United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 2007 Decided March 28, 2008
No. 06-5362
STANDLEY BRADY,
APPELLANT
v.
OFFICE OF THE SERGEANT AT ARMS, UNITED STATES HOUSE
OF REPRESENTATIVES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 02cv00802)
Lenore C. Garon argued the cause for appellant. With
her on the briefs were Joseph D. Gebhardt and Charles W.
Day, Jr.
Victoria L. Botvin, Attorney, Office of House
Employment Counsel, argued the cause for appellee. With
her on the brief was Gloria J. Lett, Attorney, Office of House
Employment Counsel.
Before: GINSBURG and KAVANAUGH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: Seeking to punish and deter
sexual harassment, the U.S. House Office of the Sergeant at
Arms demoted Brady, a supervisor within the office, because
it concluded that Brady grabbed his crotch in front of three
employees. Brady sued under federal anti-discrimination
laws, contending that he was demoted because of his race.
The District Court granted summary judgment to the Sergeant
at Arms on the ground that Brady had not made out a prima
facie case of racial discrimination. In the alternative, the
District Court ruled that Brady failed to present evidence
sufficient for a reasonable jury to find that the Sergeant at
Arms’ stated reason for demoting Brady was not the actual
reason and that the Sergeant at Arms intentionally
discriminated against Brady on account of his race. We
affirm based on that alternative ground. In doing so, we
emphasize that the question whether the plaintiff in a
disparate-treatment discrimination suit actually made out a
prima facie case is almost always irrelevant when the district
court considers an employer’s motion for summary judgment
or judgment as a matter of law. See St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 514-15 (1993); U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 714-16 (1983).
I
Brady worked as an assistant shift supervisor in House
Garages & Parking Security, an entity within the Office of the
Sergeant at Arms of the U.S. House of Representatives. In
early 2001, two employees – one man and one woman –
accused Brady of improper behavior in the workplace. They
alleged that Brady grabbed his crotch in front of the two of
them and another female employee. After learning of the
3
incident, House Sergeant at Arms Wilson Livingood asked
two supervisors to investigate. In the ensuing internal
investigation, the two accusers claimed that Brady grabbed
his crotch while discussing his need to use the restroom. The
other employee who was present initially refused to discuss
the incident, saying she did not want to be involved. After
being required to give a statement, she said that Brady did not
“present any offensive actions towards [her].” Joint
Appendix (“J.A.”) 214. She explained that Brady had acted
“in a very joking manner,” but she did not deny that Brady
had grabbed his crotch in the way described by the other two
employees. Id.
The two investigating supervisors found that the crotch-
grabbing incident had likely occurred and that Brady violated
the office’s sexual harassment policy. One supervisor
recommended demoting Brady. The other recommended
firing him. Sergeant at Arms Livingood then determined that
Brady “might have done it jokingly, but . . . even in a joking
manner, it offended two of his employees.” Livingood
Deposition Transcript (Nov. 10, 2005), J.A. 92. Particularly
because Brady was a supervisor, Livingood concluded that
“some action needed to be taken.” Id. Livingood demoted
Brady but did not fire him.
Brady asked Livingood to reconsider his decision.
Livingood agreed to do so and hired a Washington, D.C., law
firm to investigate. The law firm reviewed documents
produced during the original investigation and interviewed 13
current and former employees. The firm concluded that it
was “likely that an incident occurred that was most accurately
described” by Brady’s two initial accusers. Relman Report
(June 28, 2001), J.A. 199. After receiving the law firm’s
report, Livingood affirmed Brady’s demotion.
4
Brady sued, alleging racial discrimination in violation of
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2, a law
that applies to offices in the Legislative Branch as a result of
the Congressional Accountability Act, 2 U.S.C. §§ 1302(a),
1311(a). The District Court granted summary judgment to the
Office of the Sergeant at Arms, finding that Brady failed to
make out a prima facie case of racial discrimination because
he could not show that a similarly situated employee outside
his racial group was treated differently. Brady v. Livingood,
456 F. Supp. 2d 1, 7-8 (D.D.C. 2006). In the alternative, the
District Court stated that “even if plaintiff were able to
establish a prima facie case of discrimination, defendant’s
Motion for Summary Judgment would still be granted because
defendant’s personnel actions were in fact undertaken for
legitimate, non-discriminatory reasons.” Id. at 9 n.9.
Brady appeals; our review of the summary judgment is de
novo.
