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Female Forest Service Worker Cannot Show Sex Bias or Retaliation in Her Nonpromotion

Wednesday, February 13, 2013
A computer specialist cannot pursue her sex discrimination claims against the Forest Service based on her nonselection for promotion, because she could not refute the federal agency's explanation that the selected male candidate was better qualified, the U.S. Court of Appeals for the Tenth Circuit ruled Feb. 11 (Conroy v. Vilsack, 10th Cir., No. 11-4091, 2/11/13).

The appeals court found that Laura Conroy, who sued under Title VII of the 1964 Civil Rights Act, failed to demonstrate that she was “overwhelmingly more qualified” for the program manager position than Daniel Hager when the position was created and originally filled in 2001.

Conroy also did not show that the agency's rationale for choosing Hager was inconsistent and contradictory, or that the selection process was tainted by procedural irregularities or reliance on entirely subjective factors, the court held, affirming summary judgment for the Forest Service, which is part of the Department of Agriculture.

 


The more than two years between the filing of Conroy's 2002 discrimination grievance for denial of a promotion and the 2004 reposting of the job with heightened requirements was too long a gap to support a finding of a causal link between the two events, the appeals court concluded.

 

The agency also properly was granted summary judgment on Conroy's other sex discrimination claim based on the Forest Service's decision to relax the job qualifications and relist the position when initially only Conroy and one other applicant applied, the appeals court said.

Agency policy provided that “when there is an insufficient number (namely, three or fewer) of qualified applicants, a personnel specialist may either certify all applicants as qualified and forward their names to the selecting official, or advise the selecting official of 'viable options,' ” including relisting the position, Judge Jerome A. Holmes wrote for the appeals court.

The court also affirmed summary judgment against Conroy on her retaliation claim challenging how the program manager position was filled a second time in 2004 after Hager left the job. Unlike when the job originally was announced in 2001, the position was listed in 2004 only in the professional series--rather than also in the administrative series, which did not require a college degree--with the clear purpose, Conroy alleged, of excluding her in retaliation for filing a bias charge over Hager's selection.

However, the more than two years between the filing of Conroy's 2002 discrimination grievance and the 2004 job posting was too long a gap to support a finding of a causal link between the two events, the court concluded. It rejected Conroy's contention that the proper period to consider was the 46 days between when the agency learned she would apply for the opening created by Hager's departure and the decision to post the vacancy solely under the professional series.


Job Posting Originally 'Interchangeable' Listing
Conroy joined the Forest Service in Region 4 in Ogden, Utah, in 1991 as a GS-9 computer programmer analyst. By 1995, she had worked her way up to a GS-12 computer specialist position.

As part of her job description, Conroy provided programming and technical expertise for certain database systems and served as the regional coordinator of the INFRA database, which tracks Forest Service infrastructure such as roads, bridges, buildings, and dams, as well as financial and other types of data.

Region 4 management in 2001 announced an opening for the newly created position of INFRA program manager. The opening was advertised as an “interchangeable” listing, meaning it could be filled as an administrative series position, which did not require a college degree, or in the professional series, which required a college degree or equivalent professional experience.

Conroy, who lacked a college degree, applied for the new job in the administrative series and was found to be qualified. However, because only Conroy and one other applicant were found qualified, the head of the group including the new position, Larry Larson, decided to readvertise the job. He later testified that he did so to broaden the pool of applicants.

The revised announcement, which modified the job requirements by replacing the words “[c]omprehensive knowledge and skills” regarding certain software with simply “[k]nowledge of” those areas, resulted in a greater number of applicants from which four were certified as adequately qualified: three, including Hager, under the professional announcement, and Conroy under the administrative announcement. Hager had not responded to the original job posting.


Hager Selected Instead of Conroy
A five-member peer advisory panel analyzed the candidates based on their “knowledge, skills, and abilities” and recommended Hager to Chris Pyron, the selecting official for the position. Pyron followed the panel's recommendation and hired Hager. Conroy then filed a formal grievance, complaining of sex and age discrimination.

Hager left the INFRA program manager position in 2003, and the opening was advertised in February 2004. However, an intervening change in agency policy prohibited the Forest Service from posting interchangeable listings, so the job was advertised strictly under the professional series.

Conroy applied nevertheless and was found unqualified. The agency selected Andrea Gehrke to fill the position, and Conroy filed a second grievance, charging that the decision to advertise the re-opened position exclusively in the professional series was based on her lack of a college degree and done in retaliation for her first grievance.

