United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2002 Decided April 12, 2002
No. 00-5359
Kenneth M. Burke,
Appellant
v.
William B. Gould IV,
Chairman, National Labor Relations Board and
National Labor Relations Board,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 98cv01795)
Michael P. Deeds argued the cause for appellant. With
him on the brief was James L. Kestell.
Scott S. Harris, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Roscoe C. Howard,
Jr., U.S. Attorney and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: Henderson, Randolph and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Opinion dissenting in part filed by Circuit Judge Randolph.
Rogers, Circuit Judge: Kenneth M. Burke appeals the
grant of summary judgment to the National Labor Relations
Board in his reverse discrimination and retaliation case, on
the principal ground that the district court failed to draw all
reasonable inferences in his favor and instead made factual
findings on disputed issues. In suing the Board for violations
of Title VII, 42 U.S.C. s 2000e et seq., as well as s 1981,
Burke challenged his performance evaluations for 1996 and
1997, the removal of his supervisory responsibilities in Janu-
ary 1997, and his non-selection for the position of Deputy
Chief of the Information Technology Branch in November
1997. We affirm the grant of summary judgment on Burke's
discrimination claims and reverse the grant of summary
judgment on two of his retaliation claims.
I.
Burke began working for the Board in 1974 as a computer
systems analyst at the GS-12 compensation level. As the
result of a series of promotions, he became Chief of the Office
Systems Section serving as a supervisory computer systems
analyst in 1988, and by the following year attained the GS-15
compensation level. Throughout this period, Burke received
exemplary performance evaluations, resulting in performance
awards or cash bonuses in nearly every year. During the
period relevant to this appeal, Burke's immediate supervisor
was Samuel Markman, Chief of the Management and Infor-
mation Systems Branch ("MISB"), who reported to Frank
Battle, the Deputy of the Administration Division. Battle
reported to Gloria Joseph, the Director of the Administration
Division, who in turn reported to the General Counsel of the
Board through Joseph Frankl, the Assistant General Counsel.
In July 1997, Louis Adams, who had worked for the General
Services Administration for twenty years, replaced Markman;
Adams reorganized the MISB, and selected Larry Thompson
as his Deputy Chief. Except for Joseph and Thompson, who
are African Americans, all persons mentioned by name in this
opinion are white males.
This litigation arose out of the Board's decision to award its
Fiscal Year 1996 computer maintenance contract to Dynatech
Integrated Systems ("Dynatech"). In 1995, Burke had rec-
ommended Dynatech, a minority-owned company, for a short-
term contract to test its capabilities. Based on Dynatech's
impressive performance, Burke recommended that Dynatech
be awarded the computer maintenance contract. Burke
served as the agency's contracting officer technical represen-
tative ("COTR") to Dynatech. As the result of Burke's
performance as COTR, Joseph, Battle, and Adams took vari-
ous personnel actions affecting Burke. Although at all times
he retained his GS-15 compensation level, Burke's perfor-
mance evaluation for the 1996 (covering the period July 1,
1995 to June 30, 1996) was downgraded from his usual
"Outstanding" rating to "Commendable," and his performance
evaluation for the 1997 (covering the period July 1, 1996 to
June 30, 1997) was downgraded to "Fully Successful," one
level below "Commendable." After Burke voluntarily surren-
dered his COTR responsibilities in June 1996 (before learning
that Joseph had instructed Markman to relieve him of these
responsibilities), Burke was denied direct access to the net-
work password in July 1996. Then, in February 1997, with
the concurrence of the Board's General Counsel, Burke was
relieved of his supervisory responsibilities as section chief and
assigned to unspecified duties. Burke was passed over in
October 1997 for the newly-created position of Deputy Chief
to Adams; an independent panel rated Burke lowest of the
four best-qualified applicants, while Thompson (whom Adams
selected) ranked highest.
The personnel actions were based on events that followed
Dynatech's decision in March 1996, on advice of counsel, to
replace its on-site program manager, Dwight Whitted, who
had developed a close personal friendship with Burke, in
order to avoid potential violation of federal contracting re-
quirements. Thereafter, in the view of Burke's supervisors
and others, including Dynatech officials, Burke grew increas-
ingly critical and unprofessional in his dealings with Dyna-
tech. On April 29, 1996, Burke sent an agency-wide e-mail
survey soliciting feedback from regional office managers on
Dynatech's performance that Joseph and Sunderlin viewed as
biased and intended to encourage negative feedback. On
May 3, 1996, during a meeting with Joseph, Markman, Battle,
and Frankl, Burke described Dynatech as being "screamingly
out of compliance" with its contractual obligations. Accord-
ing to Joseph, this was the first time she had heard Burke
express such a negative assessment of Dynatech's perfor-
mance and represented a dramatic departure from his prior
representations to her and Burke's other superiors. Sunder-
lin also reported to Joseph that during an April 15, 1996,
meeting with Dynatech officials, Burke exhibited "offensive
and unprofessional" behavior, including "disparaging remarks
designed to embarrass and belittle Dynatech officials."
