In Evans v. Sebelius, the key litigated issue was whether the plaintiff showed that the defendant employer's proferred reasons for failing to promote her were pretextual in her claim for race discrimination under Title VII.

Vernard Evans, a 54-year old African American, worked at the Administration on Developmental Disabilities (ADD), a division of the Administration for Children and Families at the Department of Health and Human Services (HHS). In March 2001, despite a government-wide hiring freeze, the outgoing Commissioner of ADD recommended the creation of a new non-supervisory Lead Developmental Disabilities Specialist (LDDS) position. Evans and another African American were selected for two LDDS positions, but because of the hiring freeze neither was promoted.

Over the next few months, the hiring freeze was replaced with a series of hiring "controls," requiring approval for promotions to positions such as the LDDS positions. No official ever gave final authorization for the LDDS position and the record was unclear as to who, if anyone, affirmatively decided to cancel the position. Evans was never promoted and ultimately retired in April 2002.

Evans claimed HHS told her that her promotion would be pushed through after the hiring controls were removed. Her union representative was told the promotion did not occur because the LDDS position was officially canceled. In response to Evans' Freedom of Information Act request, HHS revealed that at least three white employees were promoted despite the hiring controls. One of those white employees, Faith McCormick, was detailed as an Executive Assistant to the Commissioner, a position that would have required approval under the hiring controls. Incoming Commissioner Patricia Morrissey hand-selected McCormick for the detail without undergoing a competitive-selection process or giving an opportunity for others to apply. After the detail ended, McCormick was permanently selected for the position following a competitive process.

Evans filed suit against HHS under Title VII and the ADEA, claiming HHS's failure to promote her to the LDDS position and Morrissey's selection of McCormick for the Executive Assistant detail were motivated by race and age discrimination. The district court granted summary judgment to the defendant on all claims, finding Evans failed to establish a prima facie case of discrimination regarding the LDDS position and that the denial of the Executive Assistant detail did not qualify as an adverse employment action. Evans appealed only her Title VII claims.

On May 17, 2013, the US Court of Appeals for the District of Columbia Circuit issued an opinion vacating in part and affirming in part the district court's decision. The DC Circuit held that Evans:

The DC Circuit found a jury could find HHS's proferred reasons for canceling the LDDS position were pretextual because evidence in the record showed HHS:

However, although Evans argued HHS gave similarly inconsistent explanations for why McCormick was selected for the Executive Assistant position, the DC Circuit upheld the district court's grant of summary judgment to HHS on that claim because the record showed Morrissey did not meet Evans until after she selected McCormick for the Executive Assistant detail. As such, there was no evidence of racial discrimination in her selection of McCormick over Evans.

The DC Circuit's decision Evans v. Sebelius highlights the importance of employers being consistent in their communications and decisions about employment actions such as creating, filling and eliminating jobs. Conflicting and inaccurate communications about employment decisions often create factual questions that will foreclose summary judgment of employee lawsuits. It may be useful for employers to identify one trusted person or department as the source for official communications about employment decisions to reduce the chances of incomplete or inaccurate communications from multiple supervisors or managers. If an employer does that, it should also consider ensuring that it: