Lisa Mulrain v. Julian Castro ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 8, 2014 Decided August 1, 2014
No. 12-5345
LISA V. MULRAIN,
APPELLANT
v.
JULIÁN CASTRO, SECRETARY OF HOUSING AND URBAN
DEVELOPMENT,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01601)
Robert C. Seldon argued the cause for appellant. With
him on the briefs was Lauren E. Marsh. Molly E. Buie entered
an appearance.
Javier M. Guzman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
Before: GRIFFITH, KAVANAUGH, and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
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GRIFFITH, Circuit Judge: Lisa Mulrain, an employee of
the Department of Housing and Urban Development (HUD),
appeals a summary judgment order rejecting her claim of
workplace racial discrimination under Title VII of the Civil
Rights Act of 1964. Because Mulrain has failed to identify
evidence from which a reasonable jury could find that her
non-promotion was racially discriminatory, we affirm.
I
Mulrain, an African-American, has worked as an attorney-
advisor in the Finance Division of HUD’s Office of General
Counsel since 2000. The Finance Division serves as in-house
counsel to the Government National Mortgage Association
(“Ginnie Mae”), a government corporation within HUD that
operates in the secondary mortgage market. In 2008, Mulrain
applied for promotion to the newly-created position of Deputy
Assistant General Counsel (DAGC) of the Finance Division.
But partway through the interview process, department
officials awarded the job to Maura Malone, an “outstanding”
Caucasian employee then serving as a DAGC elsewhere in
the Office of General Counsel who was on the verge of taking
a job outside of HUD.
The parties dispute the reason for Malone’s hiring.
Mulrain contends that the job went to Malone so that it would
not be given to her. In Mulrain’s view, Malone did not
possess the specialized legal knowledge of Ginnie Mae issues
necessary for the new DAGC position. In fact, Mulrain views
herself as the only qualified candidate because she was the
only applicant with Ginnie Mae experience. Mulrain claims
that the qualification gap between Malone and her shows
HUD’s discriminatory intent.
3
HUD counters that any alleged gap between the
qualifications of Mulrain and Malone is irrelevant to this case
because no HUD official ever compared Malone’s and
Mulrain’s credentials. Rather, Linda Cruciani, a senior HUD
official who had not yet been involved in the process of
interviewing candidates for the DAGC position, made the
decision to terminate the normal interview process and award
the position to Malone in a bid to retain the “superstar”
employee. In doing so, Cruciani never compared Malone’s
credentials to Mulrain’s or to any other applicant’s. In fact,
Cruciani testified that she did not even know that Mulrain had
applied for the position. Moreover, HUD adds, there was no
“qualification gap” between the applicants because Ginnie-
Mae-specific legal experience was not required for the
position. Expertise in general HUD and mortgage issues, both
of which Malone had in abundance, made her more than
qualified, says HUD.
Mulrain initiated this Title VII action in September 2011,
alleging discrimination based on race. The district court
granted summary judgment to the defendant, concluding that
HUD had articulated a legitimate reason for its reassignment
decision—retaining Malone—and that Mulrain had not shown
that HUD’s explanation was a pretext for racial
discrimination. See Mulrain v. Donovan, 900 F. Supp. 2d 62
(D.D.C. 2012). Mulrain now appeals. We have jurisdiction
under 28 U.S.C. § 1291 and review the district court’s
judgment de novo. See Lathram v. Snow, 336 F.3d 1085, 1088
(D.C. Cir. 2003).
II
We affirm, although our approach is more straightforward
than the district court’s. The district court concluded that
Mulrain failed to demonstrate that HUD’s stated reason for
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hiring Malone was pretextual. There was, the court
concluded, no “qualification gap” between the applicants
because no Ginnie-Mae-specific experience was required for
the DAGC position. And, even if there had been a gap,
Cruciani knew nothing of it. We need not determine whether
there was any such gap. As we explain below, HUD was
entitled to summary judgment because there is simply no
basis to infer that Cruciani discriminated against Mulrain.
Cruciani believed that Malone was qualified and was unaware
that Mulrain had applied for the position.
In a Title VII employment discrimination case, once the
employer asserts a legitimate, non-discriminatory reason for
its decision, as HUD has done here by citing its desire to
retain Malone, the plaintiff can avoid summary judgment only
by “produc[ing] sufficient evidence for a reasonable jury to
find that the employer’s asserted non-discriminatory reason”
for the decision is a pretext for unlawful discrimination.
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493-94
(D.C. Cir. 2008). A plaintiff can satisfy this burden through
“evidence, direct or circumstantial, that permits an inference
of discrimination.” Holcomb v. Powell, 433 F.3d 889, 899
(D.C. Cir. 2006).
Mulrain seeks to show discrimination mainly by
contending that Malone was unqualified for the DAGC
position. A qualification gap may support an inference of
discrimination when an employer directly compares two
candidates for a position and, recognizing that the minority
applicant is more qualified, nonetheless selects the non-
minority. See, e.g., Calhoun v. Johnson, 632 F.3d 1259, 1262-
63 (D.C. Cir. 2011); Lathram, 336 F.3d at 1088, 1091-92; Aka
v. Washington Hosp. Ctr., 156 F.3d 1284, 1294 (D.C. Cir.
1998) (en banc). But here, all of the evidence indicates that
nothing like that happened. Instead, two independent
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processes occurred simultaneously: Cruciani looked for a
position for Malone to entice her to stay, and other staff
reviewed applications for the DAGC position, including
Mulrain’s. The dispositive fact is that Cruciani ultimately
decided to transfer Malone to the new DAGC position
without knowing that Mulrain had applied for it. Whether
Mulrain was more qualified or not, Cruciani could not have
intended to discriminate against someone she did not even
know wanted the job. *
Accordingly, the district court’s grant of summary
judgment is affirmed.
*
Mulrain also advanced two others bases for inferring
discrimination, but we adopt the district court’s reasoning in
rejecting those inferences.