On August 16, 1996, Burke filed an anonymous request for
the Board's Inspector General to review Dynatech's perfor-
mance. After Burke's name was revealed to the General
Counsel on August 22, Joseph, on August 27, asked the
Inspector General to investigate whether Burke's personal
friendship with Whitted, Dynatech's former project manager,
was unethical and influenced Burke's performance of his
official duties. In November 1996, Burke filed an informal
complaint with the Equal Opportunity Office ("EEO"); Jo-
seph learned of this complaint on November 26, 1996. Burke
filed a formal EEO complaint on February 12, 1997. On
February 28, 1997, he filed a second request for the Inspector
General to investigate alleged reprisals taken against him by
Joseph because of his prior complaint to the Inspector Gener-
al and his efforts to obtain contractual compliance by Dyna-
tech.
Burke filed his lawsuit on July 20, 1998, alleging that the
Board's personnel actions constituted unlawful discrimination
and retaliation under Title VII and 42 U.S.C. s 1981. (His
complaint included a claim under the Privacy Act, 5 U.S.C.
s 552a(b), which was dismissed and is not at issue on appeal.)
The Board filed a motion for summary judgment, attaching a
Statement of Material Facts Not In Genuine Dispute ("State-
ment") referring to declarations and affidavits from Joseph,
Battle, Sunderlin, and Adams, as well as Burke's deposition.
The Board also attached exhibits, including three memoranda
written by Burke (including the e-mail survey), agency letters
to Dynatech, and the declarations of Joseph, Battle, Sunder-
lin, and Adams. In response, Burke filed a memorandum in
opposition to summary judgment, attaching his affidavit (with
attachments) and a redacted report of the Inspector General.
His opposition memorandum contained a twenty-five page
section titled "Facts" that included some references to the
record. Burke also filed two "Statement of Material Facts
Which Are Genuinely in Dispute" ("Statement"), the first
admitting or denying the facts alleged by the Board in its
Statement and containing one reference to the record, and
the second making factual assertions without any references
to the record. The Board responded to Burke's opposition,
arguing that: (1) several of Burke's claims were not "adverse
employment actions" and were therefore barred under the
recently-issued decision in Brown v. Brody, 199 F.3d 446
(D.C. Cir. 1999); (2) Burke's Statement, by failing to comply
with Local Rule 56.1, admitted virtually all of the facts set
forth in the Board's Statement; (3) Burke effectively con-
ceded his discrimination claims because he failed to allege any
conduct, much less offer any proof, that his employer had
taken personnel actions "because of [Burke]'s race, color, ...
[or] sex....," 42 U.S.C. s 2000e-2(a)(1); and (4) Burke virtu-
ally abandoned his claim of non-selection as Deputy Chief
because he only argued that he was more qualified than
Thompson.
The district court granted summary judgment to the Board
on all of Burke's claims. Not invoking the requirements of
Local Rule 56.1, the district court reviewed the exhibits
provided by the parties, and found that Burke failed to meet
his burden of showing under Brown, 199 F.3d at 455, 458,
that his 1996 and 1997 performance evaluations constituted
adverse employment actions. The district court also found, in
view of the record evidence, that Burke's "Commendable"
rating in 1996 "reasonably reflected [his] performance as
COTR under the circumstances," and that his "Fully Success-
ful" rating in 1997 was "justified" because it "reasonably
reflected the level of [Burke]'s performance during the rele-
vant time period." Regarding the removal of his supervisory
responsibilities, the district court ruled that Burke failed to
show an adverse employment action, and, assuming an ad-
verse action, that Burke failed to show that all of the reasons
proffered by the Board for relieving him of his supervisory
responsibilities were a pretext for discrimination or retalia-
tion. The district court ruled that Burke also failed to offer
evidence from which to infer that the Board's legitimate, non-
discriminatory reasons for passing over him for the position
of Deputy Chief to Adams were pretextual. Finally, the
court rejected Burke's s 1981 claim on the ground that he
failed to state facts that would support an inference of
purposeful discrimination against him.
II.
Rule 56(c) of the Federal Rule of Civil Procedure provides,
in relevant part, that upon the filing of a motion for summary
judgment:
The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as
a matter of law. (emphasis added)
The Supreme Court has observed that "it is from this list that
one would normally expect the nonmoving party to make the
showing [to avoid summary judgment]." Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). Federal Rule of Civil
Procedure 56(e) makes clear, however, that in opposing a
motion for summary judgment that is supported as provided
in the Rule, the adverse party "may not rest upon the mere
allegations or denials of the adverse party's pleading, but ...
by affidavits or as otherwise provided in this rule, must set
forth specific facts showing that there is a genuine issue for
trial." See Anderson v. Liberty Lobby, 477 U.S. 242, 248
(1986).
