Kevin Hairston v. Davita Vance-Cooks , 773 F.3d 266 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 27, 2014 Decided December 16, 2014
No. 13-5038
KEVIN HAIRSTON,
APPELLANT
v.
DAVITA VANCE-COOKS, ACTING PUBLIC PRINTER,
UNITED STATES GOVERNMENT PRINTING OFFICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01531)
Brian Wolfman argued the cause for the appellant. Anne
King was with him on brief.
Javier M. Guzman, Assistant United States Attorney,
argued the cause for the appellee. Ronald C. Machen, Jr.,
United States Attorney, John G. Interrante and R. Craig
Lawrence, Assistant United States Attorneys were with him
on brief.
Before: HENDERSON, Circuit Judge, and GINSBURG and
SENTELLE, Senior Circuit Judges.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: In 2006,
Kevin Hairston applied for a promotion within the
Government Printing Office (GPO). His application was
ultimately rejected and Hairston believes his rejection was
based on racial discrimination. He also believes that he was
the victim of unlawful retaliation in 2009 when the GPO sent
a group of employees, sans Hairston, to a training program in
Georgia. Based on these events, Hairston sued the GPO
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq., for unlawful discrimination and retaliation.
The district court granted summary judgment to the GPO on
all counts. We affirm.
I. Background 1
The GPO is generally responsible for printing official
documents of the federal government. See 44 U.S.C. § 501.
The documents include passports, which the GPO prints on a
six-color Heidelberg press. As its description suggests, the
Heidelberg press has six ink-fountain units that require the
constant supervision of employees who have been specially
trained. Operating the press also requires GPO employees to
manage special dyes, invisible inks and embedded electronic
chips to protect the security of passport production. The GPO
assigns each Heidelberg press a four-person team consisting
1
Background facts are taken from: (1) Jeffrey Bernazzoli’s EEO
Affidavit, Joint Appendix (JA) 105–08; (2) Earl Hayward’s EEO
Affidavit, JA 109–13; (3) Douglas Davis’s EEO Affidavit, JA 283–86; (4)
Nelson Batty’s Declaration, JA 313–15; (5) Kevin Hairston’s Declaration,
JA 360–425; (6) Charles Dais’s Declaration, JA 426–30; (7) Carter
Daniel’s EEO Affidavit, JA 512–13; (8) Kevin Hairston’s Deposition, JA
517–86; (9) Jeffrey Bernazzoli’s Deposition, JA 587–607; (10) Earl
Hayward’s Deposition, JA 608–33; and (11) Martin Verter’s Deposition,
JA 634–54.
3
of a Head Pressperson, a Second Offset Pressperson, a
Printing Plant Worker and a Feeder.
In 2006, the demand for passports rose and the GPO
issued a Vacancy Announcement (VA) seeking applicants for
the Second Offset Pressperson position. Only permanent
GPO employees could apply at the time. The VA stated that
an applicant should be able to do “the work of a Second
Offset Pressperson with normal supervision,” including “the
independent operation of offset press machinery as well as the
ability to perform troubleshooting, maintenance and
adjustments.” JA 67 (emphasis omitted). Hairston, a black
male, applied for the position and the GPO Office of
Personnel determined that he met the minimum qualifications
listed in the VA. A GPO foreman, Earl Hayward, then
reviewed a list of the qualified applicants to decide whom to
recommend. Only Hairston’s name was listed because the
other applicants did not qualify. Hayward ultimately
recommended Hairston and Superintendent George Domarsky
approved the selection. Hairston’s application was rejected,
however, by Jeffrey Bernazzoli, the Production Manager in
the Press Division of the GPO. Although Hairston met the
minimal qualifications set out in the VA, Bernazzoli
explained that the Second Offset Pressperson “was not a
training position; therefore, we needed someone who could
step in right away.” JA 105–06. “[I]t was clear” to
Bernazzoli that Hairston did not have the necessary
experience and that it “would have been detrimental to Mr.
Hairston to put him in this position because he would not
have been able to do it.” JA 105. Bernazzoli likened
promoting Hairston to sending him “up the creek without a
paddle.” Id.
According to Bernazzoli, he rejected Hairston’s
application based on discussions with his GPO colleagues.
4
One person he spoke to was Domarsky, who told Bernazzoli
that Hairston could not immediately run a six-color
Heidelberg press. Bernazzoli also stated that Martin Verter,
his Assistant Production Manager, agreed with Domarsky’s
assessment. Bernazzoli relied heavily on Verter’s opinion
because Verter was his “eyes and ears on the [production]
floor.” JA 604. Verter, however, did not recall talking with
Bernazzoli about Hairston but he emphasized that he was “not
saying that it didn’t happen.” JA 649. Verter also stated that
he was unaware of the position that Hairston applied for
because that position “[w]asn’t my concern.” JA 646.
