Greer v. Paulson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2007 Decided November 2, 2007

No. 06-5155

DOROTHY GREER,
APPELLANT

v.

HENRY M. PAULSON, JR., SECRETARY,
UNITED STATES DEPARTMENT OF TREASURY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 01cv01398)

Gregory S. Wagner argued the cause for appellant. With
him on the briefs were Elizabeth B. Sandza and Michael F.
McBride.

Andrea W. McBarnette, 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.

Before: SENTELLE, ROGERS and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.
 2

ROGERS, Circuit Judge: Upon the conclusion of her
temporary work assignment at the White House, which lasted
for more than one year, appellant Dorothy Greer was scheduled
to return to her job at the Internal Revenue Service (“IRS”).
Instead she requested one month’s annual or sick leave and
transfer within the IRS. When she did not return to work after
the IRS denied her requests and approved only one week’s
leave, she was placed on absent without leave status (“AWOL”).
That status was adjusted in part after she submitted
documentation for several months’ sick leave. Still she did not
return to work. Following the termination of her employment,
Greer filed suit pursuant to Title VII of the Civil Rights Act of
1964 and the Rehabilitation Act of 1973. The district court
granted summary judgment for the Secretary and this court
summarily affirmed in part.1 We now affirm the grant of
summary judgment on the remaining claims. Although we hold
that absence from the workplace does not bar a hostile
environment claim, Greer’s hostile environment claim fails
because she did not proffer admissible evidence of an incident
that could have shown exhaustion of her administrative
remedies. Greer’s race discrimination claims fail because she
did not exhaust administrative remedies for her termination
claim and did not proffer evidence sufficient to rebut the
Secretary’s legitimate, nondiscriminatory reasons for placing her
on AWOL.

I.

Greer is an African-American female who began working
as an IRS attorney in 1983. Between 1990 and 1994, she made
numerous complaints about racially offensive behavior in the

1
See Greer v. Paulson, No. 06-5155, at 1 (D.C. Cir. Dec. 6,
2006) .
 3

workplace.2 According to Greer, her second-line supervisor,
Marcus Owens, “reacted in a nonchalant, unconcerned manner”
and “told [her] not to be so sensitive.” Greer Affidavit ¶ 4
(Sept. 20, 2005). One of her reporting supervisors, Harold
Toppall, responded by stating that “people are insensitive . . .
and [she had] to learn to look over things like that.” Greer
Deposition 11 (Nov. 17, 2004). Notwithstanding what she
considered to be a culture at the IRS that was hostile to African
Americans, an opinion based on racial insults she and her
coworkers allegedly experienced, Greer continued to excel,
although not to the extent she thought she was entitled. She was
promoted in 1989 to become a GS-13 Tax Law Specialist and
from 1992 through 1994 her performance appraisals stated that
she “Exceeds Fully Successful.”

In 1993, Greer filed an Equal Employment Opportunity

2
Greer alleges a number of incidents, including finding on her
desk an unsigned memorandum that used the “N” word and invoked
religious imagery and affirmative action in stating that African
Americans “are causing to [sic] many problems,” Greer Dep. 73-74
(Nov. 17, 2004). Other incidents included an IRS official suggesting
that she and other African-American employees who were on their
way to lunch were going out to steal VCRs; an IRS official stating
when Greer was speaking with a colleague that he knew Greer was in
the room because he had seen her broom and cleaning cart outside the
door; an IRS employee asking if she had sold drugs over the weekend
to get the bank deposit money that was sitting on her desk; an IRS
employee saying that African-American employees could buy a lot of
watermelons with their pay raises; an IRS employee saying that a vast
majority of African Americans were on welfare; and her second-line
supervisor and other IRS employees referring to her as “Mrs. Martin
Luther King” and “Queen B” after she complained about racially
offensive remarks in the workplace. See Greer Aff. ¶ 4 (Sept. 20,
2005); Greer Aff. 7 (undated); Greer Dep. 6-10, 20-21, 33, 44-57, 74-
75, 135 (Nov. 17, 2004).
 4

(“EEO”) Pre-Complaint alleging that she was being treated
unfairly because of complaints she made regarding racially
charged comments in the workplace. Specifically, she asserted
that Owens had inaccurately entered information in her
personnel file regarding an alleged absence that was
inconsistent with the treatment of other employees. Her
grievance was never resolved, but, she claims, her efforts to
improve the work environment earned her a reputation as an
“upstart” (Appellant’s Br. at 8), because she spoke out on racial
issues.

