Vickers v. Powell

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2007 Decided July 6, 2007

No. 06-5016

CYNTHIA J. VICKERS,
APPELLANT

v.

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

Appeal from the United States District Court
for the District of Columbia
(No. 03cv00174)

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

Marian L. Borum, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Michael J. Ryan, Assistant U.S. Attorney, entered an
appearance.

Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
 2

GRIFFITH, Circuit Judge: Appellant Cynthia Vickers
claims that the Federal Deposit Insurance Corporation (“FDIC”)
wrongfully terminated her employment. We review the district
court’s grant of summary judgment against Vickers on all her
claims and affirm its decision that she was not the victim of
illegal retaliation and discrimination, but vacate the decision
granting summary judgment for the FDIC on her hostile work
environment claim. We also reverse its decision that the Merit
Systems Protection Board (“MSPB” or “Board”) was not
arbitrary and capricious when it failed to explain why Vickers’
refusal to sign a medical release form that did not protect her
privacy interest was a firing offense.

I.

A. Background

Cynthia Vickers is an African-American woman who
worked as a federal law enforcement officer since 1984 and as
a criminal investigator in the Atlanta office of the FDIC from
1991 until her dismissal in 2001. By all accounts, Vickers had
a strained relationship with her direct supervisor at the FDIC,
Dana Bedwell, the Special Agent in Charge (“SAC”) of the
Atlanta office. On October 31, 2000, there was an unpleasant
workplace exchange between the two. Vickers told Bedwell that
she would be out of the office for most of the next week
conducting investigations and would miss the full week after
that for medical treatment. Already concerned about the way
Vickers was spending her time, Bedwell asked her how many
interviews each upcoming investigation would require. Vickers
could not tell him on the spot and, in frustration, accused
Bedwell of micromanaging her work. The discussion became
heated, and both Bedwell and Vickers raised their voices.
Vickers stormed out of the office, saying “I don’t need this” and
 3

“I’m out of here.” On the way out, she gave a secretary her
government identification and cellular phone. The next day,
Vickers’ husband came to the office and turned in her
government credit card, office keys, and a laptop computer. The
following day, November 2, 2000, Bedwell sent Vickers a letter
that gave his account of the argument and granted her four hours
of administrative leave for the time she left work that day. The
letter also put Vickers on notice that she was absent without
authorized leave and warned her that if she did not return to
work by November 6, 2000, Bedwell would begin termination
proceedings against her. Vickers returned to the office on
November 6, not to work, but to hand Bedwell a letter
requesting six months leave without pay to resolve the “mental,
emotional, and physical anguish” caused by her employment at
the FDIC. The FDIC granted her request. Sometime in
November, Vickers spoke with an Equal Employment
Opportunity (“EEO”) counselor at the FDIC and even filed a
complaint with the Equal Employment Opportunity Commission
alleging various discriminatory acts against her. The record tells
us nothing about her conversation with the counselor, the
content of her complaint, or its disposition.

For the next five months, Vickers was treated for severe
depression. On March 20, 2001, she gave the FDIC a letter from
her psychiatrist stating that she would be able to return to work
on May 1, 2001. In a letter dated March 23, 2001, Bedwell
notified Vickers that before she could be allowed to return to
work after an illness, she was required pursuant to 5 C.F.R.
§ 339.3011 to successfully complete a medical examination at

1
The regulation provides that:

(b) Subject to § 339.103 of this part, an agency may
require an individual who has applied for or occupies
a position which has medical standards or physical
 4

the U.S. Public Health Services (“PHS”) on April 9 and 10,
2001. Vickers did not contest this requirement and submitted to
the examination, but, acting on the advice of counsel, refused to
sign either of the two forms that authorized the release of her
medical information because, according to Vickers, they lacked
sufficient safeguards to protect her privacy, especially in light of
office rumors about her previous medical treatments. One of the
forms, the Release Form, was a general medical release that
authorized the recipient to release medical information to
whomever was listed on the form. The second release, the Exam
Form, was to be completed as part of Vickers’ medical
examination and authorized the recipient to release information
pertinent to the exam. On April 18, 2001, acting-SAC Thomas
McDade, who had replaced Bedwell after his March 2001
retirement, sent Vickers a letter demanding that she return to the
PHS to complete the required paperwork. The letter warned that
failure to do so would “be grounds for disciplinary action up to

requirements or which is part of an established
medical evaluation program, to report for a medical
examination:

(1) Prior to appointment or selection
(including reemployment on the basis of full
or partial recovery from a medical
condition);

(2) On a regularly recurring, periodic basis
after appointment; or

(3) Whenever there is a direct question about
an employee’s continued capacity to meet
the physical or medical requirements of a
position.