Other GPO employees believed Hairston to be
inexperienced. Hayward said that Hairston was far from the
“seasoned veteran” the GPO was hoping to hire as Second
Offset Pressperson. JA 111. Hayward also stated that it
would take approximately six to eight months to train
Hairston to be a fully operational Second Offset Pressperson.
Charles Dais, a former GPO Head Offset Pressperson-in-
Charge, likewise stated that “it probably takes the average
pressperson who is promoted from within [the GPO] to
Second Offset Pressperson about six months to feel
comfortable enough” to run a six-color press. JA 429. And
Nelson Batty, a GPO multicolor pressperson, agreed that it
would take “a minimum of at least six months of daily
training to train a single color pressperson [like Hairston] to
be proficient” on a six-color Heidelberg press. JA 314.
Hairston then attempted to file a complaint with the GPO
Equal Employment Opportunity (EEO) office alleging that he
was not promoted to Second Offset Pressperson based on
racial discrimination. The EEO office told Hairston that it
could not process his complaint until the GPO “actually
b[r]ought in a White employee” for the position listed in the
VA. JA 540.
5
With Hairston’s application rejected, the GPO relisted the
VA with the same requirements and enlarged the applicant
pool to include those who did not work in the GPO. The new
notice was posted on October 13, 2006, and ran for three
weeks. Hairston applied again under the relisted VA and his
name was included on a final list of seven applicants who
then had in-person interviews with a panel of GPO
supervisors. During his interview, Hairston answered
numerous questions incorrectly and received the lowest
overall score among the seven candidates. The GPO
ultimately hired Douglas Davis, a white male who had ten
years of experience working on multicolor presses and who
received the highest interview score. Davis began working at
the GPO approximately five months after the relisted VA was
posted. Upon learning of Davis’s hire, Hairston then filed his
EEO complaint. Subsequently, the GPO issued another VA
for a Second Offset Pressperson but Hairston did not apply.
One of the individuals hired under this VA was black.
Months after the GPO filled the relisted VA, Hairston
temporarily performed a limited number of the functions of a
Second Offset Pressperson. Hairston claims that he quickly
learned how to run the six-color press and that he was able to
operate it by himself. Hairston received good reviews during
his temporary stint and he was nominated for a time-off award
due to his high level of performance. Hayward, however, said
that Hairston performed only “a condensed part of the job”
while temporarily filling in as a Second Offset Pressperson.
JA 629.
Hairston further alleged that he was retaliated against for
filing his EEO complaint. Because his other retaliation claims
were dismissed for failure to exhaust administrative remedies,
Hairston’s only allegation of retaliatory action is that he was
6
excluded from a GPO training program held in Kennesaw,
Georgia. Davis—who was hired for the relisted VA
position—was in charge of coordinating attendance for the
program. Davis in turn directed Carter Daniel, a GPO Head
Web Pressperson and union representative, to survey
presspersons and gauge their interest in attending. According
to Daniel, Hairston expressed no interest in attending the
training session and Davis ended up sending eight other
employees, including four black employees, to the Georgia
training program. Davis claimed that he did not know of
Hairston’s EEO activity when he selected the eight attendees.
Hairston disputes that he was asked whether he wanted to
attend the training program, claiming that “[t]here is always
more to learn on presses, and I like to take advantage of the
training opportunities I am offered.” JA 390. Yet when
asked if he would have wanted to attend the Georgia training
program, Hairston indicated he would not because he “wanted
to concentrate [his] training on things that [he] hadn’t learned
at all.” JA 566–67.
Hairston brought suit against the GPO in district court on
September 3, 2008. He included three counts in his amended
complaint: (1) Bernazzoli’s failure to promote him was based
on racial discrimination; (2) the GPO’s failure to include him
in the Georgia training program was motivated by racial
animus; and (3) the GPO unlawfully retaliated against him by
excluding him from the Georgia training program. The GPO
moved for summary judgment on all three counts. The
district court held that Hairston had not presented evidence
from which a reasonable jury could reject the GPO’s
nondiscriminatory reason for not promoting him. It also held
that failing to send Hairston to the Georgia program was not
an adverse employment action and thus could not trigger an
unlawful retaliation claim. In the alternative, the court held
7
that Hairston had not presented any evidence to rebut the
GPO’s evidence that the program attendees were chosen
according to a bona fide understanding of who was interested.