Greer was absent from her office at the IRS for
approximately sixteen months between January 1994 and April
1995. Three and one half months of sick leave were followed
directly by a temporary work assignment to the White House.
Toward the end of the temporary assignment, Greer received a
telephone message from Garland Carter that her division had
been reorganized and that she would be reporting to him upon
her return to the IRS in the Exempt Organizations Branch.
Although she had never met Carter, Greer had heard “on the
grapevine” (Greer Aff. 4, undated), that Carter had privately
made disparaging remarks about her; these allegedly included
questioning the leave balance she accumulated during her
temporary White House work assignment and suggesting that
she acquired her White House assignment as the result of a
“special,” illicit relationship with a Cabinet member, see id. at
3-5. Additionally, Greer learned that she was to share an office
with two white men whose attitudes toward African Americans
she believed “were very negative.” Greer Dep. 19-21 (Nov. 17,
2004).

On May 1, 1995, the date Greer was scheduled to return to
the IRS from her White House assignment, she telephoned
Carter early in the morning to request use of 160 hours of
annual leave, with immediate effect. As Greer explained later,
 5

she and her doctor regarded her office environment at the IRS
as “too stressful” because the pervasive racial hostility there
was adversely affecting her health. Greer Aff. 9 (undated).
Greer believed that her manner of requesting leave followed
office policy, that her request would be treated respectfully and
that it would be granted — as had been the case for coworkers
making similar requests. According to Greer, however, Carter
“had a visceral reaction to [her] . . . [,] raised his voice” during
their conversation, and then “slammed down the phone.” Id. at
1. Carter granted Greer one week of leave and instructed her to
report for duty on Monday, May 8, 1995 or be placed on
AWOL — an unpaid status. Greer did not comply with Carter’s
instruction, and throughout the interactions described below did
not report for duty. She never returned to work at the IRS.

Initially, instead of reporting to work on May 8, Greer
requested sick leave. Carter required, consistent with IRS
policy, that Greer provide medical documentation to support her
leave request. The documentation she submitted from her
doctor indicated that she could return to work on September 26,
1995, and recommended that she seek a transfer to a less
stressful environment. On May 12, 1995, Greer wrote James
McGovern, the Assistant Commissioner of Employee Plans and
Exempt Organizations, to request an immediate transfer from
Carter’s group as well as the Exempt Organizations Branch, due
to events during the prior 16 months. These included a call by
Carter to verify her performance appraisal while on assignment
to the White House and his alleged indiscreet statements in front
of coworkers about her work attendance. Greer believed other
colleagues had requested transfers without problems in the past,
but her request was denied.

On May 10, 1995, Greer sought EEO counseling, alleging
that the IRS was hostile to African Americans and detailing
specific instances of mistreatment on racial grounds, including
 6

harassment, leave denial and unlawful AWOL designation.
Greer filed a formal complaint in August 1995; the IRS
eventually dismissed some of her claims as untimely or because
she had elected an alternative remedy. After negotiations, a
settlement was reached whereby Greer’s absences in the period
between May and September 1995 were retroactively
designated by Carter as either sick leave or leave without pay
(“LWOP”); however, use of annual leave was denied. Greer’s
absence after September 1995 continued to be classified as
AWOL and a letter dated May 24, 1996 advised her that “due
to your accumulation of excessive AWOL . . . an appropriate
adverse action is being contemplated.” Letter from Garland A.
Carter, Chief, Technical Branch Five, to Dorothy Greer (May
24, 1996).

Meanwhile, in December 1995, Greer had been selected to
serve on a federal grand jury, which was scheduled to meet
twice weekly for 18 months. The IRS was to pay her for the
days she served. In January 1996, Greer wrote to advise her
IRS supervisors that she had been overpaid for grand jury
service during the first pay period. She suggested that her
supervisors had overpaid her on purpose in “a deliberate attempt
to induce [her] to commit a fraudulent act.” Letter from
Dorothy Greer to McGovern, Owens, and Carter (Jan. 19,
1996). Several months later, Carter discovered that Greer had
also been paid for numerous days when the grand jury had not
met. Greer had not informed him when the grand jury did not
meet, explaining that, based on what she was told upon first
appearing for grand jury service, she expected the federal
district court to inform the IRS about this matter.