5 C.F.R. § 339.301(b).
 5

and including removal.” Vickers again refused to sign either
form.

Assistant Inspector General for Investigations (“AIGI”)
Samuel Holland, who was “designated the agency official
authorized to make the final decision in this matter,” made the
decision to fire Vickers effective December 14, 2001, and gave
four reasons for doing so: (1) she showed disrespect to Bedwell
during their October 31, 2001 meeting; (2) she failed to provide
the information regarding her work that Bedwell requested in
that meeting; (3) she failed to sign the releases, which were a
necessary part of the required medical examination; and (4) she
failed to follow McDade’s instructions to return to the PHS to
sign the releases. Letter from Samuel Holland, Assistant
Inspector General for Investigations, FDIC, to Cynthia Vickers
(Dec. 6, 2001).

B. Prior Proceedings

We have commented before on the “extremely
complicated” interplay between the two statutory schemes that
govern the process by which a civil servant may challenge an
adverse employment action when she claims that she was not
only treated unfairly but in violation of her civil rights. See
Butler v. West, 164 F.3d 634, 638-39 (D.C. Cir. 1999). This
case illustrates the point. The Civil Service Reform Act of 1978,
Pub. L. No. 95-454, 92 Stat. 1111 (codified as amended in
sections of 5 U.S.C.), grants civil servants like Vickers a
statutory right to appeal adverse employment actions to the
Merit Systems Protection Board. Before the Board, the
employer must demonstrate that its reasons for firing the civil
servant are supported by a preponderance of the evidence, see 5
U.S.C. § 7701(c)(1)(B), and that the penalty imposed was
reasonable, see Douglas v. Veterans Admin., 5 M.S.P.B. 313
(1981). The employee must prove any affirmative defenses by
 6

a preponderance of the evidence. See 5 C.F.R.
§ 1201.56(a)(2)(iii). Vickers appealed her discharge to the
Board in January 2002. She denied any wrongdoing and
countered the FDIC’s accusations with affirmative defenses that
her termination was the result of unlawful sexual and racial
discrimination and retaliation for having engaged in EEO
activities. An administrative law judge (“ALJ”) took evidence,
heard arguments, and upheld the FDIC’s firing of Vickers. See
Vickers v. FDIC, No. AT-0752-02-0233-I-2 (M.S.P.B. Dec. 9,
2002) (“MSPB Decision”). The ALJ found that Vickers failed
to follow Bedwell’s instructions to update him on her cases and
the later instruction from McDade to sign the medical releases,
id. at 12-13, but rejected the FDIC’s charge that Vickers was
disrespectful to Bedwell. Because Bedwell had raised his voice
during the argument, the ALJ found “that her responses and
leaving the meeting were not acts of disrespect, but rather a
spur-of-the-moment, emotional reaction to [Bedwell’s] failure
to maintain his own professionalism.” Id. at 4.

Significantly for our analysis, the ALJ did not fault
Vickers for her refusal to sign one of the medical release
forms—the Release Form—because it “was blank as to the name
of the doctors/clinics [to whom] these forms would be sent and
to whom the information would be released,” id. at 7, and
“Holland testified that he would not order an employee to sign
a form that did not say to whom the information would be
released,” id. at 10. The ALJ did fault Vickers, however, for her
refusal to sign the other medical release form—the Exam
Form—because in the ALJ’s view it expressly limited the PHS
to making inquiries about Vickers medical history of “doctors,
hospitals, or clinics she mentioned in answering the questions on
the form” and it provided that any medical information collected
could only be released “to the agency’s designated point of
contact on a need-to-know basis.” Id. at 10. The ALJ was
further swayed by the fact that Vickers “had previously signed
 7

the [same] release on the Exam Form on January 21, 2000.” Id.2

The ALJ rejected Vickers’ affirmative defenses that she
was fired because of her race and gender and in retaliation for
her EEO activities. As to her discrimination defense, the ALJ
held that Vickers “presented no direct evidence that reflects
directly the discriminatory attitude and bears directly on her
removal.” Id. at 13 (emphasis in original). The ALJ rejected
Vickers’ retaliation defense because she had not provided
sufficient evidence demonstrating that her firing was done in
retaliation for her EEO activities. Id. at 22.

Although Board decisions are generally reviewed by the
Court of Appeals for the Federal Circuit, see 5 U.S.C.
§ 7703(b)(1), “mixed cases” that involve both MSPB appeals
and discrimination claims under Title VII of the Civil Rights Act
of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq., are
reviewed in federal district court, see 5 U.S.C. § 7703(b)(2),
which is where Vickers brought her claims. Vickers alleged that
the MSPB’s decision “was arbitrary, capricious, contrary to
government law and regulation, and not supported by substantial
evidence.” Am. Compl. ¶ 20(d). She also alleged that the FDIC
committed three Title VII violations: (1) retaliation for protected
EEO activities; (2) discrimination; and (3) creating a hostile
work environment.