II
Title VII of the Civil Rights Act makes it unlawful for an
employer to “fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a)(1). This statutory text establishes two elements for an
employment discrimination case: (i) the plaintiff suffered an
adverse employment action (ii) because of the employee’s
race, color, religion, sex, or national origin.
The District Court concluded that Brady had not made
out a “prima facie case” under McDonnell Douglas Corp. v.
5
Green, 411 U.S. 792 (1973).1 The court’s focus on the prima
facie case was not atypical: When resolving an employer’s
motion for summary judgment or judgment as a matter of law
in employment discrimination cases, district courts often
wrestle with the question whether the employee made out a
prima facie case.
But judicial inquiry into the prima facie case is usually
misplaced. In the years since McDonnell Douglas, the
1
In a refusal-to-hire or refusal-to-promote discrimination case,
the McDonnell Douglas prima facie factors are that: (i) the
employee “belongs to a racial minority” or other protected class;
(ii) the employee “applied and was qualified for a job for which the
employer was seeking applicants”; (iii) despite the employee’s
qualifications, the employee “was rejected”; and (iv) after the
rejection, “the position remained open and the employer continued
to seek applicants from persons of complainant’s qualifications.”
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). In
firing, demotion, or other adverse-action cases, the factors
sometimes have been articulated as: (i) the employee belongs to a
protected class; (ii) the employee was still qualified for the position;
(iii) despite still being qualified, the employee was fired, demoted,
or otherwise adversely acted upon; and (iv) if the employee was
removed, either someone else filled the position or the employer
sought other applicants. See Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000). Some of our decisions have
allowed or required plaintiffs to present other evidence to satisfy
the test and occasionally phrased the test more generally to require
evidence that “the unfavorable action gives rise to an inference of
discrimination.” Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir.
1999); see also Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir.
2007); George v. Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005).
Disagreement and uncertainty over the content, meaning, and
purpose of the McDonnell Douglas prima facie factors have led to a
plethora of problems; as we underscore today, however, the factors
are usually irrelevant.
6
Supreme Court’s decisions have clarified that the question
whether the employee made out a prima facie case is almost
always irrelevant. At the motion to dismiss stage, the district
court cannot throw out a complaint even if the plaintiff did
not plead the elements of a prima facie case. Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 510-11 (2002). And by the time
the district court considers an employer’s motion for summary
judgment or judgment as a matter of law, the employer
ordinarily will have asserted a legitimate, non-discriminatory
reason for the challenged decision – for example, through a
declaration, deposition, or other testimony from the
employer’s decisionmaker. That’s important because once
the employer asserts a legitimate, non-discriminatory reason,
the question whether the employee actually made out a prima
facie case is “no longer relevant” and thus “disappear[s]” and
“drops out of the picture.” St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 510, 511 (1993); Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). As the
Supreme Court explained a generation ago in Aikens: “Where
the defendant has done everything that would be required of
him if the plaintiff had properly made out a prima facie case,
whether the plaintiff really did so is no longer relevant. The
district court has before it all the evidence it needs to decide
whether the defendant intentionally discriminated against the
plaintiff.” U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 715 (1983) (internal quotation marks omitted). The
Aikens principle applies, moreover, to summary judgment as
well as trial proceedings. See Dunaway v. Int’l Bhd. of
Teamsters, 310 F.3d 758, 762 (D.C. Cir. 2002); Wells v.
Colorado Dep’t of Transp., 325 F.3d 1205, 1227-28 (10th
Cir. 2003) (Hartz, J., concurring); see also Vickers v. Powell,
493 F.3d 186, 195 (D.C. Cir. 2007); Holcomb v. Powell, 433
F.3d 889, 896-97 (D.C. Cir. 2006); George v. Leavitt, 407
F.3d 405, 411-12 (D.C. Cir. 2005); Aka v. Washington Hosp.
Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc).
7
Much ink has been spilled regarding the proper contours
of the prima-facie-case aspect of McDonnell Douglas. But as
we read the Supreme Court precedents beginning with Aikens,
the prima facie case is a largely unnecessary sideshow. It has
not benefited employees or employers; nor has it simplified or
expedited court proceedings. In fact, it has done exactly the
opposite, spawning enormous confusion and wasting litigant
and judicial resources.