Presumably in the interests of further simplifying matters,
Local Rule 56.1 of the United States District Court for the
District of Columbia (previously Local Rule 108(h), and be-
fore that Local Rule 1-9(h)), provides, in relevant part, that:
An opposition to such motion shall be accompanied by a
separate concise statement of genuine issues setting
forth all material facts as to which it is contended there
exists a genuine issue necessary to be litigated, which
shall include references to the parts of the record relied
upon to support the statement. * * * In determining a
motion for summary judgment, the court may assume the
facts identified by the moving party in its statement of
material facts are admitted, unless such a fact is contro-
verted in the statement of genuine issues filed in opposi-
tion to the motion. (emphases added)
This circuit has long upheld strict compliance with the
district court's local rules on summary judgment when in-
voked by the district court. Thus, in addressing the moving
party's failure to comply with the local rule, the court ex-
plained in Gardels v. Central Intelligence Agency, 637 F.2d
770 (D.C. Cir. 1980), that "[t]he procedure contemplated by
the [local] rule ... isolates the facts that the parties assert
are material, distinguishes disputed from undisputed facts,
and identifies the pertinent parts of the record." Id. at 773.
Likewise, in Tarpley v. Greene, 684 F.2d 1 (D.C. Cir. 1982),
where the district court ruled that the nonmoving party had
failed to comply with Rule 56(e) and the local rule, id. at 5,
this court affirmed the grant of summary judgment, observ-
ing that the nonmoving party had not "cite[d] any record
evidence, relying instead on the complaint itself," and in his
statement of genuine factual issues "did not set forth specific,
material facts, but simply asserted, without citing evidence in
the record, that there was a disputed issue ...." Id. at 7.
In Twist v. Meese, 854 F.2d 1421 (D.C. Cir. 1988), the court
rejected the notion that a district court abuses its discretion
in accepting as true the movant's properly supported state-
ment of material facts not in dispute where the opposing
party failed to submit a counterstatement. Id. at 1424. As
the court put it, "a district court judge should not be obligat-
ed to sift through hundreds of pages of depositions, affidavits,
and interrogatories in order to make his own analysis and
determination of what may, or may not, be a genuine issue of
material disputed fact." Id. at 1425 (citing Gardels, 637 F.2d
at 773).
On the other hand, the court has cautioned, in view of the
severity of dismissal of a potentially meritorious claim, that
treating an issue as conceded for failure to respond fully to a
motion for summary judgment "should only be applied to
egregious conduct." Robbins v. Reagan, 780 F.2d 37, 52 &
n.23 (D.C. Cir. 1985) (citing National Hockey League v.
Metropolitan Hockey Club, 427 U.S. 639, 643 (1976)). The
presence of egregious conduct in Jackson v. Finnegan,
Henderson, Farabow, Garrett & Dunner, 101 F.3d 145 (D.C.
Cir. 1996), sufficed for the court to decline to hold that the
district court abused its discretion in denying, after a variety
of continuances and the grant of several motions to correct
deficiencies, a further request to supplement a statement of
material facts in dispute where the moving party claimed it
would be prejudiced, and in striking a deficient statement in
which the plaintiff failed to raise the central claim of racial
discrimination underlying his Title VII claim, and which also
lacked citations to the record, depositions, or affidavits. See
id. at 147-48. There, the court rejected the argument that a
memorandum opposing summary judgment that included a
thirty-one page statement of "relevant facts" cured the failure
to conform to the requirement of the local rule that the
opposing party file "a concise statement" of material facts in
dispute. Id. at 153 & n.6.
The plain language of Local Rule 56.1 does not require the
district court to enter judgment because of the nonmoving
party's default in complying with the local rule. It provides
that the district court "may assume the facts identified by the
moving party in its statement of material facts are admitted"
(emphasis added) in the absence of a statement of genuine
issues filed in opposition to the motion for summary judg-
ment. Consequently, this court has long recognized that the
district court does not abuse its discretion by declining to
invoke the requirements of the local rule in ruling on a motion
for summary judgment. For example, in Cleveland County
Assoc. for Gov't by the People v. Cleveland County Bd. of
Comm'rs, 142 F.3d 468, 475 n.12 (D.C. Cir. 1998), the court
rejected the argument that failure to comply with the local
rule mandated judgment against the defaulting party, holding
that it was within the district court's discretion to consider its
motion despite the lapse. Id. at 475 n.12. The court quoted
the statement in Gardels, 637 F.2d at 773, where the court
had acknowledged that "[t]he district court, in its discretion,
may consider a motion for summary judgment even in the
absence of a proper [Rule 56.1] Statement."