On August 13, 1996, the IRS terminated Greer’s
employment, based on her extended absence without leave since
September 26, 1995; her acceptance of unearned pay for grand
jury service (from December 1995 through May 1996); and her
 7

failure to follow her supervisor’s instruction to furnish monthly
reports of her grand jury service. Greer filed an administrative
complaint on March 30, 1998. When the IRS failed to act,
Greer filed suit against the Secretary of the Treasury on June 26,
2001 pursuant to Title VII, 42 U.S.C. § 2000e-16, and sections
501 and 504 of the Rehabilitation Act, 29 U.S.C. §§ 791, 794,
alleging race discrimination (including a hostile work
environment), sex discrimination, disability discrimination, and
retaliation. The district court granted summary judgment to the
Secretary. Greer appealed, and in response to the Secretary’s
motion for summary affirmance, this court affirmed the grant of
summary judgment on Greer’s claims of retaliation and gender
and disability discrimination. Our review of the grant of
summary judgment on the remaining claims continues to be de
novo, see Mastro v. Potomac Elec. Power Co., 447 F.3d 843,
849 (D.C. Cir. 2006); Carter v. George Wash. Univ., 387 F.3d
872, 878 (D.C. Cir. 2004), according to Greer as the non-
moving party the benefit of all reasonable inferences in her
favor, see Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
2007).

II.

In granting summary judgment to the Secretary on the
hostile work environment claim, the district court refused to
consider for purposes of administrative exhaustion Greer’s
evidence concerning three incidents occurring after January
1994. Under Equal Opportunity Commission regulations, an
“aggrieved” employee must consult an agency EEO counselor
within 45 days of any “matter alleged to be discriminatory or,
in the case of personnel action, within 45 days of the effective
date of the action.” 29 C.F.R. § 1614.105(a)(1); see Bowden v.
United States, 106 F.3d 433, 437 (D.C. Cir. 1997). The district
court justified its refusal to consider the post-1994 incidents on
the basis of Greer’s absence from the workplace during the time
 8

of her sick leave and temporary work assignment at the White
House. Greer challenges this reasoning, contending that the
pre- and post-1994 incidents are sufficiently linked despite her
extended absence from the office, and that the timely
administrative exhaustion of post-1994 incidents thus extends
to her pre-1994 allegations. More specifically, Greer contends
that her May 10, 1995 EEO counseling session appropriately
exhausted her administrative remedies because she complained
about management’s insistence that she return to the allegedly
hostile environment on May 1, 1995, the denial of annual leave
in May 1995, and Carter’s alleged comment to her union
representative that she had obtained the White House
assignment as the result of a “special” relationship. The
Secretary offers that these incidents are irrelevant and also that
Greer’s contact with the workplace was so limited that “she had
no basis for claiming a hostile work environment existed during
the period that she was away or that any alleged previous hostile
work environment had not been ‘cured.’” Appellee’s Br. at 8
n.4 (quoting Appellant’s Br. at 17 n.7). In the alternative, the
Secretary maintains that Carter’s supposed “special”
relationship comment was supported only by inadmissible
hearsay and thus is insufficient to support the denial of a
motion for summary judgment.

Greer’s hostile work environment claim depends on the
contention that the pre- and post-1994 alleged incidents form
part of a whole. “Because [acts of harassment] 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.’” Vickers v. Powell, 493 F.3d 186, 198
(D.C. Cir. 2007) (quoting Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 117 (2002)); Singletary v. District of
Columbia, 351 F.3d 519, 526-27 (D.C. Cir. 2003) (citing
 9

Morgan, 536 U.S. at 115). If the incidents are considered as a
whole, then Greer’s May 1995 request for EEO counseling may
constitute administrative exhaustion for all the incidents she
alleges because at least some of them occurred within 45 days
of her counseling request. See 29 C.F.R. § 1614.105(a)(1). By
contrast, if the district court were correct, and her absence from
the workplace constituted a per se preclusion to linking her pre-
and post-1994 claims, then any claim she may have had based
on the pre-1994 incidents was not exhausted.