See Hairston v. Boardman, 915 F. Supp. 2d 155, 162 (D.D.C.
2013). Accordingly, the district court granted summary
judgment to the GPO on all counts. Hairston timely appealed.
Our jurisdiction is based on 28 U.S.C. § 1291.
II. Analysis
“We review a grant of summary judgment de novo.”
Hampton v. Vilsack, 685 F.3d 1096, 1099 (D.C. Cir. 2012).
Summary judgment will be granted when “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). A
genuine issue of material fact exists “if the evidence, viewed
in a light most favorable to the nonmoving party, could
support a reasonable jury’s verdict for the non-moving party.”
Hampton, 685 F.3d at 1099 (internal quotation marks
omitted).
Hairston no longer argues that the GPO’s failure to send
him to the Georgia training program evinced racial
discrimination. His remaining claims, then, involve the
GPO’s alleged discrimination in not promoting him to Second
Offset Pressperson and the GPO’s alleged retaliation in
excluding him from the Georgia training program.
A. Failure to Promote
If a Title VII plaintiff does not proffer direct evidence of
discrimination, “we apply the analytical framework adopted
by the Supreme Court in McDonnell Douglas.” Ginger v.
Dist. of Columbia, 527 F.3d 1340, 1344 (D.C. Cir. 2008)
8
(internal citation omitted). The Supreme Court has divided
that framework into three steps:
First, the plaintiff has the burden of proving
by the preponderance of the evidence a prima
facie case of discrimination. Second, if the
plaintiff succeeds in proving the prima facie
case, the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory
reason for the employee’s rejection. Third,
should the defendant carry this burden, the
plaintiff must then have an opportunity to
prove by a preponderance of the evidence that
the legitimate reasons offered by the defendant
were not its true reasons, but were a pretext for
discrimination.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53
(1981) (internal citation and quotation marks omitted). We
need not, however, address the first two steps. The GPO
contends that it did not promote Hairston to Second Offset
Pressperson because of his inexperience, rather than his race.
Once an employer asserts a legitimate, nondiscriminatory
reason for its conduct in a Title VII lawsuit, we “need not—
and should not—decide whether the plaintiff actually made
out a prima facie case under McDonnell Douglas.” Brady v.
Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008). Instead, we proceed directly to the heart of the matter:
“Has the employee produced sufficient evidence for a
reasonable jury to find that the employer’s asserted non-
discriminatory reason was not the actual reason and that the
employer intentionally discriminated against the employee on
the basis of race . . . ?” Id.
9
Ordinarily, if a plaintiff identifies evidence “from which
a jury could find that the employer’s stated reasons were
pretextual, [that] will be enough to get [his] claim to a jury.”
George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005)
(internal alterations omitted). Showing pretext, however,
requires more than simply criticizing the employer’s
decisionmaking process. Even if a plaintiff “was victimized
by poor selection procedures,” we may not “second-guess an
employer’s personnel decision absent demonstrably
discriminatory motive.” Fischbach v. D.C. Dep’t of
Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996) (internal
alteration omitted). Hairston presses four arguments to
demonstrate the GPO’s proffered reason was pretextual. We
are not persuaded.
First, Hairston argues that conflicting testimony
regarding Bernazzoli’s conversation with Verter suggests the
conversation was fabricated after the fact. When asked at his
deposition if he remembered discussing Hairston’s application
with Bernazzoli, Verter said “[n]o, I don’t recall. I am not
saying that it didn’t happen. I don’t recall it.” JA 649. When
then asked whether he meant the conversation did not happen,
Verter said “[i]t is possible [that it happened], yes. We talked
about a number of things . . . . I just don’t remember this
specific one.” Id. But Verter’s failure to recall the
conversation is not inconsistent with Bernazzoli’s statement
that the conversation occurred. Indeed, we have found that
one party’s failure to recall a conversation does not, on its
own, create a genuine issue of material fact. See Paquin v.
Fed. Nat’l Mortg. Ass’n, 119 F.3d 23, 30 (D.C. Cir. 1997)
(“[a] deponent’s inability to recall specifics three years later
10
does not rebut” defendant’s legitimate, nondiscriminatory
reasons for employment action). 2
Hairston also draws an adverse inference from the fact
that, while Bernazzoli mentioned conversations with Verter
and Domarsky in his deposition, he did not do so in his EEO
affidavit. Providing more detailed information once litigation
begins does not create a genuine issue of material fact. “To
suggest otherwise is essentially to direct employers to publish
a contemporaneous statement of reasons every time they
make a hiring or firing decision—a requirement that Title VII
has never been understood to impose.” Jackson v. Gonzales,
496 F.3d 703, 710 (D.C. Cir. 2007); see also Crockett v.
Abraham, 284 F.3d 131, 134 (D.C. Cir. 2002) (later statement
that “does not contradict . . . deposition but rather augments
and elaborates upon it” does not create genuine issue of
material fact).