Nothing in Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029
(D.C. Cir. 1988), which our dissenting colleague somehow
reads as our only precedent, see dissenting opinion at 4, is to
the contrary. One will search in vain for any indication that
the district court in that case invoked the local rule (then
Rule 108(h)), much less that this court disposed of the appeal
on any ground other than the failure of the nonmovant to
introduce Rule 56(c) materials in accordance with the teach-
ings of Anderson and Celotex. See id. at 1034. In Frito-Lay,
we did not mention the cases cited in this opinion from this
circuit, nor need we have done so given the failure of the
nonmovant to conform with Rule 56(c). That case involved
"an unusual application" of Rule 56, id. at 1030, in which,
under the Perishable Agricultural Commodities Act, 7 U.S.C.
s 499a, et seq., the Secretary's findings, which were adverse
to the nonmovant, established "the prima facie case," id.
s 499g(c)(1982), "unless," as the district court noted, "it is
overcome by evidence submitted by the [nonmovant]." Frito-
Lay, 863 F.2d at 1031. Unlike Burke, who introduced various
forms of Rule 56(c) material in an attempt to negate the
Board's Statement of Facts, the nonmovant in Frito-Lay did
not, and this court properly held him to task for his failure.
Moreover, to the extent our dissenting colleague suggests
that the burden to comply with Local Rule 56.1 is greater on
the nonmoving party, see dissenting opinion at 4, our decision
in Gardels pointed out that the local rule's "purposes are not
served when one party, particularly the moving party, fails in
his statement to specify material facts upon which he relies,"
Gardels, 637 F.2d at 773 (emphasis added), because that
failure denies the nonmovant of "an opportunity fairly to
contest" the movant's case. Id. at 774.
In granting summary judgment for the Board, the district
court here did not rely on the local rule. Rather, as its
opinion makes clear, the district court exercised its discretion
to consider Burke's claims on the merits in light of the
evidence presented by the parties. The Board alerted the
district court to the implications of Burke's noncompliance
with the local rule, but the district court expressly stated that
it had reviewed the parties' exhibits. On appeal, the Board
does not contend that the district court abused its discretion
in failing to hold Burke to the requirements of the local rule,
and we see no basis on which we could so hold. By its terms,
Local Rule 56.1 leaves it to the district court to decide
whether to "assume that facts identified by the moving party
... are admitted, unless such a fact is controverted in the
statement of genuine issues filed in opposition to the motion."
Local Rule 56.1. Unlike Gardels, where this court, in revers-
ing the grant of summary judgment, focused on the fact that
the moving party's failure to comply with the local rule
handicapped the plaintiff's effort to oppose summary judg-
ment, 637 F.2d at 774, Burke faced no such problem in
responding to the Board's motion for summary judgment
motion as it fully complied with the local rule. Burke's case
is also is distinguishable from Jackson, Tarpley, and Twist
because the district court in those cases had invoked the local
rule, and on appeal this court held that the district court did
not abuse its discretion in enforcing the local rule.
Furthermore, because the Local Rules "supplement" and
"shall be construed in harmony" with the Federal Rules of
Civil and Criminal Procedure, see Local Rule 1.1(a); see
Frazier v. Heebe, 482 U.S. 641 (1987); see also Miner v.
Atlass, 363 U.S. 641 (1960), the district court is required by
Federal Rule of Civil Procedure 56(c) itself to consider the
"pleadings, depositions, answers to interrogatories, and ad-
missions on file, together with the affidavits, if any," in
determining whether "there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Our cases
are consistent with the requirements of Rule 56(c). See, e.g.,
Jackson, 101 F.3d at 150 (quoting Rule 56(c) and citing
Celotex, 477 U.S. at 324; and Anderson, 477 U.S. at 256-67).
Although Local Rule 56.1 facilitates more precise identifica-
tion of the record materials on which the parties rely, Rule
56(c) identifies the materials the court is to consider before
granting summary judgment. Accordingly, on de novo re-
view, see Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994), we
review the grant of summary judgment in light of these
requirements.
A.
On the allegations of race discrimination, none of Burke's
Rule 56(c) materials provide a basis on which to reverse the
grant of summary judgment. As the Supreme Court stated
in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993), once a
defendant offers a non-discriminatory explanation for its ac-
tions, "the presumption [of discrimination] ... simply drops
out of the picture." Id. at 511. Further, the Court instruct-
ed in Celotex, 477 U.S. at 324, that bare allegations of
discrimination are insufficient to defeat a properly supported
motion for summary judgment. See also Anderson, 477 U.S.
at 248-49. Thus, if the evidence presented by the opposing
party is "merely colorable" or "not significantly probative,"
summary judgment may be granted. Id. at 249-50.
Burke's Statement summarily asserts that each of the
challenged personnel decisions was "motivated by discrimina-
tory and retaliatory illegal motivations." When asked during
his deposition what evidence he had of racial discrimination,
Burke's typical answers were: "I think that [Joseph] was
attacking me because I was trying to call to account a black
owned firm;" "[w]hen I put all the characters down in a row
[on a chart] I discovered that they were all black on one side
and all white on the other, so that led me to believe there was
a racial component;" and "I would guess they [Joseph and
Dynatech] simply formed an alliance based on their racial
[word[s] missing]." Similar statements appear in his affida-
vit. See Burke Affidavit at 10.
