Evelyn Primas v. DC, et al

Filing

OPINION filed [1442508] (Pages: 10) for the Court by Judge Tatel [12-7078]

USCA Case #12-7078

Document #1442508

Filed: 06/21/2013

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 11, 2013

Decided June 21, 2013
No. 12-7078

EVELYN PRIMAS,
APPELLANT
v.
DISTRICT OF COLUMBIA AND CATHY L. LANIER, CHIEF OF
POLICE, IN BOTH HER OFFICIAL AND INDIVIDUAL CAPACITIES,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-02317)

Leslie Deak argued the cause for appellant. With her on
the briefs was Ted J. Williams.
Stacy L. Anderson, Assistant Attorney General, Office of
the Attorney General for the District of Columbia, argued the
cause for appellees. With her on the brief were Irvin B.
Nathan, Attorney General, Todd S. Kim, Solicitor General,
and Donna M. Murasky, Deputy Solicitor General.
Before: TATEL and KAVANAUGH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.

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TATEL, Circuit Judge: Evelyn Primas, an AfricanAmerican woman, served for years as a Commander in the
District of Columbia’s Metropolitan Police Department
(“MPD”). But soon after taking office, Chief of Police Cathy
Lanier, allegedly in connection with a Department-wide
reorganization, informed Primas that, though her
responsibilities would remain the same, she would be
demoted two ranks. When Primas opted to retire instead of
accepting the demotion, Lanier hired a white man to serve in
Primas’s position at one rank higher than the rank Lanier had
offered Primas. Primas then sued the District of Columbia and
Chief Lanier, charging them with race and sex discrimination.
The district court granted summary judgment in Defendants’
favor. On appeal, Primas challenges that decision, as well as
the district court’s denial of her motion to unseal certain
records designated “confidential” during discovery. Because
Primas produced sufficient evidence of race and sex
discrimination to get to a jury and because the district court
failed to state its reasons for keeping the records sealed, we
reverse and remand for further proceedings.
I.
Appellant Evelyn Primas joined the Metropolitan Police
Department in 1978 and, after working her way up through the
ranks, was appointed to serve as Director of the Court Liaison
Division at the rank of Commander. In that position, she was
responsible for overseeing interactions between the MPD and
the courts, the U.S. Marshals, and the U.S. Attorney’s Office.
Primas’s case traces its roots to September of 2007, when
newly appointed Chief of Police Cathy Lanier, a white woman,
undertook a major reorganization of the MPD. Seeking to
“streamline[ ] the [Department] to better serve the District,”
Lanier overhauled the MPD’s organizational structure and, after

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reviewing the resumes of all high-ranking officials and
conducting several interviews, made numerous personnel
changes. Some officials were demoted, others were transferred,
and a few received promotions. Neither Primas’s division nor
her position emerged from the reorganization unscathed: Lanier
decided to relocate the Court Liaison Division into a new
bureau and to reduce the rank of Primas’s Director position.
According to Lanier, the rank of Commander was no longer
appropriate “given the size of the Court Liaison Division and
the responsibilities thereunder.”
On September 13, 2007, Lanier called Primas into a
meeting and informed her that her position was to be
downgraded two ranks—from Commander to Captain. Primas,
who intended to spend another two years at the MPD, maintains
that Lanier also asked her how long she planned to stay on with
the Department, advising her to speak with her family about
whether she was ready to retire. Lanier gave Primas a week to
decide: stay on as Director of the Court Liaison Division at the
lower rank of Captain or retire early. Five days later, on
September 18, Primas informed Lanier that she had decided to
retire effective September 29 because she could not afford the
reduction in salary and pension benefits that would accompany
the change in rank and because she believed explaining the
change to judges, court personnel, and attorneys who addressed
her as “Commander” would be humiliating.
Just a few days later, on September 21 or 22, Lanier
selected Captain Marcus Westover, a slightly younger white
man, to fill the position Primas was leaving vacant. Critically
for our purposes, however, Lanier offered Westover the
position at the rank of Inspector—one rank higher than the
Captain rank that she had offered Primas. Lanier testified that
she chose Westover, the most senior MPD Captain, because she
believed him to be the most qualified candidate for the job. In

