                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-15-2009

Gloria J. Walters v. Gale Norton
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2746




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                                                            NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                     No. 08-2746


                                GLORIA J. WALTERS,
                                              Appellant

                                          v.

         GALE NORTON, Secretary of the Interior, United States of America


       APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS,
                  DIVISION OF ST. THOMAS/ST. JOHN
                        (D.C. Civil No. 04-cv-00009)
                 District Judge: Honorable Juan R. Sanchez


                                Argued: April 21, 2009


             Before: BARRY, HARDIMAN, and COWEN, Circuit Judges

                            (Opinion Filed: May 15, 2009)




Karin A. Bentz, Esq. (Argued)
Law Offices of Karin A. Bentz
18 Dronningens Gade
Suite 8
St. Thomas, VI 00802

Counsel for Appellant
Timothy J. Abraham, Esq. (Argued)
Office of the United States Attorney
United States Courthouse
5500 Veterans Building, Suite 260
Charlotte Amalie, St. Thomas
USVI, 00802-6924

Counsel for Appellee




                                         OPINION




BARRY, Circuit Judge

       Gloria Walters is a General Service (GS) 13 auditor with the Department of the

Interior, Office of the Inspector General (OIG), in St. Thomas, Virgin Islands. Walters

and Hannibal “Mike” Ware, likewise a GS-13 auditor, applied for an open GS-14 senior

auditor position in March 2002. The OIG selected Ware, a black male born in the Virgin

Islands who was thirty-three years of age at the time. Walters, a black female who was

born in the Caribbean nation of St. Kitts and Nevis (and who has since become a

naturalized United States citizen) was fifty-seven years old when Ware was selected. She

subsequently filed this action against the Secretary of the Interior, alleging that the OIG

discriminated against her on the basis of age, sex, and national origin. The OIG

countered that it selected Ware because he had stronger interpersonal skills and lacked

Walters’s history of intra-office personal disputes. It further stated that Ware possessed

slightly better technical auditing and writing skills. The District Court granted summary

                                            -2-
judgment in favor of the OIG, concluding that a reasonable jury could not find the OIG’s

explanation a pretext for illegal discrimination. We will affirm.

                                I. Facts & Background

                                A. Employment History

       Walters began working in the OIG’s Caribbean Field Office in 1986 at the age of

forty, as a GS-4 student intern. Ware had a similar beginning, albeit four years later,

when he started in 1990 as a GS-5 trainee. At all times after January 1991, Walters and

Ware worked under the direction of Arnold van Beverhoudt, Jr., who was a GS-15 field

office supervisor – the highest ranking employee in the Caribbean office.

       Walters steadily climbed the auditing ladder, receiving yearly promotions until she

reached GS-12 status in 1991. Ware followed the same path, attaining GS-12 status in

1994. Both were promoted to the GS-12 level by van Beverhoudt. Typically, GS-12

auditors work on audits that are directed by more senior office personnel, although in

some instances GS-12 auditors are permitted to be “auditors-in-charge” (Appendix at

567); in those instances, they plan and manage the audits. Walters worked at the GS-12

level for five years and four months – from February 1991 until she was promoted, again

by van Beverhoudt, to GS-13 in June 1996. Ware spent a bit longer at the GS-12 level –

just a few days less than six years – until he was promoted, on July 30, 2000, to GS-13.

The central role of GS-13 auditors is that of “auditor-in-charge,” as they are responsible

for overseeing individual OIG audits.



                                            -3-
       Walters and Ware were effective auditors at both the GS-12 and GS-13 levels.

Walters’s performance reviews – conducted by van Beverhoudt, and Stacey Chados, a

GS-14 auditor until she left the office in June 2001 – described the “good quality” of her

work, and noted that she “demonstrated technical competence in areas of assigned

responsibility.” (Id. at 91, 97.) Additionally, as auditor-in-charge, she “assigned [work]

fairly” and “effectively supervised” the staff. (Id. at 91, 95.)

       Ware’s work likewise received positive reviews. Van Beverhoudt and Chados

reported that he “effectively gathered, [] documented” and “analyzed” data (id. at 222),

and that his written work was “clear, concise and well organized,” requiring no more than

“minor revision” by his supervisors. (Id. at 145.) Ware’s reviews plainly contained

praise that Walters’s did not; Chados, for example, reported that Ware “continues to excel

in the area of oral communication,” and further stressed that he had “excellent

communication skills.” (Id. at 143.) Chados also stated that “Ware continues to conduct

himself in a highly professional manner.” (Id. at 142.) (emphasis added).

