Holcomb, Christine v. Powell, Donald

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2005 Decided January 10, 2006

No. 04-5216

CHRISTINE M. HOLCOMB,
APPELLANT

v.

DONALD E. POWELL, CHAIRMAN , FEDERAL DEPOSIT
INSURANCE CORPORATION ,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 01cv01550)

Ellen K. Renaud argued the cause for appellant. With her
on the briefs were David H. Shapiro and Richard L. Swick.

Michael J. Ryan, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney, Diane M. Sullivan, Assistant U.S. Attorney, and
Lawrence H. Richmond, Counsel, Federal Deposit Insurance
Corporation. R. Craig Lawrence, Assistant U.S. Attorney,
entered an appearance.

Before: ROGERS and BROWN , Circuit Judges, and
 2

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN .

BROWN , Circuit Judge: Plaintiff Christine Holcomb filed
suit against her employer, the Federal Deposit Insurance
Corporation (FDIC), alleging two violations of Title VII of the
Civil Rights Act of 1964: first, discrimination against her on the
basis of race when the corporation failed to select her for a
promotion; and second, retaliation against her in the form of
reduced work responsibilities when she filed a discrimination
complaint following the non-promotion. The district court
granted summary judgment for FDIC on both the discrimination
and retaliation claims. We conclude the record does not contain
sufficient evidence from which a jury could infer that FDIC
engaged in prohibited racial discrimination when it selected a
white applicant for the disputed position, and we affirm the grant
of summary judgment on Holcomb’s discrimination claim.
Contrary to the district court, however, we conclude Holcomb
has established a prima facie case of retaliation, and we reverse
the grant of summary judgment on her retaliation claim.

I

In 1991, Christine Holcomb, an African-American woman,
began working for the Resolution Trust Corporation (RTC) as a
Grade 7 Secretary. In late 1995, after RTC merged with FDIC,
Holcomb moved to FDIC, and her career prospered. Within
three years, she was a Grade 11 Program Specialist in the Office
of Diversity and Economic Opportunity (ODEO).

In early 1999, ODEO underwent a series of reorganizations
initiated by Vijay Deshpande, the acting director, in an effort to
streamline the Equal Employment Opportunity (EEO) complaint
 3

process. In February of that year, Anna Mergele, an Asian-
American female attorney from FDIC’s legal division, began a
detail to ODEO to serve as acting chief of the Complaints branch
in order to reduce a backlog of unresolved EEO complaints. For
about six weeks, Mergele was Holcomb’s immediate supervisor,
but Holcomb was in transition, having applied for and been
selected to serve on a year-long detail to FDIC’s Division of
Compliance and Consumer Affairs (DCA) to work on Y2K-
related issues. Despite needing Holcomb’s help with the ODEO
backlog, Mergele approved the detail. Holcomb had indicated
a strong interest in the position and Mergele viewed it as a
unique opportunity.

When Holcomb left for DCA, Mergele requested Amy Del
Valle, a certified paralegal within FDIC’s legal division, where
Mergele had previously been employed, be detailed to ODEO.
Del Valle, a white female, had joined RTC in March 1991 as a
Grade 9 Paralegal and, in 1992, was promoted to Grade 11
Paralegal, her position at the time Mergele made her request.
Mergele had worked with Del Valle before and requested the
detail because Holcomb’s departure exacerbated the need for
assistance with the complaint backlog.

Meanwhile, Holcomb sought to cut short her DCA tenure
and return to ODEO. Mergele was amenable to Holcomb’s
request but lacked authority to make the decision; however, the
ODEO director insisted that Holcomb fulfill ODEO’s obligation
to DCA. Holcomb remained at DCA until March 2000 but
would, on her own initiative, work on ODEO matters during
lunch breaks or after regular business hours.

In August 1999, Holcomb received a disappointing annual
performance evaluation, covering the period from September
1998 to August 1999 — a period during which she had worked
 4

at both ODEO and DCA. Because Mergele’s period of supervi-
sion had been so brief, Gregory Cofer actually completed the
evaluation, which Mergele signed. Holcomb’s DCA supervisor
proposed a 3 rating for “analytical/technical skills”; Cofer
reduced that rating to a 2, which lowered Holcomb’s overall
rating from “outstanding” to “superior.”

