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J. Blair Hayes v. Kathleen Sebelius

February 2, 2011

J. BLAIR HAYES
PLAINTIFF,
v.
KATHLEEN SEBELIUS, SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Royce C. Lamberth Chief United States District Judge

Memorandum Opinion

This matter comes before the Court on defendant's Motion for Summary Judgment. Mot. Summ. J., May 24, 2010, ECF No. 48. Having carefully considered defendant's Motion, plaintiff's Opposition, defendant's Reply, the entire record in this case, and the applicable law, the Court will grant defendant's Motion in part and deny it in part. A review of the background of the case, the governing law, the parties' arguments, and the Court's reasoning in resolving those arguments follows.

I.Background

A.Introduction

J. Blair Hayes brings this lawsuit against the Secretary of the Department of Health and Human Services.*fn1 Suing under Title VII of the 1964 Civil Rights Act, Hayes alleges that HHS discriminated against him because of his race and retaliated against him for bringing a discrimination claim. He contends that HHS (1) denied him a Deputy Director position on an acting basis; (2) denied him the same Deputy Director position on a permanent basis; (3) lowered his performance appraisals for 2006; (4) lowered his performance appraisals for 2007; (5) placed him on a Performance Improvement Plan in 2008; (6) unfairly monitored his job performance; (7) unfairly criticized his job performance; and (8) made him perform job duties outside his position description, all out of illegal discriminatory and retaliatory animus. He also contends that retaliatory animus was a "motivating factor" in HHS's decision to deny him the Permanent Deputy Director position. He argues that even if that illicit motive was not the sole or but-for cause of HHS's decision, a reasonable jury could still find HHS liable under Title VII.

HHS responds that many of Hayes's allegations are not based on employment actions severe enough to constitute adverse employment actions (or materially adverse employment actions in the retaliation context) for Title VII purposes. It further argues that its decisions regarding Hayes were based on neither discrimination nor retaliation but were instead the result of Hayes's lack of qualifications relative to Joel Anthony-the person ultimately selected as Acting and Permanent Deputy Director-and Hayes's poor job performance generally. Finally, HHS contends that Hayes may not, as a matter of law, raise a motivating-factor retaliation claim under Title VII.

B.The Agency's Structure

HHS is the United States government's principal agency for protecting and promoting the health of Americans. The Administration for Children and Families is the component of HHS responsible for federal programs that promote the economic and social well-being of children and families. ACF's Office of Administration helps it administer these programs and consists of four divisions: the Office of Grants Management, the Office of Financial Services, the Office of Management Resources, and the Office of Information Services.

C.Hayes's Background

Hayes, an African American, became ACF's first-ever Procurement Advisor in January 2003. Hayes Dep. 48, Aug. 28, 2009, ECF No. 48-3. The GS-15 Step 10 position was created especially for him as part of the settlement of an EEO case he filed against HHS in 2001. Id. at 49--56. Hayes's primary responsibility was to advise ACF staff on acquisition issues. Id. at 56--58. Specifically, he was to "[p]rovide[] expert advice and counsel to ACF officials on procurement issues, develop[] guidance, [and] ensure[] compliance with applicable regulations, rules and policies." Mot. Summ. J. Ex. 4 at ECF p. 2. His duties also included "performing various tasks necessary to analyze, evaluate, and improve ACF management practices or systems as they relate to acquisition practices." Id.

D. The Acting Deputy Director Position

Until August of 2006, Hayes's first-level supervisor was Robert Velasco, the Deputy Director in the Office of Administration. Hayes Dep. 60--61. His second-level supervisor was Curtis Coy, the Deputy Assistant Secretary for the Office of Administration. Coy Dep. 5, 28, Apr. 15, 2009, ECF No. 48-5. After learning that Velasco was leaving the Office of Administration, Coy looked to fill the Deputy Director position on a temporary basis. Id. 64--66. He sought his four Division Directors' input and asked each of them whether they had any interest in taking the position. Id. The Division Directors at that time were Joel Anthony, Tony Hardy, Cheryl Jones, and Michael Curtis. Id. 53--54. Hardy and Jones are African American, and Anthony and Curtis are white. Hayes Dep. 90.