The district court granted the FDIC’s motion for
summary judgment against Vickers on all of her claims. Vickers
v. Powell, Civ. No. 03-174, 2005 WL 3207775 (D.D.C. Nov. 21,
2005). The court determined that the MSPB decision was

2
Neither the ALJ’s reference to this earlier signing of the
Exam Form nor any other part of the record reveals the circumstances
surrounding this prior physical examination.
 8

neither arbitrary nor capricious and was supported by substantial
evidence. Id. at *15-25. The district court also rejected
Vickers’ Title VII claims. As to her retaliation claim, the
district court determined that Vickers “failed to meet her burden
of showing that a reasonable jury could conclude that she was
terminated due to retaliation” because she did not provide
sufficient evidence demonstrating that the FDIC’s legitimate,
non-discriminatory justification for her firing was pretext. Id. at
*28 (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1290 (D.C.
Cir. 1998) (en banc)). Although the district court failed to
expressly address Vickers’ discrimination claim, its review of
her MSPB appeal included a rejection of her allegation raised as
an affirmative defense before the ALJ that she was unlawfully
fired because of her race and gender. The district court found
after a de novo review that Vickers failed to “produce evidence
showing the described [discriminatory] events bore directly on
her termination.” Id. at *27. The district court also rejected
Vickers’ hostile work environment claim because it found that
most of Vickers’ allegations were untimely and the few timely
incidents were insufficient to support a hostile work
environment claim. Id. at *32-35. Having lost each of her
claims, Vickers now appeals that decision to this Court.

II.

Like her claims in the district court, Vickers’ appeal
presents two legally-distinct but factually-related issues. First,
we must decide whether the MSPB’s decision affirming
Vickers’ firing was arbitrary, capricious, an abuse of discretion,
or unsupported by substantial record evidence. 5 U.S.C.
§ 7703(c). We do not, however, defer to the district court. See
Fogg v. Ashcroft, 254 F.3d 103, 112 (D.C. Cir. 2001) (noting
that district court assessment “drops out of the multiple layers of
deference”); Novicki v. Cook, 946 F.2d 938, 941 (D.C. Cir.
1991) (“We do not defer to a district court’s review of an agency
 9

adjudication any more than the Supreme Court defers to a court
of appeals’ review of such a decision.”). Next, we review the
district court’s grant of summary judgment against Vickers’
Title VII claims. We conduct that review de novo. See, e.g.,
Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C.
Cir. 2007). We “view the evidence in the light most favorable
to [Vickers], draw all reasonable inferences in her favor, and
eschew making credibility determinations or weighing the
evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
2007).

A. The MSPB Decision

Vickers challenges two aspects of the MSPB’s decision:
whether the determination affirming her firing was arbitrary,
capricious, or unsupported by substantial evidence and whether
that penalty was an appropriate sanction and consistent with the
MSPB’s precedent. Because we conclude that the Board’s
affirmation of the FDIC decision to fire Vickers was arbitrary
and capricious, we need not reach her challenge to the penalty.
The Board failed to explain why Vickers was within her rights
to refuse to sign the Release Form because it did not disclose
where her medical records might be sent, but wrong to refuse to
sign the Exam Form, which had the same flaw.

The MSPB rejected the FDIC’s charge that Vickers
wrongly refused to sign the Release Form because the Board
found it “was blank as to the name of the doctors/clinics [that]
these forms would be sent and to whom the information would
be released.” MSPB Decision at 7. The relevant portion of the
Release Form provides, “[Recipients of the Release] are hereby
authorized to furnish information from the record of the
individual named below [Vickers] which is in the record of your
facility, and release it to: [BLANK BOX].” The MSPB
reasonably concluded that Vickers was justified in her refusal
 10

to sign such an open-ended grant of permission to release
confidential medical information. But the Exam Form that the
Board faulted Vickers for not signing offered her no more
protection:

I [Vickers] certify that I have reviewed the
foregoing information supplied by me and that it
is true and complete to the best of my
knowledge. I authorize any of the doctors,
hospitals, or clinics mentioned on these forms to
furnish the Government a complete transcript of
my medical record for purposes of processing
this exam. I authorize the release of all medical
information to the Federal Occupational
Health/Law Enforcement Medical Program and
on a need to know basis, the designed [sic]
(Agency/Name) point of contact.

