,
other regions have employed non-attorney BCPs. J.A. Ex. 113, 962-
65. Pursuant to the instructions of Regional Chief Administrative
Law Judge Henry Watkins, who had responsibility for the hiring
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decision, the Atlanta BCP position was opened to both attorneys and
paralegals through separate job descriptions. J.A. 138-39. Both
descriptions listed similar basic skills as requirements, except
that the attorney position required the applicant to be a licensed
attorney with legal experience. J.A. 139 n.1. The human resources
department created a Best Qualified List for each position: the
paralegal list included five women as well as Leon Belt, a male who
ultimately received the position, and the attorney list included
three men and four women, including Newsom. J.A. 139. Each of the
candidates on the Best Qualified Lists was interviewed by an ALJ,
Ollie Lorance Garmon, and the management officer, Gloria Bozeman.
Id. Judge Watkins made the final decision to hire Belt based on
Garmon’s and Bozeman’s notes from the interviews, the candidate’s
applications, and his personal knowledge of the candidates. Id.;
J.A. Ex. 1018.
When she did not receive the job, Newsom filed an internal
complaint for sex discrimination. J.A. 140. During her
administrative proceeding, she was permitted discovery of the
employee applications, the position descriptions, and the interview
questions used by Garmon and Bozeman. Id. She was not given
Garmon’s and Bozeman’s interview notes because they were destroyed
after the position was filled. J.A. 140-41.
During a two-day administrative hearing, Dodd testified that
a law degree was not necessarily relevant to the position, J.A. Ex.
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471, and Judge Watkins testified that he selected Belt because Belt
was the most qualified candidate. J.A. Ex. 635. The SSA
dismissed ultimately the complaint.
Newsom subsequently filed a complaint in the district court
against Jo Anne B. Barnhart in her official capacity as
Commissioner of Social Security, and requested further discovery,
which the district denied as duplicative or irrelevant. J.A. 146-
48. Thereafter, the district court granted summary judgment in
favor of the defendant.
II.
The district court rested disposition on the administrative
record, denying appellant’s requests for further discovery. J.A.
146-48. Appellant sought discovery of Belt’s personnel file, her
own personnel file, all documents used in selecting Belt, all
performance reviews from the Atlanta and Raleigh offices, and all
documents relating to allegations of gender discrimination against
Judge Watkins. J.A. 141. She also sought depositions of Belt, the
human resources employee in charge of personnel files, the human
resources employee in charge of screening federal employees for
hire, Judge Watkins, Garmon, and Bozeman.1 Id. We have recognized
that “a district court has wide latitude in controlling discovery
1
Watkins, Garmon, and Bozeman had testified at the
administrative hearing.
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and that its rulings will not be overturned absent a showing of
clear abuse of discretion.” Ardrey v. UPS, 798 F.2d 679, 682 (4th
Cir. 1986).
Appellant claims that the district court’s denial of discovery
in the instant case was foreclosed by Chandler v. Roudebush, 425
U.S. 840 (1976), in which the Supreme Court held that “federal
employees are entitled to a trial de novo of their employment
discrimination claims,” id. at 846, instead of a “review of the
administrative record,” id. at 843.
The district court did not err under Chandler in denying the
requested discovery. The Court in Chandler held that a district
court may not rest the disposition of a Title VII claim on
deference to prior administrative proceedings. See Chandler, 425
U.S. at 852. Here, the district court did not defer to the
decision reached in the administrative proceeding; rather, it
merely held that further discovery would either be irrelevant to
the issue of pretext or duplicative of the administrative record.
See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery
regarding any matter, not privileged, which is relevant to the
subject matter involved in the pending action” (emphasis added));
Thigpen v. United States, 800 F.2d 393, 397 (4th Cir. 1986) (“We
cannot say that it was an abuse of discretion to limit discovery
where reliable pre-existing sources made available to the court
statements of the parties involved in the actions that generated
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the lawsuit. On the contrary, this limitation prudentially avoided
duplicative proceedings from which the court could realistically
expect to gain little but cumulative insight.”). Given the breadth
of the administrative record, we cannot find an abuse of discretion
in the district court’s refusal to permit further discovery.
III.
Newsom contends that the district court erred in granting
summary judgment in favor of the defendant. We review the district
court’s grant of summary judgment de novo. Wachovia Bank, N.A. v.
Federal Reserve Bank of Richmond, 338 F.3d 318, 320 (4th Cir.
