Federal Employee Wins Appeal On Sex And Age Discrimination Claim
Lawyers representing employees in discrimination cases are forever frustrated by federal district court judges whom routinely grant summary judgment to employers instead of allowing cases to proceed to trial for a jury determination.
This recent case of Bartlett v.Gates, in which the Sixth Circuit Court of Appeals reversed the lower court’s summary judgment ruling, is a perfect example of what we potentially face on every case no matter what kind of evidence has been produced.
What Happened In The Case
Barry Bartlett worked for the United States Department of Defense at the Defense Contract Management Agency (DCMA). In September of 2005, he applied for a promotion to GS-12 contracting officer. At the time of his application, Bartlett was 58 years old and had 34 years of experience as a GS-11 contract administrator. In addition, Bartlett’s resume showed:
- a record of military service
- a bachelor’s degree in history
- completed graduate course work in business administration, accounting and law
Bartlett was deemed qualified at the initial screening stage and his name was forwarded to Kathleen Lehman, the selecting official for the promotion.
Another long term employee, Marvin Greenberg, also applied for the position. Greenberg was 63 years old at the time of his application. His resume showed:
- a bachelor’s and doctoral degrees
- authorship of a length book and numerous scholarly publications
- a 27 year tenure at DCMA
In October of 2005, without conducting any interviews, Lehman chose Angela Lucas for the promotion. Lucas, another internal candidate, was 39 years old at the time and did not have a college degree.
Bartlett claimed that between 2003 and 2005, employees who were 55 years or older received only one DCMA promotion, despite making up 36% of the agency’s workforce. He also claimed that female employees were promoted in a series of personnel decisions that involved the manipulation of agency procedures.
Bartlett decided to challenge the decision. In February of 2007, after exhausting his administrative remedies, he filed a lawsuit against the DCMA claiming that he was discriminated against because of his age and sex in violation of the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964.
The Defendant filed a motion for summary judgment which was referred to a magistrate for a report and recommendation. In October of 2008, the magistrate issued a report which found that Bartlett established a prima facie case of discrimination under Title VII, but the DCMA provided a non-discriminatory reason for its promotion decision and Plaintiff failed to rebut it by showing pretext.
The federal district court judge adopted the recommendation and granted Defendant’s motion for summary judgment against Bartlett. He appealed.
The Sixth Circuit Reverses
Burden of Proof Under The Title VII And The ADEA
Under McDonnell Douglas, a plaintiff may establish a prima facie case of discrimination in a failure to promote case when he:
- is a member of a protected class
- objectively qualified for the position
- considered for but is denied the promotion
- an individual outside of plaintiff’s protected class is selected for the position
Once the plaintiff presents a prima facie case of discrimination, the burden shifts to the employer to articulate a nondiscriminatory reason for its action. In order to overcome summary judgment, the plaintiff must produce evidence which can rebut the employer’s explanation demonstrating pretext – which means “only enough evidence … to rebut, but not to disprove, the defendant’s proffered rationale.”
A plaintiff can prove pretext with evidence that the employer’s stated reason for its adverse business action either
- has no basis in fact
- was not the actual reason, or
- is insufficient to explain the employer’s action
It’s worth noting that the Sixth Circuit in this decision joined a number of other circuits in holding that age discrimination claims -- post Gross -- should continue to be analyzed under McDonnell Douglas.
The Court’s Analysis Of The Evidence
Since the Defendant conceded that Bartlett established a prima facie case of discrimination the appeal turned on Defendant’s explanation for its decision, and whether Bartlett presented sufficient evidence of pretext to rebut it.
As to its reason, Defendant claimed that Angela Lucas was the best qualified candidate based on the written submissions of the applicants and Lehman’s personal knowledge of their background, performance, work product, and communication abilities.
It further claimed that Lucas was highly motivated, very experienced and a strong communicator who had earned performance awards and commendations of her peers.
Bartlett, it claimed in contrast, was an average employee who lacked a sufficient background in contract negotiations as well as a strong writing ability.