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particular, Lanier pointed to Westover’s experience in
reforming practices regarding “papering”—the process of
presenting a case to a prosecuting attorney for a charging
decision. As for why she offered him the position at the rank of
Inspector, Lanier explained that she had realized “at the last
minute” that the Director of the Court Liaison Division needed
the authority that accompanies the higher rank to deal
effectively with judges, attorneys, and agencies who might be
reluctant to go along with reforms.
On September 25, having learned of Westover’s selection
at a higher rank, Primas delivered a letter to Chief Lanier
claiming that she had been unlawfully discriminated against and
was retiring under duress. Although Lanier maintains that she
was taken aback at the accusation, she nonetheless declined to
offer Primas her old position at the rank of Inspector because
she had already given it to Westover and thought him the best
person to implement papering reforms. Instead, Lanier directed
one of her Assistant Chiefs to offer Primas a different
Inspector-level position—as commanding officer of the Sixth
District substation. Primas emphasizes, however, that the Sixth
District position was not vacant at the time the offer was made.
In any event, Primas declined to accept it on the ground that the
proffered position amounted to an unjustified one-level
demotion in rank from her old Commander position.
Primas filed a timely complaint of discrimination with the
EEOC and then filed suit in the United States District Court for
the District of Columbia. She claims that the District and Lanier
discriminated against her based on her race, sex, and age, in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e et. seq., the Age Discrimination in Employment Act
of 1967, 29 U.S.C. §§ 621 et seq., and the D.C. Human Rights
Act, D.C. Code §§ 2-1401.01 et seq. After the district court
dismissed various parts of her complaint, see Primas v. District

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of Columbia, 718 F. Supp. 2d 59, 61–62 (D.D.C. 2010), the
remainder of the case proceeded to discovery.
The parties stipulated to a protective order governing
disclosures made during discovery. Information a party
designated as “confidential” would be filed under seal and
disclosed only to counsel, experts, and court personnel; a party
could challenge a “confidential” designation by filing a motion
with the court. Because portions of Chief Lanier’s deposition
and some of the District’s answers to Primas’s interrogatories
contain information about the race, gender, and age of MPD
officers not parties to this suit, the District designated them
“confidential.” Primas filed a motion contesting these
“confidential” designations, but the district court denied it
without explanation.
After discovery, the District filed a motion for summary
judgment on Primas’s remaining claims, and the district court
granted that motion in full. See Primas v. District of Columbia,
878 F. Supp. 2d 1, 4–8 (D.D.C. 2012). As to Primas’s sex and
race discrimination claims, the court concluded that she had
failed to rebut MPD’s legitimate, non-discriminatory
explanation for her reduction in rank: the reorganization of the
Department’s command structure. See id. at 4–7. The court also
found that Primas had effectively conceded her age
discrimination claim. See id. at 7–8.
On appeal, Primas presses only her sex and race
discrimination claims and also challenges the court’s denial of
her motion to unseal records. We first tackle the summary
judgment question and then turn to the records issue.
II.
We review the district court’s grant of summary
judgment de novo, viewing the evidence in the light most

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favorable to Primas, the non-moving party, and drawing all
reasonable inferences in her favor. See Jones v. Bernanke, 557
F.3d 670, 674 (D.C. Cir. 2009). We may affirm only if we
conclude that no reasonable jury could reach a verdict in
Primas’s favor. Id.
In Brady v. Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008), this Circuit laid out a simple form of inquiry for
discrimination cases of this sort: “In a Title VII disparatetreatment suit where an employee has suffered an adverse
employment action and an employer has asserted a legitimate,
non-discriminatory reason for the decision, . . . the district court
must resolve one central question: Has the employee produced
sufficient evidence for a reasonable jury to find that the
employer's asserted non-discriminatory reason was not the
actual reason and that the employer intentionally discriminated
against the employee on the basis of race, color, religion, sex, or
national origin?” Id. Brady’s application here is straightforward.
Although there was initially some question about the adverse
action element—in particular, about whether Primas needed to
show constructive discharge—the District now concedes that
Primas suffered an adverse employment action when her
position was reduced in rank and pay. And for her part, Primas
concedes that the reorganization of MPD to reduce hierarchy
constitutes a legitimate, non-discriminatory explanation for that
action. Accordingly, the “central question”—whether Primas
produced evidence sufficient for a jury to find that the
reorganization was mere pretext for sex or race
discrimination—is all that remains.
Without overt evidence of discriminatory intent, Primas’s
case turns on her attempts to show “that the defendant’s
explanation is unworthy of credence” and that a jury could
“reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory purpose.”

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Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
147 (2000); see also Czekalski v. Peters, 475 F.3d 360, 366
(D.C. Cir. 2007) (“[O]ne way for a plaintiff to show that an
adverse employment decision was made for a discriminatory
reason is to ‘show[ ] that the nondiscriminatory explanation the
defendant proffered for its decision was false.’ ” (quoting
Lathram v. Snow, 336 F.3d 1085, 1089 (D.C. Cir. 2003))
(alteration in original). Although record evidence demonstrates
that Lanier did in fact implement a large-scale reorganization of
MPD at the time Primas’s rank was reduced, Primas makes
numerous arguments in an effort to show that this very real
reorganization was not the actual reason for her demotion.
Some of these—like her allegations that Lanier’s subsequent
offer of an Inspector position was a “sham offer” indicative of
discriminatory intent, that the selection process for filling
positions following the reorganization was so irregular as to
suggest discrimination, and that members of her protected
classes were treated worse during the reorganization as a
general matter—are unpersuasive. Others hit closer to their
marks. But at its core, Primas’s best case is this: Lanier offered
the Director position to Primas, an African-American woman,
at the rank of Captain; then just a few days later, after Primas
retired, Lanier offered the same position to Westover, a white
man, at the higher rank of Inspector.
Viewing this evidence in the light most favorable to
Primas, see Jones, 557 F.3d at 674, we believe a reasonable jury
could conclude that Lanier was obscuring her true reason for
offering Westover the same position at a higher rank than she
had offered Primas. Lanier’s only explanation is that she
realized “at the last minute” that a higher rank would lend the
Director the authority necessary to carry out her responsibilities,
and a jury could well find that the timing of that alleged
realization—during those few days between Primas’s rejecting
the position and Lanier’s offering it to Westover—was