Id. at 6-7 (citation omitted). We see no significant distinction
between the privacy protections in each form that would justify
the Board concluding that Vickers was free to refuse to sign one
but committed a firing offense for refusing to sign the other.
Like the Release Form, the Exam Form was blank as to whom
the information would be released, and Holland, who ultimately
made the decision to fire Vickers, reasonably testified that “he
would not order an employee to sign a form that did not say to
whom the information would be released.” Id. at 10. The Exam
Form noted only that Vickers’ medical records could be released
to “(Agency/Name) point of contact.” The generic term
“Agency/Name” does not provide adequate protection for
Vickers’ confidential medical records. To protect her privacy,
it should have specified the particular agency or point of
 11

contact.3 The MSPB thought the form provided sufficient
protection because it “identified to which providers request for
documents would be sent and to whom the responsive
documents would be provided.” Id. at 10. That does not
describe the Exam Form, which failed to specify what agency or
which point of contact would have access to Vickers’
confidential medical records. Because the MSPB found that a
similar failing in the Release Form justified Vickers’ refusal to
sign, it should have come to the same conclusion for her refusal
to sign the also-flawed Exam Form. That it did not was an

3
The record contains some suggestion that the Exam Form
Vickers refused to sign actually designated the FDIC-OIG (Office of
Inspector General) as the entity to which her medical information
would be released. Such a designation would have been a sufficient
safeguard for her privacy. But the copy of the Exam Form submitted
to the Court and the MSPB is illegible, and the language quoted by the
MSPB (and cited by the district court) was not from the actual form
Vickers refused to sign. It was from a copy of the form in which none
of the blanks had been filled in. See MSPB Decision at 7 n.5 (noting
that the Exam Form language came from “a blank copy of the Exam
Form . . . on which [Vickers] refused to complete the medical release,”
and that the blank form was submitted because the form Vickers
refused to sign was “not legible”). Vickers’ attorney submitted a letter
to the FDIC that indicated the form Vickers refused to sign was
complete and did not have the blanks that so trouble us. See Letter
from Joleen Payeur Olsen, Attorney to Cynthia Vickers, to Janet
Welch, Employment Relations Specialist, FDIC, at 2 (April 27, 2001)
(quoting from Exam Form that information would be released “on a
need to know basis, the designated FDIC-OIG point of contact”)
(emphasis added). When questioned at oral argument, however, the
government maintained that the Exam Form Vickers refused to sign
had not designated to whom the information would be released beyond
“(Agency/Name) point of contact.” The government dismissed as
“mistaken” the concession offered by Vickers’ counsel in her April
2001 letter. Recording of Oral Argument at 23:30.
 12

arbitrary and capricious decision that the district court should
not have affirmed.

The MSPB further erred by finding that Vickers’ earlier
signing of another medical release left her without an excuse for
refusing to sign the Exam Form. See MSPB Decision at 10
(finding Vickers’ objection to signing the Exam Form
“particularly troubling because, without incident, she previously
signed the release on the Exam Form on January 21, 2000”).
The earlier form provided that information collected could only
be released to the FDIC Office of Inspector General point of
contact. That limitation is simply not part of the form Vickers
justifiably refused to sign in April 2001. The Board’s failure to
acknowledge the obvious difference between the two release
forms was arbitrary and capricious. Because we fault the Board
for requiring Vickers to sign the Exam Form, we need not reach
the FDIC’s other charges. We remand this matter to the district
court with instructions to further remand the matter to the MSPB
to determine whether the remaining allegations constitute an
independent basis for Vickers’ firing.

B. Title VII Claims

Vickers also appeals the district court’s decision to grant
summary judgment for the FDIC on her Title VII claims. Title
VII prohibits federal agencies from workplace “discrimination
based on race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-16(a). The familiar McDonnell Douglas
framework governs its application for discrimination and
retaliation claims. See, e.g., Chappell-Johnson v. Powell, 440
F.3d 484, 487 (D.C. Cir. 2006) (noting that “the Supreme Court
set out a burden-shifting approach [in McDonnell Douglas] to
employment discrimination claims in cases where the plaintiff
lacks direct evidence of discrimination”); McKenna v.
Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984) (“The
 13

McDonnell Douglas framework is also applicable to claims of
retaliatory dismissal.”). The successful plaintiff in a Title VII
case must first establish a “prima facie case of racial
discrimination,” McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973), by showing that, “(1) she is a member of a
protected class; (2) she suffered an adverse employment action;
and (3) the unfavorable action gives rise to an inference of
discrimination.” Chappell-Johnson, 440 F.3d at 488 (quoting
Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999)). The
burden then shifts to the employer “to articulate some legitimate,
nondiscriminatory reason” for its actions. McDonnell Douglas,
411 U.S. at 802. In reply, the plaintiff must show that the
employer’s proffered justification is mere pretext and thus a
“coverup for a racially discriminatory decision.” Id. at 805.