This court has not spoken on whether an employee’s
absence bars consideration of work-related incidents for
purposes of exhausting a hostile work environment claim. But
in Morgan, the Supreme Court recently reaffirmed that “[t]he
phrase ‘terms, conditions, or privileges of employment’ [of 42
U.S.C. § 2000e-2(a)(1)] evinces a congressional intent ‘to strike
at the entire spectrum of disparate treatment of men and
women’ in employment, which includes requiring people to
work in a discriminatorily hostile or abusive environment.” 536
U.S. at 116 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
21 (1993) (internal quotations omitted)). Given this context, the
Supreme Court explained that it is appropriate to consider any
timely incident, even where there is a significant time gap
between that incident and prior allegations, “so long as each act
is part of the whole.” Id. at 118. The five courts of appeals that
have considered this issue agree that employee absence does not
bar consideration of work-related incidents as part of a hostile
environment claim.3 As the Eighth Circuit held in Jensen v.

3
See Holmes v. Utah, Dep’t of Workforce Servs., 483 F.3d
1057, 1063-65 (10th Cir. 2007); Richards v. Dep’t of the Army, 2007
WL 579549, at *3 (6th Cir. Feb. 15, 2007) (unpublished per curiam);
Bray v. Pharmacia Corp./Pfizer, Inc., 231 F. App’x 132, 135 (3d Cir.
2007) (unpublished); Duncan v. Mgr., Dep’t of Safety, 397 F.3d 1300,
1309-10 (10th Cir. 2005); Jensen v. Henderson, 315 F.3d 854, 861-62
 10

Henderson, 315 F.3d 854, 861-62 (8th Cir. 2002), a hostile
work environment “can be a continuing violation even though
the employee is not working” where the employee claims her
employer drove her out of the workplace due to harassment and
“she has received no indication that the environment of
harassment has changed.”

We join our sister circuits in rejecting a per se rule against
considering incidents alleged to have occurred while an
employee was physically absent from the workplace. There are
various ways in which a hostile environment may extend
beyond the physical workplace, and thus contribute to and form
part of a hostile environment claim. For example, harassment
and hostile incidents may occur by telephone or in person
during an employee’s communication with her employer while
she is not working or away from the office. See, e.g., Richards
v. Dep’t of the Army, 2007 WL 579549, at *3 (6th Cir. Feb. 15,
2007) (unpublished per curiam). When an employee claims
that her “inability to return to work resulted from the
[employer’s] ill treatment of her,” the Eighth Circuit observed,
communications while on leave may form an essential part of
a hostile environment claim. Jensen, 315 F.3d at 861-62. A per
se rule barring consideration of incidents during a workplace
absence would provide an employer with a perverse incentive
to place on leave an employee for whom it had created a hostile
environment in order to insulate itself from liability. As the
Second Circuit observed, there should be no reward for an
employer “who sought to rid [the worksite]” of certain
employees on the basis of sex or race, by driving them to take
leave, or otherwise escape from the workplace. Cornwell v.
Robinson, 23 F.3d 694, 704 (2d Cir. 1994). Just as an

(8th Cir. 2002); Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir.
1994); cf. Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 439-
40 (1st Cir. 1997).
 11

employer’s positive attempts to cure a hostile environment
during an employee’s absence may protect the employer from
liability, any negative actions the employer takes during the
absence should be considered. See, e.g., Tutman v. WBBM-TV,
Inc./CBS, Inc., 209 F.3d 1044, 1049 (7th Cir. 2000).

It remains for Greer to demonstrate that the post-1994
incidents for which she claims she has exhausted her
administrative remedies are sufficiently linked to the pre-1994
incidents. Although we hold that there is no per se rule against
considering incidents while an employee is out of the
workplace, this does not mean that all incidents are
automatically linked. The Supreme Court has instructed that “if
[the sole timely act] had no relation to the acts [from the earlier
period], or for some other reason, such as certain intervening
action by the employer, was no longer part of the same hostile
environment claim, then the employee cannot recover.”
Morgan, 536 U.S. at 118; see also Vickers, 493 F.3d at 199;
Alfano v. Costello, 294 F.3d 365, 377-78 (2d Cir. 2002). It is
true that the persistence of racial harassment at the time Greer
was scheduled to return to the IRS could defeat summary
judgment. Faragher v. City of Boca Raton, 524 U.S. 775, 787-
88 (1998) (quoting Harris, 510 U.S. at 23); see also Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (citing
Harris, 510 U.S. at 23). But the court cannot infer such
persistence after the passage of time, particularly as the
employer has presented evidence of “intervening action,”
Morgan, 536 U.S. at 118.4 In view of the modifications to her

