Newsom v. Barnhart, (4th Cir. 2004)

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.

-2- Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

-3- 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 NewsomÂ’s discovery request and granted the

defendantÂ’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-

. Pursuant to the instructions of Regional Chief Administrative

Law Judge Henry Watkins, who had responsibility for the hiring

-4- 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

GarmonÂ’s and BozemanÂ’s notes from the interviews, the candidateÂ’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 GarmonÂ’s and BozemanÂ’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. Watkins, Garmon, and Bozeman had testified at the administrative hearing. -5- 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-

. Thereafter, the district court granted summary judgment in

favor of the defendant. II. The district court rested disposition on the administrative

record, denying appellantÂ’s requests for further discovery. J.A. -48. Appellant sought discovery of BeltÂ’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

-6- 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 courtÂ’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

-7- 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 courtÂ’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

courtÂ’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

-8- 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 WatkinsÂ’] or most other of our

supervisors.” J.A. Ex. 635. Based on Belt’s experience managing

a title company and on Judge WatkinsÂ’ personal observations of

BeltÂ’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 employerÂ’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

-9- 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 GarmonÂ’s and BozemanÂ’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

WatkinsÂ’ statements. Even if there were inconsistency, there would

be no reason to believe that such inconsistency reflects

discriminatory intent.

Newsom also as serts 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

BeltÂ’s managerial skills were superior to NewsomÂ’s. But Watkins

did know of BeltÂ’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 WatkinsÂ’ conclusion that Belt was best suited

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 DoddÂ’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 plaintiffÂ’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. 5-56, 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. -10- to provide that leadership undermine NewsomÂ’s repeated assertions

that she is objectively more qualified, apparently solely because

she is a lawyer. 2 Therefore, NewsomÂ’s claims that WatkinsÂ’ 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 BeltÂ’s

qualifications. But NewsomÂ’s authority for this point, which

considers an employerÂ’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.

-11- 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. 2-83. Newsom suggests that Judge Watkins may have relied on

this memo in his affidavit in September 2001 where he stated that

-12- “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 sk ills. 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

-13- 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 NewsomÂ’s arguments on appeal establishes that

there was a genuine issue of material fact regarding the

defendantÂ’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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