In October 1999, ODEO advertised for a new position,
Grade 12 Program Specialist. Both Holcomb, on detail to DCA
at the time, and Del Valle applied for the job, and the personnel
department identified them as the only two candidates who met
the minimum qualifications. Mergele, the selecting official,
interviewed both women and ultimately selected Del Valle.
Shortly after learning of Del Valle’s selection, on January 19,
2000, Holcomb filed a formal administrative discrimination
complaint, primarily alleging discrimination because of race,
age, and disability based on ODEO’s failure to promote her. The
complaint also alleged the repeated denials of Holcomb’s
requests to return to ODEO from her DCA detail and the 1998-
99 job evaluation that rated Holcomb’s performance as merely
“superior” rather than “outstanding” were motivated by illegal
discrimination.

When Holcomb’s DCA detail ended in March 2000 and she
returned to ODEO, she was assigned to a reorganized Formal
Complaints section, where Michael Moran, an Asian-American
male, served as her supervisor. Holcomb, still a Grade 11
Program Specialist, quickly became dissatisfied with the low
level of her job responsibilities, which were primarily clerical.
Moran’s attempts to assign suitable tasks failed. Holcomb
objected to certain tasks, believing they were not commensurate
with her grade, and lacked familiarity with other tasks requiring
greater skill and experience.
 5

In approximately May 2001, Holcomb expressed apprehen-
sion to Vincent Johnson, an African-American male and Deputy
Director of ODEO, that her job was being eroded and she feared
a demotion. Johnson sought to give Holcomb assignments more
commensurate with her grade but remained concerned about
Holcomb’s lack of meaningful work. Accordingly, Johnson
supervised a desk audit in February 2002, which ultimately
revealed Holcomb was performing Grade 5 work. Subsequently,
Johnson and Moran, with input from Mergele, wrote a new
Grade 11 Equal Opportunity Specialist position description for
Holcomb covering duties available within the Complaints
section, which was approved in August 2002 and remediated
Holcomb’s under-utilization. At no time was Holcomb ever
threatened with demotion, nor did management ever discuss the
possibility.

Holcomb filed a second formal administrative complaint on
April 8, 2002. In alleging discrimination, harassment, and
hostile work environment, the complaint charged that Mergele
and Moran deliberately withheld duties from Holcomb to the
detriment of her career; that they provided Del Valle with
assignments designed to enhance her opportunities for promo-
tion; and that Mergele unfairly criticized Holcomb during a
March 2002 meeting reviewing a report Holcomb had helped to
assemble.

Holcomb had already filed a complaint on July 17, 2001, in
the United States District Court for the District of Columbia,
alleging racial discrimination and retaliation in violation of Title
VII, based, in part, on FDIC’s failure to select her for the Grade
12 Program Specialist position.1 On April 17, 2003, Holcomb

1
By this time, Holcomb had also engaged in lengthy
correspondence with various government agencies about the status of
 6

filed an amended complaint. The amended complaint again
alleged racial discrimination and retaliation but supplemented
Holcomb’s claims with the results of the desk audit and the
treatment received from Mergele at the March 2002 meeting.
FDIC moved for summary judgment on both counts. The
district court granted the motion, and Holcomb appealed.

II

We review the grant of summary judgment de novo. Carter
v. George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004).
Summary judgment is appropriate only if the pleadings, deposi-
tions, answers to interrogatories, admissions, and affidavits filed
pursuant to discovery show that, first, “there is no genuine issue
as to any material fact” and, second, “the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
In making this determination, we view the evidence in the light
most favorable to Holcomb and draw all reasonable inferences
in her favor; we are not to make credibility determinations or
weigh the evidence. Reeves v. Sanderson Plumbing Prods., 530
U.S. 133, 150 (2000).

“The mere existence of some alleged factual dispute
between the parties” will not defeat summary judgment; “the
requirement is that there be no genuine issue of material fact.”

her first administrative complaint. In February and March of 2000,
she complained to senior FDIC officials via email and letter that
proper EEO procedures were not being followed. In July, August, and
December of 2000, and in January, March, and May of 2001, she
wrote seven letters to EEOC officials and administrative judges about
other purported procedural deficiencies. Holcomb copied FDIC
officials on several of these letters.
 7

Anderson, 477 U.S. at 247-48. A fact is “material” if a dispute
over it might affect the outcome of a suit under governing law;
factual disputes that are “irrelevant or unnecessary” do not affect
the summary judgment determination. Id. at 248. An issue is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. If there are no
genuine issues of material fact, the moving party is entitled to
judgment as a matter of law if the nonmoving party “fails to
make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).