After the employer offers a non-discriminatory
justification for its actions, the McDonnell Douglas framework
falls away, and we must determine whether a reasonable jury
could “could infer discrimination from the combination of (1)
the plaintiff’s prima facie case; (2) any 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.” Aka, 156 F.3d at 1289 (reviewing
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507-11 (1993)).
In this case, both Vickers’ retaliation and discrimination claims
fail because of the relative weakness of her prima facie cases
and because she has not shown that the FDIC’s justification for
her firing—her failure to follow instructions and complete a
medical examination—was mere pretext for discrimination.

1. Retaliation Claim

We begin with Vickers’ claim that the FDIC fired her in
retaliation for her complaints of sex- and race-based
discrimination. See 42 U.S.C. § 2000e-3. To make out a prima
 14

facie case of illegal retaliation, Vickers must show that “(1) she
engaged in statutorily protected activity; (2) her employer took
an adverse personnel action against her; and (3) a causal
connection exists between the two.” Carney v. Am. Univ., 151
F.3d 1090, 1095 (D.C. Cir. 1998). Vickers alleges her discharge
was in retaliation for two complaints she made to FDIC officials
about the alleged discrimination she experienced. The first was
a conversation she had with Holland on September 29, 2000, in
which she allegedly complained of the office’s sexist and racist
environment. Holland acknowledged that the conversation took
place, but denied that Vickers raised any concerns about
discrimination. Vickers also contacted an EEO counselor in
November 2000 and filed an EEO complaint shortly thereafter.
As we noted above, the record tells only that the contact
occurred and that the complaint was filed. We know nothing of
the content of either or the disposition of the complaint. Like
the district court, we assume arguendo that Vickers alleged a
prima facie case of retaliation and that the burden shifted to the
FDIC to articulate a legitimate, non-discriminatory reason for
her termination, which it did. According to the FDIC, Vickers
“failed to complete her medical examination; failed to sign the
necessary release forms, preventing an independent evaluation
of whether [she] was fit to [sic] duty; and failed to follow the
[FDIC’s] orders.” Vickers, 2005 WL 3207775, at *28.

In challenging the district court’s decision that she had
not provided sufficient evidence demonstrating that the FDIC’s
proffered justification was pretext, Vickers argues that the court
ignored “factors that raise an inference of retaliatory motive by
Holland.” Appellant’s Br. at 29. She asserts that the fact that
Holland claims they did not speak of discrimination during their
September 2000 conversation and was allegedly annoyed by her
complaints permits “a reasonable juror [to] infer that Holland
lied about his conversation to hide his retaliatory motive.” Id.
at 30. Vickers also asserts that Holland’s decision to impose the
 15

highest possible penalty, termination, could also be reasonably
seen as retaliation. Id. at 31. We are not persuaded. Although
Vickers baldly asserts that Holland might be lying to hide his
retaliatory motive, she failed to provide any evidence indicating
why Holland, who ultimately made the decision to terminate
Vickers, might have wanted to see her removed. He was not
involved in any of the events that preceded Vickers’ termination,
nor did he participate in any of the alleged incidents that make
up Vickers’ hostile work environment claim. Instead, as
Assistant Inspector General for Investigations, Holland had been
given the authority to review the allegations against Vickers and
make the ultimate decision to keep her or fire her. Without more
than what Vickers has offered as evidence, we cannot see how
a reasonable jury might find a retaliatory motive at work in
Holland’s decision. Vickers’ retaliation claim is further
undermined by the fact that even though it was Holland who
fired her, Bedwell was the focus of her discrimination claims.
Vickers failed to put on any evidence to show that Holland’s
decision was in any way influenced by Bedwell, who had retired
before Vickers’ refusal to sign the releases in April 2001 that
triggered her firing. See, e.g., Griffin v. Wash. Convention Ctr.,
142 F.3d 1308, 1311-12 (D.C. Cir. 1998) (holding that
subordinate’s bias is only relevant “where the ultimate decision
maker is not insulated from the subordinate’s influence”).

Nor can Vickers’ Title VII claims draw support from our
decision to remand the MSPB decision for further review of the
limited issue why Vickers was fired for refusal to sign the Exam
Form. That we have raised the question that the FDIC may have
unfairly fired Vickers does not suggest that the decision to do so
was based on race or gender discrimination. There is simply no
persuasive evidence that Vickers was the victim of such
unlawful bias, and she has failed to show that her firing for her
refusal to sign the Exam Form was somehow an attempt to cover
for prohibited behavior. The mere possibility of an allegation of
 16

a violation of Title VII without supporting evidence does not
create a presumption of illegality against Vickers’ firing. She
must make a showing in support of her discrimination claims.
We have previously recognized that there is a distinction
between discrimination claims that are wanting, as here, and the
fact that a termination may not have been fair. See Forman v.
Small, 271 F.3d 285, 291 (D.C. Cir. 2001) (“Consistent with the
courts’ reluctance to become involved in the micromanagement
of everyday employment decisions, the question before the court
is limited to whether [the plaintiff] produced sufficient evidence
of . . . discrimination, not whether he was treated fairly . . . .”)
(citations omitted); cf. Carpenter v. Fed. Nat’l Mortg. Ass’n, 165
F.3d 69, 72 (D.C. Cir. 1999) (“If the plaintiff explodes the
phony reason with evidence that simply supports an unsavory
but lawful alternative reason . . . , the plaintiff cannot get to the
jury.”). Our decision to grant the petition for review of the
MSPB proceeding therefore does not affect the Title VII
analysis.

Having thus looked to the categories of evidence
highlighted by Aka, we conclude that a reasonable jury could not
infer discrimination from Vickers’ allegations. Vickers’ prima
facie case is relatively weak because it is not clear that there
exists a causal connection between her EEO activities and
Holland’s decision to fire her. She has also failed to rebut the
FDIC’s legitimate, non-discriminatory justification for her firing
with any evidence to support her allegations of unlawful
discrimination. Vickers never argued that the various
discriminatory acts alleged in her hostile work environment
claim discussed below were further evidence of pretext. The
district court therefore correctly determined that Vickers “failed
to meet her burden of providing sufficient evidence for a
reasonable jury to conclude that she was terminated due to
retaliation.” Vickers, 2005 WL 3207775, at *29.
 17

2. Discrimination Claim

Vickers’ discrimination claim is based on alleged
“repeated harassment and criticism of [her] conduct,” up to and
including her removal, “that was not based on a fair appraisal of
her performance and conduct, but rather was the result of
unlawful discrimination based upon her race and sex.” Am.
Compl. ¶ 19(b). In making out her prima facie case of
discrimination, Vickers has alleged that she was the victim of
two adverse employment actions: unfair performance appraisals
and termination. But Vickers has shown no evidence that she
received a low performance appraisal. In fact, the only record
evidence shows that Vickers received the second highest
performance evaluation in the office in October 2000 and
received a $1,500 performance award for her performance in
1999-2000. Vickers, 2005 WL 3207775, at *10 (citing Def.’s
Stmt. of Mat. Facts ¶ 5; Pl.’s Response to Def.’s Stmt. ¶ 5). A
reasonable jury could not conclude that her performance
appraisal was tainted by discrimination. As to her firing, even
if we assume arguendo that Vickers has established a prima
facie case of discrimination, her claim fails for the same reason
her retaliation claim failed. As we set forth above, she has
established a weak prima facie case at best and provided
insufficient evidence to demonstrate that the FDIC’s proffered
justification for her removal was pretext for discrimination.

3. Hostile Workplace Claim

Vickers’ final Title VII claim is that she was subjected
to a hostile work environment at the FDIC because of her sex
and race. “When the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
environment, Title VII is violated.” Harris v. Forklift Sys., Inc.,
 18

510 U.S. 17, 21 (1993) (quotation marks and citations omitted).
To determine whether a work environment is hostile, we look
“‘at all the circumstances,’ including the ‘frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.’” Faragher v. City of Boca Raton, 524 U.S. 775,
787-88 (1998) (quoting Harris, 510 U.S. at 23). In this case,
Vickers alleges thirteen incidents that make out her hostile work
environment claim:

1. In 1992 she “was ridiculed by her supervisor [Mike Mitchell]
because she attended the Women in Federal Law Enforcement
Conference (“WIFLE”) in Washington, D.C.” Vickers, 2005
WL 3207775, at *9.

2. She “was subject to unwanted and continuing conversations
about her [supervisor Mitchell’s] divorce and sexual
dysfunction” around 1993-1994. Id.

3. In 1995 or early 1996 she “was asked to assist her manager
[Mitchell] in going to the restroom by holding his genitals for
him.” Id.

4. In 1996 Mitchell “forced [her] to listen to sexist remarks
about a female coworker, including comments that this
co-worker’s ‘legs flew open’ at the sight of a photograph of her
abusive husband.” Id.

5. Vickers “was shocked when her supervisor [Mitchell] tricked
her into picking up a troll-like doll designed so that a large penis
fell from under the shirt when she picked it up” in 1995. Id.

6. In 1996 she “was singled out for rude, condescending and
often accusatory comments from [Bedwell] who showed no
 19

respect for women or blacks, unless they were in a higher graded
position than he.” Id.