To the extent that other Rule 56(c) materials are mentioned
in Burke's opposition memorandum, none provide more than
"merely colorable," much less "significantly probative," evi-
dence of unlawful discrimination against Burke under 42
U.S.C. s 2000e-2(a)(1). Cf. Carpenter v. FNMA, 165 F.2d 69,
72-73 (D.C. Cir. 1999). Burke's opposition refers to his
declaration, the declaration of his direct supervisor, Mark-
man, Markman's affidavit alleging that he was discriminated
against when he was removed from his position in February
1997, and the declarations of two other employees; none state
or imply that the personnel actions affecting Burke were
based on his race. Although Burke claimed in his opposition
memorandum that the Inspector General's report showed
that there were disputed issues of material fact concerning
the Board's proffered reasons for acting as it did, the Inspec-
tor General's report did not find that the Board's reasons for
its personnel actions were a pretext for unlawful discrimina-
tion.
Therefore, even assuming that the personnel actions Burke
challenges are adverse employment actions, Burke fails to
show that the Board took the challenged actions because of
his race and so summary judgment was appropriate on his
discrimination claims.
B.
We reach a different conclusion regarding the appropriate-
ness of summary judgment with respect to two of Burke's
claims of retaliation as a result of the exercise of his protect-
ed rights.
In explaining the basis for the personnel actions affecting
Burke, the Board relies in part on evidence of Burke's
unprofessional conduct towards Dynatech officials and in part
on a decline in his job performance after June 1996. Regard-
ing his conduct, the Board points to a memorandum that
Burke wrote to Markman stating that in order to protect his
reputation following the revelation of his friendship with
Whitted, the Dynatech representative, he would have to
"abort the Dynatech contract"; further, he threatened "to
develop a line of evidence [against Dynatech] to cause [its]
debarment." Dynatech officials and Sunderlin, the Chief of
Procurement, advised Joseph of other unprofessional state-
ments and conduct on Burke's part. Burke does not deny
that Dynatech could reasonably perceive that his attitude was
related to emotions caused by the removal of his friend as
Dynatech's contract manager. Joseph and Sunderlin also
considered Burke's email survey to all nationwide offices to
be an act unbecoming the COTR. They further questioned
Burke's failure to directly and timely notify Joseph, the
agency's contracting officer, that one of the agency's largest
contractor accounts was "screamingly out of compliance." As
the district court noted, however, Burke disputed in his
declaration and affidavit the interpretation of his email survey
and whether he was required to directly inform the contract-
ing officer of any problems.
With regard to Burke's removal as COTR, the district
court granted summary judgment, finding in view of Fisch-
bach, 86 F.3d at 1183, that "the record established that the
defendants perceived and believed [Burke] to be performing
poorly based on at least four examples of such arguably
unprofessional conduct directed at Dynatech and its officials,"
but that, by his own admission, he had "removed himself
before the defendants could act." Because Burke admits in
his declaration and affidavit that he voluntarily surrendered
his COTR responsibilities, the district court properly conclud-
ed that he is not in a position to show a retaliatory act by the
Board.
On Burke's claims as to the removal of his supervisory
responsibilities and reassignment to unspecified duties, the
district court granted summary judgment, relying on Furnco
Contr. Corp. v. Waters, 438 U.S. 567, 577 (1978), in concluding
that Burke failed to eliminate all possible legitimate reasons
for the Board's actions and therefore failed to carry his
burden of demonstrating that it was more likely than not that
the Board was motivated by impermissible considerations.
The Board's Statement explains that during the last half of
1996, Joseph and Battle "came to the conclusion that [Burke]
should not continue as head of the Office Systems section."
Among the grounds supporting their conclusion about the
decline in his job performance were "reports from other
people within MISB that Mr. Burke had demonstrated favor-
itism towards certain of his employees, was spending a larger
than normal amount of time behind closed doors, and general-
ly was not as actively involved in a major deployment of new
personnel computers for the agency as he should have been."
However, the declaration of Burke's immediate supervisor,
Markman, disputed that Burke's performance regressed from
July 1996 through January 1997, stating that he did not
criticize Burke's work "nor was there any basis for criticizing
his performance." The declaration of a GS-13 network ad-
ministrator, although admitting that she told Joseph that
Burke was not performing much work on network administra-
tion after the network password was taken away from him in
July 1996, denied informing Joseph that Burke was favoring
some employees under his supervision. Moreover, the In-
spector General found that "there is no evidence to support
the allegations that during the summer, fall and winter of
1996 Burke failed to do his work or that he regressed in it,
except for the testimony of Joseph and Battle--neither of
whom were in a position to observe his work."