Second, Hairston argues that “it is implausible that Mr.
Bernazzoli actually believed” that he, Hairston, “was
unqualified.” Appellant Br. 31. More specifically, Hairston
contends that Bernazzoli should not have asked Verter for his
2
In his reply brief, Hairston argues that Verter’s “hedging” was the
product of coaxing from GPO’s counsel at a recess during the deposition.
Before the recess, Verter stated that “to [his] knowledge” and “to [his]
recollection,” he first learned of Hairston’s application when he was
notified of his deposition. JA 648. To Hairston, this testimony suggested
that Verter did not discuss Hairston’s application with Bernazzoli. After
the recess, Verter confirmed that he “d[idn’t] recall” the conversation but
emphasized that he was “not saying that it didn’t happen.” JA 649. In his
pre-recess testimony, however, Verter did not categorically state that he
never spoke with Bernazzoli; he qualified his statements by tying them to
his knowledge and recollection. Verter’s post-recess statements followed
the same path: namely, he could not recall the conversation with
Bernazzoli.
11
opinion of Hairston’s application and that, instead, Bernazzoli
should have consulted Hairston’s direct supervisors. This
argument suggests that, because there were better ways to
determine if Hairston was qualified, Bernazzoli must not have
been seeking that information at all. As we have previously
noted, however, the key question in this context “is not the
correctness or desirability of the reasons offered but whether
the employer honestly believes in the reasons it offers.”
Fischbach, 86 F.3d at 1183 (internal quotation mark and
alterations omitted). Hairston proffers nothing that calls into
question the genuineness of Bernazzoli’s belief that Hairston
was not qualified for the job he was seeking. Bernazzoli
stated that Verter was his “eyes and ears on the floor” and
Verter had in fact supervised Hairston during his GPO
apprenticeship. JA 604, 641–43. Indeed, Verter affirmed in
his deposition that he had known Hairston “as long as he has
been in the pressroom.” JA 641. Bernazzoli also testified
another supervisor shared Verter’s concerns. He remembers
Domarsky, who was directly involved in the selection
decision, opining that Hairston “didn’t have the knowledge
nor the experience to run” the Heidelberg six-color press
immediately so as to meet the increased demand for passports.
JA 599.
Hairston also argues that his temporary stint as Second
Offset Pressperson demonstrates that he was, in fact, qualified
for the job. But “it is the perception of the decision maker
which is relevant, not the self-assessment of the plaintiff.”
Vatel v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C.
Cir. 2011). Based on the consistent testimony of Verter,
Domarsky, Hayward, Dais and Batty, Hairston needed at least
six months of training to become a Second Offset
Pressperson. Hairston’s failure to identify even a single GPO
employee who believed Hairston’s training would have taken
fewer than six months undercuts his argument that Bernazzoli
12
could not have genuinely believed that Hairston was
inexperienced.
Third, Hairston argues that the GPO’s need to quickly fill
the relisted VA to meet the increased demand for passports
was pretextual because it took the GPO approximately five
months to hire Davis. But Hairston does not question the fact
that the GPO faced an increased demand for passports. The
question, then, is whether Bernazzoli honestly believed, at the
time he rejected Hairston’s application, that he could find an
experienced pressperson in less time than it would take to
fully train Hairston and with less strain on the Press Division.
See Brady, 520 F.3d at 495 (“employer prevails if it ‘honestly
believes in the reasons it offers’ ”) (quoting Fischbach, 86
F.3d at 1183). Every GPO supervisor who was surveyed
estimated that it would have taken at least six months for
Hairston to become a fully operational Second Offset
Pressperson. Each estimate also allowed for the fact that the
necessary training could take more than six months. Hairston
relies on his temporary stint as Second Offset Pressperson as
evidence that he was a quick learner. But this post hoc
experience does not suggest that Bernazzoli had reason to
believe Hairston’s training could go quickly at the time he
reviewed Hairston’s application. See Leavitt, 407 F.3d at 415
(“[A]n employer’s action may be justified by a reasonable
belief in the validity of the reason given even though that
reason may turn out to be false.”).