7. In 1998 Bedwell “repeatedly subjected her to intrusive and
embarrassing inquiries about personal and medical privacy for
no reason other than curiosity, including inquiries of other
female employees regarding her medical condition.” Id. After
objecting to these inquiries, she was accused of being
“hypersensitive.” Id.

8. She “was subjected to unjustly reduced performance
rating[s], most recently on her October 2000 performance
evaluation. When she objected to the ratings given her, and
therefore refused to sign the Performance Plan, she was
subjected to angry threats from [Bedwell].” Id. at *10.

9. In 1999 Vickers “was subjected to sexist comments in the
work place, including a statement by her supervisor to the
Atlanta Regional Agent staff, which at this point was about 12
(twelve) white men and Ms. Vickers to the effect, ‘hey, we’re all
men here.’” Id.

10. She “was subjected to constant derogatory comments made
towards women and minorities,” including a comment in
October 2000 by an instructor employed by the Federal Law
Enforcement Training Center “that a baton is a good weapon to
use, but depending on the circumstances a gun is a better
weapon because it eliminates problems, ‘like the Rodney King
case.’” Id.

11. In 1998 Vickers “was subjected to racial profiling jokes
including a comment that a white male could enter their building
unchallenged because ‘he didn’t fit the profile.’” Id.

12. In 1998 she overheard insulting remarks from behind a
 20

closed door regarding “affirmative action when an
African-American was selected for a position and her white
coworkers suggested that he had been selected only because of
his race.” Id.

13. Vickers “was singled out for a requirement to provide
inordinate amounts of medical information to support requests
for leave.” Id.

Federal regulations bar discrimination claims that an
employee does not first bring to the attention of an agency’s
EEO counselor within forty-five days of the alleged conduct.
See 29 C.F.R. §§1614.105(a), 1614.107; Broderick v.
Donaldson, 437 F.3d 1226, 1232 (D.C. Cir. 2006). Vickers did
not contact an EEO counselor until November 9, 2000, which,
as the FDIC argues, would appear to bar from her claim any
incidents before September 25, 2000. But because “[h]ostile
environment claims are different in kind from discrete acts,” the
Supreme Court has noted that incidents constituting a claim
“occur[] over a series of days or perhaps years and, in direct
contrast to discrete acts, a single act of harassment may not be
actionable on its own.” Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 115 (2002). Because these acts may not all occur
within the filing period, the Supreme Court has held “[p]rovided
that an act contributing to the claim occurs within the filing
period, the entire time period of the hostile environment may be
considered by a court for the purposes of determining liability.”
Id. at 117. In other words, because of the unique nature of a
hostile environment claim, so long as at least one of the acts that
contributed to the hostile environment occurs within the filing
period, other acts that also contributed to the claim but that did
not occur within the filing period may also be considered.

The key inquiries then, for purposes of determining
which acts are time-barred and which are not, are “whether the
 21

acts about which an employee complains are part of the same
actionable hostile work environment practice, and if so, whether
any act falls within the statutory [filing] time period.” Id. at 120.
We need not consider an alleged incident if it “had no relation
to the [other] acts, or for some other reason, such as certain
intervening action by the employer, was no longer part of the
same hostile environment claim.” Id. at 118. In Morgan, the
Supreme Court gave us guidance in making this determination
by approving the lower court’s method of asking whether the
conduct alleged “involve[d] the same type of employment
actions, occurred relatively frequently, and were perpetrated by
the same managers.” Id. at 120 (internal quotation marks and
citation omitted).

The district court, relying on Morgan and its progeny,
determined that alleged incidents 1-64 were not part of the
hostile work environment claim that was created by Bedwell, the
focus of Vickers’ claims, because each involved Mike Mitchell,
Bedwell’s predecessor and Vickers’ supervisor until 1996.
Vickers, 2005 WL 3207775, at *33. The district court
distinguished Mitchell’s actions from Bedwell’s by finding that
Mitchell was “alleged to have acted coarsely and to have made
statements with sexual conduct” while “the incidents attributed
to Mr. Bedwell involve the exchange of harsh words between
[Vickers] and Bedwell in the context of his exercise of normal
supervisory functions over [Vickers], such as administering
performance appraisals, inquiring into an employee’s use of sick
leave, and inquiring into time management of his subordinates.”
Id. (citation omitted).