Curtis and Jones expressed no interest in the position. Curtis Dep. 106--07, Apr. 23, 2009; Jones Dep. 93, Apr. 21, 2009. After considering it overnight, Hardy told Coy that he "wasn't really interested in it, but . . . that if asked, [he] would do the deputy position." Hardy Dep. 71, Apr. 27, 2009; Coy Dep. 76--77. Anthony told Coy that "he'd be excited to take [the position]." Coy Dep. 75--77. Having gauged his four division directors' individual interests, Coy met with them about whom to put in the job. Hardy Dep. 74. Ultimately, he made Anthony the Acting Deputy Director. Coy Dep. 80--81.

Hayes was on a three-week vacation when this selection process took place, Coy Dep. 82--87; Hayes Dep. 92--93, 95--97, and returned to find that Coy had made Anthony Acting Deputy Director while he was away. Hayes Dep. 102. In nearly four years in the office, Hayes never once expressed any interest in the Deputy Director post. Hayes Dep. 93, 95--98. But upon learning of Coy's decision, he let Coy know for the first time that he would have been interested in it. Id. at 102--03. Although he would not have received any extra compensation for filling the Acting Deputy Director position, he desired it because he saw it as a "possible stepping stone to a SES [Senior Executive Service] position." Id. at 101.

E.The Permanent Deputy Director Position

Coy began looking to fill the Deputy Director position permanently in December 2006. Statement Undisputed Facts Support Mot. Summ. J. 7, May 24, 2010, ECF No. 48-2. He was under no obligation to send out a solicitation of interest and could have simply made Anthony the Deputy Director unilaterally and without any extra process. Coy Dep. 122--24. Explaining that he "wanted to be fair to everyone" who might be interested in the position, though, he solicited interest in the job ACF-wide. Statement Undisputed Facts Support Mot. Summ. J. 7. In the end, only Hayes and Anthony applied. Coy Dep.at 127; Ivery Dep. 84--86.

Hayes does not dispute that Anthony was the better-qualified candidate. Anthony had worked in grants policy, management positions, and the President's Management Agenda. Anthony Aff. at ECF pp. 5--6, November 5, 2007, ECF No. 55-15. Having begun his federal career in 1974, Anthony had managed several of ACF's grants-related offices as well as the development of its Grants Administration Policy Manual in 1995. Id. at ECF p. 5. He managed several "operations" offices-the offices that award and administer contracts and grants-as well as "policy" offices. Id. This experience was of particular importance to the Deputy Director position because ACF is a grant-making agency with a $48 billion grants budget, and nearly every one of its significant initiatives involves grants and grants management. Id.

With nearly twenty-five years' experience as a federal supervisor performing the entire array of supervisory responsibilities, Anthony had managed several large financial management organizations, including one with 60 employees. Id. at ECF pp. 5--6. Anthony's experience did not go unnoticed. He received the highest possible performance rating-Outstanding-the past ten years in a row. Id. at ECF p. 6. In 2001, he received the ACF Distinguished Achievement Award, and in 2004, he received the highest honor bestowed on managers at ACF-the ACF Honor Award for Exemplary Leadership. Id. Hayes, while rated Excellent several times, never received a single Outstanding rating and garnered no similar awards recognizing any significant leadership qualities. Hayes Dep. 223.

Hayes did not have any functional responsibilities within the Office of Administration's four divisions. Coy Decl. ¶ 4, May 10, 2010, ECF No. 55-11. He had never been a grants officer, had never assigned or awarded a grant, had never been responsible for administering a grant, had never received training in administering a grant, and he did not have any level of certification in the grants certification process. Hayes Dep. 141--43. He also had no responsibility for information technology or management resources. Id. 12--48. Finally, Hayes did not supervise any employees from 2003--2006. Id. at 60; Coy Decl. ¶ 3. From 1997--2001, he had supervised a staff of 14 people, and in the 1980s he supervised a staff of four. Statement Undisputed Facts Support Mot. Summ. J. 8. In fact, another reason Hayes was interested in the position was that he saw it as a chance to be a supervisor again. Hayes Dep. 101.