At bottom, Hairston disagrees with the GPO’s gauging
the likelihood that his training would take longer than the time
it would have taken to hire an experienced candidate and we
do not reweigh an employer’s balancing of factors it
considered. Jackson, 496 F.3d at 709 (“[G]iven the dynamic
nature of the hiring process . . . we will not second-guess how
13
an employer weighs particular factors in the hiring
decision.”).
Fourth, Hairston argues that two allegedly patronizing
comments Bernazzoli made and an alleged history of
discrimination in the GPO are evidence of pretext. Bernazzoli
stated that promoting Hairston would be akin to “throwing,
you know, an infant in there,” JA 602, and also suggested that
Hairston would be “up the creek without a paddle” if he were
promoted to Second Offset Pressperson, JA 105. These
statements, however, are neither explicitly racial nor infused
with racial undertones based on common usage. We do not
infer discriminatory intent if the words uttered are plainly
lacking in racial animus. Cf. Dunaway v. Int’l Bhd. of
Teamsters, 310 F.3d 758, 764–66 (D.C. Cir. 2002) (comments
calling Asian woman “China doll” and “Little Gook”
sufficient to infer racial animus).
Moreover, Hairston’s claim that there is a history of
discrimination at the GPO is unconvincing. He relies on
discrimination complaints filed in the past to establish
institutional discrimination but we have rejected similar
arguments before. See, e.g., Holcomb, 433 F.3d at 899–900
(“We are not persuaded that the mere filing of two informal
discrimination complaints . . . where nothing more is known
about the nature, merit, or outcome of those complaints, can
be used as a proxy to establish [the defendant’s]
discriminatory animus in the present case.”). Additionally,
Hairston’s argument that there are too few black employees in
GPO management positions misses the mark. We have held
that “[i]n individual disparate treatment cases, however,
statistical evidence is less significant because the ultimate
issue is whether the particular plaintiff was the victim of an
illegitimately motivated employment decision.” Krodel v.
Young, 748 F.2d 701, 710 (D.C. Cir. 1984).
14
In sum, Hairston has not raised a genuine issue of material
fact regarding whether the GPO’s legitimate,
nondiscriminatory reason for not promoting him was
pretextual.
B. Unlawful Retaliation
“Under Title VII, it is unlawful for an employer to
[retaliate] against any of its employees because she has made
a charge or participated in any manner in an investigation of
discrimination.” Taylor v. Solis, 571 F.3d 1313, 1320 (D.C.
Cir. 2009) (internal quotation marks and alterations omitted).
A prima facie showing of retaliation requires that “(1) [the
plaintiff] engaged in protected activity; (2) he was subjected
to an adverse employment action; and (3) there was a causal
link between the protected activity and the adverse action.”
Hamilton v. Geithner, 666 F.3d 1344, 1357 (D.C. Cir. 2012).
In district court, the parties disputed whether the GPO’s
failure to send Hairston to the Georgia training program was
an adverse employment action. We do not resolve that
question. Assuming arguendo that Hairston’s exclusion from
the training program was sufficiently adverse, he nonetheless
does not survive summary judgment because he offered no
evidence that the GPO’s proffered reason for denying him
training—that the decisionmaker thought he did not want it—
was pretextual. Although Hairston raises questions about the
reliability of Daniel’s survey results, he offers no reason
Davis would have doubted them at the time. Moreover, Davis
had no reason to retaliate. See Talavera v. Shah, 638 F.3d
303, 313 (D.C. Cir. 2011) (“To prove unlawful retaliation,”
the plaintiff must “show that [the supervisor], who made the
promotion selection, had knowledge of her protected
activity.”). Davis stated that he “had no knowledge of any
15
prior EEO complaints filed by Mr. Hairston” when he was
organizing the Georgia training program. JA 285. Hairston
identifies no contrary evidence. 3 On this record, then, there is
no basis to conclude that Hairston’s EEO complaint was the
reason for his exclusion from the training event. See Brady,
520 F.3d at 495 (“If the employer’s stated belief about the
underlying facts is reasonable in light of the evidence,
however, there ordinarily is no basis for permitting a jury to
conclude that the employer is lying about the underlying
facts.”).
For the foregoing reasons, the district court’s judgment is
affirmed.
So ordered.
3
Hairston argues that the GPO’s knowledge of his EEO complaint should
be imputed to Davis because Davis was GPO’s agent. Our holding in
Talavera forecloses that argument. See Talavera, 638 F.3d at 313
(“[plaintiff] had to show that [her supervisor], who made the promotion
selection, had knowledge of her protected activity” to establish unlawful
retaliation claim) (emphasis added).