2003). Summary judgment is appropriate if the court concludes that
there is “no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting Fed. Rule
Civ. Proc. 56(c)).
Defendant concedes that Newsom established a prima facie case
of sex discrimination under McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). The defendant therefore was required to
articulate a legitimate, non-discriminatory reason for the decision
to hire Belt instead of Newsom. See id. at 802. The BCP works
directly for Judge Watkins. J.A. Ex. 197-98 (“Acts as liaison
between the RCALJ” and various offices and “recommends appropriate
action by the [RCALJ]”). Judge Watkins testified that what he
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wanted in the position was “the best manager and supervisor, not
the best lawyer.” J.A. Ex. 636. Judge Watkins also testified that
Belt performed exemplary work, and had “interpersonal traits . . .
a lot better than mine [Judge Watkins’] or most other of our
supervisors.” J.A. Ex. 635. Based on Belt’s experience managing
a title company and on Judge Watkins’ personal observations of
Belt’s work, Judge Watkins also concluded that Belt had the
superior management skills Judge Watkins desired. J.A. Ex. 1190.
On these grounds, Judge Watkins concluded that Belt was the best
suited to the position. J.A. Ex. 635.
After the defendant offered a legitimate, non-discriminatory
explanation for the decision to hire Belt over Newsom, the burden
shifted to the plaintiff to prove that those reasons were
pretextual. EEOC v. Sears Roebuck & Co., 243 F.3d 846, 852 (4th
Cir. 2001). In order to avoid summary judgment, Newsom had to
produce evidence sufficient for a rational factfinder to conclude
that the legitimate reason offered for the hiring decision was
pretext and the real reason was discrimination. See id. at 854.
The appellant advances several arguments in support of her
claim that she established a genuine issue of fact as to whether
the employer’s non-discriminatory explanation for hiring Belt was
pretextual.
First, she contends that the defendant offered contradictory
or unsupported explanations regarding the hiring decision. She
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argues that Watkins implied that Garmon and Bozeman had a role in
recommending a candidate, J.A. Ex. 1399, but that Garmon and
Bozeman asserted in affidavits that they were not involved in the
selection process. J.A. Ex. 1376, 1394. But Judge Watkins has
never denied that he had full responsibility for the final
decision; in the same interview in which Judge Watkins described
his reliance on Garmon’s and Bozeman’s interview notes, he also
attributed the final decision to himself. J.A. Ex. 1399 (“Judge
Watkins stated he had the option of selecting an individual from
one of two different best qualified lists and that it was his
belief that Leon Belt was the best qualified individual for the
job.” (emphasis added)). Thus, there was no inconsistency in
Watkins’ statements. Even if there were inconsistency, there would
be no reason to believe that such inconsistency reflects
discriminatory intent.
Newsom also asserts that because Belt did not hold a
managerial position within the SSA before his selection as BCP,
J.A. Ex. 1372-73, Watkins could not reasonably have believed that
Belt’s managerial skills were superior to Newsom’s. But Watkins
did know of Belt’s experience managing a title agency and, more
importantly, he had personally observed Belt and concluded that his
strong interpersonal skills qualified Belt for the management
position. J.A. Ex. 635-37. The importance of managerial skills to
the BCP position and Watkins’ conclusion that Belt was best suited
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to provide that leadership undermine Newsom’s repeated assertions
that she is objectively more qualified, apparently solely because
she is a lawyer.2 Therefore, Newsom’s claims that Watkins’ non-
discriminatory justifications for hiring Belt were contradictory or
unsupported by the evidence are unconvincing, and fall short of
establishing a genuine issue of fact on the issue of pretext.3
Appellant next claims that the creation of a position
description that permitted a paralegal to apply for the position
revealed bias by Watkins, because it was crafted to match Belt’s
qualifications. But Newsom’s authority for this point, which
considers an employer’s decision to alter job classifications in
order to exclude female applicants evidence of discriminatory
intent, is inapposite. See, e.g., Edwards v. Occidental Chem.
2
Appellant also implies that the fact that Belt was disbarred
for fraud in the 1970s makes him less qualified than Newsom for the
BCP position, which includes inquiries into allegations of fraud.
Reply Brief at 8. However, Judge Watkins denied having any
knowledge that Belt had been disbarred when the decision was made.
J.A. Ex. 605, 612-14.