       Such comments about professionalism were absent from Walters’s reviews that

were conducted during the same time period. Instead, in her 1999-2000 review, Chados

commented that Walters “at times has shown a lack of respect for management of the

Caribbean Regional Office.” (Id. at 95.) Chados described editing one of Walters’s audit

reports and noted that Walters was “not receptive to the suggested changes made by the

Senior Auditor,” and “refused to proofread the draft prior to issuing the report.” (Id.)



                                             -4-
Although Walters denies that she refused to proofread the report, she admits that Chados

(her supervisor) had to “completely re-writ[e]” it. (Id. at 97.) As auditor-in-charge of a

different audit, Walters expressed frustration that a junior auditor did not have her own

transportation, and falsely instructed her that an automobile was part of the job

requirement.

       Walters’s supervisors were concerned that because she was an experienced

auditor, her “actions [were] impressionable to the other staff members.” (Id. at 95.) 1 She

had little use for the office’s administrative procedures, which required “[a]ll employees

working at field sites [to] inform the Administrative Assistant on a daily basis of the

location where they will be working and a phone number where they can be reached,” and

to give “an estimate of the length of time they will be” out of the office. (Id. at 414-15.)

Instead of estimating her return, Walters routinely put a question mark on the office log,

which caused friction with the administrative assistant, Sheri Meyers, who was

responsible for overseeing the log. On one occasion, in late April 2000, that friction

boiled over. Meyers instructed Walters to properly fill out the office log and Walters

refused. Walters later called the office to inform Meyers that she would not be back, and

derisively referred to her as the “boss.” (Id. at 300.) She further instructed Meyers that



   1
     Van Beverhoudt, in an email to his supervisor in Washington, D.C. – Roger
LaRouche, Assistant Inspector General for Audits – dated July 12, 2000, described
Walters’s behavior in direct language. He wrote that Walters “appears to be the ‘ring
leader’ [of a small clique in the office] who stirs up [trouble] and then sits back to watch
the fireworks.” (Id. at 403.)

                                            -5-
she outranked her and could handle her own administrative affairs.

       The following morning, Walters and Meyers engaged in a heated argument. The

argument was long enough, and loud enough, that Chados heard it from down the hall and

went to break it up. It also had substantial repercussions. Upon his return to the office,

van Beverhoudt convened an all-office meeting on May 18, 2000 to discuss “employee

conduct issues.” (Id. at 433, 437-40.) At that meeting he described the “unruly”

encounter between Walters and Meyers as “unacceptable,” and stated that the tension

between the two affected the entire office. (Id. at 437.) He further noted that experienced

employees “should be setting an example for the younger staff,” and stated clearly: “If

Sheri tells you that you need to indicate on the sign-out [log] the estimated time when

you’ll be back . . . Do It!” (Id. at 438-39). A description of the argument was also

featured prominently in van Beverhoudt’s July 12, 2000 email to his supervisor,

LaRouche, who read the email and scheduled “a trip to the Virgin Islands to see what the

hell was going on.” (Id. at 485.) When LaRouche arrived, he too convened an all-office

meeting to send the message that the Caribbean office is “small” and “we don’t need

these headaches from such a small office that has a future that could be in jeopardy. It’d

be easier just to close the office, frankly.” (Id. at 485).

       Thereafter, the office disputes continued to simmer below the surface, but “things

did improve.” (Id. at 488.) The record indicates that at all times before and after the

incident, Ware maintained a good working relationship with all members of the staff.



                                              -6-
                                     B. GS-14 Vacancy

          On March 19, 2002, the OIG announced a GS-14 senior auditor vacancy, a role

that includes “planning, directing, and guiding audit teams . . . or serving as a full-time

team leader on assignments of extreme complexity,” and generally managing the work of

all audit teams. (Id. at 176.) Applicants were required to have a “degree in accounting,”

and at least “one year of specialized experience” at the GS-13 level. (Id. at 177.)

          Ware and Walters were the only two qualified candidates to apply, and they were

to be evaluated on their “experience, education, training, self-development, and

performance appraisals as they related” to the “knowledge skills and abilities” (KSAs)

required for the position. (Id. at 177.) The GS-14 position was of particular importance

because van Beverhoudt planned to retire in the near future (as he did, in April 2006).