4
Because Greer has alleged that incidents contributing to her
claim occurred within the relevant time period and because her
employer has responded by presenting evidence of “intervening
action” that changed the prior work environment, the court has no
occasion to address whether the fact of her continued employment
alone would have made her claim timely, i.e., the failure-to-remedy
 12

workplace and her absence for 16 months it was Greer’s burden
as the non-moving party to “go beyond the pleadings” to proffer
such evidence and “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)); D.D.C. R. 56.1
(formerly Local Rule 108(h)); see also Burke v. Gould, 286
F.3d 513, 517-18 (D.C. Cir. 2002); Jackson v. Finnegan,
Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151
(D.C. Cir. 1996).

In an attempt to demonstrate continuity between pre- and
post-1994 incidents, Greer presented evidence that Carter made
comments of a similar character to racial incidents she claims
to have encountered at the IRS during the period before January
1994. In her deposition, Greer claims: that Carter told her union
representative that she had an illicit relationship with the
director of the Office of National Drug Control Policy; that
Carter suggested this alleged relationship was responsible for
her White House assignment; and that Carter’s comments
reflected the hostile attitude that African Americans were
“amoral” and did not advance on the basis of merit. Greer Dep.
87 (Nov. 17, 2004); see also Greer Aff. 9 (undated). To survive
summary judgment the non-moving party must “produce
evidence . . . capable of being converted into admissible
evidence.” Gleklen v. Democratic Cong. Campaign Comm.,
199 F.3d 1365, 1369 (D.C. Cir. 2000) (citing Celotex Corp., 477
U.S. at 324); FED. R. CIV. P. 56(e). Because Greer’s evidence
about Carter’s statement is “sheer hearsay,” it “counts for
nothing” on summary judgment. Gleklen, 199 F.3d at 1369.
Although Greer may have suffered harm by her union
representative reporting what Carter supposedly said, evidence
of her subjective harm is not the same as evidence of Carter

rationale. To the extent that other courts of appeals may have spoken
on this question, we express no opinion.
 13

making a hostile comment and does not raise an inference that
her employer took discriminatory action contributing to a
hostile work environment. Greer also could not rely on the
testimony of her union representative. In his affidavit, Greer’s
union representative stated that he did not recall Carter making
the alleged statement, but instead remembered Carter saying
that Greer “may have known someone” because he (Carter) did
not arrange for her temporary work assignment at the White
House. See Pollard Aff. (undated), Appellee’s Br. Add. The
union representative’s affidavit raises no inference of employer
animus or action contributing to a hostile environment.

The only admissible evidence of post-1994 incidents —
the denial of leave and the requirement to return to work after
her White House assignment — fails to show that these
incidents form “part of the same actionable hostile work
environment practice” as the alleged pre-1994 incidents. See
Morgan, 536 U.S. at 120; see id. at 117. Not only did Greer’s
new supervisor (Carter) advise her by letter of May 1, 1995 that
upon her return to work they could “discuss arrangements for
leave and assess the workload impact of [her] leave,” but there
are also two sets of intervening events — one by Greer’s
employer, in assigning her to a new supervisor and new branch
as part of a reorganization of her entire division, and one by
Greer, in refusing to return to work. The IRS’s “intervening
action,” Morgan, 536 U.S. at 118, in reassigning Greer within
a newly reorganized workplace is more than a “routine
personnel action[],” Vickers, 493 F.3d at 199, such as a
retirement or a promotion.

In response to the “intervening action” proffered by the
IRS, Greer has presented no evidence from which a reasonable
jury could infer that her new supervisor was “perpetuating” or
“condoning,” id., a racially hostile environment allegedly
created by a previous supervisor in her former branch. Absent
 14

such a showing, the May 1995 denial of Greer’s leave requests
and the requirement that Greer return to work are too
“obviously different” from the earlier alleged racial harassment
incidents to form “part of the same hostile work environment”
claim, id. These incidents are not of the same character, for
example, as the showing in Vickers where an objectionable
supervisor retired but “nothing in the record . . . show[ed] that
[the] succession was in any way intended to address the [prior]
environment” and instead there was evidence “that her
harassment intensified after the change in management.” Id. at
199-200. A facially neutral leave or transfer decision may
sometimes form part of a hostile environment claim where an
employee can show it contributed to the hostile workplace, see,
e.g., id. at 198-200, but the ordinary supervisory actions here do
not raise an inference that the pre-1994 hostile environment
continued during Greer’s absence, see, e.g., Alfano, 294 F.3d at
377.