In view of the sequence of events immediately prior to the
time Burke was relieved of his supervisory responsibilities,
the Rule 56(c) materials challenging the Board's proffered
reasons suffice to raise a genuine issue of disputed fact. Cf.
Forman v. Small, 271 F.3d 285 (D.C. Cir. 2001). The job
performance evidence on which the Board relied either oc-
curred during the 1996 performance evaluation period while
Burke was the COTR and prior to the time Burke took
protected actions by complaining to the Inspector General
and the EEO, or involved Burke's work in the last half of the
1996 calendar year when he was no longer the COTR. The
declaration of his immediate supervisor challenged the credi-
bility of Joseph and Battle. Similar evidence presented to
the Inspector General presumably also would be admissible at
trial. See Celotex, 477 U.S. at 324. Hence, summary judg-
ment was inappropriately granted on Burke's claim that the
Board acted in unlawful retaliation in relieving him of his
supervisory responsibilities. See Anderson, 477 U.S. at 252;
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir.
1998).
As to Burke's claims that the Board acted out of retaliation
in lowering his performance ratings, the district court ruled
that Burke had failed to show that they were adverse employ-
ment actions under Brown, 199 F.3d 446. Although we have
no doubt that the removal of Burke's supervisory responsibili-
ties constituted an adverse employment action, the issue is
not always so clear with regard to performance evaluations.
See id. at 458. As this court observed in Passer v. American
Chemical Society, 935 F.3d 332 (D.C. Cir. 1991), "the [Title
VII] statute does not limit its reach only to acts of retaliation
that take the form of cognizable employment actions such as
discharge, transfer, or demotion." Id. at 330 (citations omit-
ted). The district court correctly ruled that Burke failed to
make the necessary showing of adversity as to his 1996
performance evaluation. See Brown, 199 F.3d at 458. But
Burke's Rule 56(c) materials raise a genuine issue whether
his 1997 performance evaluation was the result of unlawful
retaliation, essentially for the same reasons discussed in
regard to the Board's action in relieving him of his superviso-
ry responsibilities and because in his declaration Burke
claimed that as a result of his 1997 evaluation he was denied
bonus and cash awards that he received nearly every year
previously. See Russell v. Principi, 257 F.3d 815 (D.C. Cir.
2001). We hold first, that summary judgment on Burke's
retaliation claims was appropriate with respect to Burke's
1996 performance evaluation because it was conducted prior
to the time he lodged his complaints with the Inspector
General and the EEO, and second, that the Board was not
entitled to summary judgment on Burke's 1997 performance
evaluation because that review was conducted after Burke
engaged in protected activity (and after Joseph learned of his
EEO complaint) and he sufficiently alleged loss of "a tangible,
quantifiable award." Id. at 819.
C.
Finally, we affirm the grant of summary judgment on
Burke's claim that his non-selection as Deputy Chief in 1997
was discriminatory and retaliatory. Not only does Burke
make no mention of his non-selection as Deputy Chief in his
affidavit, his declaration attacks the choice of Thompson on
the ground that he was less qualified, but not on the ground
that Burke was denied the position because of his race or in
retaliation for his protected activity. Nor do the referenced
affidavits in Burke's opposition memorandum dispute either
Adams' affidavit stating that he was unaware that Burke had
filed an EEO complaint when he selected Thompson as
Deputy Chief, or the fact that the independent panel's assess-
ment of Thompson was that he was the best candidate among
the four persons (including Burke) for the Deputy Chief
position.
Accordingly, we reverse and remand on Burke's claims that
the removal of his supervisory duties and reassignment to
unclassified duties and his 1997 performance evaluation were
in retaliation for protected activity; otherwise we affirm.
Randolph, Circuit Judge, dissenting in part:
Counsel: "In the book of nature, my Lords, it is
written--"
Lord Chief Justice Ellenborough: "Will you have the
goodness to mention the page, Sir, if you please?"
3 John Lord Campbell, The Lives of the Chief Justices of
England 239 (1858).
Burke never mentioned the page, or any pages, of the
record in his "Statement of Material Facts in Dispute," filed
in response to the NLRB's motion for summary judgment.
For that reason, I would affirm the judgment of the district
court in its entirety. The decision of the majority disregards
the governing rules, fills in the blanks for Burke, and thereby
lays a trap not only for our district judges but also for all
parties who move for summary judgment. The new and
unprecedented course thus set for our circuit is a course
other circuits have wisely shunned. Worse, it is a course
directly at odds with the law of this circuit.
A rule of the district court requires nonmoving parties to
provide the district court and opposing counsel with "a sepa-
rate concise statement of genuine issues setting forth all
material facts as to which it is contended there exists a
genuine issue necessary to be litigated, which shall include
references to the parts of the record relied on to support the
statement." Rule 56.1, Rules of the United States District
Court for the District of Columbia (italics added). This is a
straightforward rule, easy to understand and easy to follow.