Given the small size of the Caribbean Field Office, van Beverhoudt’s GS-15 position

would be phased out, and the person selected as GS-14 would be the next head of the

office.

          Van Beverhoudt recommended Ware for the promotion, and, though his superiors

in Washington – including LaRouche – had the ability to override his recommendation,

they did not do so. He notified Walters of his decision on April 19, 2002, informing her

that he had chosen Ware “[b]ecause he gets along with more people on the staff” and his

work was “more complete.” (Id. at 87; 572-73.) He further stated that “Mike [Ware] will

be better for the office in the long run.” (Id.)



                                             -7-
                                 C. Procedural History

       On July 15, 2002, Walters filed a timely formal discrimination complaint with the

Department of the Interior Office for Equal Opportunity (OEO), alleging discrimination

based on sex and age. She later amended her complaint to also allege discrimination on

the basis of national origin.

       In an affidavit filed in the OEO’s investigation, van Beverhoudt outlined the

reasons for his decision. He stated that he viewed the candidates as “almost equal” on the

first KSA, but noted that Ware had a slight edge because his audit reports demonstrated

better analysis. (Id. at 118.) Regarding the second KSA, he found Ware to be “clearly

the better candidate in the areas of supervision and management.” (Id. at 119.) On the

third KSA – which focused on communication skills – Ware “was clearly superior.” (Id.

at 120.) The fourth KSA demanded “skill in writing . . . and editing,” and van

Beverhoudt noted that the two had similar skills, though Ware’s written products were

more “‘polished’ than those prepared by [] Walters.” (Id. at 121.) On the fifth KSA, van

Beverhoudt noted that Ware had volunteered to work as the computer network

administrator, and had “earned the respect of information technology specialists” for

doing so; that, van Beverhoudt reasoned, reflected well on his ability to “plan and direct

special projects.” (Id. at 122.) In sum, van Beverhoudt stated that “the two candidates

were fairly evenly matched in terms of the technical elements of the job, with a slight

edge to [] Ware.” (Id.) Given the managerial nature of the GS-14 role, van Beverhoudt



                                            -8-
placed “predominant emphasis on the interpersonal skills of the two candidates,” and felt

that Ware was “clearly superior” in that regard. (Id.)

       The OEO denied Walters’s discrimination complaint on January 16, 2004, finding

that Walters provided no evidence to support her allegations and that “no corrective

action [was] warranted.” (Id. at 360.) Walters subsequently filed this action, alleging that

van Beverhoudt’s employment decision was based on gender and national origin, in

violation of Title VII, and on age, in violation of the Age Discrimination in Employment

Act (ADEA).

       The District Court granted summary judgment in favor of the OIG, holding: that

Walters had established a prima facie case of discrimination; that the OIG, in turn,

articulated a legitimate nondiscriminatory reason for the adverse employment decision;

and that Walters’s proffered evidence failed to cast a substantial doubt on the OIG’s

articulated reasons.

                         II. Jurisdiction & Standard of Review

       We have jurisdiction over the final order of the District Court, pursuant to 28

U.S.C. § 1291, and “[o]ur standard of review of a grant of summary judgment is plenary.”

Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 557-58 (3d Cir. 2008). In

conducting our review, we must view the underlying facts and all reasonable inferences

therefrom in the light most favorable to the party opposing the motion. Fasold v. Justice,

409 F.3d 178, 180 (3d Cir. 2005).



                                            -9-
                                      III. Discussion

       We utilize the burden-shifting analysis set out in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), when assessing Title VII and ADEA discrimination claims

brought under a pretext theory. Keller v. Oriz Credit Alliance, Inc. 130 F.3d 1101, 1108

(3d Cir. 1997) (en banc) (Alito, J.); see Kautz v. Met-Pro Corp., 412 F.3d 463, 465 (3d

Cir. 2005); cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000)

(assuming without deciding that the McDonnell Douglas framework applies to ADEA

actions). “Under the McDonnell Douglas paradigm, an employee must first establish a

prima facie case of discrimination, after which the burden shifts to the employer to

articulate a legitimate, nondiscriminatory reason for its adverse employment decision.”