A

We begin with Holcomb’s discrimination claim. Title VII
of the Civil Rights Act of 1964 prohibits federal agencies,
including government corporations like FDIC, from discriminat-
ing in employment on the basis of race. 42 U.S.C. § 2000e-16
(2000); Cones v. Shalala, 199 F.3d 512, 516 (D.C. Cir. 2000).
Where, as here, the record contains no direct evidence that the
adverse employment action of which the plaintiff complains was
caused by prohibited discrimination, we turn to the the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 (1973), to analyze the claim. Lathram v.
Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003). Under this
framework, the plaintiff must first establish a prima facie case of
discrimination by showing that: (1) she is a member of a
protected class; (2) she applied for and was qualified for an
available position; (3) despite her qualifications, she was
rejected; and (4) either someone filled the position or it remained
vacant and the employer continued to seek applicants. Id.

FDIC does not dispute, and we agree, that with respect to
 8

her non-promotion to the Grade 12 Program Specialist position,
Holcomb has established a prima facie case of discrimination.
An African-American woman, Holcomb applied for the position,
and personnel identified her as one of two candidates with the
minimum qualifications. Holcomb was not promoted; the
position went to Del Valle. Thus, Holcomb satisfied the purpose
of the initial step of the McDonnell Douglas framework: neither
an absolute or relative lack of qualifications nor the absence of
a vacancy in the job sought prevented her promotion. See Int’l
Bhd. Of Teamsters v. United States, 431 U.S. 324, 358 n.44
(1977); Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d
647, 650-51 (D.C. Cir. 2003).

Once the plaintiff has established a prima facie case, the
burden shifts to the defendant to produce evidence that the
plaintiff was rejected for a legitimate, nondiscriminatory reason.
Reeves, 530 U.S. at 142; Lathram, 336 F.3d at 1088. FDIC has
met its burden in this case. In an affidavit, Mergele, the select-
ing official for the disputed position, stated she chose Del Valle
“because she was the best applicant” and “the person with the
best skills and abilities to do the job should be selected.”
Mergele explained what she sought in a successful applicant,
including the ability to track EEO investigations, follow up with
contract investigators as problems arose, and coordinate the
Alternative Dispute Resolution (ADR) program and related
issues. She was looking for an individual who had an in-depth
understanding of “the entire administrative EEO complaint
process” and could “coordinate all phases of ADR and investiga-
tions.” The skills Mergele cited in her affidavit align with those
in the job description, such as “[c]oordinat[ing] Branch re-
sponses to discovery requests from the Legal Division for cases
pending before the administrative tribunal and in district court,”
“[s]erv[ing] as the technical monitor for all contracting activity
of the Branch,” and “[s]erv[ing] as the principal contact and
 9

coordinator of the Agency’s Mediation Program.”

In Mergele’s view, Del Valle was more qualified for the
position than Holcomb because Del Valle’s background as a
paralegal and EEO counselor gave her a broader understanding
of the administrative EEO complaint and district court process
as well as more hands-on experience than Holcomb. Since
beginning her ODEO detail, Del Valle had assisted in processing
EEO complaints, begun coordinating the ADR program, and
helped to develop a method to track EEO investigations.
Moreover, during her time at FDIC’s Legal Division, she worked
on all phases of EEO complaints before the administrative
agency and the district court. By contrast, Mergele stated in her
affidavit, Holcomb had not worked on the ADR program or EEO
investigations while under Mergele’s supervision, nor did her
application indicate any related work experience. Mergele’s
qualifications-based justification constitutes a legitimate,
nondiscriminatory reason for the allegedly discriminatory action,
and as FDIC’s burden is merely one of production, it has
satisfied the second prong of McDonnell Douglas.

FDIC having offered a nondiscriminatory explanation for its
actions, the presumption of discrimination “simply drops out of
the picture.” Burke v. Gould, 286 F.3d 513, 520 (D.C. Cir.
2002) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
511 (1993)) (internal quotation mark omitted); see also Morgan,
328 F.3d at 651 (“If the defendant produces such evidence [of a
nondiscriminatory reason], the McDonnell Douglas framework
— with its presumptions and burdens — disappears, and the sole
remaining issue is discrimination vel non.” (quoting Reeves, 530
U.S. at 142-43) (internal quotation marks and brackets omitted)).
At this point, “to survive summary judgment the plaintiff must
show that a reasonable jury could conclude from all of the
evidence that the adverse employment decision was made for a
 10

discriminatory reason.” Lathram, 336 F.3d at 1088. By “all of
the evidence,” we mean any combination of (1) evidence
establishing the plaintiff’s prima facie case; (2) evidence the
plaintiff presents to attack the employer’s proffered explanation
for its actions; and (3) any further evidence of discrimination
that may be available to the plaintiff, such as independent
evidence of discriminatory statements or attitudes on the part of
the employer. Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289
(D.C. Cir. 1998) (en banc).