Bartlett offered several grounds of support for his argument for that Defendant’s reasons were pretextual.
As the Court noted, the relative qualifications of applicants as well as discriminatory remarks may establish pretext in a failure to promote case.
In this case, the Court pointed to:
- Bartlett’s 24 years of experience as a contract administrator: Lucas had 8
- Bartlett’s superior educational credentials including a bachelor’s degree and advanced course work: Lucas did not graduate from college
- Bartlett’s communication skills, as well as those of Greenberg, which were satisfactory if not superior to Lucas’s as evidenced by favorable performance reviews, education credentials, and scholarly publications and familiarity in the area of contract negotiations.
The Court stated:
Construing the facts in the light most favorable to the Plaintiff, we find that while Plaintiff may not have been a “plainly superior candidate” that rendered a DCMA’s promotion decision unreasonable on its face …Plaintiff was as qualified if not more qualified than Lucas.
Although this finding does not conclusively establish pretext, it warrants denial of summary judgment where other probative evidence of discrimination is presented.
As the Court noted, discriminatory remarks may constitute direct evidence of discrimination and also serve as evidence of pretext.
In this case, Bartlett presented evidence that his supervisor, Gail Lewin, and the selecting official Kathleen Lehman:
- informed him that 34 years on the job was enough
- joked about whether he had taken up “antiquing or traveling or something like that”
- suggested that he should retire – a topic which Bartlett had neither broached nor considered
The Court stated:
Because these statements were made by DCMA decisionmakers just weeks before the promotion decision and because the ostensible motivation of the comments was to hasten Plaintiff’s departure from the agency, these remarks provide strong ‘probative evidence of pretext.’
Furthermore, when coupled with record evidence that Plaintiff was as qualified if not more qualified that the selectee, these statements created triable issues of fact on the question of pretext.
Defendant’s Explanation Was Not Believable
In addition, the Court held that Bartlett had presented evidence of pretext because the reason given for its failure to promote him was not credible.
As the Court noted, Lehman testified that she made the decision that Lucas was the best qualified candidate without conducting interviews because she was familiar with the applicants experience, backgrounds, and competency. However, when asked, Lehman was unable to answer basic questions about the candidates’ qualifications.
The Court noted:
The fact that Lehman was unable to describe the candidates’ credentials creates a triable issue of fact as to the actual basis for Defendant’s promotion decision, suggesting it was pretext for discrimination based on sex and age.
In sum, the Court concluded that Bartlett presented sufficient evidence to suggest that DCMA’s proffered explanation for its promotion decision was pretextual, and had no basis in fact. Accordingly, DCMA was not entitled to summary judgment.
The case was reversed and remanded for trial.
This case is a good example of something that’s often wrong with many federal court decisions when it comes to employment discrimination cases.
When reviewing summary judgment motions, trial court judges are, according to the Supreme Court “required to view all facts and draw all inferences in favor of the nonmoving party.” In employment discrimination cases, the nonmoving party is almost always the plaintiff employee.
It’s no secret to plaintiffs' employment lawyers that, for some reason, many trial court judges fail to abide by this requirement in case after case and instead seem to draw all inferences in favor the employer.
The result of what appears to be this employer oriented approach in discrimination cases, or as some call it -- a hostility on the federal bench to employment cases ---is a clogging of the docket with summary judgment motions and appeals, as well as considerable delay and expense to both sides.
It also encourages management side lawyers to file summary judgment motions in every case no matter what record of evidence has been established by the plaintiff because they just might win – and just might get affirmed or the employee might just get worn down and give up.
Mr. Bartlett filed his lawsuit in 2007. The events giving rise to claim occurred in 2005. While it’s a great victory to have won the reversal in the Court of Appeals, let’s not forget that it’s almost 2011 – and that all he has won thus far is his right to get a trial and have his case decided by a jury.
The reality is that if someone chooses to litigate an employment discrimination case, it's virtually certain that it's going to be a long road to justice.