Coy had a panel interview both candidates. Coy Dep. 127--28. The panel consisted of Coy, Segundo Pereira-the Director of Diversity Management and the Acting Deputy Assistant Secretary for Acquisition Policy at HHS-and Diane Dawson. Dawson, an African American, is the Director of ACF's Office of Regional Operations. Id.; see also Dawson Dep. 13, 22--23, Apr. 21, 2009, ECF No. 48-10; Pereira Dep. 13--14, 26, Apr. 23, 2009, ECF No. 48-11; Hayes Dep. at 124--25. The panel interviewed the candidates one after the other, asking them the same questions. Pereira Dep. 34, 42; Dawson Dep. 33; Coy Dep. 133--34.

The panel interviewed Hayes first. Pereira Dep. 45; Dawson Dep. 33. Despite having not interviewed in fifteen years, Hayes did nothing to prepare for the interview other than review his application. Hayes Dep. 122--23. He was "surprised" by the questions at the interview, which included "what would you do in your first thirty days on the job," id. at 128--29, and acknowledged that he had no "concrete" ideas about "what [he] wanted to do as Deputy Director." Id. 130--31. He also expressed no substantive thoughts on what challenges faced the Deputy Director or what the Deputy Director's priorities should be. Id. at 134--35. Anthony, on the other hand, appeared prepared for the interview and provided much more comprehensive answers to the panel's questions. Pereira Dep. at 72; Dawson Dep. 51--53. His answers reflected the breadth of his experience at HHS, including his extensive work on grants and acquisition matters. Dawson Dep. 51--53.

After discussing the candidates, all three panel members concluded that Anthony was clearly the better candidate. Pereira Dep. 69, 73--74; Dawson Dep. 56; Coy Dep. 135--36. Pereira testified that Hayes's interview was "the model of how not to interview." Pereira Dep. 80. Coy found that "it was apparent . . . that Mr. Anthony had prepared for the interview, [and that he] had answers that were cogent and thoughtful and Mr. Hayes was not so much." Coy Dep. 136. Dawson said that "Mr. Hayes's responses were much more narrow and sort of not clearly, in [her] opinion, understanding the scope and the breadth of the functions that were in that office, compared to Anthony who seemed to know a lot about-a lot of different areas." Dawson Dep. 53. Based on the unanimous recommendation of the panel members, Coy selected Anthony to be Deputy Director. Coy Dep. 135--36.

F.Performance Appraisals

Hayes received annual performance appraisals as procurement advisor. Hayes Dep. 222--23. He received a rating of Excellent for 2003, 2004, and 2005. Id. For each of these reviews, Velasco rated his performance. Statement Undisputed Facts Support Mot. Summ. J. 11. In September 2006, before he left the Office of Administration, Velasco gave Hayes a summary rating of Excellent. Id. In December 2006, Anthony prepared his "final rating," and said, "The Summary Rating prepared by Robert Velasco on September 6, 2006 will be the final rating of record for Mr. Hayes. For the past couple of months, my observation of his performance is consistent with the summary rating. His final rating of record is Excellent." Id. at 11--12. Coy did not change the rating Velasco and Anthony gave Hayes. Id. at 12. Notably, Velasco gave summary ratings to all of the employees under his supervision before he left the office. Anthony Dep. 158--59. Neither Anthony nor Coy changed any of these ratings. Id.

Hayes refused to sign his 2006 performance rating, something he had not done in prior years. Id.; Hayes Dep. 184--85. He wrote, "I refuse to sign the evaluation. I feel this rating is not accurate and Mr. Anthony has intentionally rated me below the rating I deserve." Hayes Dep. 185. He believed he should have received an Outstanding rating because Coy cited his projects in a September 29, 2006, e-mail thanking the Office of Administration for their "contributions over the past year." Mot. Summ. J. Ex. 2 at ECF p. 8, May 24, 2010, ECF No. 48-17.

Coy and Anthony observed a steady decline in Hayes's job performance in 2007.

Coy Aff. ¶ 7, May 10, 2010, ECF No. 48-7; Anthony Aff. ¶ 15, April 23, 2010, ECF No. 48-9. They rated his performance on four individual performance outcomes and one administrative requirement. Statement Undisputed Facts Support Mot. Summ. J. 17. The first individual performance outcome was based on Hayes's proactively working toward HHS's procurement consolidation efforts, communicating information to Office of Administration staff on procurement policies and procedures, and analyzing new or proposed procurement legislation, regulations, and testimony to determine their impact on ACF. Id. They rated Hayes Minimally Successful on this requirement because his efforts regarding procurement consolidation were neither proactive nor effective. Id. He also failed to communicate information to ACF staff on new or revised federal and HHS procurement policies and procedures, including analyzing new or proposed procurement legislation to determine its impact on ACF programs. Id. In fact, he failed to provide any analysis of the numerous 2007 federal acquisition circulars. Id.