Fasold, 409 F.3d at 184. The presumption of discrimination established by the plaintiff’s

prima facie case “‘drops out of the picture’ once the defendant meets its burden of

production.” Reeves, 530 U.S. at 143 (quoting St. Mary’s Honor Center v. Hicks, 509

U.S. 502, 506 (1993)).

       The plaintiff, then, “must be afforded the ‘opportunity to prove by a preponderance

of the evidence that the legitimate reasons offered by the defendant were not its true

reasons, but were a pretext for discrimination.’” Reeves, 530 U.S. at 143 (quoting Texas

Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). To survive a motion for

summary judgement, “the plaintiff generally must submit evidence which: (1) casts

sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a



                                           -10-
factfinder could reasonably conclude that each reason was a fabrication; or (2) allows the

factfinder to infer that discrimination was more likely than not a motivating or

determinative cause of the adverse employment action.” Fuentes v. Perskie, 32 F.3d 759,

762 (3d Cir. 1994); see Fasold, 409 F.3d at 185; Keller, 130 F.3d at 1108. The Fuentes

standard “places a difficult burden on the plaintiff.” 32 F.3d at 765.

       The District Court’s conclusion that Walters established a prima facie case is not

disputed before us by the OIG. The sole issue of contention, therefore, is whether

Walters raised a material issue of fact as to whether the OIG’s proffered non-

discriminatory reasons for promoting Ware were a pretext for discrimination. See Kautz,

412 F.3d at 467. “Determining pretext is a fact-based inquiry. We must, therefore, look

carefully” at each of the proffered reasons, as well as Walters’s “claim of pretext

regarding each of these reasons.” Id. at 468.

       Walters attempts to cast doubt upon van Beverhoudt’s justification for promoting

Ware by contending first that van Beverhoudt purposefully understated her experience

(and overstated Ware’s) to legitimize his emphasis on interpersonal skills; and second that

because the KSAs that set forth the job requirements for a GS-14 senior auditor did not

list interpersonal skills, van Beverhoudt’s reliance on that factor is a post-hoc fabrication.

       There is little question that Walters was the more experienced candidate for the

position, and the OIG does not argue otherwise. When the GS-14 vacancy was

announced, Walters had worked as an auditor at the OIG for sixteen years, while Ware



                                            -11-
had only twelve years of experience. Additionally, Walters had been at the GS-13 level

for five years and nine months, compared with Ware’s one year and nine months. Walters

notes, accurately, that the previous two GS-13 auditors to be promoted to GS-14 were

both the most experienced GS-13 auditors at the time of their promotions. Yet, the GS-14

vacancy announcement stated, quite clearly, that experience was only one factor to be

considered. Moreover, the experience factor does not weigh as heavily in Walters’s favor

as she suggests. Walters and Ware had been auditor-in-charge for a comparable number

of audits, as Walters led approximately twelve audits and Ware led seven general audits

and eight watch and jewelry quota audits.2

       “We have applied the principles explained in Fuentes to require plaintiffs to

present evidence contradicting the core facts put forth by the employer as the legitimate

reason for its decision,” Kautz, 412 F.3d at 467, and here Walters falls short. Her

argument, essentially, is that her experience should have been the determinative factor,

and that it clearly was not. That does not, however, call into question the OIG’s

articulated reasons for choosing Ware – namely that his technical skills and written work

were “more polished,” and that his interpersonal skills were far more developed. Walters

admits that at least one of her reports as auditor-in-charge was “completely re-written” by



   2
     Walters tries to portray the watch and jewelry quota audits as simpler and less
difficult than audits of other government programs, but there is no evidence in the record
to that effect. Even assuming that the watch and jewelry quota audits were less complex,
and therefore should be afforded less weight, Ware’s experience at the time of the
promotion was substantial.

                                             -12-
her supervisor, and she has presented no evidence that Ware’s work product ever required

such substantial revisions. She admits to disregarding the office’s administrative

procedures, and likewise concedes that she and Meyers engaged in a disruptive argument

in late April 2000. Rather than casting doubt on whether the argument occurred, she

instead asserts that it was a natural result of van Beverhoudt’s “poor administrat[ive]”

habit of delegating too much authority to the administrative assistant. (Id. at 298, 190.)

The issue here is not, however, whether van Beverhoudt was an effective field office

supervisor, but instead whether he promoted Ware for discriminatory reasons. Walters

must “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions” in van Beverhoudt’s explanation for promoting Ware “that a reasonable

factfinder could rationally find them unworthy of credence,” Fuentes, 32 F.3d at 765, and

she has not done so.