1

Although Holcomb might have relied on any of these three
categories of evidence, she primarily challenges Mergele’s
qualifications-based explanation for hiring Del Valle. We have
consistently declined to serve as a “super-personnel department
that reexamines an entity’s business decisions.” Barbour v.
Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999) (quoting Dale
v. Chi. Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986)) (internal
quotation marks omitted); see also Fischbach v. D.C. Dep’t of
Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (“Title VII liability
cannot rest solely upon a judge's determination that an employer
misjudged the relative qualifications of admittedly qualified
candidates.”). In Aka, however, we concluded a factfinder could
infer discrimination if the evidence showed a reasonable
employer would have found the plaintiff significantly better
qualified for the job but nevertheless failed to offer the position
to her. Aka, 156 F.3d at 1295. We did not require a plaintiff to
establish this disparity in order to survive a motion for summary
judgment, though, and the district court erred by doing so here.
Indeed, we emphasized that a plaintiff attacking a qualifications-
based explanation is expressly not limited to comparing her
qualifications against those of the successful applicant; she may
seek to expose other flaws in the employer’s explanation,
 11

including, inter alia, showing the employer has misstated her
qualifications. Id. Here, Holcomb attempts to establish not only
that she is significantly better qualified than Del Valle, but also
that her employer substantively misstated her qualifications.

“In a close case, a reasonable juror would usually assume
that the employer is more capable of assessing the significance
of small differences in the qualifications of the candidates, or
that the employer simply made a judgment call.” Id. at 1294. In
order to justify an inference of discrimination, the qualifications
gap must be great enough to be inherently indicative of discrimi-
nation. See Lathram, 336 F.3d at 1091 (citing a “wide and
inexplicable gulf” between candidates). In Aka, for example, we
determined the evidentiary record was sufficient for a reasonable
jury to conclude the plaintiff, who was denied a pharmacy
technician job, was “markedly more qualified” than the applicant
who received the position. 156 F.3d at 1299. There, the
plaintiff presented undisputed evidence that he had nineteen
years of experience as a hospital assistant as well as bachelor’s
and master’s degrees; the other applicant had no college educa-
tion, had worked in the hospital laundry for slightly over a year,
and had spent only two months as a pharmacy volunteer. Id. at
1286, 1295-96. Furthermore, in Lathram, we accepted an
inference of discrimination where the plaintiff, who possessed
several years’ experience in public affairs, was “substantially
more qualified” than the unemployed former journalist who was
hired for a higher position. 336 F.3d at 1092. Although
Holcomb’s qualifications are impressive — she has worked her
way up to a Grade 11 position, earned “superior” and “outstand-
ing” performance evaluations in recent years, and garnered
positive comments from co-workers, including Mergele — the
evidence fails to establish that Holcomb’s qualifications were
sufficiently superior to those of Del Valle to allow a jury to infer
discrimination. Cf. Stewart v. Ashcroft, 352 F.3d 422, 429 (D.C.
 12

Cir. 2003) (comparing rejected plaintiff’s credentials with those
of successful applicant, and finding plaintiff “simply not
discernibly better” than applicant).

In her briefs and at oral argument, Holcomb placed great
emphasis on three supposed “misstatements” by Mergele that,
she argues, would permit a jury to infer Mergele’s explanation
is incorrect or fabricated and her hiring decision thus motivated
by discrimination. But closer examination of the record reveals
no actual evidence Mergele misstated Holcomb’s qualifications
as she understood them at the time of her hiring decision.

Holcomb first alleges Mergele misstated her familiarity with
the EEO complaint process. She notes that Mergele’s affidavit
underscores Del Valle’s “broader understanding of the adminis-
trative EEO complaint process,” but she points out that in
Holcomb’s own 1998-99 performance evaluation, Mergele
lauded Holcomb’s penchant for “stay[ing] abreast of the latest
changes in EEO complaint processing.” This evidence does not
establish Mergele misstated Holcomb’s qualifications on this
point. The complimentary comments Mergele wrote in
Holcomb’s 1998-99 evaluation neither contradict nor are
inconsistent with her belief that Del Valle nevertheless pos-
sessed “broader understanding” of the EEO complaint process.