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suspicious. Especially given Lanier’s testimony that Primas had
been facing resistance even as a Commander, a jury hearing
Lanier’s testimony could reasonably infer that Lanier knew
from the start that the Captain rank would be inappropriate for
the Director position. And given Lanier’s quick selection of a
white man to replace Primas, the jury could go on to infer that
race or sex discrimination motivated her actions. See Reeves,
530 U.S. at 147.
True, Lanier never actually removed Primas from the
Director position. Instead, Lanier initially offered Primas the
opportunity to stay on, albeit as a Captain. But especially
because that two-level demotion would significantly affect
Primas’s pension benefits, Lanier could well have expected that
Primas would reject the offer, thus freeing Lanier to give the
position to a white man at the Inspector rank. It is also true that
Lanier offered Primas a different Inspector-level position after
Primas accused her of discrimination. But that offer fails to
demonstrate that Lanier’s decision to offer Primas the Director
position at a lower rank than she offered it to Westover—the
action challenged here—was not motivated by discriminatory
intent.
All that said, a jury could reasonably view the evidence
differently and conclude that Lanier is telling the truth or, even
if not, that she had some other non-discriminatory reason for
her actions. The point, however, is that this case hinges on the
answer to a question that itself hinges on credibility
determinations more appropriately made from a jury’s box than
a judge’s bench: Is Lanier telling the truth when she says that
she gave Westover the Inspector rank only because she
belatedly realized that the Court Liaison Director would need
the authority that goes with that rank? Or did Lanier instead
plan to force Primas out of the Director position by offering it
to her at a lower rank, freeing Lanier to give the position to a

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white man at a higher rank? Because the record permits either
inference, it is the jury’s job—not ours—to choose between
them. See Washington Gas-Light Co. v. Lansden, 172 U.S. 534,
545 (1899) (“If different inferences might fairly be drawn from
the evidence by reasonable men, then the jury should be
permitted to choose for themselves.”); Metrocare v. Washington
Metropolitan Area Transit Authority, 679 F.2d 922, 925 (D.C.
Cir. 1982) (“It is the essence of the jury’s function to select,
from among conflicting inferences and conclusions, that which
it finds most reasonable.”). Accordingly, we shall reverse the
district court’s grant of summary judgment and remand
Primas’s sex and race discrimination claims for trial.
III.
“[T]he starting point in considering a motion to seal court
records is a ‘strong presumption in favor of public access to
judicial proceedings.’ ” EEOC v. National Children’s Center,
Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996) (quoting Johnson v.
Greater Southeast Community Hospital Corp., 951 F.2d 1268,
1277 (D.C. Cir. 1991)). In United States v. Hubbard, 650 F.2d
293 (D.C. Cir. 1980), we identified six factors “that might act to
overcome this presumption”:
(1) the need for public access to the documents at
issue; (2) the extent of previous public access to the
documents; (3) the fact that someone has objected
to disclosure, and the identity of that person; (4) the
strength of any property and privacy interests
asserted; (5) the possibility of prejudice to those
opposing disclosure; and (6) the purposes for which
the documents were introduced during the judicial
proceedings.

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National Children’s Center, 98 F.3d at 1409 (citing Hubbard,
650 F.2d at 317–22). We review a district court’s application of
these factors only for abuse of discretion. See id.
But here we have nothing to review because the district
court gave no reasons at all for denying Primas’s motion to
unseal. “[I]t is imperative that a district court articulate its
reasons for electing to seal or not to seal a record,” id. at 1410,
and, as the parties now agree, see Appellees’ Br. 48–51;
Appellant’s Reply Br. 33–35, the district court’s failure to
explain itself leaves us “unable to review the . . . exercise of its
discretion.” National Children’s Center, 98 F.3d at 1410.
Accordingly, we shall remand for the district court to apply the
Hubbard factors in the first instance.
IV.
For the foregoing reasons, we reverse the district court’s
grant of summary judgment on Primas’s race and sex
discrimination claims and remand for further proceedings
consistent with this opinion.
So ordered.

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