Although Greer does aver that she was assigned to an office
with two white men who she claims had contributed to the
racially hostile environment in the past, she does not assert that
any of her supervisors had denied a request to place her in a
different office within Carter’s group. It is telling that,
according to Greer, the Assistant IRS Commissioner
(McGovern) had “stated in a recent grievance response” that
“Carter was a new Branch Chief; in charge of a new branch; had
no prior history with Ms. Greer; needed technical employees;
and was willing to establish a working relationship with Ms.
Greer on a clean slate.” Greer Aff. 10 (undated) (emphasis
omitted). Greer thus pointed to no evidence suggesting that her
work environment would not have been remedied if she had
returned to the workplace and sought redress there from a new
supervisor for whom she had not previously worked.

Because Greer has proffered no admissible evidence of a
 15

sufficient link between the pre- and post-1994 incidents, she has
failed to raise a genuine issue that she exhausted administrative
remedies for this claim and thus summary judgment was
appropriately granted to the Secretary.

III.

There are two elements to Greer’s race discrimination
claim: the termination of her employment and the AWOL
designation. On neither element has she shown that summary
judgment was inappropriately granted.

First, Greer has failed to show that she exhausted the
termination claim because she offered no evidence that she had
met with an EEO counselor within 45 days of the termination of
her employment. See 29 C.F.R. § 1614.105(a)(1). Nor has she
presented any basis for equitable tolling of the 45-day period.5
By contrast, the Secretary timely proffered an EEO Counseling
Report suggesting that the claimed meeting did not occur.
Hence, the Secretary was entitled to summary judgment on this
claim. Although Greer attempted to show exhaustion upon
moving for reconsideration of the grant of summary judgment,
Federal Rule of Civil Procedure 60(b) does not afford her an
opportunity to retry her case, see Smalls v. United States, 471
F.3d 186, 191 (D.C. Cir. 2006), and she is not in a position to
show that the tardy affidavits by herself and a colleague were
previously unavailable. Greer’s contention that her
post-judgment affidavit was sufficient to rebut the Secretary’s
evidence of her failure to exhaust administrative options is
untimely. Moreover, the affidavits do not identify the EEO

5
See 29 C.F.R. § 1614.105(a)(2); Harris v. Gonzales, 488
F.3d 442, 444 (D.C. Cir. 2007); Stewart v. Ashcroft, 352 F.3d
422, 425 (D.C. Cir. 2003).
 16

counselor by name or provide other specific facts relevant to
showing that such a meeting in fact occurred. Even if
independent corroborating evidence would have been
unnecessary had Greer proffered the affidavits before the grant
of summary judgment, it was within the district court’s
discretion to require this afterwards. Consequently, had Greer
appealed the denial of her motion for reconsideration, which she
has not, there would be no basis for the court to conclude that
summary judgment had been inappropriately granted on the
termination claim. Cf. id.

Second, Greer failed to meet her burden on the AWOL
designation, albeit not for failure to exhaust or the reasons
provided by the district court. The district court found that
Greer, as a member of a protected class alleging that similarly
situated white employees were given preferential treatment
regarding leave decisions, has met the first two elements needed
for a race discrimination claim. See Holbrook v. Reno, 196 F.3d
255, 261 (D.C. Cir. 1999) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). The district court, however,
ruled that Greer failed to state a prima facie case because she
had not shown that either the AWOL time later adjusted (from
May 1 through September 26, 1995) or the time not adjusted
(from October 1, 1995 through the termination of Greer’s
employment on August 13, 1996) was an adverse personnel
action. In the district court’s view, the conversion of Greer’s
pre-September 26, 1995 AWOL time to sick leave and LWOP
would prevent a reasonable juror from finding this period of
time was an adverse action; the non-converted AWOL time
could not qualify because a leave denial was not an “objectively
tangible harm” and Greer was compensated for the annual leave
her employer refused to let her use. The district court’s ruling
was a legal error because a diminution in pay or benefits can
suffice even when the employer later provides back pay.
 17