Second, Holcomb objects to Mergele’s purported claim she
did not hire Holcomb because of a lack of experience processing
EEO complaints. Holcomb challenges this characterization of
her experience by calling attention to two pieces of evidence to
the contrary: an overtime slip authorizing work related to
complaint processing, which Mergele signed; and testimony by
Michael Moran that Holcomb processed complaints under his
supervision.
 13

Again, however, the record does not bear out Holcomb’s
claim Mergele misstated her qualifications. To begin with,
Mergele never said she rejected Holcomb because she had never
processed complaints; she said Holcomb acknowledged during
the interview never actually processing any EEO complaints. In
addition, the single overtime slip indicated Holcomb was to
“assist w/processing complaints.” “Assisting with” a task is not
the same as having ultimate responsibility. Compare, for
example, Holcomb’s own Grade 11 Program Specialist job
description to the disputed Grade 12 Program Specialist job
description, which recognizes that the difference between the
two activities amounts to at least one pay grade. Compare Grade
11 Program Specialist description, R.47, ROI No. 000005 Tab
25, at 2 (successful applicant “[a]ssists senior specialists in
responding to Congressional inquiries”), and id. (successful
applicant “[a]ssists in the development of key reports”), with
Grade 12 Program Specialist description, R.47, ROI No. 000005
Tab 24, at 2 (successful applicant “[r]esponds to Congressional
inquiries”), and id. (successful applicant “[d]evelops statistical
reports”). Last, while Moran did testify that Holcomb processed
some complaints under his supervision, Holcomb did not work
for Moran until she had returned from her detail in March 2000
— after Mergele made her hiring decision in late 1999.
Holcomb offers no evidence to show Mergele relied on
Holcomb’s lack of experience processing complaints to justify
her decision not to promote; nor is there evidence Holcomb
possessed the requisite experience when the decision was made.

The third “misstatement” Holcomb cites is her purported
lack of experience writing accept/dismiss letters. To show
otherwise, Holcomb points to her application package, in which
she noted that she “composed letters accepting or dismissing
allegations of discrimination,” as well as to the affidavit of a co-
worker, Constance Mullins, who stated Holcomb drafted and
 14

reviewed acceptance/dismissal letters. But what Mergele
actually said in her testimony was that Holcomb had not written
such letters while Mergele was Holcomb’s direct supervisor.
Mergele also said that during Holcomb’s interview, Holcomb
said she had reviewed accept/dismiss letters written by others.
The two pieces of evidence Holcomb advances do not give rise
to the level of contradiction or “misstatement” that could be the
basis for a reasonable jury to find unlawful animus.

None of Mergele’s alleged “misstatements” approaches the
level of “adequate evidence” we identified in Aka, where we
posited a rather explicit misstatement as the type that might
permit an inference of discrimination. See Aka, 156 F.3d at
1295 (“[I]f the employer says that it did not hire the plaintiff
because he did not speak Portuguese, the plaintiff can show that
he did speak Portuguese, and that the employer knew it.”). In
sum, Holcomb has failed to produce any evidence to rebut
Mergele’s explanation for hiring Del Valle that would permit a
reasonable jury to infer discrimination.

2

A plaintiff in a Title VII case is not limited to challenging
the employer’s explanation; she can also avoid summary
judgment by presenting other evidence, direct or circumstantial,
that permits an inference of discrimination. Id. at 1295 n.11.
Examples of such evidence include discriminatory statements by
the employer, id. at 1289, or other attitudes suggesting the
decisionmaker harbors discriminatory animus, Carter, 387 F.3d
at 880; Morgan, 328 F.3d at 654, as well as data showing that
the defendant employs members of the plaintiff’s protected class
at rates far below their numbers in the applicant pool and the
general population, Aka, 156 F.3d at 1295 n.11. See also
 15

Waterhouse v. District of Columbia, 298 F.3d 989, 996 (D.C.
Cir. 2002).

Holcomb recites a litany of allegations purporting to show
unlawful animus on the part of Mergele and FDIC. Some of
these propositions are purely conclusory: for example, Holcomb
submits as evidence of animus the mere allegation that Mergele
“froze Holcomb out of her own position” in order to promote
Del Valle. Others mischaracterize the record and are without
evidentiary support. For example, Holcomb maintains that
Mergele “refused” to help her return to ODEO from her DCA
detail; however, the record shows Mergele would have wel-
comed Holcomb’s return but lacked the authority to make this
decision, and her supervisor vetoed the proposal out of a sense
of obligation to DCA. Holcomb also argues that nearly all of the
duties of the Grade 12 position duplicated Holcomb’s Grade 11
position; but a comparison of all of the responsibilities of each
job — not just those Holcomb points out — clearly explains the
one-grade difference between the two positions.

