Joanne S. Birge v. Kenneth S. Apfel, Commissioner, Social Security Administration, in His Official Capacity
Docket: 97-2158
Court: Court of Appeals for the Tenth Circuit; April 1, 1998; Federal Appellate Court
Unpublished opinions may now be cited if they have persuasive value on a material issue, provided a copy is attached or shared with the court and parties, as per the General Order of November 29, 1993. In the case of Joanne S. Birge v. Kenneth S. Apfel, the Tenth Circuit Court of Appeals reviewed the district court's summary judgment favoring the Social Security Administration in a Title VII gender discrimination claim. Birge claimed she was not hired as an administrative law judge (ALJ) while less qualified male candidates were selected.
The ALJ hiring process involves applicants submitting applications to the Office of Personnel Management (OPM), which evaluates candidates and assigns numerical ratings. Eligible candidates are then ranked and presented to the Social Security Administration’s Office of Hearings and Appeals (OHA) for interviews, after which the appointing officer selects from the top three candidates, giving preference to qualified veterans.
Birge, a New Mexico state court judge, applied for an ALJ position in 1993, scoring 93.8 and being interviewed by OHA staff, including the individual responsible for hiring recommendations. Despite being listed on multiple certificates and considered three times, she was never selected for a position. Notably, male candidates with lower scores than hers were chosen on several occasions, as well as some female candidates with lower scores.
Ms. Birge was interviewed by the Office of Hearings and Appeals (OHA) for an Administrative Law Judge (ALJ) position. Before final hiring decisions were made, two ALJs from OHA's Albuquerque office forwarded news articles about Ms. Birge's conduct as a state court judge to Mr. Anglada. The first article reported a local district attorney's concerns over potential conflicts of interest due to Ms. Birge's husband being an attorney in the public defender's office. The second article highlighted Ms. Birge's last-minute recusal from forty criminal cases, which the district attorney suggested was retaliatory and could jeopardize cases due to speedy trial deadlines. Mr. Anglada decided against hiring Ms. Birge based on these articles, questioning her judicial temperament.
In analyzing Ms. Birge’s claim of disparate treatment under Title VII, she must demonstrate that she was treated differently than similarly situated nonminority applicants. To survive summary judgment, she needs to provide evidence of intentional discrimination based on gender. Utilizing the McDonnell Douglas burden-shifting framework, Ms. Birge established a prima facie case by showing her membership in a protected class, her qualifications for the ALJ position, her rejection despite those qualifications, and that the position was filled by a male. This shifted the burden to the Commissioner to provide a legitimate, nondiscriminatory reason for the decision. If the Commissioner meets this burden, Ms. Birge must then prove that the reasons given were not the true motives behind the employment decision, either by demonstrating that discrimination was more likely the motivation or by undermining the credibility of the employer's explanation.
The Commissioner provided a legitimate, nondiscretionary reason for not hiring Ms. Birge, citing concerns raised by newspaper articles about her potential conflict of interest and her last-minute blanket recusal. Ms. Birge disputed this explanation, arguing that it stemmed from Mr. Anglada's subjective opinion regarding her judicial temperament and that the Commissioner relied on unverified media reports, which she claimed undermined the objectivity of the federal merit selection process. She contended that the Commissioner failed to conduct an adequate investigation, rendering the explanation irrational and not a valid business reason. However, the court referenced Panis v. Mission Hills Bank, emphasizing that an employer only needs to provide a reason that is not explicitly prohibited by Title VII and is not required to substantiate the reason with objective evidence. The court clarified that the involvement of subjective criteria in an employer's reasoning does not negate its sufficiency in countering claims of discrimination. Ms. Birge also argued that the Commissioner’s actions were illegal due to procedural irregularities in selecting candidates with lower scores than hers and a violation of the Privacy Act for failing to verify the newspaper allegations. The court found these arguments unpersuasive.
Ms. Birge has not provided evidence to demonstrate that the Commissioner's selection process was illegal or irregular, as the merit selection provisions allow the appointing authority to choose from the top three eligible candidates based solely on merit and fitness (5 U.S.C. 3318(a); 5 C.F.R. 332.404). The Commissioner’s rationale for selecting another candidate is grounded in merit. Ms. Birge has also failed to cite any legal authority to support her claim that this rationale violates the Privacy Act. Even if the justification were unlawful under a statute other than Title VII, the Commissioner met the burden of production under McDonnell Douglas by dispelling any inference of discriminatory intent (Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1434 (10th Cir. 1993)). The district court concluded that the Commissioner provided a legitimate, nondiscriminatory reason for not hiring Ms. Birge.
Regarding pretext, Ms. Birge has not offered sufficient evidence to challenge the credibility of the Commissioner's explanation. Pretext can be established by demonstrating contradictions or weaknesses in the employer's reasons, which could lead a reasonable factfinder to doubt the non-discriminatory rationale (Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). In disparate treatment cases, evidence must show that similarly situated non-minority employees were treated differently (Elmore, 58 F.3d at 530; Aramburu, 112 F.3d at 1403-06). Ms. Birge did not demonstrate that she was held to a unique standard compared to male candidates (Cole v. Ruidoso Mun. Sch., 43 F.3d 1373, 1381 n. 6). She argued that the Commissioner's reliance on newspaper articles was unreasonable due to a lack of investigation and an opportunity for her to respond; however, she did not show that her treatment differed from male applicants. Testimony indicated that unsolicited information about male applicants was also received without giving them a chance to explain, and attempts were made to verify the claims in the articles about Ms. Birge without success. The failure to adhere to internal procedures does not imply discriminatory intent or suggest that the reasons provided were pretextual (Randle, 69 F.3d at 454 n. 20).
An employer does not violate Title VII when selecting between equally qualified candidates, provided the choice isn't based on unlawful criteria. Ms. Birge failed to demonstrate she was significantly more qualified than other candidates for ALJ positions. Testimony indicated no negative information regarding the selected candidates compared to Ms. Birge’s application. Courts do not assess an employer's business judgment, and simply asserting that Ms. Birge was equally or more qualified does not establish pretext. The burden remains on the plaintiff to prove intentional discrimination, even after establishing a prima facie case. Merely speculating that an employer's rationale is a pretext for discrimination is inadequate for denying summary judgment. Ms. Birge did not provide direct or indirect evidence to challenge the Commissioner's motives. Consequently, the judgment of the District Court is affirmed, and Kenneth S. Apfel replaces Shirley Chater as the defendant. This ruling is not a binding precedent except under specific legal doctrines, and citation is generally disfavored but permissible under certain conditions.
