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DC Circ. Gives New Life To DOJ Worker's Promotion Bias Suit

Law360— Vin Gurrieri

The D.C. Circuit on Friday revived a onetime U.S. Department of Justice employee's suit alleging she was denied a promotion that went to a far less qualified man because of her age and gender, saying the "caliber and quantity" of evidence she presented means that a jury should decide if she was discriminated against.

A three-judge panel reversed U.S. District Judge John D. Bates' 2018 decision to award the Justice Department and Attorney General William Barr summary judgment over claims by Debra Stoe that she was unlawfully passed over for a promotion to a division director position in 2014 in favor of a less qualified male candidate who was more than two decades her junior.

The panel said there is plenty of evidence for jurors to reasonably decide that the rationale offered by the DOJ for why it passed Stoe over for promotion — that the person who beat her out was the better candidate — merely masked the department's true discriminatory motive.

"Given the caliber and quantity of the evidence offered by Stoe in opposition to the motion for summary judgment, we have no doubt that a reasonable jury could find that DOJ's proffered nondiscriminatory reason for denying Stoe the promotion that she sought was pretextual and that discrimination was the real reason," the panel said. "The matters at issue in this case must be decided by a jury."

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In 2010, Stoe unsuccessfully applied for a job as division director only for the job to go to a man purportedly because she didn't have enough formal supervisory experience, according to the ruling. After several years of performing work above her pay grade and "exemplary" performance, she again applied for a promotion in 2014 when the person who edged her out the first time around retired, the ruling said. But Stoe was again passed over, this time in favor of Mark Greene, a man who had previously worked under her supervision, according to her August 2016 lawsuit, which alleged violation of Title VII of the Civil Rights Act and the Age Discrimination in Employment Act.

Following the DOJ's decision, Stoe had most of her responsibilities taken away and she has since retired from the agency, according to her lawyer. 

In Friday's ruling, the D.C. Circuit said the record "surely supports" Stoe's contention that she was more qualified for the job than Greene and that jurors could conceivably side with her because of her "superior qualifications" as well as evidence of gender bias and pretext.

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The panel also said Stoe offered up viable evidence that Tillery "provided shifting and false rationales" to explain why Greene got tapped for the job over Stoe.

"According to Stoe, viewing this evidence in the light most favorable to her, and drawing all reasonable inferences in her favor, a reasonable jury could find that DOJ's proffered nondiscriminatory reason for denying her the promotion that she sought was pretextual and that discrimination was the real reason," the panel said. "We agree."

Plaintiff's counsel Susan E. Huhta of Outten & Golden LLP said the ruling "is an important decision that will help advance the rights of other victims of discrimination."

"We are one step closer to achieving justice for our client and look forward to a trial on the merits," Huhta said. 

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U.S. Circuit Judges David S. Tatel, Cornelia T.L. Pillard and Harry T. Edwards sat on the panel for the D.C. Circuit.

Stoe is represented by Susan E. Huhta, Cassandra W. Lenning and Mikael A. Rojas of Outten & Golden LLP.

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The case is Debra Stoe v. William Barr et al., case number 18-5315, in the U.S. Court of Appeals for the District of Columbia Circuit.