In addition, Holcomb alleges four African-American
employees have complained of race discrimination by Mergele.
But the record reveals that with the exception of Holcomb, two
employees, at most, have filed discrimination complaints against
Mergele, both of which are in the informal stages.2 We are not
persuaded that the mere filing of two informal discrimination
complaints against Mergele, where nothing more is known about
the nature, merit, or outcome of those complaints, can be used as
a proxy to establish Mergele’s discriminatory animus in the
present case. Cf. Fed. R. Evid. 404(b); Carter v. District of
Columbia, 795 F.2d 116, 128-29, 131-32 (D.C. Cir. 1986);

2
Another employee had filed an informal complaint but withdrew
it soon thereafter.
 16

DiRico v. City of Quincy, 404 F.3d 464, 467-68 (1st Cir. 2005);
Berkovich v. Hicks, 922 F.2d 1018, 1022 (2d Cir. 1991).3

Holcomb also alleges a jury could infer discrimination
because ODEO officials lowered her 1998-99 performance
rating despite being unfamiliar with her work. The record
indicates Mergele asked her supervisor, Gregory Cofer, to take
responsibility for rating Holcomb because Cofer had worked
with Holcomb for a longer period and could perform a fairer
evaluation. There is no evidence suggesting that Cofer was
“unfamiliar” with Holcomb’s work. Moreover, there is no
evidence Cofer played any role in Mergele’s decision to hire Del
Valle. In Carter v. George Washington University, we rejected
a finding of discriminatory intent where the plaintiff alleged
discriminatory intent by an official who “was not a decision-
maker” with respect to the disputed hiring. 387 F.3d at 880.
Therefore, even if Holcomb could show Cofer possessed
discriminatory animus in lowering her rating, it would not
suggest Mergele displayed the requisite discriminatory intent.

Similarly, there is no evidence to support Holcomb’s
contention a jury could infer discrimination because Mergele’s
arrival at ODEO coincided with the reassignment and retirement
of a number of African-American employees, or because
Mergele selected Del Valle, an FDIC employee from another

3
Holcomb also claims that other employees have approached
Vincent Johnson about behavior on Mergele’s part they claim is
discriminatory. Johnson did testify that three African-American
employees approached him expressing unhappiness with Mergele’s
“method of supervising.” He suggested these individuals voice their
concerns to Mergele, which they did, and no complaints were ever
filed. We are reluctant to infer invidious discrimination from what
appears to be an amicable resolution of differences between
supervisor and employee.
 17

division, for the Grade 12 position at the same time ODEO was
downsizing. The record indicates ODEO underwent a series of
reorganizations that began when Vijay Deshpande became
Acting Director. In fact, the first reorganization took place only
three days after Mergele arrived at ODEO, and she testified that
she was caught off-guard by the new structure. The record
contains no evidence Mergele played a role in any of the
decisions that led to the retirements and reassignments of many
ODEO workers. Even were Holcomb to provide evidence that
discriminatory animus motivated Deshpande’s actions, which
she does not, no reasonable jury could impute discriminatory
intent on Mergele’s part for Deshpande’s actions. It is also
worth noting that while Holcomb provides evidence of the races
of various individuals who retired or were reassigned, she
proffers no statistics or other data describing the demographic
composition of ODEO or FDIC as a whole. Thus we are unable
to determine whether the reorganizations adversely affected one
race to the benefit of others or whether they affected employees
of all races in proportion to their overall makeup within the
corporation. Cf. Aka, 156 F.3d at 1295 n.11 (“[I]f a female
plaintiff claims sex discrimination, evidence that the defendant
employs women at rates far below their numbers in the applicant
pool and the general population may well help her case.”).

Several of Holcomb’s many allegations do find some
grounding in the record. For example, as Holcomb notes,
Mergele testified she and Moran decided Holcomb would be
assigned to his section following her return from DCA detail; yet
only a few seconds later, she stated she and Moran had no role
in this decision, which was “made as a part of the reorganiza-
tion” by Deshpande. As Holcomb also points out, Moran
testified Mergele told him she was writing a letter in support of
an appeal of a desk audit for Del Valle; but Mergele did not
mention that letter in describing the extent to which she assisted
 18

Del Valle in the appeal. Even giving Holcomb the benefit of all
reasonable inferences, as we must at the summary judgment
stage, we conclude a reasonable jury could not infer discrimina-
tory intent based on these few inconsistencies, which are both
trivial and remote.

We need not address Holcomb’s remaining contentions,
except to note she marshals no evidence of the sort this court has
previously considered probative of establishing discriminatory
animus. In Dunaway v. International Brotherhood of Teamsters,
310 F.3d 758 (D.C. Cir. 2002), for instance, we addressed, in
part, a plaintiff’s contention that illegal discrimination prompted
her termination. Reversing the district court’s entry of summary
judgment for the employer on the plaintiff’s gender and national
origin claims, we recognized evidence that her immediate
supervisors had leveled crude, derogatory, and highly offensive
remarks about her gender and ethnicity toward both the plaintiff
and in general around the workplace, including statements
directly connected to the employer’s desire to terminate her
employment. Id. at 764-66. Holcomb proffers no evidence
along these lines or even close to it. To conclude that discrimi-
natory animus motivated the remaining claims to which
Holcomb alludes is to go far beyond reasonable inference and
into the realm of unfettered speculation.