Greer’s employer classified her placement on AWOL as an
adverse action, which could be the basis of further sanctions, as
occurred here. Also, after the adjustment of her leave in the
initial period, she remained on LWOP for a part of that time.
Hence, the adjusted as well as the unadjusted AWOL-
designated periods (except for the days she served on the grand
jury) were “adverse.” See Brown v. Brody, 199 F.3d 446, 457
(D.C. Cir. 1999); see also Czekalski, 475 F.3d at 365; Broderick
v. Donaldson, 437 F.3d 1226, 1233 (D.C. Cir. 2006). As the
Supreme Court recently observed in Burlington Northern &
Santa Fe Railway Co. v. White, 126 S. Ct. 2405, 2417-18 (June
22, 2006), a suspension without pay, even where an employer
later provided back pay, could be “a serious hardship” to a
reasonable employee, and thus “materially adverse.” Greer
proffered her testimony on the serious hardship she experienced
as a result of her AWOL status and a letter regarding personal
bankruptcy and two real estate foreclosures of her rental
properties in August 1996 and February 2000. Her affidavit
lists among her damages for compensation money borrowed for
education and therapy for her disabled child. She also avers that
the LWOP and AWOL designations remained negative marks
on her employment record, adversely affecting her receipt of
employment benefits and potentially jeopardizing her future
employment opportunities. Because Greer presented evidence
raising a genuine issue that she experienced a demonstrable
“effect” involving “objectively tangible harm,” Brown, 199 F.3d
at 455, 457, she has met the test for adverse action and thus has
stated a prima facie claim of race discrimination.

In moving for summary judgment, however, the Secretary
presented legitimate non-discriminatory reasons for the AWOL
designation. “After the employer offers a non-discriminatory
justification for its actions, the McDonnell Douglas [411 U.S.
792 (1973)] framework falls away, and [the court] must
determine whether a reasonable jury . . . ‘could infer
 18

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.” Vickers, 493 F.3d at 195 (quoting Aka v. Wash.
Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998)). Greer has
failed to proffer evidence that would raise a genuine issue
regarding the Secretary’s legitimate non-discriminatory reasons
for the AWOL designation. See Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148-49 (2000); Czekalski, 475 F.3d
at 366. The IRS gave two reasons for the initial AWOL
designation: Greer’s skills were needed to handle the office
workload in her new assignment and she had failed to discuss
her leave request prior to the first day she was due to return
from her White House assignment. Greer has presented no
evidence to dispute the workload justification or to explain,
other than hinting that work was hectic in the White House
Executive Office, why she failed to follow IRS procedures for
requesting leave time in advance. The IRS offered two
additional reasons for refusing to rescind Greer’s AWOL
designation in May 1996: the fact that Greer was medically
cleared to return to work but never did, and the concern that she
owed money to the government for grand jury service she did
not render, for which annual leave would be used to reimburse
the government. Greer’s attempts to rebut these defenses also
fail.

First, Greer sought to show that the Secretary’s claim that
she was medically cleared to return to work was false. Her
evidence consisted of her doctor’s notes and her deposition.
The first note from her doctor stated that Greer was under his
care from May 9 through July 28, 1995, for “a stress related
condition which appears to be in response to difficulties
experienced in her work environment.” Note by Henry W.
Dove, M.D., Arlington Psychiatric Group, P.C. (July 28, 1995).
 19

A second note from her doctor stated that Greer was “cleared
for return to duty as of 9-26[-95] preferably in a position
removed from current work environment.” Note by Henry W.
Dove, M.D., Arlington Psychiatric Group, P.C. (Sept. 26, 1995).
Although Greer interprets her doctor’s notes to include a
condition precedent that she be transferred, the notes only
recommended that “Greer seek a new work assignment” (July
1995) and stated an opinion that “Greer’s best health interest
would be served by transfer [to a] work environment with less
stress” (Sept. 1995). Thus, Greer has raised no genuine issue
regarding her ability to return to work as of September 26, 1995
or presented evidence from which a reasonable juror could infer
that her employer could not “reasonably believ[e]” that she was
cleared to return. See Gleklen, 199 F.3d at 1369; see also
Fischbach v. Dist. of Columbia Dep’t of Corr., 86 F.3d 1180,
1183 (D.C. Cir. 1996).