Lest there be any lingering uncertainty, we state the rule
clearly: In a Title VII disparate-treatment suit where an
employee has suffered an adverse employment action and an
employer has asserted a legitimate, non-discriminatory reason
for the decision, the district court need not – and should not –
decide whether the plaintiff actually made out a prima facie
case under McDonnell Douglas. Rather, in considering an
employer’s motion for summary judgment or judgment as a
matter of law in those circumstances, the district court must
resolve one central question: Has the employee produced
sufficient evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory reason was not the
actual reason and that the employer intentionally
discriminated against the employee on the basis of race, color,
religion, sex, or national origin? See Hicks, 509 U.S. at 507-
08, 511; Aikens, 460 U.S. at 714-16.2
2
For those rare situations where it still matters whether the
employee made out a prima facie case – namely, those cases in
which the defendant does not assert any legitimate, non-
discriminatory reason for the decision – establishing a prima face
case is “not onerous.” Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). For example, to make out a
prima facie case, a plaintiff need not demonstrate that he or she was
treated differently from a similarly situated employee or that the
position was filled by a person outside the plaintiff’s group. See
O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312-13
8
III
In this case, the employer Sergeant at Arms asserted a
legitimate, non-discriminatory reason for the adverse
employment action – namely, that Brady committed sexual
harassment. Under Aikens and related Supreme Court
precedents, the question whether Brady actually made out a
prima facie case is therefore irrelevant. So we turn directly to
the central issue: whether Brady produced evidence sufficient
for a reasonable jury to find that the employer’s stated reason
was not the actual reason and that the employer intentionally
discriminated against Brady based on his race. When
determining whether summary judgment or judgment as a
matter of law is warranted for the employer, the court
considers all relevant evidence presented by the plaintiff and
defendant. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 148-49 (2000); see also Czekalski v. Peters,
475 F.3d 360, 364 (D.C. Cir. 2007); Aka v. Washington Hosp.
Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc).
The employer produced deposition testimony from its
decisionmaker Livingood that Brady was demoted because he
grabbed his crotch in front of three other employees. The
employer submitted additional supporting evidence: that two
employees saw and complained about the incident; that the
(1996); Wiley v. Glassman, 511 F.3d 151, 156 (D.C. Cir. 2007);
Czekalski, 475 F.3d at 365-66; Mastro v. Potomac Elec. Power Co.,
447 F.3d 843, 850-51 (D.C. Cir. 2006); Chappell-Johnson v.
Powell, 440 F.3d 484, 488 (D.C. Cir. 2006); George, 407 F.3d at
412-13; Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1150-51
(D.C. Cir. 2004); Dunaway v. Int’l Bhd. of Teamsters, 310 F.3d
758, 762-63 (D.C. Cir. 2002); Stella v. Mineta, 284 F.3d 135, 145-
46 (D.C. Cir. 2002). Rather, such evidence (or the lack of such
evidence) may be relevant to the determination at summary
judgment or trial whether intentional discrimination occurred.
9
initially reluctant third witness did not deny that Brady had
grabbed his crotch; that the incident was thoroughly and
independently investigated; and that Brady’s actions violated
the office’s sexual harassment policy.
A plaintiff such as Brady may try in multiple ways to
show that the employer’s stated reason for the employment
action was not the actual reason (in other words, was a
pretext). Often, the employee attempts to produce evidence
suggesting that the employer treated other employees of a
different race, color, religion, sex, or national origin more
favorably in the same factual circumstances. See 1 LEX K.
LARSON, EMPLOYMENT DISCRIMINATION § 8.04, at 8-66 (2d
ed. 2007) (“Probably the most commonly employed method
of demonstrating that an employer’s explanation is pretextual
is to show that similarly situated persons of a different race or
sex received more favorable treatment.”); 1 BARBARA
LINDEMANN & PAUL GROSSMAN, EMPLOYMENT
DISCRIMINATION LAW 73 (4th ed. 2007) (“In most cases the
key to proving pretext is comparative evidence.”).
Alternatively, the employee may attempt to demonstrate that
the employer is making up or lying about the underlying facts
that formed the predicate for the employment decision. If the
employer’s stated belief about the underlying facts is
reasonable in light of the evidence, however, there ordinarily
is no basis for permitting a jury to conclude that the employer
is lying about the underlying facts. See George v. Leavitt, 407
F.3d 405, 415 (D.C. Cir. 2005) (“[A]n employer’s action may
be justified by a reasonable belief in the validity of the reason
given even though that reason may turn out to be false.”);
Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C.