Examination of the record reveals that Holcomb, despite her
numerous allegations, has not produced sufficient other evidence
to satisfy her “burden of showing that a reasonable jury could
conclude” she failed to receive the Grade 12 Program Specialist
position on account of her race. Waterhouse, 298 F.3d at 997
(quoting Aka, 156 F.3d at 1290) (internal quotation marks
omitted). In combination with her failure to produce evidence
rebutting Mergele’s legitimate, nondiscriminatory reason for
selecting Del Valle, we conclude Holcomb has failed to satisfy
 19

her burden at the summary judgment stage. We therefore affirm
the district court’s entry of summary judgment for FDIC on her
discrimination claim.

B

Holcomb contends the drastic reduction in her work
responsibilities when she returned from the DCA detail consti-
tutes retaliation. Title VII prohibits federal agencies from
retaliating against employees for asserting their rights. Forman
v. Small, 271 F.3d 285, 297 (D.C. Cir. 2001) (citing Ethnic
Employees of the Library of Cong. v. Boorstin, 751 F.2d 1405,
1413 & n.13 (D.C. Cir. 1985)). Evaluation of Title VII retalia-
tion claims follows the same burden-shifting template as
discrimination claims. Cones, 199 F.3d at 520. First, a plaintiff
must establish a prima facie case of retaliation; if she meets that
burden, the employer must articulate a legitimate nonretaliatory
reason for its action; finally, the plaintiff has the ultimate burden
of establishing that the reason asserted by the employer is pretext
for retaliation. Id.

To establish a prima facie case of retaliation, the plaintiff
must present evidence that (1) she engaged in activity protected
by Title VII; (2) the employer took an adverse employment
action against her; and (3) the adverse action was causally
related to the exercise of her rights. Id. at 521; Forkkio v.
Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002); Brown v. Brody,
199 F.3d 446, 452-53 (D.C. Cir. 1999). By filing a formal
complaint of discrimination on January 19, 2000, Holcomb
engaged in protected activity.

The district court concluded Holcomb was not the subject
of an adverse employment action. We disagree. Adverse
employment actions are not confined to hirings, firings, promo-
 20

tions, or other discrete incidents. Cones, 199 F.3d at 521. So
long as a plaintiff meets the statutory requirement of being
“aggrieved” by an employer’s action, 42 U.S.C. § 2000e-16(c)
(2000), we do not categorically reject a particular personnel
action as nonadverse simply because it does not fall into a
cognizable type, Cones, 199 F.3d at 521 (citing Brown, 199 F.3d
at 455); Passer v. Am. Chem. Soc’y, 935 F.2d 322, 331 (D.C.
Cir. 1992).4 At the same time, our cases have established some
limits to what constitutes an adverse employment action.
Although “purely subjective injuries,” such as dissatisfaction
with a reassignment, public humiliation, or loss of reputation,
are not adverse actions, the threshold is met when an employee
“experiences materially adverse consequences affecting the
terms, conditions, or privileges of employment or future
employment opportunities such that a reasonable trier of fact
could find objectively tangible harm.” Forkkio, 306 F.3d at
1130-31 (citing Brown, 199 F.3d at 457); see also Stewart, 352
F.3d at 427. We have also expressly recognized that “reassign-
ment with significantly different responsibilities . . . generally
indicates an adverse action.” Forkkio, 306 F.3d at 1131 (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).

After her return to ODEO, Holcomb never suffered a

4
One reading of Cones suggests that a plaintiff makes out an
adverse employment action once she has shown that she has been
“aggrieved” by the action. As Brown makes clear, however, the
purpose of meeting the “aggrieved” requirement is to ensure that a
plaintiff has suffered the necessary injury for her to state a claim. 199
F.3d at 455. In other words, being “aggrieved” is necessary to state
a claim for retaliation, but it is not sufficient to demonstrate that a
particular employment action was adverse. Accordingly, we read
Cones as standing simply for the proposition, previously espoused in
Passer and reiterated here, that employment actions need not fall into
cognizable categories to be considered adverse.
 21

reduction in grade, pay, or benefits, nor does the evidence
suggest her superiors ever considered these actions. She did,
however, experience an extraordinary reduction in responsibili-
ties that persisted for years, from which a reasonable jury could
conclude Holcomb suffered “objectively tangible harm.” The
record includes uncontroverted testimony that her duties
dramatically declined in both quantity and quality. Most
tellingly, the February 2002 desk audit revealed Holcomb was
performing tasks commensurate with a Grade 5 position — six
grades below Holcomb’s Grade 11 Program Specialist position.