She later sued in the U.S. District Court for the District of Utah under Title VII, asserting individual and class claims of sex discrimination and retaliation. The court dismissed the class claims and, after excluding Conroy's two proffered expert witnesses, granted summary judgment to the Forest Service on her individual claims.


Conroy's Proposed Experts Properly Excluded
The appeals court found no error in the district court's exclusion of Conroy's proposed expert witnesses.

Holmes said one proposed witness, Dr. Nancy Dodd, would have testified regarding sex stereotyping in the workplace, but she had never previously testified in a case in such a capacity. She also had never researched or written about sex stereotyping and had become familiar with the subject only after being retained by Conroy. Holmes concluded that Dodd was not qualified to testify as a sex stereotyping expert.

The proposed testimony of the other proffered expert failed at the second part of the analysis used to test expert evidence, the court said. It found that despite Dr. Paul Katz's extensive experience in human resources management, his expert report was “woefully short” in explaining how he could testify reliably that the college degree requirement for the INFRA program manager position was deliberately designed to exclude Conroy.


Sex Discrimination Claims Unsupported
The appeals court found that both of Conroy's sex discrimination claims failed at the pretext stage.

The Forest Service contended that Pyron chose Hager instead of Conroy because the agency placed greater significance on leadership and program management experience, which favored Hager, than technical expertise, which favored Conroy. She was unable to show that this explanation was unworthy of belief, the court ruled.

Conroy also alleged procedural irregularities in Pyron's decision to contact her supervisor for a recommendation, despite her not listing the supervisor as a reference, and the failure of the advisory panel to contact all of her references. However, the court found that the panel tried to contact most of Conroy's references and failed for reasons out of its control, and that Conroy stated on her application that her supervisor could be contacted.

In addition, Conroy did not show she was overwhelmingly more qualified than Hager overall, the court said. Finally, it ruled, Conroy's complaint regarding the use of subjective criteria in the hiring process did not raise a triable issue of pretext.

Holmes said “some subjectivity is to be expected in every hiring decision” and that to prove pretext, Conroy needed to show the Forest Service relied on entirely subjective criteria. “Nothing of the sort is present here,” he wrote.

As for her other sex bias claim, Conroy did not show that the agency's decision to relist the job opening with somewhat relaxed requirements conflicted with agency policy, the court said, observing that the evidence was to the contrary. The court left open the question of whether such an action by an employer ever could be deemed to rise to the level of an adverse act under Title VII.


Causal Link Not Shown on Retaliation Claim
Conroy failed to establish a prima facie case on her retaliation claim because she was unable to connect her first grievance objecting to Hager's selection to the agency's later decision to post the position in the professional series after Hager left.

Not only was the two-year gap between her grievance and the new posting too long to infer a causal connection based on timing alone, but Conroy did not present any additional evidence that helped her establish a link, the court decided.

Under circuit precedent, a time gap of more than three months is definitely too great to support a finding of causation without other evidence, the court found. It said Conroy's contention that the time gap here really was only 46 days, not more than two years, was without foundation.

“That is because she would have us ignore the time period shortly following her protected activity--the precise period when we ordinarily would expect any anger or resentment that her activity engendered in the Forest Service to be at its apex--and instead focus on a period almost two years removed from her protected activity merely because it was at that point that the Forest Service had its first opportunity to retaliate against her by taking a very specific adverse action,” Holmes wrote.

“[O]ur ability to draw … a causal inference from an employer's adverse action” based on temporal proximity alone “diminishes over time because we may reasonably expect (as a matter of common sense) that the embers of anger or resentment that may have been inflamed by the employee's protected activity--emotions that would underlie any retaliatory adverse action--would cool over time,” Holmes wrote. Conroy's proposed approach, which focused on events nearly two years after her protected activity, “stands at odds with this temporal-proximity, causation rationale.”

Judges Timothy M. Tymkovich and David M. Ebel joined the opinion.

April L. Hollingsworth of Salt Lake City and Erik Strindberg of Strindberg & Scholnick in Salt Lake City represented Conroy. Benjamin M. Shultz, Tony West, and Marleigh D. Dover of the Justice Department in Washington, D.C., and David B. Barlow of the U.S. attorney's office in Salt Lake City represented the Forest Service.

By Patrick Dorrian


Text of the opinion is available at http://www.bloomberglaw.com/public/document/Conroy_v_Vilsack_Docket_No_1104091_10th_Cir_May_09_2011_Court_Doc.

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