The second individual performance outcome required Hayes to assist the Deputy Secretary and Deputy Director in fulfilling their management priorities and to provide oversight of the issuance of ACF credit cards, including maintaining information on the card holders and approvers. Id. They rated him Minimally Successful on this requirement because he provided neither Anthony nor Coy with useful reports on the status of ACF procurement matters during the year. Id. He also failed to have much, if any, involvement in the ACF credit card program. Id.

The third individual performance outcome required Hayes to assist ACF customers in choosing efficient and effective procurement strategies. Id. at 18. Anthony and Coy rated Hayes Fully Successful on this requirement. Id.

The fourth individual performance outcome required Hayes to provide oversight for the Procurement Tracking System. Id. They rated Hayes Minimally Successful on this requirement because it was unclear to Anthony and Coy that Hayes had done anything with respect to the Procurement Tracking System. Id. He did not provide them with useful reports regarding the system, and he did not take any action to ensure that the system's information on ACF's intranet was current. Id. As far as Anthony could tell, nothing new on the system had been added to ACF's intranet that year. Id.

The administrative requirement called on Hayes to identify and communicate his individual developmental needs and to work with his supervisors to establish a performance plan for the year. Id. Coy and Anthony rated Hayes Minimally Successful on this requirement because he failed during 2007 to work with his supervisors on establishing a performance plan and failed to provide them with self-assessments. Id. On June 18, 2007, Anthony asked Hayes to provide him with comments regarding his performance for the year so that they could be incorporated into his mid-year progress review. Id. Hayes did not respond. Id. at 19. On December 5, 2007, Anthony asked Hayes to provide him with a description of his accomplishments during the year so that they could be reflected in his final performance rating. Id. Hayes did not respond. Id. On December 14, 2007, Anthony reiterated his request for information about Hayes's accomplishments during the year, but Hayes, again, failed to respond. Id. Hayes also did not identify any developmental needs that he had as Procurement Advisor. Id.

Based on the ratings Hayes received on the individual performance outcomes and the administrative requirement, his overall performance rating for 2007 was Minimally Successful. Id. This was the first rating Hayes received under the new four-tier rating system. Coy Aff. ¶ 7, May 10, 2010, ECF No. 48-7 (noting that the ratings available were Exceptional, Fully Successful, Minimally Successful, and Unacceptable). Hayes believed he should have been rated Exceptional but provided no information to Anthony or Coy explaining the basis for his belief. Mot. Summ. J. Ex. 9 at ECF pp. 59--60.

On February 4, 2008, Anthony and Coy gave Hayes a workplan that set forth specific expectations of him for the year. Mot. Summ. J. Ex. 4 at ECF pp. 62--65. Coy also met with him that afternoon to go over the workplan. Id. Their hope was that, in light of Hayes's 2007 Minimally Successful rating, the workplan would ensure the "new performance period [would] begin with [Hayes having] a clear understanding of what [was] expected of [him] in 2008." Id.

G.The Performance Improvement Plan

By April 4, 2008, though, Anthony and Coy had determined that Hayes's performance was not improving. Mot. Summ. J. Ex. 11 at ECF p. 67. Coy provided him with a "Performance Update" memorandum that described the deficiencies in his performance. Id. He was placed on a Performance Improvement Plan, or PIP, on April 22, 2008. Mot. Summ. J. Ex. 12 at ECF p. 80. The PIP did not affect his pay, job title, work hours, or responsibilities, but it did state that if Hayes did not improve his performance he could be terminated. Id. at ECF p. 88. Ultimately, though, no action was taken against him, and he remains procurement advisor with the same pay and hours today.

II.Legal Standard

A.Summary Judgment

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard requires more than the mere existence of some factual dispute between the parties to defeat an otherwise properly supported motion for summary judgment; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) (emphasis in original). A material fact is one that, under the substantive law applicable to the case, is capable of affecting the outcome of the litigation. Id. An issue is genuine where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," as opposed to evidence that is "so one-sided that one party must prevail ...


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