Burke flagrantly violated it. He dumped nearly two hundred
pages of material into the record, large portions of which
contained information that would be inadmissible at trial and
thus had no proper function in opposing summary judgment.
See William W. Schwarzer et al., The Analysis and Decision
of Summary Judgment Motions 50 (1991). His "Statement of
Material Facts in Dispute" consisted of seven short para-
graphs generally repeating the allegations in his complaint
and containing no references to any evidence on file with the
court.
By proceeding in this manner, in violation of Local Rule
56.1, Burke also violated Rule 56 of the Federal Rules of Civil
Procedure. Rule 56(e) requires the nonmoving party to
"designate 'specific facts showing that there is a genuine issue
for trial.' " Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
(quoting Fed. R. Civ. P. 56(e)). There was a time in the Fifth
Circuit when the nonmoving party's failure to designate "spe-
cific facts" was not fatal. If the record contained--in the
language of Rule 56(c)--"depositions, answers to interrogato-
ries, and admissions" and "affidavits" showing the existence
of material facts in genuine dispute, it was the district court's
responsibility to ferret the evidence out, upon pain of rever-
sal. See Higgenbotham v. Ochsner Found. Hosp., 607 F.2d
653, 656-57 (5th Cir. 1979); Keiser v. Coliseum Props., Inc.,
614 F.2d 406, 410-11 (5th Cir. 1980). This is basically the
position the majority stakes out in our case. Rule 56(c), we
are told, requires district judges to consider all these items in
determining whether to grant summary judgment, even if the
nonmovant cited none of them in his statement of material
facts in dispute. Maj. op. at 10-11. The Fifth Circuit has
now seen the error of its approach and has overruled Higgen-
botham and Keiser. See Skotak v. Tenneco Resins, Inc., 953
F.2d 909, 916 n.8 (5th Cir. 1992). As the Seventh Circuit
pointed out in L.S. Heath & Son v. AT&T Info. Sys., Inc., 9
F.3d 561, 567 (1993), that line of older Fifth Circuit cases was
"in tension with the Supreme Court's more recent summary
judgment jurisprudence" in Celotex, 477 U.S. at 324;
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986);
and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986). Today, in the Fifth and Seventh
Circuits, the nonmoving party must cite to the evidence in
order for that evidence to be considered part of the summary
judgment record. L.S. Heath & Son, 9 F.3d at 567. That is
the law in other circuits as well. Id. (citing Interroyal Corp.
v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989)); see also
Guarino v. Brookfield Township Trs., 980 F.2d 399, 405 (6th
Cir. 1992); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671
(10th Cir. 1998). Until today, it had also been the law of this
circuit.
In Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1033 (D.C.
Cir. 1988), we held that Rule 56 required the nonmoving
party to cite evidence and rejected the idea that " 'the entire
record in the case must be searched and found bereft of a
genuine issue of material fact before summary judgment may
be properly entered,' " quoting Nissho-Iwai Am. Corp. v.
Kline, 845 F.2d 1300, 1307 (5th Cir. 1988). As here, the
nonmovant in Frito-Lay had submitted a statement of materi-
al facts in dispute in token compliance with Rule 56 and the
local rule. But the statement made no reference to the
evidence, a defect we held "fatal" to the opposition to sum-
mary judgment. 863 F.2d at 1034.
If we followed Frito-Lay, as every panel of the court must,
see LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996)
(en banc), Burke's violation of Rule 56 and Local Rule 56.1
should also have been fatal. The majority claims that Frito-
Lay does not control this case because it dealt solely with the
nonmovant's failure "to introduce Rule 56(c) materials in
accordance with the teachings of Anderson and Celotex."
Maj. op. at 9. There is no such teaching. To be sure, a
nonmovant may not defeat a summary judgment motion by
resting on mere allegations or pleadings. See Anderson, 477
U.S. at 256; Celotex, 477 U.S. at 324. But neither Anderson
nor Celotex requires nonmovants to introduce Rule 56(c)
materials in order to avoid summary judgment. Rather,
when appropriate, the nonmovant "may simply demonstrate
to the court that the record on the motion contains sufficient
specific facts to establish the existence of a genuine issue,"
such as by pointing out to the court that the movant ignored
or mischaracterized relevant evidence already in the record.
Schwarzer et al., supra, at 47; see also Isquith v. Middle S.
Utils., Inc., 847 F.2d 186, 198-99 (5th Cir. 1988) (holding that
a nonmovant responding to a motion for summary judgment
need not proffer its own evidence but may point to evidence
already on file). Thus, the nonmovant's mistake in Frito-Lay
was not in failing to submit Rule 56(c) materials, as the
majority supposes. Rather, the nonmovant's mistake--a fatal
one--was its failure to point the district court to material
facts "with the requisite specificity and [to] support them with
appropriate references to the record before the district
court." Frito-Lay, 863 F.2d at 1034. Burke made the same
error and it should have the same consequence.