4
The district court incorrectly attributed incident 6 to
Mitchell, but the FDIC noted in its brief that it involved Bedwell.
Appellee’s Br. at 39.
 22

We disagree that the Mitchell allegations were so
different in kind that, as a matter of law, we can conclude that
they were not part of the same hostile work environment. The
line between Mitchell creating a hostile environment through
sexual conduct and his deputy-turned successor Bedwell
perpetuating the environment by condoning the same is not so
well-defined to say that the Mitchell and Bedwell acts have “no
relation” as required in Morgan. Morgan, 536 U.S. at 118. On
summary judgment, we consider not just Vickers’ allegations
but also other supporting evidence such as her response to
interrogatories, see Plaintiff’s Answers to Defendant’s First Set
of Interrogatories, Vickers v. Powell, Civ. No. 03-174 (D.D.C.
Nov. 15, 2004), which more fully describe the incidents on
which her claim is grounded. According Vickers the benefit of
all reasonable inferences, to which she is entitled as the non-
moving party on summary judgment, the Mitchell and Bedwell
incidents do not seem so obviously different in kind for us to
conclude that they are not related as a matter of law.

The Mitchell incidents can therefore be severed from the
Bedwell incidents only if we accord conclusive significance to
the change in management. But routine personnel actions such
as Mitchell’s retirement and Bedwell’s promotion cannot be the
type of “intervening action[s] by the employer” that would sever
the earlier incidents from the more recent incidents constituting
Vickers’ hostile environment claim. Id. Although we can easily
imagine circumstances in which a change in managers might
affect a hostile work environment claim, we see nothing in the
record that shows that Bedwell’s succession was in any way
intended to address the environment created by Mitchell’s
alleged improprieties. To the contrary, Vickers has alleged that
her harassment intensified after the change in management. Cf.
Isaacs v. Hill’s Pet Nutrition, Inc., 485 F.3d 383, 386 (7th Cir.
2007) (faulting district court for focusing on identity of two
harassers when both were employed by the defendant company
 23

because “the entity responsible for complying with Title VII is
the employer, of which [the plaintiff] had just one”). We thus
conclude that the district court erred when it held that Mitchell’s
actions, as a matter of law, could not reasonably be considered
part of the same hostile work environment allegedly created by
Bedwell’s actions.

The district court also erred in determining which of the
Bedwell allegations could be considered to support Vickers’
hostile work environment claim. In determining whether any of
Vickers’ remaining allegations were time-barred after it
excluded the Mitchell allegations, the district court first
examined the three acts that took place within the filing period,
incidents 8, 10, and 13, to determine whether, taken as a group,
they could support a hostile work environment claim.
Concluding that they were by themselves “insufficient to
support a hostile work environment claim,” the district court
then held that the incidents outside the filing period “cannot be
revived under Morgan for reconsideration,” even if they could
make out a hostile work environment claim. Vickers, 2005 WL
3207775, at *35.

We disagree with the district court’s analysis that the
three alleged incidents that took place within the filing period
must, by themselves, make out a claim for a hostile workplace
before we can make the common sense observation that they
were part of a hostile work environment that includes earlier
acts. As we have already observed, the Supreme Court
addressed this issue in Morgan, see 536 U.S. at 120, and we
have previously held that “the timeliness of [plaintiff’s] hostile
work environment claim does not depend on whether the acts
that he alleged were discriminatory are actionable standing
alone.” Singletary v. District of Columbia, 351 F.3d 519, 527
(D.C. Cir. 2003). “Rather, all [the plaintiff] need demonstrate
is that ‘the acts about which [he] complains are part of the same
 24

actionable hostile work environment practice.’” Id. (quoting
Morgan, 536 U.S. at 120); see also Gilliam v. S.C. Dep’t of
Juvenile Justice, 474 F.3d 134, 140 (4th Cir. 2007) (noting that
Morgan overturned Fourth Circuit precedent requiring incident
occurring within filing period to itself constitute a Title VII
violation before looking outside the filing period). Although in
Vickers’ case, the district court was correct that the three
incidents within the period were “insufficient to support a
hostile work environment claim,” Vickers, 2005 WL 3207775,
at *35, the Supreme Court has only required that they contribute
to the claim, not that they constitute the claim, see Morgan, 536
U.S. at 117.

Consistent with our precedent, we therefore remand this
issue to the district court to consider in the first instance whether
the allegations concerning Mitchell and Bedwell could
constitute a hostile work environment that would survive the
FDIC’s motion for summary judgment. See Singletary, 351 F.3d
at 528-29 (remanding case to district court for a “determination
of both the timeliness and the merits” of plaintiff’s claims after
determining that district court failed to apply the appropriate
limitations analysis under Morgan).

III.

For the foregoing reasons, we remand the MSPB appeal
to the district court with instructions to remand the case to the
Merit Systems Protection Board. We affirm the decision of the
district court granting summary judgment for the government on
Vickers’ retaliation and discrimination claims. We reverse the
district court’s judgment on the hostile work environment claim
and remand for further proceedings consistent with this opinion.

So ordered.