FDIC concedes Holcomb was performing work well below
her grade level but counters that the reduction was the inadver-
tent result of a reorganization, was merely “temporary,” and was
remedied when management ordered a desk audit and rewrote
her position to give her duties commensurate with her classifica-
tion. FDIC fails to acknowledge, though, that the desk audit did
not take place until February 2002 — almost two years after
Holcomb was assigned to Moran’s section and found herself
doing mostly clerical work. Additionally, it was not until
August 2002 — six months later — that personnel finally
approved her new job description. We conclude Holcomb
suffered an adverse employment action based on the precipitous
reduction in the complexity of her work and the substantial
amount of time it took to correct these deficiencies — even after
management became aware of the problem. Holcomb was
assigned duties not only far below her grade level but below the
level at which she had entered federal employment ten years
earlier. Moreover, she was mired in this professional purgatory
for over two years. These extraordinary circumstances rise to
the level of materially adverse consequences that inflict objec-
tively tangible harm. Accordingly, we find that Holcomb has
suffered an adverse employment action.
 22

We also conclude that the adverse employment action
Holcomb experienced was causally related to her exercise of
statutorily protected activity. A plaintiff may satisfy this third
element of a prima facie case by showing “the employer had
knowledge of the employee’s protected activity, and . . . the
adverse personnel action took place shortly after that activity.”
Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985); see also
Holbrook v. Reno, 196 F.3d 255, 263 (D.C. Cir. 1999).

Although, viewed in isolation, Holcomb’s January 2000
complaint would not establish the “close temporal proximity” we
have previously required to give rise to an inference of causation,
Cones, 199 F.3d at 521; see also Singletary v. District of
Columbia, 351 F.3d 519, 525 (D.C. Cir. 2003) (requiring a “close
temporal relationship”), Holcomb engaged in other protected
activity throughout her post-DCA tenure. She traded correspon-
dence with senior FDIC personnel in March 2000, sent numerous
letters to EEOC between July 2000 and May 2001 (copying
FDIC officials on many of them), filed a complaint against FDIC
in the district court in July 2001, and filed a second administra-
tive complaint in April 2002. All of these actions occurred while
Holcomb languished in her ODEO netherworld. At the prima
facie stage of a retaliation claim, a plaintiff’s burden “is not
great; [she] merely needs to establish facts adequate to permit an
inference of retaliatory motive.” McKenna v. Weinberger, 729
F.2d 783, 790 (D.C. Cir. 1984). Because Holcomb repeatedly
engaged in protected activity during the period when she also
experienced reduced work assignments, we believe she has met
this minimal burden and made out a prima facie case of retalia-
tion.

In their briefs and at oral argument, both parties addressed
only the prima facie aspect of Holcomb’s retaliation claim.
Neither before this court nor before the district court on the
 23

motion for summary judgment did either party speak to the
remaining elements of the McDonnell Douglas framework,
including whether FDIC could offer a legitimate, nondiscrimina-
tory reason for its presumptively retaliatory action or whether
Holcomb could show that any such explanation was pretextual.
Nor did the district court reach these issues in its decision. We
are therefore discinclined to proceed further in our analysis of
Holcomb’s retaliation claim. “An appellate court normally does
not give consideration to issues that were neither raised nor
decided below.” Ryan v. Dep’t of Justice, 617 F.2d 781, 789
(D.C. Cir. 1980) (citing Hormel v. Helvering, 312 U.S. 552, 556-
57 (1941)). This general rule is especially acute in the present
context, for were we to divine a nondiscriminatory explanation
on FDIC’s part based on the evidence it has produced, Holcomb
would be left in the lurch, having no way to rebut an explanation
never before articulated to her. See Doe v. DiGenova, 779 F.2d
74, 89 (D.C. Cir. 1985) (“[C]ourts have properly been reluctant
to address an issue where the opposing party has not had a fair
and adequate opportunity to dispute the material issues.”). The
appropriate response is therefore to reverse the district court’s
grant of summary judgment, since Holcomb has established a
prima facie case of retaliation, cf. Russell v. Principi, 257 F.3d
815, 819 (D.C. Cir. 2001), and, on remand, permit the parties to
address these heretofore unconsidered matters before the district
court.

III

The district court properly granted summary judgment on
Holcomb’s discrimination claim, but it erred in granting sum-
mary judgment on her retaliation claim. Accordingly, the
judgment of the district court is affirmed in part and reversed in
part, and the case is remanded for further proceedings consistent
with this opinion.
24