3
Appellant also points to concededly inaccurate testimony by
Watkins that the position description was preexisting, when the
document describing the paralegal position actually was created
after Dodd’s departure in connection with the efforts to fill the
vacancy. J.A. Ex. 1024. Under Reeves v. Sanderson, 530 U.S. 133,
148 (2000), the trier of fact may conclude that the employer
unlawfully discriminated if the plaintiff’s prima facie case is
“combined with sufficient evidence to find that the employer’s
asserted justification is false.” But Watkins has never denied
that he decided to open up the BCP vacancy to paralegals, J.A. Ex.
1355-56, and the district court made a finding that Watkins in fact
made the decision. J.A. 138. Thus, his inability to describe the
origins of a particular document does not cast doubt on his stated
reasons for hiring Belt.
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Corp., 892 F.2d 1442, 1447-48 (9th Cir. 1990) (“[J]ob
classification was modified to include five new job qualifications
which she did not have.”). Here, the job classifications were not
modified to exclude female applicants; in contrast, as the district
court concluded, “by opening the position to paralegals, the number
of overall female applicants increased.” J.A. 149. And, in fact,
Watkins did not need to create a new position description to bypass
Newsom in favor of male applicants; he “passed over three male
attorney applicants to choose Mr. Belt.” Id. As the district
court noted, this evidence may point to a preference by Judge
Watkins for Belt, but it does not point to any discrimination on
the basis of gender. Id.Appellant next asserts that a memorandum that Watkins received
from a reviewer after the hiring decision was made, which
summarized an earlier performance review of Newsom, was adopted by
Watkins as a “post-hoc rationale” for the hiring decision. A
“post-hoc rationale” for a hiring decision is insufficient. See
Sears & Roebuck Co., 243 F.3d at 853 (contrasting a “post-hoc
rationale” with a “legitimate explanation”). The memorandum,
received in September 2001, described Newsom as displaying
interpersonal problems and a failure to delegate, and noted that
she had been “advised to adopt a more flexible attitude.” J.A. Ex.
1382-83. Newsom suggests that Judge Watkins may have relied on
this memo in his affidavit in September 2001 where he stated that
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“Newsom was, at times, inflexible.” J.A. Ex. 1379. But even if
Watkins did rely on the memorandum for his phrasing, his reason for
the hiring decision -- that Belt was the best suited for a position
requiring management and interpersonal skills -- was not created
post hoc, but has been consistent throughout. See, e.g., J.A. Ex.
638 (“Leon has . . . impeccable interpersonal skills. That’s an
area in which Miss Newsom is challenged.”). The memo merely
provides independent support for the reasonableness of his
decision, based on other sources. This is not the type of
rationale that this court has labeled “post hoc.” Cf. Sears &
Roebuck Co., 243 F.3d at 853 (post-hoc rationale where defendant
told plaintiff that he was not hired because “no hours were
available” but later admitted that this was “not accurate” because
the decision not to hire was dictated by senior management).
Neither the existence of the memo nor possible reliance on it
creates a genuine issue as to pretext.
Finally, appellant urges this court to draw an adverse
inference from the failure of Garmon and Bozeman to produce their
notes from the interviews of candidates for the BCP position. The
SSA contends that such notes are “routinely destroyed” upon the
completion of the hiring/promotion process. J.A. Ex. 1191, 626-27.
Appellant contends that such destruction runs counter to 5 C.F.R.
§ 335.103(b)(5), which provides that “[e]ach agency must maintain
a temporary record of each promotion sufficient to allow
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reconstruction of the promotion action, including documentation on
how candidates were rated and ranked. These records may be
destroyed after 2 years.”
The district court concluded that “the defendant has presented
uncontroverted evidence that such notes are routinely destroyed and
in the present situation, they were destroyed long before plaintiff
filed her complaint in this action.” J.A. 147. There is therefore
no reason to draw an adverse inference from the destruction of the
notes. Moreover, the documents maintained by the SSA, namely the
applications and the Best Qualified Lists, were sufficient to
“allow[] reconstruction of the promotion action,” as required by
the regulation. 5 C.F.R. § 335.103(b)(5). The district court did
not err in refusing to draw an adverse inference from the failure
to produce the interview notes.
In sum, none of Newsom’s arguments on appeal establishes that
there was a genuine issue of material fact regarding the
defendant’s decision to hire Belt over Newsom.
CONCLUSION
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
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