Second, Greer sought to show that the IRS’s concern that
she owed money to the government for grand jury service
between December 1995 and May 1996 was false. Greer does
not contest that she received compensation to which she was not
entitled for days she did not serve on the grand jury, but rather
avers that she committed no wrongdoing by failing to inform
her employer when the grand jury did not meet because she was
unaware she needed to do so. See Greer Dep. 25-32 (Dec. 9,
2004). This explanation is belied by a letter from the district
court that Greer herself submitted to Carter, Owens and
McGovern in December 1995. The letter stated that “[i]t is the
juror’s responsibility to deliver th[e] certificate [sent monthly
by the court to the juror’s address] to their place of employment
for verification of dates of attendance at the Court.” Letter from
U.S. Dist. Ct. for the Dist. of Columbia (Dec. 8, 1995). Greer
does aver that she was unaware the overpayments continued
until May 1996 and that when she became aware she wrote a
second letter expressing her desire to repay the government and
 20

requesting an accounting. The grand jury overpayment was not
resolved until December 1996. The record suggests a
regrettable series of apparent miscommunications, particularly
in the period between Greer’s first and second letters, but there
is no evidence from which a reasonable juror could infer that
the IRS’s citing of Greer’s acceptance of overpayment as a
reason for the AWOL designation was motivated by racial
animus and hence pretextual, particularly in the absence of
evidence that the IRS could not “reasonably believe[]” that
Greer had accepted government funds for grand jury service she
did not render. See Gleklen, 199 F.3d at 1369.

Third, Greer sought to show that the failure of her
supervisors (Owens and Carter) to follow regular IRS personnel
procedures was pretextual. Although an employer’s violation
of its own procedures can be evidence of pretext, see, e.g.,
Jones v. Wash. Metro. Area Transit Auth., 205 F.3d 428, 434
(D.C. Cir. 2000), Greer admitted in her deposition that Carter’s
failure to inform her of promotion opportunities during her
White House assignment was not a race-based grievance. See
Greer Dep. 102 (Nov. 17, 2004). Her testimony that Carter and
his secretary submitted attendance records without her
knowledge in October 1995 does not raise a genuine issue of
whether the IRS failed to follow procedures during her absence
from work because she identifies no regulation that they
violated. Even if she had, it is doubtful that these incidents
would give rise to an inference of racial discrimination
sufficient to rebut the Secretary’s legitimate reasons for the
AWOL designation. See, e.g., Fischbach, 86 F.3d at 1183
(citing Johnson v. Lehman, 679 F.2d 918, 922 (D.C. Cir. 1982));
Alfano, 294 F.3d at 377-78. Greer does point to IRS policy in
contending that Owens’ termination of her employment while
an EEO complaint was pending against him violated the
requirement of an “impartial” decisionmaker. See INTERNAL
REVENUE MANUAL § 0752.43(12)(4) (1994). But Greer’s
 21

counsel conceded during oral argument that he was “not sure
that the record reflects that [Owens was involved in the AWOL
designation].” Oral Arg. Tape (Sept. 17, 2007) at 27:23.1.

For these reasons, Greer’s assertion that she could not
return to work due to “a blatantly hostile environment”
(Appellant’s Br. at 11), cannot prevent the grant of summary
judgment on the AWOL designation. Absent evidence to rebut
her employer’s legitimate non-discriminatory reasons for the
designation, the evidence of race-based incidents prior to 1994
is insufficient to demonstrate that summary judgment was
inappropriately granted. See, e.g., Czekalski, 475 F.3d at 366-
68 (citing Aka, 156 F.3d at 1288-89); Barbour v. Merrill, 48
F.3d 1270, 1277 (D.C. Cir. 1995). Even assuming Greer’s pro
se complaint alleged a form of constructive discharge through
involuntary leave, she has proffered no evidence of the requisite
“aggravating factors,” Mungin v. Katten Muchin & Zavis, 116
F.3d 1549, 1558 (D.C. Cir. 1997) (citing Clark v. Marsh, 665
F.2d 1168, 1174 (D.C. Cir. 1981)), and failed to exhaust her
hostile work environment claim. Consequently, Greer has
failed to raise a genuine issue of a “graver claim,” Pa. State
Police v. Suders, 542 U.S. 129, 149 (2004) (emphasis omitted),
that racial discrimination made “working conditions so
intolerable that a reasonable person would have felt compelled
to resign,” id. at 147, or as here, to go on unauthorized leave
rather than return to work and seek redress there.

Accordingly, we affirm the grant of summary judgment.