Cir. 1996) (employer prevails if it “honestly believes in the
reasons it offers”); 1 LARSON § 8.04, at 8-73 (“[A]n
employer’s action may be based on a good faith belief, even
10
though the reason may turn out in retrospect to be mistaken or
false.”).3
Brady’s only argument for discrediting the employer’s
asserted non-discriminatory reason is his contention that the
underlying sexual harassment incident never occurred; he
raises the specter that the original accusers were racially
motivated and made up the incident. Brady further says it’s
the jury’s job to decide factual and credibility questions of
this kind. But Brady misunderstands the relevant factual
issue. The question is not whether the underlying sexual
harassment incident occurred; rather, the issue is whether the
employer honestly and reasonably believed that the
underlying sexual harassment incident occurred. See George,
407 F.3d at 415; Fischbach, 86 F.3d at 1183. Brady himself
acknowledges that Livingood believed the incident occurred.
See Brady Deposition Transcript, J.A. 70 (“Q: Is it your
understanding that Mr. Livingood believed that you grabbed
yourself? A: Yes.”). Although Brady asserts that the
accusations and ensuing investigation were racially tainted
and the incident did not occur, he did not produce evidence
sufficient to show that the Sergeant at Arms’ conclusion was
dishonest or unreasonable. Cf. Mastro v. Potomac Elec.
Power Co., 447 F.3d 843, 855-57 (D.C. Cir. 2006).
3
Employees often try to cast doubt on an employer’s asserted
reason in other ways as well, such as pointing to: changes and
inconsistencies in the stated reasons for the adverse action; the
employer’s failure to follow established procedures or criteria; the
employer’s general treatment of minority employees; or
discriminatory statements by the decisionmaker. See 1 LARSON
§ 8.04, at 8-74 to -75; 1 LINDEMANN & GROSSMAN at 89;
1 ABIGAIL COOLEY MODJESKA, EMPLOYMENT DISCRIMINATION
LAW § 1.9, at 1-134 to -39 (3d ed. 2007).
11
Therefore, summary judgment for the Sergeant at Arms was
proper. 4
Allowing Brady to end-run summary judgment in these
circumstances would create significant practical problems.
Employers obviously have to resolve factual disagreements
all the time in order to make employment decisions regarding
hiring, promotion, discipline, demotion, firing, and the like.
In many situations, employers must decide disputes based on
credibility assessments, circumstantial evidence, and
incomplete information. But Brady’s argument would mean
that every employee who is disciplined, demoted, or fired for
alleged misconduct could sue for employment discrimination
based on race, color, religion, sex, or national origin and –
merely by denying the underlying allegation of misconduct –
automatically obtain a jury trial. Brady cites no support for
that proposition, which would wreak havoc on district courts’
orderly resolution of employment discrimination cases and
improperly put employers in a damned-if-you-do, damned-if-
you-don’t posture when addressing disciplinary issues in the
workplace.
Brady also implies that the Office of the Sergeant at
Arms overreacted and adopted a hair-trigger approach to the
reported incident. But many employers today aggressively
react to sexual harassment allegations; an employer does not
engage in discrimination on the basis of race by strictly and
uniformly enforcing a policy against any remote hint or
4
Even if Brady showed that the sexual harassment incident
was not the actual reason for his demotion, he still would have to
demonstrate that the actual reason was a racially discriminatory
reason. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 514
(1993). Of course, discrediting an employer’s asserted reason is
often quite probative of discrimination. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).
12
suggestion of sexual harassment in the workplace. It is not
the Judiciary’s place to micro-manage an employer’s sexual
harassment policies when resolving a claim of racial
discrimination. As the Supreme Court has stated, “[c]ourts
are generally less competent than employers to restructure
business practices, and unless mandated to do so by Congress
they should not attempt it.” Furnco Constr. Corp. v. Waters,
438 U.S. 567, 578 (1978).
In sum, the Office of the Sergeant at Arms produced
evidence of a legitimate, non-discriminatory reason for
Brady’s demotion: that Brady engaged in sexual harassment
in the workplace in violation of office policy. Brady failed to
put forward sufficient evidence for a reasonable jury to find
that the employer’s legitimate, non-discriminatory reason was
not the actual reason and that the employer intentionally
discriminated against him on the basis of race.
***
We affirm the judgment of the District Court granting
summary judgment to the Office of the Sergeant at Arms.
So ordered.