The majority excuses Burke's failure to point to specific
facts and his noncompliance with the local rule on the basis
that the district judge could, and did, waive the local rule, by
which the majority means that the court did not specifically
invoke the rule against Burke. I have several responses. In
the first place, the district court had no authority to waive
Rule 56. In the second, I do not believe it had the authority
to relieve Burke of the local rule. Neither rule is simply for
the benefit of the district court, although that is certainly part
of it. See, e.g., Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir.
1988) ("[A] district court judge should not be obliged to sift
through hundreds of pages of depositions, affidavits, and
interrogatories in order to make his own analysis and deter-
mination of what may, or may not, be a genuine issue of
material disputed fact."). The moving party too is entitled to
a concise statement of the material facts the opponent thinks
are contested. Otherwise, it would be handicapped in trying
to meet the opposing contentions. Local Rule 56.1 and "Rule
56 must be construed with due regard not only for the rights
of persons asserting claims and defenses that are adequately
based in fact to have those claims and defenses tried to a
jury, but also for the rights of persons opposing such claims
and defenses to demonstrate in the manner provided by the
Rule, prior to trial, that the claims and defenses have no
factual basis." Celotex, 477 U.S. at 327. It is true that
several cases such as Gardels v. CIA, 637 F.2d 770, 773 (D.C.
Cir. 1980), say that a district court may ignore the moving
party's failure to comply, a point we recently repeated in
Cleveland County Ass'n for Gov't by the People v. Cleveland
County Bd. of Comm'rs, 142 F.3d 468, 475 n.12 (D.C. Cir.
1998). But these cases did not hold that a district court may
excuse a violation by a nonmoving party, on whom the
burdens are considerably different. See Celotex, 477 U.S. at
324. To so hold would be to contradict our decision in Frito-
Lay. Nothing in our description of the district court's opin-
ion in Frito-Lay indicated that the district court had invoked
the local rule in granting summary judgment, yet we affirmed
on the ground that the nonmovant violated Rule 56 and the
local rule by failing to provide a statement containing cita-
tions to the record.
In any event, the fact that the district court attempted to
search the record despite Burke's noncompliance with Local
Rule 56.1 should not obscure the reality of this case: it was
Burke's inadequate Rule 56.1 statement (not error on the
part of the district court) that caused certain facts to go
undiscovered. Burke bore the burden of pointing out any
material facts to the district court. Having failed to do so, he
should not be permitted to make another attempt. See
Tarpley v. Greene, 684 F.2d 1, 7 n.16 (D.C. Cir. 1982). "Rules
is rules," as the saying goes, Bartlett J. Whiting, Modern
Proverbs and Proverbial Sayings 541 (1989).
The majority's bewildering treatment of the local rule and
Rule 56 will have consequences for litigants, for district court
judges and for our court. The majority begins by proclaim-
ing that we have "long upheld strict compliance." In the next
breath it propounds an exception, stating that only "egre-
gious" violations of the rule matter. Maj. op. at 7-8. The
two statements cannot stand together. This is not an in-
stance in which the exception proves the rule. The majority's
exception destroys the rule. The majority also fails to explain
how its new regime will function when a district court simply
grants summary judgment without an opinion, as district
judges are entitled to do. See Fed. R. Civ. P. 52(a). In such
cases the district court will not have expressly invoked Local
Rule 56.1 and thus, according to my colleagues, neither can
we, which means that we will have to wade through the
record ourselves to determine whether there is evidence to
show genuine issues. I side with the Fifth Circuit that it is
not our duty to do so. See Forsyth v. Barr, 19 F.3d 1527,
1536 (5th Cir. 1994); see also Guarino, 980 F.2d at 406 ("The
free-ranging search for supporting facts is a task for which
attorneys in the case are equipped and for which courts
generally are not."). We review summary judgments de
novo, placing ourselves in the position of the district court
when it decides whether to grant the motion. See Adler, 144
F.3d at 671-72; but see Holtz v. Rockefeller & Co., 258 F.3d
62, 73 (2d Cir. 2001). De novo review means that the district
court's opinion (if it rendered one) drops out. See Liberty
Lobby, Inc. v. Rees, 852 F.2d 595, 598 (D.C. Cir. 1988). To
me, it makes no sense to hold, as the majority does, that if
the district court disregards Local Rule 56.1, we must do the
same. We are not concerned here with a district court ruling
admitting or excluding evidence. Contrast General Electric
Co. v. Joiner, 522 U.S. 136, 143 (1997). As our opinion in
Frito-Lay indicates, the local rule represents an interpreta-
tion of Rule 56(e)'s requirement that the nonmoving party
"set forth specific facts showing that there is a genuine issue
for trial." I would therefore hold that if a nonmoving party
fails to comply with Rule 56 and Local Rule 56.1, as Burke
did in this case, the nonmoving party loses whenever the
movant's submission, considered alone, shows that there is no
genuine issue for trial and that it is entitled to judgment as a
matter of law.