       Walters further contends that van Beverhoudt’s emphasis on interpersonal skills

was a post hoc fabrication because such skills were not listed as KSA requirements. It is,

however, clear from the vacancy announcement that the ability to communicate is

essential to the role of a GS-14 auditor. The role includes “planning, directing, and

guiding audit teams,” and “participating in the development of detailed audit plans setting

forth the scope, objectives, staff assignment and time/cost budget.” (Id. at 176.)

Additionally, the second KSA calls for the applicant to have an “ability to plan, supervise

and manage multiple complex . . . audits,” which undoubtedly requires well-honed



                                           -13-
communication skills. (Id. at 177.) The third KSA is even more specific, requiring the

“ability to communicate and interact with management officials at all levels.” (Id.)

       Walters relies heavily on Jackson v. Gonzales, 496 F.3d 703 (D.C. Cir. 2007), as

support for her argument that because the KSAs did not specifically list “interpersonal

skills” as a qualification for the GS-14 position, their consideration was evidence of

pretext. Her reliance is curious, as Jackson supports precisely the opposite conclusion. In

response to the same argument made by Walters, the Jackson Court stated that reasonable

employers “do not normally limit their evaluation of applicants to a mechanistic check-off

of qualifications required by the written job description[,] [and] [o]bviously they will take

additional credentials into account, if those credentials would prove useful in performing

the job.” Id. at 709 (quotation marks and citations omitted). The Court further stated:

“[W]e are aware of no previous case from this or any other circuit suggesting that an

employee gets past summary judgment simply by showing that a factor in the hiring

decision was not expressly listed in the job description when the factor was encompassed

by the job description.” Id.; see also Kautz, 412 F.3d at 468 (“[a]n employer may not use

evaluating criteria which lacks any relationship at all to the performance of the employee

being evaluated because to do so would be inconsistent with and contradictory to the

employer’s stated purpose. Absent this type of violation of the Fuentes standard, we will

not second guess the method an employer uses to evaluate its employees”).

       Alternatively, Walters asserts that van Beverhoudt’s explanation of his choice of



                                           -14-
Ware – that he would be “better for the office in the long run,” (Id. at 87, 572-73) –

evinced a discriminatory motive. As the District Court noted, the record reflects that “‘in

the long run’ was van Beverhoudt’s phrase of choice when informing employees they

were not promoted.” (Id. at 11.) It also may have been an appropriate description of the

personnel decision, given that two years earlier Walters had been at the center of the

dispute that caused the Assistant Inspector General for Audits to travel from Washington,

D.C., to the Virgin Islands and threaten to close the Caribbean Field Office. In any event,

“we do not think that th[ose] words alone could reasonably be viewed as sufficient to

prove by a preponderance of the evidence that age was the determinative cause of”

Ware’s promotion. Keller, 130 F.3d at 1112; see id. (holding that employer’s comment

that “[i]f you are getting too old for the job, maybe you should hire one or two young

bankers,” without more, did not create a triable issue of fact in age discrimination claim).

       Finally, Walters contends that the Caribbean Field Office has a history of

discriminatory treatment strong enough to create an inference of pretext. Fuentes, 32

F.3d at 765 (plaintiff may clear summary judgment “by showing that the employer . . .

treated other, similarly situated persons not of [her] protected class more favorably, or

that the employer has discriminated against other members of [her] protected class or

other protected categories of persons”). She notes first that, since her career began in

1986, a male has always been head of the Caribbean Field Office, and that van

Beverhoudt selected Ware to continue that trend after his retirement. Her contention is



                                           -15-
undermined by the fact that the two most recent GS-14 promotions were females, and had

either woman stayed on at the office, she would have been the next supervisor. Walters

also stresses that nobody of British West Indian descent has been selected to supervise the

Caribbean Field Office. She has, however, failed to present any evidence that qualified

applicants of her national origin have applied for the position.

                                     IV. Conclusion

       As the District Court correctly noted, “Walters fails to discredit the [OIG]’s

reasons for denying her promotion[,] [and her] beliefs and allegations of discriminatory

animus, without more, do not meet the Fuentes pretext burden.” (Id. at 13.) Accordingly,

we will affirm its order of May 16, 2008 granting summary judgment in favor of the OIG.




                                           -16-
